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Agreement
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AGREEMENT, dated as of December 18, 2003 (this "Agreement"),
among MEMORY PHARMACEUTICALS CORP., a Delaware corporation
(the "Company"), DR. ERIC KANDEL (the "Consultant") and the
other signatories hereto (the "Stockholders")
------------------------------------------------------------
A. The Consultant and the Company entered into a
Consulting Agreement dated as of April 1, 1998 (the "Original Consulting
Agreement"), which granted the Consultant certain rights to maintain a specified
percentage interest in the Company through the grant of options to purchase
shares of common stock, par value $.001, of the Company ("Common Stock").
B. The Consultant and the Company entered into an
Amendment to Consulting Agreement dated as of June 20, 2000, amending the
Original Consulting Agreement (as amended, the "Consulting Agreement") to
include an adjustment to the anti-dilution rights in the event of certain
dilutive issuances.
C. The Stockholders, the Consultant and the Company have
entered into a Fourth Amended and Restated Investor Rights Agreement dated as of
September 11, 2003, which included certain anti-dilution rights granted to the
Consultant (the "Investor Rights Agreement").
D. The Consultant and the Company entered into a Letter
Agreement dated as of April 23, 2002 (the "Letter Agreement"), in which the
Consultant waived certain of his anti-dilution rights with respect to the sale
by the Company of its Series D Convertible Preferred Stock in an amount in
excess of $40 million.
E. In consideration for the Consultant's entering into
the Letter Agreement, the application of the Adjustment Factor (as defined in
the Consulting Agreement and the Investor Rights Agreement) in respect of the
Company's issuance of Series D Convertible Preferred Stock, $.001 par value per
share (the "Series D Issuance") was waived.
F. Pursuant to the Consulting Agreement and the Investor
Rights Agreement, the Consultant has been granted options to purchase Common
Stock in the amounts, on the dates and at the exercise prices set forth below
("Existing Option Grants"), pursuant to the form of option agreement attached as
Exhibit A:
{PAGE}
{TABLE}
{CAPTION}
Number of Shares Exercise Price
Date of Grant of Common Stock per Share
----------------- ----------------- --------------
{S} {C} {C}
April 24, 1998 52,631 $0.10
July 22, 1998 5,263 $0.10
December 22, 1998 315,790 $0.18
February 24, 1999 7,525 $0.18
June 21, 2000 427,791 $0.25
August 1, 2000 99,000 $0.25
April 1, 2002 926,585 $0.25
---------
Total 1,834,585
=========
{/TABLE}
G. Certain terms of the Consulting Agreement, the Letter
Agreement and the Investor Rights Agreement are inconsistent with each other or
require clarification.
H. The Consultant and the Stockholders desire to correct
certain calculation errors and acknowledge and agree that the Consultant is
entitled to be granted an additional 275,180 options to purchase Common Stock at
an exercise price of $0.90 per share.
I. The Company, the Consultant and the Stockholders
desire to amend the Consulting Agreement and the Investor Rights Agreement to
clarify the understanding among such parties regarding Existing Option Grants
and any additional options to purchase Common Stock required to be granted to
the Consultant pursuant to the Consulting Agreement, as amended hereby.
In consideration of the premises and the mutual covenants and
agreements hereinafter contained the receipt and sufficiency of which is
acknowledged, the parties agree as follows:
1. Conflicts.
a. Except as specifically amended by this
Agreement, the Consulting Agreement remains in full force and effect. Wherever
the terms of this Agreement and the Consulting Agreement conflict, this
Agreement controls. All references in the Consulting Agreement to "this
Agreement" shall mean the Consulting Agreement, as amended hereby.
b. Except as specifically amended by this
Agreement, the Investor Rights Agreement remains in full force and effect.
Wherever the terms of this Agreement and the Investor Rights Agreement conflict,
this Agreement controls. All references in the Investor Rights Agreement to
"this Agreement" shall mean the Investor Rights Agreement, as amended hereby.
c. The Letter Agreement shall remain in full
force and effect.
2
{PAGE}
2. Amendments to the Consulting Agreement. The
Consulting Agreement is hereby amended as follows:
a. The number "thirty (30)" in Section 1.5 is
hereby deleted, and in lieu thereof, there is substituted the number "twenty
(20)".
b. Section 3(b) is hereby deleted in its
entirety and, in lieu thereof, there is substituted the following:
"(b)(i) As potential additional compensation for Consultant's
services pursuant to this Agreement, in the event that, at any
time during the term of this Agreement and until immediately
prior to the closing of a Qualified Initial Public Offering
(as defined in the Second Amended and Restated Certificate of
Incorporation of the Company, as amended from time to time,
the "Certificate of Incorporation"), the Company issues
additional shares of Common Stock or Common Stock Equivalents
(as defined below) in connection with a material equity
financing (excluding shares issued in a Qualified Initial
Public Offering) or a material strategic collaboration (each,
a "Dilutive Issuance"), the Company shall grant to Consultant
options to purchase a number of shares of Common Stock equal
to:
(Consultant's
(Pre-Dilutive Effective Percent
Issuance Shares + x Ownership x - Consultant's
Dilutive Issuance Adjustment Effective Share
Shares) Factor) Ownership
---------------------------------------------------------------
100% - (Consultant's Effective Percent Ownership x
Adjustment Factor)
where:
"Pre-Dilutive Issuance Shares" is the total number of
issued and outstanding shares of Common Stock and Common Stock
Equivalents of the Company immediately prior to the Dilutive
Issuance, calculated as if all such Common Stock Equivalents
had been fully converted into shares of Common Stock.
"Dilutive Issuance Shares" is the number of shares of
Common Stock and Common Stock Equivalents issued in the
Dilutive Issuance, calculated as if all such Common Stock
Equivalents had been fully converted into shares of Common
Stock.
3
{PAGE}
"Consultant's Effective Percent Ownership" is (x) for
the period beginning on the Effective Date of this Agreement
and ending immediately following the granting of options to
the Consultant on April 1, 2002, 5% and (y) from the period
beginning immediately following the granting of options to the
Consultant on April 1, 2002, (1) the Consultant's Effective
Share Ownership (as defined below) divided by (2) the total
number of issued and outstanding shares of Common Stock and
Common Stock Equivalents of the Company, calculated as if all
such Common Stock Equivalents had been fully converted into
shares of Common Stock.
"Adjustment Factor" is (x) if the consideration
(calculated in accordance with the Certificate of
Incorporation) paid per share for shares of Common Stock and
Common Stock Equivalents (on an as-converted basis) issued in
the Dilutive Issuance is greater than or equal to $2.50, as
adjusted for any stock split, stock dividend, combination,
reorganization, recapitalization or similar event involving a
change in the Common Stock (the "Effective Price"), 1 and (y)
if such consideration per share is less than the Effective
Price, (1)(a) Pre-Dilutive Issuance Shares plus (b) the total
consideration for the shares issued in the Dilutive Issuance
divided by the Effective Price divided by (2) Pre-Dilutive
Issuance Shares plus Dilutive Issuance Shares.
"Consultant's Effective Share Ownership" is the
number of shares of Common Stock, Common Stock Equivalents and
options held, directly or indirectly, by the Consultant and
the Consultant's spouse, siblings, children, children-in-law
and grandchildren, calculated as if all such Common Stock
Equivalents had been fully converted into shares of Common
Stock and all such options had been fully exercised
immediately prior to the Dilutive Issuance.
"Common Stock Equivalents" shall mean any shares of
capital stock of the Company (other than Common Stock) which,
at the option of the holder thereof, are immediately
convertible into or exchangeable for shares of Common Stock.
All options to purchase Common Stock granted to the
Consultant under this Section 3(b)(i) shall be referred to as
the "Consultant's Options."
(ii) Upon and subject to the closing of a Qualified Initial
Public Offering, the Company shall grant to Consultant an
option (the "IPO Option") to purchase the number of shares of
Common Stock equal to (x) (1) the Consultant's Effective
Percent Ownership immediately prior to the closing of such
Qualified Initial Public
4
{PAGE}
Offering multiplied by the total number of shares of Common
Stock, Common Stock Equivalents and options, warrants or
rights to purchase Common Stock of the Company issued and
outstanding immediately prior to the closing of such Qualified
Initial Public Offering, calculated as if all outstanding
Common Stock Equivalents had been fully converted into shares
of Common Stock and all such outstanding options, warrants and
rights had been fully exercised less (2) the Consultant's
Effective Share Ownership immediately prior to such Qualified
Initial Public Offering divided by (y) 100% less the
Consultant's Effective Percent Ownership immediately prior to
such Qualified Initial Public Offering.
(iii) The exercise price per share of any option granted to
the Consultant pursuant to this Section 3(b) shall be the Fair
Market Value of a Share of Common Stock as defined in the
Company's 1998 Employee, Director and Consultant Stock Option
Plan, as amended from time to time (the "Plan") and shall be
approved in accordance with Section 7.12 of the Fourth Amended
and Restated Investor Rights Agreement dated as of September
11, 2003, as amended from time to time, between the Company
and the other parties thereto; provided, that the IPO Option
shall be granted to the Consultant at the price per share of
the Common Stock issued and sold in the Qualified Initial
Public Offering.
(iv) Any grant of an option to the Consultant shall be made
under the Plan and pursuant to a stock option agreement
substantially in the form attached hereto as Exhibit A with
such changes as the Company and Consultant may agree (a "Stock
Option Agreement"), a copy of which shall also be furnished by
the Company to the Institute.
(v) Notwithstanding anything in this Agreement to the
contrary, the Consultant and the Company agree that the
Company shall in no event grant the Consultant options under
Section 3(b)(i) to purchase additional shares of Common Stock
if, after giving effect to such grant, the Consultant's
ownership of capital stock would be equal to or greater than
5% of the capital stock of the Company, calculated solely for
the purpose of this subsection (v) as follows:
(A) The numerator shall be the Consultant's
Effective Share Ownership on the date of such calculation: and
(B) The denominator shall include all of the
outstanding shares of Common Stock and Common Stock
Equivalents of the Company plus all outstanding Consultant's
Options on the date of such calculation (but not including any
other options and warrants
5
{PAGE}
outstanding), calculated as if all outstanding Common Stock
Equivalents had been fully converted into Common Stock and the
Consultant's Options had been fully exercised for shares of
Common Stock.
Notwithstanding anything in this Agreement to the contrary,
the Consultant hereby agrees that he will not exercise any
Consultant's Option or the IPO Option if and to the extent
that, as a result of such exercise, he and his family members
listed above would in fact hold in the aggregate shares
representing 5% or more shares of the Company calculated in
accordance with this subsection (v)."
c. Section 3(e) is hereby deleted in its
entirety.
d. Section 3(g) is hereby deleted in its
entirety.
e. Section 3(f), which reads: "The Company
shall also pay the Consultant $50,000 per annum during the term of this
Agreement for the Consultant's service as Chairman of the Scientific Advisory
Board of the Company." is hereby renumbered to be Section 3(e).
3. Amendment to the Investor Rights Agreement. The
Investor Rights Agreement shall be amended as follows:
a. Section 3 is hereby deleted in its entirety.
4. Ratification of Adjustment Factor Waiver. The parties
acknowledge and agree that the Adjustment Factor did not apply to the Series D
Issuance.
5. Acknowledgment of and Agreement to Consultant Option
Grants. The parties acknowledge and agree that the Consultant is entitled to be
granted options to purchase an additional 275,180 shares of Common Stock at an
exercise price of $0.90 per share, of which 100,501 result from calculation
errors as set forth on Exhibit B and 174,679 result from the issuance to
Hoffmann-LaRoche on September 11, 2003 of 2,777,778 shares of Series Roche
Convertible Preferred Stock, $.001 par value per share. Except for the foregoing
275,180 shares and except for any options to purchase Common Stock to which the
Consultant becomes entitled either (i) upon a Dilutive Issuance (as defined in
Section 2(a) above) after the date hereof or (ii) upon the closing of a
Qualified Initial Public Offering (as defined in Section 2(a) above), the
Consultant acknowledges that the Company's obligations to grant him options to
purchase Common Stock under the Consulting Agreement have been satisfied in
full.
6. Company Representations and Warranties. The Company
hereby represents and warrants to the Consultant that, after giving effect to
the option grants for 275,180 shares contemplated by Section 5 above,
"Consultant's Effective Share Ownership" (as defined in the Consulting
Agreement, as amended hereby) is 2,184,765 shares and "Consultant's Effective
Percent Ownership" (as defined in the Consulting Agreement, as amended hereby),
immediately following the last Dilutive Issuance prior to the date hereof, is
4.9126%.
6
{PAGE}
7. Reimbursement of Consultant Expenses. The Company
agrees to reimburse Consultant for the reasonable out-of-pocket costs and
expenses of legal counsel for the Consultant in connection with this Agreement,
not to exceed $10,000. Such reimbursement shall be made by the Company promptly
upon receipt of written evidence of such costs and expenses in reasonable form
and detail.
8. Miscellaneous. This Agreement, together with the
Consulting Agreement, the Investor Rights Agreement and the Letter Agreement,
constitutes the entire understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior understandings and agreements,
whether written or oral, with respect to such subject matter. This Agreement may
be executed in counterparts, which together shall constitute one and the same
instrument. Any amendment or modification of this Agreement or waiver of any
right, in whole or in part, will be effective only if it is in writing and
signed by the parties hereto. This Agreement shall be governed by and construed
in accordance with the laws (other than the conflict of laws rules) of the State
of New Jersey.
9. Effectiveness of Agreement. This Agreement will
become effective when executed by the Company, the Consultant and stockholders
holding at least two-thirds of the outstanding shares of Preferred Stock (as
defined in the Investor Rights Agreement).
7
{PAGE}
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed and delivered as of the date first above written.
COMPANY: MEMORY PHARMACEUTICALS CORP.
By: /s/ Tony Scullion
----------------------------------------------
Name: Tony Scullion
Title: Chief Executive Officer
CONSULTANT: /s/ Eric R. Kandel
--------------------------------------------------
Eric R. Kandel, M.D.
STOCKHOLDERS: OXFORD BIOSCIENCE PARTNERS II L.P.
By: OBP MANAGEMENT II L.P.
By: /s/ Jonathan J. Fleming
-----------------------
Name: Jonathan J. Fleming
Title: Managing General Partner
OXFORD BIOSCIENCE PARTNERS (BERMUDA) II LIMITED
PARTNERSHIP
By: OBP MANAGEMENT II (BERMUDA) LIMITED PARTNERSHIP
By: /s/ Jonathan J. Fleming
-----------------------
Name: Jonathan J. Fleming
Title: Managing General Partner
{PAGE}
OXFORD BIOSCIENCE PARTNERS (ADJUNCT) II, L.P.
By: OBP MANAGEMENT II L.P.
By: /s/ Jonathan J. Fleming
----------------------------------------------
Name:
Title:
OXFORD BIOSCIENCE PARTNERS (GS-ADJUNCT) II, L.P.
By: OBP MANAGEMENT II L.P.
By: /s/ Jonathan J. Fleming
----------------------------------------------
Name:
Title:
HEALTHCARE VENTURES V L.P.
By: /s/ Jeffrey Steinberg
-----------------------------------------------
Name: Jeffrey Steinberg
Title: Administrative Partner of HealthCare
Partners V, L.P. The General Partner of
HealthCare Ventures V, L.P.
HUDSON TRUST
By:
-----------------------------------------------
Name:
Title:
VENROCK ASSOCIATES
By: /s/ Anthony B. Evnin
-----------------------------------------------
Name: Anthony B. Evnin
Title: General Partner
{PAGE}
VENROCK ASSOCIATES II, L.P.
By: /s/ Anthony B. Evnin
-----------------------------------------------
Name: Anthony B. Evnin
Title: General Partner
ALTA EMBARCADERO PARTNERS II LLC
By: /s/ Alix Marduel
-----------------------------------------------
Name:
Title:
GLSLP INVESTMENT I Ltd.
By: /s/ Christopher W. Cochrane
-----------------------------------------------
Name: Christopher W. Cochrane
Title: Authorized Signatory: Nelson
Representatives Limited
S.R. ONE LIMITED
By: /s/ Philip L. Smith
-----------------------------------------------
Name: Philip L. Smith
Title: General Partner
ALEXANDRIA REAL ESTATE EQUITIES, L.P., a Delaware
limited partnership
By: ARE-QRS Corp., a Maryland general partner
By: /s/ Peter T. Nelson
-----------------------------------------------
Name: Peter T. Nelson
Title: Chief Financial Officer
{PAGE}
PHARMA/W HEALTH
By: /s/ Michael Sheffery
--------------------------------------------
Name: Michael Sheffery
Title: General Partner, OrbiMed Advisors LLC
FINSBURY WORLDWIDE PHARMACEUTICAL TRUST
By: /s/ Michael Sheffery
--------------------------------------------
Name: Michael Sheffery
Title: General Partner, OrbiMed Advisors LLC
EATON VANCE WORLDWIDE HEALTH SCIENCES PORTFOLIO
By: /s/ Michael Sheffery
--------------------------------------------
Name: Michael Sheffery
Title: General Partner, OrbiMed Advisors LLC
ARTAL SERVICES N.V.
By: /s/ Bernard Darimont
--------------------------------------------
Name: Bernard Darimont
Title: Managing Director
VENROCK ENTREPRENEUERS FUND, L.P.
By: /s/ Anthony B. Evnin
--------------------------------------------
Name:
Title:
{PAGE}
MEDICA II INVESTMENT (ISRAEL), LP
By:
-------------------------------------------------
Name:
Title:
MEDICA II INVESTMENT (INTERNATIONAL), LP
By:
-------------------------------------------------
Name:
Title:
GIMV
/s/ Patrick Von Benedek By: /s/ Dirk Boogmons
----------------------- -------------------------------------------------
Patrick Von Benedek Name: Dirk Boogmons
VP Life Sciences Title: CEO
MEMORIES PLUS, LLC
By:
-------------------------------------------------
Name:
Title:
M&G EQUITIES
By: /s/ Michael Kartunkel
-------------------------------------------------
Name: Michael Kartunkel
Title: Partner
----------------------------------------------------
Kenneth J. Novack
{PAGE}
/s/ Larry Abrams
-----------------------------------------------------
Larry Abrams
HARE & CO., FAO FINSBURY WORLDWIDE PHARMACEUTICAL
TRUST PLC
By:
-------------------------------------------------
Name:
Title:
ADVIESBEHEER GIMV LIFE SCIENCES
/s/ Patrick Von Benedek By: /s/ Dirk Boogmons
----------------------- -------------------------------------------------
Patrick Von Benedek Name: Dirk Boogmons
Director Title: Director
BIOVEDA FUND PTE LTD
By:
-------------------------------------------------
Name:
Title:
BY: BIOVEDA CAPITAL PTE LTD, ITS INVESTMENT MANAGER
By:
-------------------------------------------------
Name:
Title:
MEDICA II INVESTMENTS (P.F.)(ISRAEL) L.P.
By:
-------------------------------------------------
Name:
Title:
{PAGE}
OXFORD BIOSCIENCE PARTNERS II (ANNEX) L.P.
By: OBP MANAGEMENT II L.P.
By: /s/ Jonathan J. Fleming
------------------------------------------------
Name: Jonathan J. Fleming
Title:
THE YASUDA ENTERPRISE DEVELOPMENT I LIMITED
PARTNERSHIP
By: YASUDA ENTERPRISE DEVELOPMENT CO., LTD.
By: /s/ Minoru Oka
-------------------------------------------------
Name: Minoru Oka
Title: President and Representative Director
GRAY GHOST, LLC
By: /s/ Frank A. Bonsal, Jr.
-------------------------------------------------
Name: Frank A. Bonal, Jr.
Title: Manager
MITSUBISHI CORPORATION
By: /s/ Tsunehiko Yanagihara
-------------------------------------------------
Name: Tsunehiko Yanagihara
Title: General Manager
Life Sciences Business Unit
MITSUBISHI INTERNATIONAL CORPORATION
By: /s/ Motoatsu Sakurai
-------------------------------------------------
Name: Motoatsu Sakurai
Title: President and CEO
{PAGE}
CZ SPECIALTY CHEMICAS, INC.
By: /s/ Tsunehiko Yanagihara
-------------------------------------------------
Name: Tsunehiko Yanagihara
Title:
-----------------------------------------------------
Kenneth A. Sorensen, Ph.D.
-----------------------------------------------------
Hans-Jurgen Hess, Ph.D.
MCHUGH, DIVINCENT, ALLESSI, INC.
By:
-------------------------------------------------
Name:
Title:
SOCIETE GENERALE INVESTMENT CORPORATION
By: /s/ David M. Malcom
-------------------------------------------------
Name: David M. Malcom
Title: Vice President
{PAGE}
RHO MANAGEMENT TRUST II
By: RHO CAPITAL PARTNERS, INC., INVESTMENT ADVISOR
By:
-------------------------------------------------
Name:
Title:
YAMANOUCHI VENTURE CAPITAL, LLC
By: /s/ Yoshitaka Yoneyama
-------------------------------------------------
Name: Yoshitaka Yoneyama
Title: President and Chief Financial Officer
ALTA CALIFORNIA PARTNERS II, L.P.
By: ALTA CALIFORNIA MANAGEMENT PARTNERS II, LLC, ITS
GENERAL PARTNER
By: /s/ Alix Marduel
-------------------------------------------------
Name:
Title:
BIOMEDICINE L.P.
By: INTERNATIONAL BM BIOMEDICINE HOLDINGS (CAYMAN)
LTD., ITS GENERAL PARTNER
By: /s/ Illegible
-------------------------------------------------
Name:
Title:
/s/ Alexander Scriabine
-----------------------------------------------------
ALEXANDER SCRIABINE, M.D.
{PAGE}
NEW ENGLAND PARTNERS CAPITAL, L.P.
By: NEP CAPITAL, LLC, ITS GENERAL PARTNER
By:
-------------------------------------------------
Name:
Title:
MIDDLEGATE VENTURES, LLC
By: /s/ Albert Sutton
-------------------------------------------------
Name: Albert Sutton
Title: Managing Partner
-----------------------------------------------------
David I. Wolsk
-----------------------------------------------------
David R. Novack
-----------------------------------------------------
Helen Novack
-----------------------------------------------------
Hyman Novack
/s/ Natalie C. Scriabine (i.t.f.)
-----------------------------------------------------
Natalie C. Scriabine
/s/ Christine B. Scriabine
-----------------------------------------------------
Christine B. Scriabine
/s/ Steven Ostrofsky
-----------------------------------------------------
Steven Ostrofsky
{PAGE}
_____________________________________________________
Peter Smith
_____________________________________________________
Judith Smith
_____________________________________________________
Stephen White
_____________________________________________________
Mariam White
HOFFMANN-LA ROCHE INC.
By: _________________________________________________
Name:
Title:
{PAGE}
EXHIBIT A
TO THE AGREEMENT DATED AS OF DECEMBER 18, 2003
FORM OF STOCK OPTION AGREEMENT
{PAGE}
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR ERIC R. KANDEL
MEMORY PHARMACEUTICALS CORP.
AGREEMENT made as of __________, between Memory Pharmaceuticals Corp.
(the "Company"), a Delaware corporation having a principal place of business in
Montvale, New Jersey, and Eric R. Kandel of Riverdale, New York (the
"Participant").
WHEREAS, the Company desires to grant to the Participant an Option to
purchase shares of its common stock, $.001 par value per share (the "Shares"),
under and for the purposes set forth in the Company's 1998 Employee, Director
and Consultant Stock Option Plan, as amended (the "Plan");
WHEREAS, the Company and the Participant understand and agree that any
terms used and not defined herein have the same meanings as in the Plan; and
WHEREAS, the Company and the Participant each intend that the Option
granted herein shall be a Non-Qualified Option.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto
agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Participant the right and option to
purchase all or any part of an aggregate of _______________ (_____) Shares, on
the terms and conditions and subject to all the limitations set forth herein and
in the Plan, which is incorporated herein by reference. The Participant
acknowledges receipt of a copy of the Plan.
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall be
___________ ($_____) per Share, subject to adjustment, as provided in the Plan,
in the event of a stock split, reverse stock split or other events affecting the
holders of Shares. Payment shall be made in accordance with Paragraph 7 of the
Plan.
3. EXERCISABILITY OF OPTION.
Subject to the terms and conditions set forth in this Agreement and the
Plan, the Option granted hereby shall be fully vested and shall be exercisable
immediately.
{PAGE}
4. TERM OF OPTION.
The Option shall terminate ten (10) years from the date of this
Agreement, but shall be subject to earlier termination as provided herein or in
the Plan.
If the Participant ceases to be an employee, director or consultant of
the Company or of an Affiliate (for any reason other than the death or
Disability of the Participant or termination of the Participant for "cause" (as
defined in the Plan), the Option may be exercised, if it has not previously
terminated, within three (3) months after the date the Participant ceases to be
an employee, director or consultant of the Company or an Affiliate, or within
the originally prescribed term of the Option, whichever is earlier, but may not
be exercised thereafter. In such event, the Option shall be exercisable only to
the extent that the Option has become exercisable and is in effect at the date
of such cessation of employment, directorship or consultancy.
Notwithstanding the foregoing, in the event of the Participant's
Disability or death within three (3) months after the termination of employment,
directorship or consultancy, the Participant or the Participant's Survivors may
exercise the Option within one (1) year after the date of the Participant's
termination of employment, directorship or consultancy, but in no event after
the date of expiration of the term of the Option.
In the event the Participant's employment, directorship or consultancy
is terminated by the Company or an Affiliate for "cause" (as defined in the
Plan), the Participant's right to exercise any unexercised portion of this
Option shall cease as of such termination, and this Option shall thereupon
terminate. Notwithstanding anything herein to the contrary, if subsequent to the
Participant's termination, but prior to the exercise of the Option, the Board of
Directors of the Company determines that, either prior or subsequent to the
Participant's termination, the Participant engaged in conduct which would
constitute "cause," then the Participant shall immediately cease to have any
right to exercise the Option and this Option shall thereupon terminate.
In the event of the Disability of the Participant, as determined in
accordance with the Plan, the Option shall be exercisable within one (1) year
after the Participant's termination of service or, if earlier, within the term
originally prescribed by the Option. In such event, the Option shall be
exercisable:
(a) to the extent exercisable but not exercised as of the date of
Disability; and
(b) in the event rights to exercise the Option accrue
periodically, to the extent of a pro rata portion of any
additional rights to exercise the Option as would have accrued
had the Participant not become Disabled prior to the end of
the accrual period which next ends following the date of
Disability. The proration shall be based upon the number of
days during the accrual period prior to the date of
Disability.
2
{PAGE}
In the event of the death of the Participant while an employee,
director or consultant of the Company or of an Affiliate, the Option shall be
exercisable by the Participant's Survivors within one (1) year after the date of
death of the Participant or, if earlier, within the originally prescribed term
of the Option. In such event, the Option shall be exercisable:
(x) to the extent exercisable but not exercised as of the date of
death; and
(y) in the event rights to exercise the Option accrue
periodically, to the extent of a pro rata portion of any
additional rights to exercise the Option as would have accrued
had the Participant not died prior to the end of the accrual
period which next ends following the date of death. The
proration shall be based upon the number of days during the
accrual period prior to the Participant's death.
5. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Agreement, the Option may
be exercised by written notice to the Company at its principal executive office,
in substantially the form of Exhibit A attached hereto. Such notice shall state
the number of Shares with respect to which the Option is being exercised and
shall be signed by the person exercising the Option. Payment of the purchase
price for such Shares shall be made in accordance with Paragraph 7 of the Plan.
The Company shall deliver a certificate or certificates representing such Shares
as soon as practicable after the notice shall be received, provided, however,
that the Company may delay issuance of such Shares until completion of any
action or obtaining of any consent, which the Company deems necessary under any
applicable law (including, without limitation, state securities or "blue sky"
laws). The certificate or certificates for the Shares as to which the Option
shall have been so exercised shall be registered in the name of the person or
persons so exercising the Option (or, if the Option shall be exercised by the
Participant and if the Participant shall so request in the notice exercising the
272190
|
Alexandria
As referenced in this Agreement:
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – Cochrane
Title: Authorized Signatory: Nelson
Representatives Limited
S.R. ONE LIMITED
By: /s/ Philip L. Smith
-----------------------------------------------
Name: Philip L. Smith
Title: General Partner
ALEXANDRIA REAL ESTATE EQUITIES, L.P. , a Delaware
limited partnership
By: ARE-QRS Corp., a Maryland general partner
By: /s/ Peter T. Nelson
-----------------------------------------------
Name: Peter T. Nelson
Title:
_____________
dt 181806
;
Memory Pharma
As referenced in this Agreement:
MEMORY PHARMACEUTICALS CORP – y92465a3exv10w23.txt
{DESCRIPTION}AGREEMENT DATED DECEMBER 18, 2003
{TEXT}
{PAGE}
EXHIBIT 10.23
AGREEMENT, dated as of December 18, 2003 (this "Agreement"),
among MEMORY PHARMACEUTICALS CORP ., a Delaware corporation
(the "Company"), DR. ERIC KANDEL (the "Consultant") and the
other signatories hereto (the "Stockholders")
------------------------------------------------------------
A. The Consultant and the
_____________
MEMORY PHARMACEUTICALS CORP – WHEREOF, each of the parties has caused this
Agreement to be duly executed and delivered as of the date first above written.
COMPANY: MEMORY PHARMACEUTICALS CORP .
By: /s/ Tony Scullion
----------------------------------------------
Name: Tony Scullion
Title: Chief Executive Officer
CONSULTANT: /s/ Eric R. Kandel
--------------------------------------------------
Eric R. Kandel, M.D.
STOCKHOLDERS:
_____________
MEMORY PHARMACEUTICALS CORP – DATED AS OF DECEMBER 18, 2003
FORM OF STOCK OPTION AGREEMENT
{PAGE}
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR ERIC R. KANDEL
MEMORY PHARMACEUTICALS CORP .
AGREEMENT made as of __________, between Memory Pharmaceuticals Corp.
(the "Company"), a Delaware corporation having a principal place of business in
Montvale,
_____________
Memory Pharmaceuticals Corp – OPTION AGREEMENT
{PAGE}
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR ERIC R. KANDEL
MEMORY PHARMACEUTICALS CORP.
AGREEMENT made as of __________, between Memory Pharmaceuticals Corp .
(the "Company"), a Delaware corporation having a principal place of business in
Montvale, New Jersey, and Eric R. Kandel of Riverdale, New
_____________
Memory Pharmaceuticals Corp – Plan shall be given by recognized courier service, facsimile, registered or
certified mail, return receipt requested, addressed as follows:
If to the Company: Memory Pharmaceuticals Corp .
100 Philips Parkway
Montvale, NJ 07645
With a copy to: Sills Cummis Radin Tischman Epstein & Gross
One Riverfront Plaza
Newark, New Jersey
_____________
dt 181245
;
|
QRS
As referenced in this Agreement:
-QRS Corp. – Representatives Limited
S.R. ONE LIMITED
By: /s/ Philip L. Smith
-----------------------------------------------
Name: Philip L. Smith
Title: General Partner
ALEXANDRIA REAL ESTATE EQUITIES, L.P., a Delaware
limited partnership
By: ARE-QRS Corp. , a Maryland general partner
By: /s/ Peter T. Nelson
-----------------------------------------------
Name: Peter T. Nelson
Title: Chief Financial Officer
{PAGE}
PHARMA/W HEALTH
By: /s/ Michael Sheffery
--------------------------------------------
Name: Michael Sheffery
Title:
_____________
dt 1450545
;
Eric Kandel
|
Preview
Full Doc
| 2004 |
Agreement
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AGREEMENT, dated as of December 18, 2003 (this "Agreement"),
among MEMORY PHARMACEUTICALS CORP., a Delaware corporation
(the "Company"), DR. ERIC KANDEL (the "Consultant") and the
other signatories hereto (the "Stockholders")
A. The Consultant and the Company entered into a
Consulting Agreement dated as of April 1, 1998 (the "Original Consulting
Agreement"), which granted the Consultant certain rights to maintain a specified
percentage interest in the Company through the grant of options to purchase
shares of common stock, par value $.001, of the Company ("Common Stock").
B. The Consultant and the Company entered into an
Amendment to Consulting Agreement dated as of June 20, 2000, amending the
Original Consulting Agreement (as amended, the "Consulting Agreement") to
include an adjustment to the anti-dilution rights in the event of certain
dilutive issuances.
C. The Stockholders, the Consultant and the Company have
entered into a Fourth Amended and Restated Investor Rights Agreement dated as of
September 11, 2003, which included certain anti-dilution rights granted to the
Consultant (the "Investor Rights Agreement").
D. The Consultant and the Company entered into a Letter
Agreement dated as of April 23, 2002 (the "Letter Agreement"), in which the
Consultant waived certain of his anti-dilution rights with respect to the sale
by the Company of its Series D Convertible Preferred Stock in an amount in
excess of $40 million.
E. In consideration for the Consultant's entering into
the Letter Agreement, the application of the Adjustment Factor (as defined in
the Consulting Agreement and the Investor Rights Agreement) in respect of the
Company's issuance of Series D Convertible Preferred Stock, $.001 par value per
share (the "Series D Issuance") was waived.
F. Pursuant to the Consulting Agreement and the Investor
Rights Agreement, the Consultant has been granted options to purchase Common
Stock in the amounts, on the dates and at the exercise prices set forth below
("Existing Option Grants"), pursuant to the form of option agreement attached as
Exhibit A:
{PAGE}
{TABLE}
{CAPTION}
Number of Shares Exercise Price
Date of Grant of Common Stock per Share
----------------- ----------------- --------------
{S} {C} {C}
April 24, 1998 52,631 $0.10
July 22, 1998 5,263 $0.10
December 22, 1998 315,790 $0.18
February 24, 1999 7,525 $0.18
June 21, 2000 427,791 $0.25
August 1, 2000 99,000 $0.25
April 1, 2002 926,585 $0.25
---------
Total 1,834,585
=========
{/TABLE}
G. Certain terms of the Consulting Agreement, the Letter
Agreement and the Investor Rights Agreement are inconsistent with each other or
require clarification.
H. The Consultant and the Stockholders desire to correct
certain calculation errors and acknowledge and agree that the Consultant is
entitled to be granted an additional 275,180 options to purchase Common Stock at
an exercise price of $0.90 per share.
I. The Company, the Consultant and the Stockholders
desire to amend the Consulting Agreement and the Investor Rights Agreement to
clarify the understanding among such parties regarding Existing Option Grants
and any additional options to purchase Common Stock required to be granted to
the Consultant pursuant to the Consulting Agreement, as amended hereby.
In consideration of the premises and the mutual covenants and
agreements hereinafter contained the receipt and sufficiency of which is
acknowledged, the parties agree as follows:
1. Conflicts.
a. Except as specifically amended by this
Agreement, the Consulting Agreement remains in full force and effect. Wherever
the terms of this Agreement and the Consulting Agreement conflict, this
Agreement controls. All references in the Consulting Agreement to "this
Agreement" shall mean the Consulting Agreement, as amended hereby.
b. Except as specifically amended by this
Agreement, the Investor Rights Agreement remains in full force and effect.
Wherever the terms of this Agreement and the Investor Rights Agreement conflict,
this Agreement controls. All references in the Investor Rights Agreement to
"this Agreement" shall mean the Investor Rights Agreement, as amended hereby.
c. The Letter Agreement shall remain in full
force and effect.
2
{PAGE}
2. Amendments to the Consulting Agreement. The
Consulting Agreement is hereby amended as follows:
a. The number "thirty (30)" in Section 1.5 is
hereby deleted, and in lieu thereof, there is substituted the number "twenty
(20)".
b. Section 3(b) is hereby deleted in its
entirety and, in lieu thereof, there is substituted the following:
"(b)(i) As potential additional compensation for Consultant's
services pursuant to this Agreement, in the event that, at any
time during the term of this Agreement and until immediately
prior to the closing of a Qualified Initial Public Offering
(as defined in the Second Amended and Restated Certificate of
Incorporation of the Company, as amended from time to time,
the "Certificate of Incorporation"), the Company issues
additional shares of Common Stock or Common Stock Equivalents
(as defined below) in connection with a material equity
financing (excluding shares issued in a Qualified Initial
Public Offering) or a material strategic collaboration (each,
a "Dilutive Issuance"), the Company shall grant to Consultant
options to purchase a number of shares of Common Stock equal
to:
(Consultant's
(Pre-Dilutive Effective Percent
Issuance Shares + x Ownership x - Consultant's
Dilutive Issuance Adjustment Effective Share
Shares) Factor) Ownership
---------------------------------------------------------------
100% - (Consultant's Effective Percent Ownership x
Adjustment Factor)
where:
"Pre-Dilutive Issuance Shares" is the total number of
issued and outstanding shares of Common Stock and Common Stock
Equivalents of the Company immediately prior to the Dilutive
Issuance, calculated as if all such Common Stock Equivalents
had been fully converted into shares of Common Stock.
"Dilutive Issuance Shares" is the number of shares of
Common Stock and Common Stock Equivalents issued in the
Dilutive Issuance, calculated as if all such Common Stock
Equivalents had been fully converted into shares of Common
Stock.
3
{PAGE}
"Consultant's Effective Percent Ownership" is (x) for
the period beginning on the Effective Date of this Agreement
and ending immediately following the granting of options to
the Consultant on April 1, 2002, 5% and (y) from the period
beginning immediately following the granting of options to the
Consultant on April 1, 2002, (1) the Consultant's Effective
Share Ownership (as defined below) divided by (2) the total
number of issued and outstanding shares of Common Stock and
Common Stock Equivalents of the Company, calculated as if all
such Common Stock Equivalents had been fully converted into
shares of Common Stock.
"Adjustment Factor" is (x) if the consideration
(calculated in accordance with the Certificate of
Incorporation) paid per share for shares of Common Stock and
Common Stock Equivalents (on an as-converted basis) issued in
the Dilutive Issuance is greater than or equal to $2.50, as
adjusted for any stock split, stock dividend, combination,
reorganization, recapitalization or similar event involving a
change in the Common Stock (the "Effective Price"), 1 and (y)
if such consideration per share is less than the Effective
Price, (1)(a) Pre-Dilutive Issuance Shares plus (b) the total
consideration for the shares issued in the Dilutive Issuance
divided by the Effective Price divided by (2) Pre-Dilutive
Issuance Shares plus Dilutive Issuance Shares.
"Consultant's Effective Share Ownership" is the
number of shares of Common Stock, Common Stock Equivalents and
options held, directly or indirectly, by the Consultant and
the Consultant's spouse, siblings, children, children-in-law
and grandchildren, calculated as if all such Common Stock
Equivalents had been fully converted into shares of Common
Stock and all such options had been fully exercised
immediately prior to the Dilutive Issuance.
"Common Stock Equivalents" shall mean any shares of
capital stock of the Company (other than Common Stock) which,
at the option of the holder thereof, are immediately
convertible into or exchangeable for shares of Common Stock.
All options to purchase Common Stock granted to the
Consultant under this Section 3(b)(i) shall be referred to as
the "Consultant's Options."
(ii) Upon and subject to the closing of a Qualified Initial
Public Offering, the Company shall grant to Consultant an
option (the "IPO Option") to purchase the number of shares of
Common Stock equal to (x) (1) the Consultant's Effective
Percent Ownership immediately prior to the closing of such
Qualified Initial Public
4
{PAGE}
Offering multiplied by the total number of shares of Common
Stock, Common Stock Equivalents and options, warrants or
rights to purchase Common Stock of the Company issued and
outstanding immediately prior to the closing of such Qualified
Initial Public Offering, calculated as if all outstanding
Common Stock Equivalents had been fully converted into shares
of Common Stock and all such outstanding options, warrants and
rights had been fully exercised less (2) the Consultant's
Effective Share Ownership immediately prior to such Qualified
Initial Public Offering divided by (y) 100% less the
Consultant's Effective Percent Ownership immediately prior to
such Qualified Initial Public Offering.
(iii) The exercise price per share of any option granted to
the Consultant pursuant to this Section 3(b) shall be the Fair
Market Value of a Share of Common Stock as defined in the
Company's 1998 Employee, Director and Consultant Stock Option
Plan, as amended from time to time (the "Plan") and shall be
approved in accordance with Section 7.12 of the Fourth Amended
and Restated Investor Rights Agreement dated as of September
11, 2003, as amended from time to time, between the Company
and the other parties thereto; provided, that the IPO Option
shall be granted to the Consultant at the price per share of
the Common Stock issued and sold in the Qualified Initial
Public Offering.
(iv) Any grant of an option to the Consultant shall be made
under the Plan and pursuant to a stock option agreement
substantially in the form attached hereto as Exhibit A with
such changes as the Company and Consultant may agree (a "Stock
Option Agreement"), a copy of which shall also be furnished by
the Company to the Institute.
(v) Notwithstanding anything in this Agreement to the
contrary, the Consultant and the Company agree that the
Company shall in no event grant the Consultant options under
Section 3(b)(i) to purchase additional shares of Common Stock
if, after giving effect to such grant, the Consultant's
ownership of capital stock would be equal to or greater than
5% of the capital stock of the Company, calculated solely for
the purpose of this subsection (v) as follows:
(A) The numerator shall be the Consultant's
Effective Share Ownership on the date of such calculation: and
(B) The denominator shall include all of the
outstanding shares of Common Stock and Common Stock
Equivalents of the Company plus all outstanding Consultant's
Options on the date of such calculation (but not including any
other options and warrants
5
{PAGE}
outstanding), calculated as if all outstanding Common Stock
Equivalents had been fully converted into Common Stock and the
Consultant's Options had been fully exercised for shares of
Common Stock.
Notwithstanding anything in this Agreement to the contrary,
the Consultant hereby agrees that he will not exercise any
Consultant's Option or the IPO Option if and to the extent
that, as a result of such exercise, he and his family members
listed above would in fact hold in the aggregate shares
representing 5% or more shares of the Company calculated in
accordance with this subsection (v)."
c. Section 3(e) is hereby deleted in its
entirety.
d. Section 3(g) is hereby deleted in its
entirety.
e. Section 3(f), which reads: "The Company
shall also pay the Consultant $50,000 per annum during the term of this
Agreement for the Consultant's service as Chairman of the Scientific Advisory
Board of the Company." is hereby renumbered to be Section 3(e).
3. Amendment to the Investor Rights Agreement. The
Investor Rights Agreement shall be amended as follows:
a. Section 3 is hereby deleted in its entirety.
4. Ratification of Adjustment Factor Waiver. The parties
acknowledge and agree that the Adjustment Factor did not apply to the Series D
Issuance.
5. Acknowledgment of and Agreement to Consultant Option
Grants. The parties acknowledge and agree that the Consultant is entitled to be
granted options to purchase an additional 275,180 shares of Common Stock at an
exercise price of $0.90 per share, of which 100,501 result from calculation
errors as set forth on Exhibit B and 174,679 result from the issuance to
Hoffmann-LaRoche on September 11, 2003 of 2,777,778 shares of Series Roche
Convertible Preferred Stock, $.001 par value per share. Except for the foregoing
275,180 shares and except for any options to purchase Common Stock to which the
Consultant becomes entitled either (i) upon a Dilutive Issuance (as defined in
Section 2(a) above) after the date hereof or (ii) upon the closing of a
Qualified Initial Public Offering (as defined in Section 2(a) above), the
Consultant acknowledges that the Company's obligations to grant him options to
purchase Common Stock under the Consulting Agreement have been satisfied in
full.
6. Company Representations and Warranties. The Company
hereby represents and warrants to the Consultant that, after giving effect to
the option grants for 275,180 shares contemplated by Section 5 above,
"Consultant's Effective Share Ownership" (as defined in the Consulting
Agreement, as amended hereby) is 2,184,765 shares and "Consultant's Effective
Percent Ownership" (as defined in the Consulting Agreement, as amended hereby),
immediately following the last Dilutive Issuance prior to the date hereof, is
4.9126%.
6
{PAGE}
7. Reimbursement of Consultant Expenses. The Company
agrees to reimburse Consultant for the reasonable out-of-pocket costs and
expenses of legal counsel for the Consultant in connection with this Agreement,
not to exceed $10,000. Such reimbursement shall be made by the Company promptly
upon receipt of written evidence of such costs and expenses in reasonable form
and detail.
8. Miscellaneous. This Agreement, together with the
Consulting Agreement, the Investor Rights Agreement and the Letter Agreement,
constitutes the entire understanding of the parties with respect to the subject
matter hereof and supersedes any and all prior understandings and agreements,
whether written or oral, with respect to such subject matter. This Agreement may
be executed in counterparts, which together shall constitute one and the same
instrument. Any amendment or modification of this Agreement or waiver of any
right, in whole or in part, will be effective only if it is in writing and
signed by the parties hereto. This Agreement shall be governed by and construed
in accordance with the laws (other than the conflict of laws rules) of the State
of New Jersey.
9. Effectiveness of Agreement. This Agreement will
become effective when executed by the Company, the Consultant and stockholders
holding at least two-thirds of the outstanding shares of Preferred Stock (as
defined in the Investor Rights Agreement).
7
{PAGE}
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be duly executed and delivered as of the date first above written.
COMPANY: MEMORY PHARMACEUTICALS CORP.
By: _________________________________________________
Name:
Title:
CONSULTANT:
_____________________________________________________
Eric R. Kandel, M.D.
STOCKHOLDERS: OXFORD BIOSCIENCE PARTNERS II L.P.
By: OBP MANAGEMENT II L.P.
By: /s/ Jonathan J. Fleming
-----------------------
Name: Jonathan J. Fleming
Title: Managing General Partner
OXFORD BIOSCIENCE PARTNERS (BERMUDA) II LIMITED
PARTNERSHIP
By: OBP MANAGEMENT II (BERMUDA) LIMITED PARTNERSHIP
By: /s/ Jonathan J. Fleming
-----------------------
Name: Jonathan J. Fleming
Title: Managing General Partner
{PAGE}
OXFORD BIOSCIENCE PARTNERS (ADJUNCT) II, L.P.
By: OBP MANAGEMENT II L.P.
By: _________________________________________________
Name:
Title:
OXFORD BIOSCIENCE PARTNERS (GS-ADJUNCT) II, L.P.
By: OBP MANAGEMENT II L.P.
By: _________________________________________________
Name:
Title:
HEALTHCARE VENTURES V L.P.
By: _________________________________________________
Name:
Title:
HUDSON TRUST
By: _________________________________________________
Name:
Title:
VENROCK ASSOCIATES
By: /s/ Anthony B. Evnin
--------------------
Name: Anthony B. Evnin
Title: General Partner
{PAGE}
VENROCK ASSOCIATES II, L.P.
By: /s/ Anthony B. Evnin
--------------------
Name: Anthony B. Evnin
Title: General Partner
ALTA EMBARCADERO PARTNERS II LLC
By: _________________________________________________
Name:
Title:
GLSLP INVESTMENT I Ltd.
By: _________________________________________________
Name:
Title:
S.R. ONE LIMITED
By: _________________________________________________
Name:
Title:
ALEXANDRIA REAL ESTATE EQUITIES, L.P.
By: _________________________________________________
Name:
Title:
{PAGE}
PHARMA/W HEALTH
By: /s/ Michael Sheffery
--------------------
Name: Michael Sheffery
Title: General Partner, OrbiMed Advisors LLC
FINSBURY WORLDWIDE PHARMACEUTICAL TRUST
By: /s/ Michael Sheffery
--------------------
Name: Michael Sheffery
Title: General Partner, OrbiMed Advisors LLC
EATON VANCE WORLDWIDE HEALTH SCIENCES PORTFOLIO
By: /s/ Michael Sheffery
--------------------
Name: Michael Sheffery
Title: General Partner, OrbiMed Advisors LLC
ARTAL SERVICES N.V.
By: _________________________________________________
Name:
Title:
VENROCK ENTREPRENEUERS FUND, L.P.
By: _________________________________________________
Name:
Title:
{PAGE}
MEDICA II INVESTMENT (ISRAEL), LP
By: _________________________________________________
Name:
Title:
MEDICA II INVESTMENT (INTERNATIONAL), LP
By: _________________________________________________
Name:
Title:
GIMV
By: _________________________________________________
Name:
Title:
MEMORIES PLUS, LLC
By: _________________________________________________
Name:
Title:
M&G EQUITIES
By: _________________________________________________
Name:
Title:
_____________________________________________________
Kenneth J. Novack
{PAGE}
_____________________________________________________
Larry Abrams
HARE & CO., FAO FINSBURY WORLDWIDE PHARMACEUTICAL
TRUST PLC
By: _________________________________________________
Name:
Title:
ADVIESBEHEER GIMV LIFE SCIENCES
By: _________________________________________________
Name:
Title:
BIOVEDA FUND PTE LTD
By: _________________________________________________
Name:
Title:
BY: BIOVEDA CAPITAL PTE LTD, ITS INVESTMENT MANAGER
By: _________________________________________________
Name:
Title:
MEDICA II INVESTMENTS (P.F.)(ISRAEL) L.P.
By: _________________________________________________
Name:
Title:
{PAGE}
OXFORD BIOSCIENCE PARTNERS II (ANNEX) L.P.
By: OBP MANAGEMENT II L.P.
By: /s/ Jonathan J. Fleming
-----------------------
Name: Jonathan J. Fleming
Title:
THE YASUDA ENTERPRISE DEVELOPMENT I LIMITED
PARTNERSHIP
By: _________________________________________________
Name:
Title:
GRAY GHOST, LLC
By: _________________________________________________
Name:
Title:
MITSUBISHI CORPORATION
By: _________________________________________________
Name:
Title:
MITSUBISHI INTERNATIONAL CORPORATION
By: _________________________________________________
Name:
Title:
{PAGE}
CZ VENTURE OPERATIONS, INC.
By: _________________________________________________
Name:
Title:
_____________________________________________________
Kenneth A. Sorensen, Ph.D.
_____________________________________________________
Hans-Jurgen Hess, Ph.D.
MCHUGH, DIVINCENT, ALLESSI, INC.
By: _________________________________________________
Name:
Title:
SG COWEN VENTURES II, LP
By: SOCIETE GENERALE INVESTMENT CORPORATION, ITS
GENERAL PARTNER
By: _________________________________________________
Name:
Title:
{PAGE}
ALEXANDER SCRIABINE, M.D.
RHO MANAGEMENT TRUST II
By: RHO CAPITAL PARTNERS, INC., INVESTMENT ADVISOR
By: _________________________________________________
Name:
Title:
YAMANOUCHI VENTURE CAPITAL, LLC
By: _________________________________________________
Name:
Title:
ALTA CALIFORNIA PARTNERS II, L.P.
By: ALTA CALIFORNIA MANAGEMENT PARTNERS II, LLC, ITS
GENERAL PARTNER
By: _________________________________________________
Name:
Title:
BIOMEDICINE L.P.
By: INTERNATIONAL BM BIOMEDICINE HOLDINGS (CAYMAN)
LTD., ITS GENERAL PARTNER
By: _________________________________________________
Name:
Title:
{PAGE}
NEW ENGLAND PARTNERS CAPITAL, L.P.
By: NEP CAPITAL, LLC, ITS GENERAL PARTNER
By: _________________________________________________
Name:
Title:
STEVEN OSTROFSKY MIDDLEGATE VENTURES, LLC
By: _________________________________________________
Name:
Title:
_____________________________________________________
David I. Wolsk
_____________________________________________________
David R. Novack
_____________________________________________________
Helen Novack
_____________________________________________________
Hyman Novack
_____________________________________________________
Natalie C. Scriabine
_____________________________________________________
Christine B. Scriabine
{PAGE}
_____________________________________________________
Peter Smith
_____________________________________________________
Judith Smith
_____________________________________________________
Stephen White
_____________________________________________________
Mariam White
HOFFMANN-LA ROCHE INC.
By: _________________________________________________
Name:
Title:
{PAGE}
EXHIBIT A
TO THE AGREEMENT DATED AS OF DECEMBER 18, 2003
FORM OF STOCK OPTION AGREEMENT
{PAGE}
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR ERIC R. KANDEL
MEMORY PHARMACEUTICALS CORP.
AGREEMENT made as of __________, between Memory Pharmaceuticals Corp.
(the "Company"), a Delaware corporation having a principal place of business in
Montvale, New Jersey, and Eric R. Kandel of Riverdale, New York (the
"Participant").
WHEREAS, the Company desires to grant to the Participant an Option to
purchase shares of its common stock, $.001 par value per share (the "Shares"),
under and for the purposes set forth in the Company's 1998 Employee, Director
and Consultant Stock Option Plan, as amended (the "Plan");
WHEREAS, the Company and the Participant understand and agree that any
terms used and not defined herein have the same meanings as in the Plan; and
WHEREAS, the Company and the Participant each intend that the Option
granted herein shall be a Non-Qualified Option.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto
agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Participant the right and option to
purchase all or any part of an aggregate of _______________ (_____) Shares, on
the terms and conditions and subject to all the limitations set forth herein and
in the Plan, which is incorporated herein by reference. The Participant
acknowledges receipt of a copy of the Plan.
2. PURCHASE PRICE.
The purchase price of the Shares covered by the Option shall be
___________ ($_____) per Share, subject to adjustment, as provided in the Plan,
in the event of a stock split, reverse stock split or other events affecting the
holders of Shares. Payment shall be made in accordance with Paragraph 7 of the
Plan.
3. EXERCISABILITY OF OPTION.
Subject to the terms and conditions set forth in this Agreement and the
Plan, the Option granted hereby shall be fully vested and shall be exercisable
immediately.
{PAGE}
4. TERM OF OPTION.
The Option shall terminate ten (10) years from the date of this
Agreement, but shall be subject to earlier termination as provided herein or in
the Plan.
If the Participant ceases to be an employee, director or consultant of
the Company or of an Affiliate (for any reason other than the death or
Disability of the Participant or termination of the Participant for "cause" (as
defined in the Plan), the Option may be exercised, if it has not previously
terminated, within three (3) months after the date the Participant ceases to be
an employee, director or consultant of the Company or an Affiliate, or within
the originally prescribed term of the Option, whichever is earlier, but may not
be exercised thereafter. In such event, the Option shall be exercisable only to
the extent that the Option has become exercisable and is in effect at the date
of such cessation of employment, directorship or consultancy.
Notwithstanding the foregoing, in the event of the Participant's
Disability or death within three (3) months after the termination of employment,
directorship or consultancy, the Participant or the Participant's Survivors may
exercise the Option within one (1) year after the date of the Participant's
termination of employment, directorship or consultancy, but in no event after
the date of expiration of the term of the Option.
In the event the Participant's employment, directorship or consultancy
is terminated by the Company or an Affiliate for "cause" (as defined in the
Plan), the Participant's right to exercise any unexercised portion of this
Option shall cease as of such termination, and this Option shall thereupon
terminate. Notwithstanding anything herein to the contrary, if subsequent to the
Participant's termination, but prior to the exercise of the Option, the Board of
Directors of the Company determines that, either prior or subsequent to the
Participant's termination, the Participant engaged in conduct which would
constitute "cause," then the Participant shall immediately cease to have any
right to exercise the Option and this Option shall thereupon terminate.
In the event of the Disability of the Participant, as determined in
accordance with the Plan, the Option shall be exercisable within one (1) year
after the Participant's termination of service or, if earlier, within the term
originally prescribed by the Option. In such event, the Option shall be
exercisable:
(a) to the extent exercisable but not exercised as of the date of
Disability; and
(b) in the event rights to exercise the Option accrue
periodically, to the extent of a pro rata portion of any
additional rights to exercise the Option as would have accrued
had the Participant not become Disabled prior to the end of
the accrual period which next ends following the date of
Disability. The proration shall be based upon the number of
days during the accrual period prior to the date of
Disability.
2
{PAGE}
In the event of the death of the Participant while an employee,
director or consultant of the Company or of an Affiliate, the Option shall be
exercisable by the Participant's Survivors within one (1) year after the date of
death of the Participant or, if earlier, within the originally prescribed term
of the Option. In such event, the Option shall be exercisable:
(x) to the extent exercisable but not exercised as of the date of
death; and
(y) in the event rights to exercise the Option accrue
periodically, to the extent of a pro rata portion of any
additional rights to exercise the Option as would have accrued
had the Participant not died prior to the end of the accrual
period which next ends following the date of death. The
proration shall be based upon the number of days during the
accrual period prior to the Participant's death.
5. METHOD OF EXERCISING OPTION.
Subject to the terms and conditions of this Agreement, the Option may
be exercised by written notice to the Company at its principal executive office,
in substantially the form of Exhibit A attached hereto. Such notice shall state
the number of Shares with respect to which the Option is being exercised and
shall be signed by the person exercising the Option. Payment of the purchase
price for such Shares shall be made in accordance with Paragraph 7 of the Plan.
The Company shall deliver a certificate or certificates representing such Shares
as soon as practicable after the notice shall be received, provided, however,
that the Company may delay issuance of such Shares until completion of any
action or obtaining of any consent, which the Company deems necessary under any
applicable law (including, without limitation, state securities or "blue sky"
laws). The certificate or certificates for the Shares as to which the Option
shall have been so exercised shall be registered in the name of the person or
persons so exercising the Option (or, if the Option shall be exercised by the
Participant and if the Participant shall so request in the notice exercising the
272207
|
Alexandria
As referenced in this Agreement:
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – PARTNERS II LLC
By: _________________________________________________
Name:
Title:
GLSLP INVESTMENT I Ltd.
By: _________________________________________________
Name:
Title:
S.R. ONE LIMITED
By: _________________________________________________
Name:
Title:
ALEXANDRIA REAL ESTATE EQUITIES, L.P.
By: _________________________________________________
Name:
Title:
{PAGE}
PHARMA/W HEALTH
By: /s/ Michael Sheffery
--------------------
Name: Michael Sheffery
Title: General Partner, OrbiMed Advisors LLC
FINSBURY
_____________
dt 181808
;
Memory Pharma
As referenced in this Agreement:
MEMORY PHARMACEUTICALS CORP – 23
{SEQUENCE}5
{FILENAME}y92465a1exv10w23.txt
{DESCRIPTION}AGREEMENT
{TEXT}
{PAGE}
EXHIBIT 10.23
AGREEMENT, dated as of December 18, 2003 (this "Agreement"),
among MEMORY PHARMACEUTICALS CORP ., a Delaware corporation
(the "Company"), DR. ERIC KANDEL (the "Consultant") and the
other signatories hereto (the "Stockholders")
A. The Consultant and the
_____________
MEMORY PHARMACEUTICALS CORP – WHEREOF, each of the parties has caused this
Agreement to be duly executed and delivered as of the date first above written.
COMPANY: MEMORY PHARMACEUTICALS CORP .
By: _________________________________________________
Name:
Title:
CONSULTANT:
_____________________________________________________
Eric R. Kandel, M.D.
STOCKHOLDERS: OXFORD BIOSCIENCE PARTNERS II L.P.
By: OBP MANAGEMENT II
_____________
MEMORY PHARMACEUTICALS CORP – DATED AS OF DECEMBER 18, 2003
FORM OF STOCK OPTION AGREEMENT
{PAGE}
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR ERIC R. KANDEL
MEMORY PHARMACEUTICALS CORP .
AGREEMENT made as of __________, between Memory Pharmaceuticals Corp.
(the "Company"), a Delaware corporation having a principal place of business in
Montvale,
_____________
Memory Pharmaceuticals Corp – OPTION AGREEMENT
{PAGE}
FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR ERIC R. KANDEL
MEMORY PHARMACEUTICALS CORP.
AGREEMENT made as of __________, between Memory Pharmaceuticals Corp .
(the "Company"), a Delaware corporation having a principal place of business in
Montvale, New Jersey, and Eric R. Kandel of Riverdale, New
_____________
Memory Pharmaceuticals Corp – Plan shall be given by recognized courier service, facsimile, registered or
certified mail, return receipt requested, addressed as follows:
If to the Company: Memory Pharmaceuticals Corp .
100 Philips Parkway
Montvale, NJ 07645
With a copy to: Sills Cummis Radin Tischman Epstein & Gross
One Riverfront Plaza
Newark, New Jersey
_____________
dt 181262
;
| Eric Kandel
|
Preview
Full Doc
| 2001 |
Lease Agreement
Lease Agreement (144K)
Doc #297841: Click preview link for longer preview.
LEASE AGREEMENT
This LEASE AGREEMENT is made this ___ day of June, 2001 (the "Lease Date"), between ARE-11025/11075 ROSELLE STREET, LLC, a Delaware limited liability company ("Landlord"), and CELL GENESYS, INC., a Delaware corporation ("Tenant").
RECITALS
A. As of the Lease Date, the Premises (as defined in the Basic Lease Provisions) are subject to the following (collectively, the "Prior Lease"): (i) a certain Standard Industrial Lease - Net dated December 10, 1993, between Trust Company of the West, as Trustee of the ATF Dow Chemical Employees Retirement Trust, as lessor (the "ATF . . .
297841
|
Alexandria
As referenced in this Lease Agreement:
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – Delaware corporation
By: ___________________________
Print Name: ____________________
Print Title: _________________________
LANDLORD:
AREA 1025/11075 ROSELLE STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. ,
a Delaware limited partnership, managing member
By: ARE-QRS CORP.,
a Maryland corporation, general partner
By: ___________________________
Michael C. Kelcy,
Senior Vice
_____________
dt 264128
;
|
Cell Genesys
As referenced in this Lease Agreement:
CELL GENESYS, – this ___ day of June, 2001 (the "Lease Date"), between ARE-11025/11075 ROSELLE STREET, LLC, a Delaware limited liability company ("Landlord"), and CELL GENESYS, INC., a Delaware corporation ("Tenant").
RECITALS
A. As of the Lease Date, the Premises (as defined in the Basic Lease Provisions) are
_____________
Cell Genesys, – Attention: Accounts Receivable
Landlord's Notice Address:
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: General Counsel
Tenants Notice Address:
Cell Genesys, Inc.
342 Lakeside Drive
Foster City, CA 94404
Attention: Mr. Richard Campbell
The following Exhibits and Addenda are attached hereto and incorporated
_____________
CELL GENESYS, – on next page ]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written.
TENANT:
CELL GENESYS, INC.,
a Delaware corporation
By: ___________________________
Print Name: ____________________
Print Title: _________________________
LANDLORD:
AREA 1025/11075 ROSELLE STREET, LLC,
a Delaware limited
_____________
dt 255916
|
Preview
Full Doc
| 2001 |
Consent to Sublease
Consent to Sublease (64K)
Doc #120471: Click preview link for longer preview.
CONSENT TO SUBLEASE
This Consent to Sublease (this "CONSENT") is made as of May 17, 2001, by
ARETECHNOLOGY CENTER SSF, LLC, a Delaware limited liability company, having an
address of 135 North Los Robles Avenue, Suite 250, Pasadena, California 91101
("LANDLORD"), VIROLOGIC, INC., a Delaware corporation, having an address of 270
East Grand Avenue, South San Francisco, California 94080 ("TENANT"), and
DIADEXUS, INC., a Delaware corporation, having an address of the Premises
(defined below) ("SUBLESSEE") with reference to the following Recitals.
RECITALS
A. Trammell Crow Northern California Development, Inc., Landlord's
predecessor-in-interest, and Tenant entered into that certain Lease dated as of
November 23, 1999 (the "ORIGINAL LEASE"), as amended by that certain First
Amendment to Lease Agreement dated as of February __, 2000 (the "FIRST
AMENDMENT"), by and between Tenant and Landlord, with respect to certain
premises described in the Original Lease as being located at 335 Oyster Point
Boulevard, South San Francisco, California (the "PREMISES"), and more
particularly described in the Original Lease. Notwithstanding the description
in the Original Lease of the street address of the Premises as being 335 Oyster
Point Boulevard, South San Francisco, California, the actual street address of
the Premises is 343 Oyster Point Boulevard, South San Francisco, California. As
used herein, "LEASE" shall mean the Original Lease, as amended by the First
Amendment.
B. Tenant desires to sublease to Sublessee a portion of the Premises
consisting of approximately 40,350 rentable square feet (the "SUBLEASED
PREMISES") more particularly described in and pursuant to the provisions of that
certain Sublease dated May 17, 2001 (the "SUBLEASE"), a copy of which is
attached hereto as Exhibit A.
C. Tenant desires to obtain Landlord's consent to the Sublease.
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord hereby consents to
the sublease of the Subleased Premises to Sublessee, such consent being subject
to and upon the following terms and conditions to which Tenant and Sublessee
hereby agree:
1. All initially capitalized terms not otherwise defined in this Consent
shall have the meanings set forth in the Lease unless the context clearly
indicates otherwise.
2. This Consent shall not be effective and the Sublease shall not be
valid unless and until Landlord shall have received: (a) a fully executed
original copy of the Sublease, (b) a fully executed original counterpart of
this Consent, and (c) reimbursement from Tenant in the amount
120471
|
Alexandria
As referenced in this Consent to Sublease:
Alexandria Real Estate Equities, L.P. – to execute this Consent as of the date first above
written.
LANDLORD: ARE-TECHNOLOGY CENTER SSF, LLC,
a Delaware limited liability company
By: Alexandria Real Estate Equities, L.P. ,
a Delaware limited partnership
its managing member
By: ARE-QRS CORP.,
a Maryland corporation,
its general partner
By: /s/ MICHAEL C. KELEY
--------------------------------
_____________
dt 117494
;
ViroLogic
As referenced in this Consent to Sublease:
VIROLOGIC, – CENTER SSF, LLC, a Delaware limited liability company, having an
address of 135 North Los Robles Avenue, Suite 250, Pasadena, California 91101
("LANDLORD"), VIROLOGIC, INC., a Delaware corporation, having an address of 270
East Grand Avenue, South San Francisco, California 94080 ("TENANT"), and
DIADEXUS, INC., a
_____________
VIROLOGIC, – a Maryland corporation,
its general partner
By: /s/ MICHAEL C. KELEY
--------------------------------
Michael C. Keley
Its: Senior Vice President
--------------------------------
Real Estate Legal Affairs
TENANT: VIROLOGIC, INC.,
A Delaware corporation
By: W. D. YOUNG
----------------------------------------
Its: CEO
----------------------------------------
SUBLESSEE: DIADEXUS, INC.,
a Delaware corporation
By: MOHAN S. IYER
----------------------------------------
Its: V.
_____________
VIROLOGIC, – 1
{PAGE}
EXHIBIT A
SUBLEASE
Attached
A-1
{PAGE}
SUBLEASE
THIS SUBLEASE ("Sublease"), dated May 17, 2001, is entered into by and between
VIROLOGIC, INC., a Delaware corporation ("Sublandlord"), and DIADEXUS, INC., a
Delaware corporation ("Subtenant").
RECITALS
A. Sublandlord leases certain premises (the "Premises") consisting of
_____________
VIROLOGIC, – in the Master Lease for receipt of
notices to each of the parties are deleted and replaced with the following:
TO SUBLANDLORD AT: VIROLOGIC, INC.
270 East Grand Avenue
South San Francisco, CA 94080
Attn: Karen Wilson/Kathy Hibbs
TO SUBTENANT AT: the Sublease Premises
All
_____________
VIROLOGIC, – shall constitute one
agreement.
10.
{PAGE}
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
first written above.
SUBLANDLORD: VIROLOGIC, INC., SUBTENANT: DIADEXUS, INC.
a Delaware corporation a Delaware corporation
By: /s/ W. D. YOUNG By: /s/ MOHAN S. IYER
-------------------------- -----------------------------
Print Name:
_____________
dt 134957
;
| Diadexus Inc
|
Preview
Full Doc
| 2003 |
Certificate of Incorporation [Amended and Restated]
Certificate of Incorporation [Amended and Restated] (140K)
Doc #409353: Click preview link for longer preview.
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACUSPHERE, INC.
(Incorporated as
Polymers for Medicine, Inc.
on July 12, 1993)
I, Sherri C. Oberg, President of Acusphere, Inc., a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Delaware Corporation Law"), do hereby certify as
follows:
1. The original Certificate of Incorporation of Acusphere, Inc.
(the "Company" or the "Corporation") was filed in the Office of the Secretary of
State of the State of Delaware on July 12, 1993 under the name "Polymers for
Medicine, Inc." and was amended and restated on March 7, 1994. An Amended and
Restated Certificate of Incorporation of the Company was filed in the Office of
the Secretary of State of the State of Delaware on March 30, 1995, which was
amended on March 27, 1996. An Amended and Restated Certificate of Incorporation
of the Company was filed in the Office of the Secretary of State of the State of
Delaware on June 4, 1996, which was amended on August 14, 1996 and September 10,
1997. An Amended and Restated Certificate of Incorporation of the Company was
filed in the Office of the Secretary of State of the State of Delaware on
November 4, 1997, which was amended on March 16, 1998. An Amended and Restated
Certificate of Incorporation of the Company was filed in the Office of the
Secretary of State of the State of Delaware on October 16, 1998, which was
amended on May 4, 1999 and January 4, 2000. An Amended and Restated Certificate
of Incorporation was filed in the Office of the Secretary of State of the State
of Delaware on April 25, 2000. An Amended and Restated Certificate of
Incorporation was filed in the Office of the Secretary of State of the State of
Delaware on June 30, 2000. An Amended and Restated Certificate of Incorporation
was filed in the Office of the Secretary of State of the State of Delaware on
September 22, 2000, which was amended on March 1, 2001 and March 28, 2001. An
Amended and Restated Certificate of Incorporation was filed in the Office of the
Secretary of State of the State of Delaware on June 1, 2001, which was amended
on September 27, 2001. A Tenth Amended and Restated Certificate of Incorporation
(the "Tenth Charter") was filed in the Office of the Secretary of State of the
State of Delaware on June 14, 2002. An Eleventh Amended and Restated Certificate
of Incorporation was filed in the Office of the Secretary of State of the State
of Delaware on September 6, 2002 (the "Eleventh Charter"). A Twelfth Amended and
Restated Certificate of Incorporation was filed in the Office of the Secretary
of State of the State of Delaware on April 11, 2003 (the "Twelfth Charter"). An
Amended and Restated Certificate of Incorporation was filed in the Office of the
Secretary of State of the State of Delaware on September 12, 2003 (the
"Thirteenth Charter").
{PAGE}
- 2 -
2. In the manner prescribed by Sections 242 and 245 of the
Delaware Corporation Law, the Thirteenth Charter was amended and restated in the
form of this Amended and Restated Certificate of Incorporation by resolutions
adopted by the Board of Directors and the stockholders of the Company pursuant
to Sections 141 and 228 of the Delaware General Corporation Law.
3. The text of the Certificate of Incorporation of the Company,
as amended and restated herein, is as follows:
FIRST. The name of the corporation is Acusphere, Inc. (the
"Company").
SECOND. The address of the registered office of the Company
in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, New Castle County, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be
conducted or promoted by the Company is to engage in any lawful act or activity
for which corporations may be organized under the Delaware Corporation Law.
FOURTH.
The total number of shares of stock that the Company shall have
authority to issue is:
(i) Ninety Eight Million Five Hundred Thousand (98,500,000)
shares of common stock, $.01 par value per share (the "Common Stock"), and
(ii) Sixty One Million Two Hundred Sixty Five Thousand Five
Hundred Seventy Six (61,265,576) shares of preferred stock, $.01 par value per
share (the "Preferred Stock"), of which:
(a) 5,000,000 shares are undesignated;
(b) 565,810 shares have been designated Series
A-2 Convertible Preferred Stock (the "Series A-2 Preferred Stock");
(c) 1,375,675 shares have been designated Series
B-2 Convertible Preferred Stock (the "Series B-2 Preferred Stock");
(d) 3,408,341 shares have been designated Series
C-2 Convertible Preferred Stock (the "Series C-2 Preferred Stock");
(e) 1,512,491 shares have been designated Series
D-2 Convertible Preferred Stock (the "Series D-2 Preferred Stock");
(f) 943,081 shares have been designated Series
E-2 Convertible Preferred Stock (the "Series E-2 Preferred Stock");
{PAGE}
- 3 -
(g) 4,816,224 shares have been designated Series
F-2 Convertible Preferred Stock (the "Series F-2 Preferred Stock");
(h) 312,106 shares have been designated Series
F-2 Non-Voting Convertible Preferred Stock (the "Series F-2 Non-Voting
Preferred Stock");
(i) 1,306,296 shares have been designated Series
I-2 Convertible Preferred Stock (the "Series I-2 Preferred Stock");
(j) 37,554,300 shares have been designated
Series J-2 Convertible Preferred Stock (the "Series J-2 Preferred
Stock"); and
(k) 4,471,252 shares have been designated Series
J-3 Convertible Preferred Stock (the "Series J-3 Preferred Stock").
A description of the respective classes of stock and a statement of the
designations, preferences, voting powers, relative, participating, optional or
other special rights and privileges and the qualifications, limitations and
restrictions of the Preferred Stock and the Common Stock are as follows:
A. COMMON STOCK.
1. General. All shares of Common Stock will be identical and will
entitle the holders thereof to the same rights, powers and privileges. The
rights, powers and privileges of the holders of the Common Stock are subject to
and qualified by the rights of holders of the Preferred Stock.
2. Dividends. Dividends may be declared and paid on the Common
Stock from funds lawfully available therefor as and when determined by the Board
of Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
3. Dissolution, Liquidation or Winding Up. In the event of any
dissolution, liquidation or winding up of the affairs of the Corporation,
whether voluntary or involuntary, each issued and outstanding share of Common
Stock shall entitle the holder thereof to receive an equal portion of the net
assets of the Corporation available for distribution to the holders of Common
Stock, subject to any preferential rights of any then outstanding Preferred
Stock.
4. Voting Rights. Except as otherwise required by law or this
Amended and Restated Certificate of Incorporation, each holder of Common Stock
shall have one vote in respect of each share of stock held of record by such
holder on the books of the Corporation for the election of directors and on all
matters submitted to a vote of stockholders of the Corporation. Except as
otherwise required by law or provided herein, holders of Common Stock shall vote
together with holders of the Preferred Stock as a single class, subject to any
special or preferential voting rights of any then outstanding Preferred Stock.
There shall be no cumulative voting.
{PAGE}
- 4 -
B. PREFERRED STOCK.
The Preferred Stock may be issued in one or more series at such time or
times and for such consideration or considerations as the Board of Directors of
the Corporation may determine. Each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and classes.
Except as otherwise provided in this Amended and Restated Certificate of
Incorporation, different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purpose of voting by classes.
C. UNDESIGNATED PREFERRED STOCK.
The Board of Directors is expressly authorized to provide for the
issuance of all or any shares of the undesignated Preferred Stock in one or more
series, each with such designations, preferences, voting powers (or special,
preferential or no voting powers), relative, participating, optional or other
special rights and privileges and such qualifications, limitations or
restrictions thereof as shall be stated in the resolution or resolutions adopted
by the Board of Directors to create such series, and a certificate of said
resolution or resolutions (a "Certificate of Designation") shall be filed in
accordance with the General Corporation Law of the State of Delaware. The
authority of the Board of Directors with respect to each such series shall
include, without limitation of the foregoing, the right to provide that the
shares of each such series may be: (i) subject to redemption at such time or
times and at such price or prices; (ii) entitled to receive dividends (which may
be cumulative or non-cumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled to
such rights upon the dissolution of, or upon any distribution of the assets of,
the Corporation; (iv) convertible into, or exchangeable for, shares of any other
class or classes of stock, or of any other series of the same or any other class
or classes of stock of the Corporation at such price or prices or at such rates
of exchange and with such adjustments, if any; (v) entitled to the benefit of
such limitations, if any, on the issuance of additional shares of such series or
shares of any other series of Preferred Stock; or (vi) entitled to such other
preferences, powers, qualifications, rights and privileges, all as the Board of
Directors may deem advisable and as are not inconsistent with law and the
provisions of this Amended and Restated Certificate of Incorporation.
D. DESIGNATED PREFERRED STOCK.
Section 1. Cumulative Dividend Provisions.
1.1 Series J-2 Preferred Stock and Series J-3 Preferred Stock. The
holders of shares of Series J-2 Preferred Stock and Series J-3 Preferred Stock
shall be entitled to receive prior and in preference to the Common Stock and
each other series of Preferred Stock, cumulative dividends out of any assets
legally available therefor, commencing on the Applicable Date of Issuance at the
rate of $0.11 per share of Series J-2 Preferred Stock or Series J-3 Preferred
Stock (as adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of such series) per
annum (the "Series J Accumulated Dividend"). Each share of Series J-2 Preferred
Stock and Series J-3 Preferred Stock shall participate at least pro rata in any
dividend or distribution declared or paid on the Common Stock or any other
{PAGE}
- 5 -
series of Preferred Stock. Except as provided in Section 2 and Section 3, such
dividends shall be payable when, as and if declared by the Board of Directors of
the Company in its discretion.
1.2 Series I-2 Preferred Stock. The holders of shares of Series
I-2 Preferred Stock shall be entitled to receive prior and in preference to the
Common Stock and the Junior Preferred Stock, and pari passu with the Cumulative
Dividend Preferred, cumulative dividends out of any assets legally available
therefor, commencing on the Applicable Date of Issuance, at the rate of $0.32
per share of Series I-2 Preferred Stock (as adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations affecting the number of outstanding
shares of such series) per annum (the "Series I Cumulative Dividend"). Other
than the Cumulative Dividends, which shall be pari passu as provided herein, and
other than the Series J Accumulated Dividend, each share of Series I-2 Preferred
Stock shall participate at least pro rata in any dividend or distribution
declared or paid on any Common Stock or any other series of Preferred Stock.
Except as provided in Section 2 and Section 3, such dividends shall be payable
when, as and if declared by the Board of Directors of the Company in its
discretion.
1.3 Series F-2 Preferred Stock and Series F-2 Non-Voting Preferred
Stock. The holders of shares of Series F-2 Preferred Stock and Series F-2
Non-Voting Preferred Stock shall be entitled to receive prior and in preference
to the Common Stock and the Junior Preferred Stock, and pari passu with the
Cumulative Dividend Preferred, cumulative dividends out of any assets legally
available therefor, commencing on the Applicable Date of Issuance, at the rate
of $0.32 per share of Series F-2 Preferred Stock and Series F-2 Non-Voting
Preferred Stock (as adjusted to reflect subsequent stock dividends, stock splits
or recapitalizations affecting the number of outstanding shares of such series)
per annum (the "Series F Cumulative Dividend"). Other than the Cumulative
Dividends, which shall be pari passu as provided herein, and other than the
Series J Accumulated Dividend, each share of Series F-2 Preferred Stock and
Series F-2 Non-Voting Preferred Stock shall participate at least pro rata in any
dividend or distribution declared or paid on any Common Stock or any other
series of Preferred Stock. Except as provided in Section 2 and Section 3, such
dividends shall be payable when, as and if declared by the Board of Directors of
the Company in its discretion.
1.4 Series E-2 Preferred Stock. The holders of shares of Series
E-2 Preferred Stock shall be entitled to receive prior and in preference to the
Common Stock and the Junior Preferred Stock, and pari passu with the Cumulative
Dividend Preferred, cumulative dividends out of any assets legally available
therefor, commencing on the Applicable Date of Issuance, at the rate of $0.32
per share of Series E-2 Preferred Stock (as adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations affecting the number of outstanding
shares of such series) per annum (the "Series E Cumulative Dividend"). Other
than the Cumulative Dividends, which shall be paid pari passu as provided
herein, and other than the Series J Accumulated Dividend, each share of Series
E-2 Preferred Stock shall participate at least pro rata in any dividend or
distribution declared or paid on any Common Stock or any other series of
Preferred Stock. Except as provided in Section 2 and Section 3, such dividends
shall be payable when, as and if declared by the Board of Directors of the
Company in its discretion.
1.5 Series D-2 Preferred Stock. The holders of shares of Series
D-2 Preferred Stock shall be entitled to receive prior and in preference to the
Common Stock and the Junior Preferred
{PAGE}
- 6 -
Stock, and pari passu with the Cumulative Dividend Preferred, cumulative
dividends out of any assets legally available therefor, commencing on the
Applicable Date of Issuance, at the rate of $0.32 per share of Series D-2
Preferred Stock (as adjusted to reflect subsequent stock dividends, stock splits
or recapitalizations affecting the number of outstanding shares of such series)
per annum (the "Series D Cumulative Dividend"). Other than the Cumulative
Dividends, which shall be paid pari passu as provided herein, and other than the
Series J Accumulated Dividend, each share of Series D-2 Preferred Stock shall
participate at least pro rata in any dividend or distribution declared or paid
on any Common Stock or any other series of Preferred Stock. Except as provided
in Section 2 and Section 3, such dividends shall be payable when, as and if
declared by the Board of Directors of the Company in its discretion.
1.6 Series C-2 Preferred Stock. The holders of shares of Series
C-2 Preferred Stock shall be entitled to receive prior and in preference to the
Common Stock and the Junior Preferred Stock, and pari passu with the Cumulative
Dividend Preferred, cumulative dividends out of any assets legally available
therefor, commencing on the Applicable Date of Issuance, at the rate of $0.32
per share of Series C-2 Preferred Stock (as adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations affecting the number of outstanding
shares of such series) per annum (the "Series C Cumulative Dividend"). Other
than the Cumulative Dividends, which shall be paid pari passu as provided
herein, and other than the Series J Accumulated Dividend, each share of Series
C-2 Preferred Stock shall participate at least pro rata in any dividend or
distribution declared or paid on any Common Stock or any other series of
Preferred Stock. Except as provided in Section 2 and Section 3, such dividends
shall be payable when, as and if declared by the Board of Directors of the
Company in its discretion.
1.7 Series A-2 Preferred Stock and Series B-2 Preferred Stock. The
holders of shares of Series A-2 Preferred Stock and Series B-2 Preferred Stock
shall be entitled to receive dividends, out of any assets legally available
therefor, when, as and if declared by the Board of Directors of the Company in
its discretion; provided, however, that each share of Series A-2 Preferred Stock
and Series B-2 Preferred Stock shall participate at least pro rata in any
dividend or distribution declared or paid on any Common Stock of the Company.
1.8 Non-Cash Distributions. The value of any non-cash
distributions made pursuant to this Section 1 shall be determined in accordance
with Section 2.10(b).
Section 2. Liquidation Preference.
2.1 Series J-2 Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series J-2 Preferred Stock shall be entitled to receive, prior and in
preference to any distribution of the assets of the Company to the holders of
any Liquidation Junior Stock by reason of their ownership thereof, an amount
equal to the sum of (i) $1.41 for each outstanding share of such series, as
adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of such series, and
(ii) all accrued but unpaid dividends on each such share to and including the
date full payment as provided herein (determined as if the Board of Directors
had annually declared the dividends provided for in Section 1.1 hereof). If upon
the occurrence of any such event, the assets and funds available for
distribution among the holders of the Series
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J-2 Preferred Stock shall be insufficient to permit the payment to such holders
of the full amount of the aforesaid preferential payment, then all of the assets
and funds of the Company legally available for distribution shall be distributed
ratably among such holders in proportion to the amount of such stock owned by
each such holder.
2.2 Series J-3 Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series J-3 Preferred Stock shall be entitled to receive, after the
distributions required by Section 2.1 have been completed but prior and in
preference to any distribution of the assets of the Company to the holders of
any Liquidation Junior Stock by reason of their ownership thereof, an amount
equal to the sum of (i) $1.41 for each outstanding share of such series, as
adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of such series, and
(ii) all accrued but unpaid dividends on each such share to and including the
date full payment as provided herein (determined as if the Board of Directors
had annually declared the dividends provided for in Section 1.1 hereof). If upon
the occurrence of any such event, the assets and funds available for
distribution among the holders of the Series J-3 Preferred Stock shall be
insufficient to permit the payment to such holders of the full amount of the
aforesaid preferential payment, then all of the assets and funds of the Company
legally available for distribution shall be distributed ratably among such
holders in proportion to the amount of such stock owned by each such holder.
2.3 Series I-2 Preferred Stock, Series F-2 Preferred Stock and
Series F-2 Non-Voting Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series I-2 Preferred Stock, Series F-2 Preferred Stock and Series F-2
Non-Voting Preferred Stock shall be entitled to receive, after the distributions
required by Section 2.1 and 2.2 have been completed but prior and in preference
to any distribution of the assets of the Company to the holders of any
Liquidation Junior Stock by reason of their ownership thereof, an amount equal
to the sum of (i) $4.75 for each outstanding share of each such series, as
adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of such series, and
(ii) all accrued but unpaid dividends on each such share to and including the
date full payment as provided herein (determined as if the Board of Directors
had annually declared the dividends provided for in Section 1.2 and 1.3 hereof).
If upon the occurrence of any such event, the assets and funds available for
distribution among the holders of the Series I-2 Preferred Stock, Series F-2
Preferred Stock and Series F-2 Non-Voting Preferred Stock shall be insufficient
to permit the payment to such holders of the full amount of the aforesaid
preferential payment, then all of the assets and funds of the Company legally
available for distribution shall be distributed ratably among such holders in
proportion to the amount of such stock owned by each such holder.
2.4 Series E-2 Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series E-2 Preferred Stock shall be entitled to receive, after the
distributions required by Sections 2.1, 2.2 and 2.3 have been completed but
prior and in preference to any distribution of the assets of the Company to the
holders of any Liquidation Junior Stock by reason of their ownership thereof, an
amount equal to the sum of (i) $3.30 for each outstanding share of each such
series, as adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding
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shares of such series, and (ii) all accrued but unpaid dividends on each such
share to and including the date full payment as provided herein (determined as
if the Board of Directors had annually declared the dividends provided for in
Section 1.4 hereof). If upon the occurrence of any such event, the assets and
funds available for distribution among the holders of the Series E-2 Preferred
Stock shall be insufficient to permit the payment to such holders of the full
amount of the aforesaid preferential payment, then all of the assets and funds
of the Company legally available for distribution shall be distributed ratably
among such holders in proportion to the amount of such stock owned by each such
holder.
2.5 Series D-2 Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series D-2 Preferred Stock shall be entitled to receive, after the
distributions required by Sections 2.1, 2.2, 2.3 and 2.4 have been completed but
prior and in preference to any distribution of the assets of the Company to the
holders of any Liquidation Junior Stock by reason of their ownership thereof, an
amount equal to the sum of (i) $3.00 for each outstanding share of each such
series, as adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of such series, and
(ii) all accrued but unpaid dividends on each such share to and including the
date full payment as provided herein (determined as if the Board of Directors
had annually declared the dividends provided for in Section 1.5 hereof). If upon
the occurrence of any such event, the assets and funds available for
distribution among the holders of the Series D-2 Preferred Stock shall be
insufficient to permit the payment to such holders of the full amount of the
aforesaid preferential payment, then all of the assets and funds of the Company
legally available for distribution shall be distributed ratably among such
holders in proportion to the amount of such stock owned by each such holder.
2.6 Series C-2 Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series C-2 Preferred Stock shall be entitled to receive, after the
distributions required by Sections 2.1, 2.2, 2.3, 2.4 and 2.5 have been
completed but prior and in preference to any distribution of the assets of the
Company to the holders of any Liquidation Junior Stock by reason of their
ownership thereof, an amount equal to the sum of (i) $2.14 for each outstanding
share of each such series, as adjusted to reflect subsequent stock dividends,
stock splits or recapitalizations affecting the number of outstanding shares of
such series, and (ii) all accrued but unpaid dividends on each such share to and
including the date full payment as provided herein (determined as if the Board
of Directors had annually declared the dividends provided for in Section 1.6
hereof). If upon the occurrence of any such event, the assets and funds
available for distribution among the holders of the Series C-2 Preferred Stock
shall be insufficient to permit the payment to such holders of the full amount
of the aforesaid preferential payment, then all of the assets and funds of the
Company legally available for distribution shall be distributed ratably among
such holders in proportion to the amount of such stock owned by each such
holder.
2.7 Series B-2 Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series B-2 Preferred Stock shall be entitled to receive, after the
distributions required by Sections 2.1, 2.2, 2.3, 2.4, 2.5 and 2.6 have been
completed but prior and in preference to any distribution of the assets of the
Company to the holders of any Liquidation Junior Stock by reason of their
ownership thereof, an
{PAGE}
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amount equal to the sum of (i) $1.60 for each outstanding share of each such
series, as adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of such series, and
(ii) all declared but unpaid dividends on each such share to and including the
date full payment as provided herein. If upon the occurrence of any such event,
the assets and funds available for distribution among the holders of the Series
B-2 Preferred Stock shall be insufficient to permit the payment to such holders
of the full amount of the aforesaid preferential payment, then all of the assets
and funds of the Company legally available for distribution shall be distributed
ratably among such holders in proportion to the amount of such stock owned by
each such holder.
2.8 Series A-2 Preferred Stock. In the event of any liquidation,
dissolution or winding up of the Company, either voluntary or involuntary, the
holders of Series A-2 Preferred Stock shall be entitled to receive, after the
distributions required by Sections 2.1, 2.2 , 2.3, 2.4, 2.5, 2.6 and 2.7 have
been completed but prior and in preference to any distribution of the assets of
the Company to the holders of any Liquidation Junior Stock by reason of their
ownership thereof, an amount equal to the sum of (i) $1.00 for each outstanding
share of each such series, as adjusted to reflect subsequent stock dividends,
stock splits or recapitalizations affecting the number of outstanding shares of
such series, and (ii) all declared but unpaid dividends on each such share to
and including the date full payment as provided herein. If upon the occurrence
of any such event, the assets and funds available for distribution among the
holders of the Series A-2 Preferred Stock shall be insufficient to permit the
payment to such holders of the full amount of aforesaid preferential payment,
then all of the assets and funds of the Company legally available for
distribution shall be distributed ratably among such holders in proportion to
the amount of such stock owned by each such holder.
2.9 Remaining Assets. After the distributions required by Sections
2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 2.7 and 2.8 have been completed, the remaining
assets of the Company legally available for distribution to stockholders shall
be distributed among the holders of Common Stock in proportion to the amount of
such stock owned by each such holder.
2.10 Merger, Consolidation, Sale of Assets.
(a) For purposes of this Section 2, a liquidation,
dissolution or winding up the Company shall be deemed to be occasioned by, or to
include, (i) the acquisition of the Company by another entity by means of any
transaction or series of related transactions (including, without limitation,
any transfer of more than 50% of the voting power of the Company,
reorganization, merger or consolidation, but excluding any merger effected
exclusively for the purpose of changing the domicile of the Company); or (ii) a
sale or disposition of all or substantially all of the assets of the Company;
unless the Company's stockholders of record as constituted immediately prior to
such event will, immediately after such event (by virtue of securities issued as
consideration for the Company's acquisition or sale or otherwise) hold at least
50% of the voting power of the surviving or acquiring entity (any such
transaction specified in items (i) and (ii) hereto being referred to herein as a
"Change of Control").
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(b) In any of such events, if the consideration received
by the Company is other than cash, its value will be deemed to be its fair
market value, determined in accordance with this Section 2.10(b). Any securities
shall be valued as follows:
(i) Securities not subject to an investment
letter or other similar restrictions on free marketability:
(A) If traded on a securities exchange
or through NASDAQ-NMS, the value shall be deemed to be the average of the
closing prices of the securities on such exchange over the thirty-day period
ending three (3) days prior to the closing;
(B) If actively traded
over-the-counter, the value shall be deemed to be the average of the closing bid
or sale prices (whichever is applicable) over the thirty-day period ending three
(3) days prior to the closing; and
(C) If there is no active public
market, the value shall be determined in accordance with Section 8 hereof.
(ii) The method of valuation of securities
subject to an investment letter or other restrictions on free marketability
(other than restrictions arising solely by virtue of a stockholder's status as
an affiliate or former affiliate) shall be to make an appropriate discount from
the market value determined as above in (i) (A), (B), or (C) to reflect the
approximate fair market value thereof, as determined in accordance with Section
8 hereof.
(c) In the event the requirements of this Section 2.10
are not complied with, the Company shall forthwith either:
(i) cause such closing to be postponed until
such time as the requirements of this Section 2.10 have been compiled with; or
(ii) cancel such transaction, in which event the
rights, preferences and privileges of the holders of the Preferred Stock shall
revert to and be the same as such rights, preferences and privileges existing
immediately prior to the date of the first notice referred to in subsection
2.10(d) hereof.
(d) The Company shall give each holder of record of
Preferred Stock written notice of such impending transaction not later than
twenty (20) days prior to the stockholders' meeting, if any, called to approve
such transaction, or twenty (20) days prior to the closing of such transaction,
whichever is earlier, and shall also notify such holders in writing of the final
approval of such transaction. The first of such notices shall describe the
material terms and conditions of the impending transaction and the provisions of
this Section 2.10, and the Company shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no event take place
sooner than twenty (20) days after the Company has given the first notice
provided for herein or sooner than ten (10) days after the Company has given
notice of any material changes provided for herein; provided, however, that such
periods may be shortened upon the written consent of the holders of Preferred
Stock that represent at least a majority of the voting power of all then
outstanding shares of Preferred Stock.
{PAGE}
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Section 3. Redemption.
3.1 Optional Redemption of the Redeemable Preferred Stock.
(a) Subject to Section 3.1(b) below, the holders of
Redeemable Preferred Stock, upon the approval of at least 66 2/3% of the voting
power of all of the then outstanding shares of Redeemable Preferred Stock,
voting together as a single class, shall have the right to cause the Company to
redeem all, but not less than all, of the shares of Redeemable Preferred Stock
at the redemption price set forth in Section 3.2, below, by providing the
Company with a written request at any time after June 30, 2007 (the "Redemption
Request"). Within ten (10) days of the date of such Redemption Request, the
Company shall give written notice thereof to each holder of Redeemable Preferred
Stock (the "Redemption Notice").
(b) Notwithstanding Section 3.1(a) above, no share of any
series of Redeemable Preferred Stock shall be redeemed if the holders of at
least a majority of such series provide the Company with written notice of their
objection to such redemption within fifteen (15) days of the date of the
Redemption Notice delivered in accordance with Section 3.1(a). In such event,
the Company shall only redeem those series of Redeemable Preferred Stock not
objecting to such redemption by providing the Company with such notice.
Thereafter, subject to Section 3.1(a) and this Section 3.1(b), the holders of
each series of Redeemable Preferred Stock so objecting to such redemption (the
"Objecting Holders"), upon the approval of at least a majority of the voting
power of all then outstanding shares of Redeemable Preferred Stock held by such
Objecting Holders, voting together as a single class, shall have the right to
cause the Company to redeem all, but not less than all, of such shares of
Redeemable Preferred Stock at the redemption price set forth in Section 3.2
below, by providing the Company with a Redemption Request in accordance with
Section 3.1(a) above.
(c) Within thirty (30) days of its receipt of the
Redemption Request, the Company shall, to the extent it may lawfully do so,
redeem one-third of the shares of Redeemable Preferred Stock to be redeemed. On
each of the first and second anniversaries of the date of the Redemption
Request, the Company shall, to the extent it may lawfully do so, redeem an
additional one-third of the shares of Redeemable Preferred Stock to be redeemed
and held as of the date of the Redemption Request. Each day on which the Company
is obligated hereunder to redeem some of the shares specified in the Redemption
Request shall be hereinafter referred to as a "Redemption Date."
3.2 Mechanics of Redemption. On each Redemption Date, each holder
of Redeemable Preferred Stock to be redeemed shall surrender the certificate or
certificates representing the number of shares of Redeemable Preferred Stock to
be redeemed on such Redemption Date, duly endorsed, at the office of the Company
and thereupon the Company will pay to the order of the person whose name appears
on such certificate or certificates as the owner thereof a cash sum per share
equal to (i) the Original Series A Issue Price (as adjusted to reflect
subsequent stock dividends, stock splits or recapitalizations affecting the
number of outstanding shares of such series) plus any declared but unpaid
dividends thereon (the "Series A Redemption Price") for each share of Series A-2
Preferred Stock to be redeemed on such Redemption Date, (ii) the Original Series
B Issue Price (as adjusted to reflect subsequent stock dividends, stock splits
or
{PAGE}
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recapitalizations affecting the number of outstanding shares of such series)
plus any declared but unpaid dividends thereon (the "Series B Redemption Price")
for each share of Series B-2 Preferred Stock to be redeemed on such Redemption
Date, (iii) the Original Series C Issue Price (as adjusted to reflect subsequent
stock dividends, stock splits or recapitalizations affecting the number of
outstanding shares of such series) plus any accrued but unpaid dividends thereon
(determined as if the Board of Directors had annually declared the dividends
provided for in Section 1.6 hereof) (the "Series C Redemption Price") for each
share of Series C-2 Preferred Stock to be redeemed on such Redemption Date, (iv)
the Original Series D Issue Price (as adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations affecting the number of outstanding
shares of such series) plus any accrued but unpaid dividends thereon (determined
as if the Board of Directors had annually declared the dividends provided for in
Section 1.5 hereof) (the "Series D Redemption Price") for each share of Series
D-2 Preferred Stock to be redeemed on such Redemption Date, (v) the Original
Series E Issue Price (as adjusted to reflect subsequent stock dividends, stock
splits or recapitalizations affecting the number of outstanding shares of such
series) plus any accrued but unpaid dividends (determined as if the Board of
Directors had annually declared the dividends provided for in Section 1.4
hereof) (the "Series E Redemption Price") for each share of Series E-2 Preferred
Stock to be redeemed on such Redemption Date, (vi) the Original Series F Issue
Price (as adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of such series)
plus any accrued but unpaid dividends (determined as if the Board of Directors
had annually declared the dividends provided for in Section 1.3 hereof) (the
"Series F Redemption Price") for each share of Series F-2 Preferred Stock and
Series F-2 Non-Voting Preferred Stock to be redeemed on such Redemption Date,
(vii) the Original Series I Issue Price (as adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations affecting the number of outstanding
shares of such series) plus any accrued but unpaid dividends (determined as if
the Board of Directors had annually declared the dividends provided for in
Section 1.2 hereof) (the "Series I Redemption Price") for each share of Series
I-2 Preferred Stock to be redeemed on such Redemption Date, and (viii) the
Original Series J Issue Price (as adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations affecting the number of outstanding
shares of such series) plus any accrued but unpaid dividends (determined as if
the Board of Directors had annually declared the dividends provided for in
Section 1.1 hereof) (the "Series J Redemption Price") for each share of Series
J-2 Preferred Stock and Series J-3 Preferred Stock to be redeemed on such
Redemption Date. Upon payment of the Series A Redemption Price, the Series B
Redemption Price, the Series C Redemption Price, the Series D Redemption Price,
the Series E Redemption Price, the Series F Redemption Price, the Series I
Redemption Price or the Series J Redemption Price, as the case may be, the
certificate or certificates representing the shares to be redeemed on such
Redemption Date shall be canceled; provided, however, that in the event less
than all the shares to be redeemed and represented by such certificate or
certificates are redeemed, the Company shall issue a replacement certificate
representing the unredeemed shares, and the terms, designations, preferences and
privileges of such unredeemed shares of Redeemable Preferred Stock shall not be
affected by the relevant redemption.
3.3 Status of Redeemed Shares. From and after a Redemption Date,
unless there shall have been a default in payment of the Series A Redemption
Price, the Series B Redemption
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Price, Series C Redemption Price, the Series D Redemption Price, the Series E
Redemption Price, the Series F Redemption Price, the Series I Redemption Price
or the Series J Redemption Price, as the case may be, all rights of the holders
of shares of Redeemable Preferred Stock which were redeemed on such Redemption
Date (except the right to receive the Series A Redemption Price, Series B
Redemption Price, Series C Redemption Price, Series D Redemption Price, Series E
Redemption Price, Series F Redemption Price, Series I Redemption Price or Series
J Redemption Price, as the case may be, without interest upon surrender of their
certificate or certificates) shall cease with respect to such shares, and such
shares shall not thereafter be transferred on the books of the Company or be
deemed to be outstanding for any purpose whatsoever. If the funds of the Company
legally available for redemption of shares of Redeemable Preferred Stock to be
redeemed on any Redemption Date are insufficient to redeem the total number of
shares of Redeemable Preferred Stock to be redeemed on such date, those funds
which are legally available will be used to redeem the maximum possible number
of such shares ratably among the holders of such shares to be redeemed based
upon the aggregate Redemption Price of their respective holdings of such shares.
The shares of Redeemable Preferred Stock not redeemed shall remain outstanding
and entitled to all the rights and preferences provided herein. At any time
thereafter when additional funds of the Company are legally available for the
redemption of shares of Redeemable Preferred Stock, such funds will immediately
be used to redeem the balance of the shares which the Company was obligated to
redeem on any Redemption Date but which it has not redeemed.
Section 4. Conversion
The holders of the Preferred Stock shall have conversion rights as
follows (the "Conversion Rights"):
4.1 Right to Convert. Each share of Preferred Stock shall be
convertible, at the option of the holder thereof, at any time after the date of
issuance of such share, into such number of fully paid and nonassessable shares
of Common Stock as is determined by dividing the Original Series Issue Price by
the Applicable Conversion Price for such series of Preferred Stock, determined
as hereinafter provided, in effect on the date the certificate is surrendered
for conversion.
4.2 Automatic Conversion.
(a) Except as otherwise provided in Section 4.3, each share of
Series A-2 Preferred Stock and Series B-2 Preferred Stock shall automatically be
converted into such number of fully paid and nonassessable shares of Common
Stock as is determined by dividing the Original Series Issue Price for each such
series of Preferred Stock by the Applicable Conversion Price for each such
series of Preferred Stock immediately upon the consummation by the Company of a
sale of its Common Stock in a firm commitment underwritten public offering
pursuant to a registration statement under the Securities Act of 1933, as
amended (the "Act"), the public offering price of which is not less than $30.00
per share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of Common Stock)
and for which the net proceeds to the Company (after discounts and commissions)
will equal or exceed $10,000,000 in the aggregate.
{PAGE}
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(b) Except as otherwise provided in Section 4.3, each share of
Series C-2 Preferred Stock shall automatically be converted into such number of
fully paid and nonassessable shares of Common Stock as is determined by dividing
the Original Series Issue Price for such series of Preferred Stock by the
Applicable Conversion Price for such series of Preferred Stock (i) immediately
upon the consummation by the Company of a sale of its Common Stock in a firm
commitment underwritten public offering pursuant to a registration statement
under the Act , the public offering price of which is not less than $38.52 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of Common Stock)
and for which the net proceeds to the Company (after discounts and commissions)
will equal or exceed $10,000,000 in the aggregate, or (ii) upon the approval of
at least 66 2/3 % of the voting power of all then outstanding shares of C-2
Preferred Stock voting together as a single class.
(c) Except as otherwise provided in Section 4.3, each share of
Series D-2 Preferred Stock shall automatically be converted into such number of
fully paid and nonassessable shares of Common Stock as is determined by dividing
the Original Series Issue Price for such series of Preferred Stock by the
Applicable Conversion Price for such series of Preferred Stock (i) immediately
upon the consummation by the Company of a sale of its Common Stock in a firm
commitment underwritten public offering pursuant to a registration statement
under the Act, the public offering price of which is not less than $54.00 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of Common Stock)
and for which the net proceeds to the Company (after discounts and commissions)
will equal or exceed $15,000,000 in the aggregate, or (ii) upon the approval of
at least 66 2/3 % of the voting power of all then outstanding shares of Series
D-2 Preferred Stock voting together as a single class.
(d) Except as otherwise provided in Section 4.3, each share of
Series E-2 Preferred Stock shall automatically be converted into such number of
fully paid and nonassessable shares of Common Stock as is determined by dividing
the Original Series Issue Price for such series of Preferred Stock by the
Applicable Conversion Price for such series of Preferred Stock (i) immediately
upon the consummation by the Company of a sale of its Common Stock in a firm
commitment underwritten public offering pursuant to a registration statement
under the Act, the public offering price of which is not less than $59.40 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of Common Stock)
and for which the net proceeds to the Company (after discounts and commissions)
will equal or exceed $15,000,000 in the aggregate, or (ii) upon the approval of
at least 66 2/3% of the voting power of all then outstanding shares of Series
E-2 Preferred Stock voting together as a single class.
(e) Except as otherwise provided in Section 4.3, each share of
Series F-2 Preferred Stock and Series F-2 Non-Voting Preferred Stock shall
automatically be converted into such number of fully paid and nonassessable
shares of Common Stock as is determined by dividing the Original Series Issue
Price for such series of Preferred Stock by the Applicable Conversion Price for
such series of Preferred Stock (i) immediately upon the consummation by the
Company of a sale of its Common Stock in a firm commitment underwritten public
offering pursuant to a registration statement under the Act, the public offering
price of which is not less
{PAGE}
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than $59.40 per share (adjusted to reflect subsequent stock dividends, stock
splits or recapitalizations affecting the number of outstanding shares of Common
Stock) and for which the net proceeds to the Company (after discounts and
commissions) will equal or exceed $15,000,000 in the aggregate, or (ii) upon the
approval of at least 66 2/3% of the voting power of all then outstanding shares
of Series F-2 Preferred Stock and Series F-2 Non-Voting Preferred Stock voting
together as a single class.
(f) Except as otherwise provided in Section 4.3, each share of
Series I-2 Preferred Stock shall automatically be converted into such number of
fully paid and nonassessable shares of Common Stock as is determined by dividing
the Original Series Issue Price for such series of Preferred Stock by the
Applicable Conversion Price for such series of Preferred Stock (i) immediately
upon the consummation by the Company of a sale of its Common Stock in a firm
commitment underwritten public offering pursuant to a registration statement
under the Act, the public offering price of which is not less than $59.40 per
share (adjusted to reflect subsequent stock dividends, stock splits or
recapitalizations affecting the number of outstanding shares of Common Stock)
and for which the net proceeds to the Company (after discounts and commissions)
will equal or exceed $15,000,000 in the aggregate, or (ii) upon the approval of
at least 66 2/3 % of the voting power of all then outstanding shares of Series
I-2 Preferred Stock voting together as a single class.
(g) Except as otherwise provided in Section 4.3, each share of
Series J-2 Preferred Stock and Series J-3 Preferred Stock shall automatically be
converted into such number of fully paid and nonassessable shares of Common
Stock as is determined by dividing the Original Series Issue Price for such
series of Preferred Stock by the Applicable Conversion Price for such series of
Preferred Stock (i) immediately upon the consummation by the Company of a sale
of its Common Stock in a firm commitment underwritten public offering pursuant
to a registration statement under the Act, the public offering price of which is
not less than $16.92 per share (adjusted to reflect subsequent stock dividends,
stock splits or recapitalizations affecting the number of outstanding shares of
Common Stock) and for which the net proceeds to the Company (after discounts and
commissions) will equal or exceed $30,000,000 in the aggregate, or (ii) upon the
approval of at least a majority of the voting power of all then outstanding
shares of Series J-2 Preferred Stock and Series J-3 Preferred Stock voting
together as a single class.
(h) Except as otherwise provided in Section 4.3, each share of
Preferred Stock shall automatically be converted into such number of fully paid
and nonassessable shares of Common Stock as is determined by dividing the
Original Series Issue Price for such series of Preferred Stock by the Applicable
Conversion Price for such series of Preferred Stock upon the approval of at
least 55% of the voting power of all then outstanding shares of Preferred Stock,
voting together as a single class.
(i) Special Mandatory Conversions.
(a) Effective as of 12:00 midnight, Boston time,
on July 22, 2002, each outstanding share of First Converted Preferred Stock
automatically converted into one share of Common Stock pursuant to the terms of
the Tenth Charter. Holders of such shares of First Converted Preferred Stock are
entitled to receive upon surrender of their certificates representing
{PAGE}
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shares of First Converted Preferred Stock a certificate or certificates
representing shares of Common Stock to which such holder is entitled pursuant to
Section 4.2(k) of the Tenth Charter. Until such time as the certificates
representing shares of First Converted Preferred Stock have been surrendered to
the Company as provided therein and herein, such certificates shall represent
only the right to receive certificates representing shares of Common Stock in
accordance with such terms.
(b) Effective as of 12:00 midnight, Boston time,
on July 1, 2003, each outstanding share of Second Converted Preferred Stock
automatically converted into such number of fully paid and nonassesable shares
of Common Stock as is determined by dividing the Original Series Issue Price for
such series of Preferred Stock by the Applicable Conversion Price for such
series of Preferred Stock pursuant to the terms of the Twelfth Charter. Holders
of such shares of Second Converted Preferred Stock are entitled to receive upon
surrender of their certificates representing shares of Second Converted
Preferred Stock a certificate or certificates representing shares of Common
Stock to which such holder is entitled pursuant to the provisions of Section
4.2(i) of the Twelfth Charter. Until such time as the certificates representing
shares of Second Converted Preferred Stock have been surrendered to the Company
as provided therein and herein, such certificates shall represent only the right
to receive certificates representing shares of Common Stock in accordance with
such terms.
4.3 Mechanics of Conversion. Any holder of Preferred Stock shall
exercise its right to convert shares of Preferred Stock into shares of Common
Stock, by giving written notice that the holder elects to convert a stated
number of shares of Preferred Stock into Common Stock and by surrender of a
certificate or certificates for the shares so to be converted, at the office of
the Company or of any transfer agent for the Preferred Stock, and shall give
written notice to the Company of the name or names in which the certificate or
certificates for shares of Common Stock are to be issued. The Company shall, as
soon as practicable thereafter, issue and deliver at such office to such holder
of Preferred Stock, or to the nominee or nominees of such holder, a certificate
or certificates for the number of shares of Common Stock to which such holder
shall be entitled as aforesaid. Such conversion shall be deemed to have been
made immediately prior to the close of business on the date of such surrender of
the shares of Preferred Stock to be converted, and the person or persons
entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such shares
of Common Stock as of such date. If the conversion is in connection with an
underwritten offering of securities registered pursuant to the Act, the
conversion may, at the option of any holder tendering Preferred Stock for
conversion, be conditioned upon the closing with the underwriters of the sale of
securities pursuant to such offering, in which event the person(s) entitled to
receive the Common Stock upon conversion of the Preferred Stock shall be deemed
to have converted such Preferred Stock until immediately prior to the closing of
such sale of securities.
4.4. Fractional Shares; Dividends; Partial Conversion. No
fractional shares shall be issued upon conversion of the Preferred Stock into
Common Stock. The calculation of fractional shares upon such conversion shall be
determined on the basis of the total number of shares of Preferred Stock the
holder is at the time converting into Common Stock and the number of shares of
Common Stock issuable upon such aggregate conversion. At the time of each
conversion, any
{PAGE}
- 17 -
and all dividends accrued and unpaid, except to the extent actually declared, on
the shares surrendered for conversion shall cease to be due and payable and
shall terminate. In case the number of shares of Preferred Stock represented by
the certificate or certificates surrendered pursuant to Section 4.3 exceeds the
number of shares converted, the Company shall, upon such conversion, execute and
deliver to the holder thereof, at the expense of the Company, a new certificate
or certificates for the number of shares of Preferred Stock represented by the
certificate or certificates surrendered which are not to be converted. If any
fractional interest in a share of Common Stock would, except for the provisions
of the first sentence of this Section 4.4, be deliverable upon any such
conversion, the Company, in lieu of delivering the fractional share thereof,
shall pay to the holder surrendering the Preferred Stock for conversion an
amount in cash equal to the current market price of such fractional interest as
determined in good faith by the Board of Directors of the Company.
4.5. Adjustment of Applicable Conversion Price Upon Issuance of
Common Shares.
Except as provided below, if and whenever the Company shall
issue or sell, or, in accordance with subsections 4.5(a) through 4.5(g), deemed
to have issued or sold, any shares of its Common Stock without consideration or
for a consideration per share less than the Applicable Conversion Price in
effect for a series of Preferred Stock immediately prior to the time of such
issue or sale, then, forthwith upon such issue or sale, the Applicable
Conversion Price for such series of Preferred Stock shall be reduced
concurrently with such issue or sale, to a price (calculated to the nearest
cent) determined by dividing (i) an amount equal to the sum of (x) the number of
shares of Common Stock outstanding immediately prior to such issue or sale
(including as outstanding all shares of Common Stock issuable immediately prior
to the time of such issue or sale upon conversion of outstanding convertible
securities and all securities issuable upon exercise of outstanding options and
warrants) multiplied by the Applicable Conversion Price of such series of
Preferred Stock and (y) the consideration, if any, received by the Company upon
409353
|
Alexandria
As referenced in this Certificate of Incorporation [Amended and Restated]:
Alexandria Real Estate Equities, L.P. – Dividends pursuant to Section 1.8 of the Tenth Charter;
{PAGE}
- 22 -
(vi) in the case of the issuance of that certain Warrant
Agreement by and between the Company and Alexandria Real Estate Equities, L.P. ,
dated on or about March 30, 2001 (as amended and in effect from time to time,
the "Alexandria Warrant Agreement") and the issuance of Preferred Stock upon
exercise of
_____________
dt 1411451
;
Acusphere
As referenced in this Certificate of Incorporation [Amended and Restated]:
ACUSPHERE, INC – TYPE}EX-3.01
{SEQUENCE}4
{FILENAME}b47005a4exv3w01.txt
{DESCRIPTION}EX-3.01 AMEND. & RESTATED CERTIFICATE OF INC.
{TEXT}
{PAGE}
EXHIBIT 3.01
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACUSPHERE, INC .
(Incorporated as
Polymers for Medicine, Inc.
on July 12, 1993)
I, Sherri C. Oberg, President of Acusphere, Inc., a corporation
organized and existing under and by virtue of the
_____________
Acusphere, Inc – TEXT}
{PAGE}
EXHIBIT 3.01
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACUSPHERE, INC.
(Incorporated as
Polymers for Medicine, Inc.
on July 12, 1993)
I, Sherri C. Oberg, President of Acusphere, Inc ., a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Delaware Corporation Law"), do hereby certify as
follows:
1.
_____________
Acusphere, Inc – under and by virtue of the General Corporation Law of the
State of Delaware (the "Delaware Corporation Law"), do hereby certify as
follows:
1. The original Certificate of Incorporation of Acusphere, Inc .
(the "Company" or the "Corporation") was filed in the Office of the Secretary of
State of the State of Delaware on July 12, 1993 under the name "Polymers for
_____________
Acusphere, Inc – Delaware General Corporation Law.
3. The text of the Certificate of Incorporation of the Company,
as amended and restated herein, is as follows:
FIRST. The name of the corporation is Acusphere, Inc . (the
"Company").
SECOND. The address of the registered office of the Company
in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington,
_____________
Acusphere,
Inc – REST OF PAGE INTENTIONALLY LEFT BLANK]
{PAGE}
- 40 -
IN WITNESS WHEREOF, the undersigned has duly executed this Amended and
Restated Certificate of Incorporation in the name and on behalf of Acusphere,
Inc . on the 6th day of October, 2003 and the statements contained herein are
affirmed as true under penalties of perjury.
ACUSPHERE, INC.
By: /s/ Sherri C. Oberg
-------------------------
Name: Sherri
_____________
dt 1475165
;
|
M.I.T.
As referenced in this Certificate of Incorporation [Amended and Restated]:
Massachusetts Institute of Technology – Stock;
(iii) in the case of the issuance on or about March 30,
1995 and June 4, 1996 of 25,473 shares of Common Stock in the aggregate to the
Massachusetts Institute of Technology (adjusted to reflect subsequent stock
dividends, stock splits or recapitalizations affecting the number of outstanding
shares of the Common Stock);
(iv) in the case of the issuance of securities (
_____________
dt 1549296
;
Sherri C. Oberg
|
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| 2004 |
Investor Rights Agreement [Amended and Restated No. 3]
Investor Rights Agreement [Amended and Restated No. 3] (56K)
Doc #236928: Click preview link for longer preview.
GOOGLE INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Third Amended and Restated Investor Rights Agreement (the Agreement) is made as of May 31, 2002 by and among Google Inc., a California corporation (the Company), the persons listed on the Schedule of Investors attached hereto as Exhibit A (collectively the Investors and individually an Investor) and America Online, Inc., a Delaware corporation (the Series D Warrant Holder).
RECITALS
A. The Company is a party to that certain Second Amended and Restated Investor Rights Agreement dated as of September 6, 2000, as subsequently amended (the Prior Agreement) by and among the Company, the holder of a warrant to purchase Common Stock of the Company (the Common Warrant Holder); certain holders of the Companys Series A Preferred Stock (the Series A Parties); certain holders of the Companys Series B Preferred Stock and certain holders of the Companys warrants to purchase Series B Preferred Stock (the Series B Parties); and certain holders of the Company Series C Preferred Stock and certain holders of the Companys warrants to purchase Series C Preferred Stock (the Series C Parties).
B. The Company is selling a warrant to purchase shares of its Series D Preferred Stock pursuant to that certain Series D Preferred Stock Warrant dated as of June 3, 2002 (the Series D Warrant) to the Series D Warrant Holder, which Series D Warrant provides, among other things, that the Company and the Investors shall have entered into this Agreement in order that the Investors be afforded certain registration and information rights with respect to the Preferred Stock.
C. In further consideration of the Companys sale and the Series D Warrant Holders purchase of the Series D Warrant, the several parties hereto wish to grant to the Series D Warrant Holder the several rights set forth herein and to observe the several obligations set forth herein.
E. The Company, the Common Warrant Holder, the Series A Parties, the Series B Parties and the Series C Parties desire to amend and restate the Prior Agreement to include the Series D Warrant Holder as a party hereto, and the Series D Warrant Holder desires to execute this Agreement so as to become a party to the Prior Agreement, as amended and restated hereby.
F. As set forth in Section 6.7 below, upon the execution of this Agreement by (i) the Company and (ii) a majority in interest of the Common Warrant Holder, the Series A Parties, the Series B Parties and the Series C Parties, voting together, the Prior Agreement is amended and restated in its entirety.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
SECTION 1
Definitions
As used in this Agreement, the following terms shall have the following respective meanings:
1.1 ARE Common Shares shall mean those shares of Company Common Stock issued or issuable upon the exercise of a warrant held by Alexandria Real Estate Equities, L.P. (ARE).
1.2 Commission shall mean the Securities and Exchange Commission or any other U. S. federal agency at the time administering the Securities Act.
1.3 Common Stock shall mean shares of the Companys Common Stock, no par value.
1.4 Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
1.5 Heller Financial Common Shares shall mean those shares of Company Common Stock issued or issuable upon conversion of shares of Series C Preferred Stock as may be issued to Heller Financial Leasing, Inc., a Delaware corporation (Heller) upon exercise of those certain warrants issued to Heller dated June 28, 2001, August 1, 2001, December 27, 2001 and March 29, 2002 (or any shares of Company Common Stock issued upon exercise of such warrants).
1.6 Holder or Holders shall mean each of the Investors listed on Exhibit A (and their transferees as permitted by Section 3.10) holding Registrable Securities.
1.7 Initiating Holders shall mean Holders who in the aggregate hold greater than forty percent (40%) of the Registrable Securities. Other Holders shall mean holders of Company securities, other than the Holders, proposing to distribute their securities pursuant to a registration under Section 3 of this Agreement.
1.8 Registrable Securities shall mean (i) the Series D Warrant Holder Common Shares; (ii) the Heller Financial Common Shares; provided, however, that the Heller Financial Common Shares shall be excluded from the definition of Registrable Securities for the purposes of Sections 1.7, 3.1 and 3.3; (iii) the ARE Common Shares; (iv) shares of Common Stock issued or issuable pursuant to the conversion of the Companys Series A Preferred Stock, Series B Preferred Stock, and Series C Preferred Stock, including shares of any series of Preferred Stock of the Company issued upon the exercise of any outstanding warrant or other security exercisable for shares of Preferred Stock, if the issuance of such security was approved by the Companys Board of Directors; provided, however, that any such shares relating to the Heller Financial Warrant shall be excluded from the definition of Registrable Securities for the purposes of Sections 1.7, 3.1 and 3.3; (v) any Common Stock issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, such Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
236928
|
Alexandria
As referenced in this Investor Rights Agreement [Amended and Restated No. 3]:
Alexandria Real Estate Equities, L.P. – 1 ARE Common Shares shall mean those shares of Company Common Stock issued or issuable upon the exercise of a warrant held by Alexandria Real Estate Equities, L.P. (ARE).
1.2 Commission shall mean the Securities and Exchange Commission or any other U. S. federal agency at the time administering
_____________
Alexandria Real Estate Equities, L.P. – Yazdani
Larry W. Sonsini
Chris F. Fennell
Suzanne Y. Bell
WS Investment Company 2000B
Rackable Systems, Inc.
Eric Schmidt
Common Stock Warrant Holder
Alexandria Real Estate Equities, L.P. (ARE)
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth above.
INVESTORS
COMPANY
GOOGLE INC., a
_____________
dt 117497
;
America Online
As referenced in this Investor Rights Agreement [Amended and Restated No. 3]:
America Online, – of Investors attached hereto as Exhibit A (collectively the Investors and individually an Investor) and America Online, Inc., a Delaware corporation (the Series D Warrant Holder).
RECITALS
A. The Company is
dt 62864
;
Google
As referenced in this Investor Rights Agreement [Amended and Restated No. 3]:
GOOGLE – 4.01 5 dex401.htm THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
Exhibit 4.01
GOOGLE INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
May 31, 2002
TABLE OF CONTENTS
Page
GOOGLE – Aggregation
15
6.4
Notices, etc
16
6.5
Severability
16
6.6
Counterparts
16
GOOGLE INC.
THIRD AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Third Amended and Restated Investor Rights
Google – Investor Rights Agreement (the Agreement) is made as of May 31, 2002 by and among Google Inc., a California corporation (the Company), the persons listed on the Schedule of Investors attached
GOOGLE – the undersigned has executed this Agreement as of the date set forth above.
INVESTORS
COMPANY
GOOGLE INC., a California corporation
By:
By:
/s/ David C. Drummond
(Signature)
Name:
(Print name)
Title:
dt 62809
;
|
Heller Financial
As referenced in this Investor Rights Agreement [Amended and Restated No. 3]:
Heller Financial Leasing, – those shares of Company Common Stock issued or issuable upon conversion of shares of Series C Preferred Stock as may be issued to Heller Financial Leasing, Inc., a Delaware corporation (Heller) upon exercise of those certain warrants issued to Heller dated June 28, 2001, August 1, 2001, December
_____________
dt 104332
;
 WSGR
As referenced in this Investor Rights Agreement [Amended and Restated No. 3]:
Wilson Sonsini – offices and addressed to the attention of the Corporate Secretary and with a copy to Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304-1050, Attention:
dt 62837
|
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Full Doc
| 2003 |
Investor Rights Agreement [Amended and Restated No. 4]
Investor Rights Agreement [Amended and Restated No. 4] (148K)
Doc #272214: Click preview link for longer preview.
FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT made as
of September 11, 2003 by and among (i) Memory Pharmaceuticals Corp., a Delaware
corporation (the "Company"), (ii) Hoffmann-La Roche Inc. (the "Series Roche
Purchaser"), (iii) the Purchasers listed on Exhibit A (the "Series D
Purchasers") of that certain Preferred Stock Purchase Agreement dated as of
March 4, 2002 (the "Series D Purchase Agreement"), (iv) the Purchasers listed on
Exhibit A (the "Series C Purchasers") of that certain Preferred Stock Purchase
Agreement dated as of June 21, 2000 (the "Series C Purchase Agreement"), (v) the
Purchasers listed on Exhibit A (the "Series B Purchasers") of that certain
Preferred Stock Purchase Agreement dated as of December 22, 1998 (the "Series B
Purchase Agreement") and (vi) the Purchasers listed on Exhibit A of that certain
Preferred Stock Purchase Agreement dated April 24, 1998 (the "Series A
Purchasers" and together with the Series B Purchasers, the Series C Purchasers,
the Series D Purchasers, and the Series Roche Purchaser, the "Purchasers"). The
Purchasers may be referred to herein individually as an "Investor," and
collectively as the "Investors".
WHEREAS, the Company and the Series A Purchasers entered into
an Investor Rights Agreement, dated as of April 24, 1998 (the "Original
Agreement");
WHEREAS, the Company and the Series A Purchasers and the
Series B Purchasers entered into an Amended Investor Rights Agreement, dated as
of December 22, 1998 (the "First Amended Agreement"), which First Amended
Agreement amended and restated the Original Agreement;
WHEREAS, the Company and the Series A Purchasers, the Series B
Purchasers and the Series C Purchasers entered into a Second Amended Investor
Rights Agreement, dated as of June 21, 2000 (the "Second Amended Agreement"),
which Second Amended Agreement amended and restated the First Amended Agreement;
WHEREAS, the Company and the Series A Purchasers, the Series B
Purchasers, the Series C Purchasers and the Series D Purchasers entered into a
Third Amended Investor Rights Agreement dated as of March 4, 2002 (the "Third
Amended Agreement"), which Third Amended Agreement amended and restated the
Second Amended Agreement;
WHEREAS, the Company proposes to issue and sell (i) an
aggregate of 2,777,778 shares of Series Roche Convertible Preferred Stock, par
value $.001 per share (the "Series Roche Stock"), and (ii) a warrant exercisable
for 347,222 shares of Common Stock ("the "Warrant"), to the Series Roche
Purchaser pursuant to that certain Securities Purchase Agreement dated as of
August 19, 2003 by and between the Company and the Series Roche Purchaser (the
"Series Roche Purchase Agreement");
WHEREAS, as a condition to entering into the Series Roche
Purchase Agreement, the Series Roche Purchaser has requested that the Company
extend to it registration rights and certain other rights and covenants as set
forth herein;
{PAGE}
WHEREAS, the Company and the Series A Purchasers, the Series B
Purchasers, the Series C Purchasers and the Series D Purchasers desire to amend
and restate the Third Amended Agreement and to add the Series Roche Purchaser as
a party thereto to extend to the Series Roche Purchaser certain registration
rights and certain other rights and covenants as set forth herein;
WHEREAS, the Board of Directors of the Company has determined
that it is in the best interests of the Company that the Company enter into this
Agreement; and
WHEREAS Walter Gilbert, Ph.D., Eric R. Kandel, M.D, Axel
Unterbeck, Ph.D., Oxford Bioscience Partners II, L.P., Oxford Bioscience
Partners (Bermuda) II Limited Partnership and HealthCare Ventures V L.P. are all
founders and holders of common stock, par value $.001 per share, of the Company.
NOW, THEREFORE, in consideration of the covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the parties
hereto covenant and agree as follows:
GENERAL PROVISIONS
1.1 SHARES SUBJECT TO THIS AGREEMENT. The Investors
expressly agree that the terms and restrictions of this Agreement shall apply to
all shares of capital stock which any of them now owns or hereafter acquires by
any means, including without limitation by purchase, assignment or operation of
law, or as a result of any stock dividend, stock split, reorganization,
reclassification, whether voluntary or involuntary, or other similar
transaction, and to any shares of capital stock of any successor in interest of
the Company, whether by sale, merger, consolidation or other similar
transaction, or by purchase, assignment or operation of law (the "Shares").
1.2 NO PARTNERSHIP RELATIONSHIP. Notwithstanding, but not
in limitation of, any other provision of this Agreement, the parties understand
and agree that the creation, management and operation of the Company shall not
create or imply a general partnership between or among the Investors and shall
not make any Investor the agent or partner of any other Investor for any
purpose.
1.3 CERTAIN DEFINITIONS. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" has the meaning ascribed to that term in Rule
12b-2 under the Exchange Act, or any successor rule.
"Commission" shall mean the U.S. Securities and Exchange
Commission and any successor agency of the Federal government administering the
Securities Act and the Exchange Act.
"Common Stock" shall mean (i) the common stock, $.001 par
value per share, of
2
{PAGE}
the Company, (ii) any other capital stock of the Company, however designated,
authorized on or after the date hereof, which shall neither be limited to a
fixed sum or percentage of par value in respect of the rights of the holders
thereof to participate in dividends nor entitled to a preference in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company; and (iii) any other securities into
which or for which any of the securities described in (i) or (ii) may be
converted or exchanged pursuant to a plan of recapitalization, reorganization,
merger, consolidation, sale of assets or other similar transaction.
"Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended, and any similar or successor Federal statute, and the rules
and regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
"Federal" shall mean with respect to any executive,
legislative or judicial branch of government or other agency or organ of
government, a branch or other agency or organ of the government of the United
States.
"Initial Public Offering" shall mean the first underwritten
public offering of Common Stock of the Company, offered on a firm commitment
basis pursuant to a registration statement filed with the Commission under the
Securities Act on Form S-1 or its then equivalent, in which (i) the initial
public offering price per share is not less than $4.00 if the closing of such
offering occurs within six (6) months of the date on which shares of Series D
Stock were first issued ("Series D First Issuance"), $5.45 if such closing
occurs after six (6) months from and within eighteen (18) months of the Series D
First Issuance, $7.90 if such closing occurs after eighteen (18) months from and
within thirty (30) months of the Series D First Issuance, and $11.40 if such
closing occurs after thirty (30) months from the Series D First Issuance (in
each case such dollar amount being subject to equitable adjustment in the event
of any stock dividend, stock split, combination, reorganization,
recapitalization or similar event involving a change in the Common Stock) and
(ii) the aggregate net proceeds to the Company equals or exceeds $50,000,000.
"Person" means an individual, corporation, partnership, joint
venture, trust or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Preferred Stock" means the Series A Stock, the Series B
Stock, the Series C Stock, the Series D Stock and the Series Roche Stock.
The terms "register", "registered" and "registration" shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement, or, as the context may require, under the Exchange
Act or applicable state securities laws.
"Registrable Securities" shall mean (i) shares of Preferred
Stock; (ii) shares of Common Stock or other securities issued or issuable
pursuant to the conversion of the Preferred Stock or pursuant to the exercise of
the Warrant; and (iii) any shares of Common Stock or other securities issued or
issuable with respect to the Preferred Stock or the Warrant by reason of any
3
{PAGE}
stock split, stock dividend, recapitalization, reorganization, merger,
consolidation, sale of assets or similar event, excluding in any event
securities which have been (a) registered under the Securities Act pursuant to
an effective registration statement filed thereunder and disposed of in
accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act. Wherever reference is made in
this Agreement to a request or consent of holders of a certain percentage of
Registrable Securities, the determination of such percentage shall be calculated
on the basis of shares of Common Stock issued or issuable upon conversion of the
Preferred Stock and upon exercise of the Warrant even if such exercise has not
been effected.
"Registration Expenses" shall mean the expenses so described
in Section 4.7.
272214
|
Alexandria
As referenced in this Investor Rights Agreement [Amended and Restated No. 4]:
ALEXANDRIA REAL ESTATE
EQUITIES, L.P. – Cochrane
-------------------------------
Name: Christopher W. Cochrane
Title: Director
S.R. ONE LIMITED
By /s/ Philip L. Smith
-------------------------------
Name: Philip L. Smith
Title: Vice President
ALEXANDRIA REAL ESTATE
EQUITIES, L.P.
By /s/ Joel S. Marcus
-------------------------------
Name: Joel S. Marcus
Title: CEO
34
{PAGE}
SERIES C PURCHASERS:
PHARMA/w HEALTH
By /s/ Michael
_____________
ALEXANDRIA REAL ESTATE
EQUITIES, L.P. – Managing Partner
GIMV
By /s/ P. Van Beneden
------------------------------
Name: P. Van Beneden
Title: Vice-President
/s/ Dirk Boogmans
------------------------------
Name: Dirk Boogmans
Title: CEO
ALEXANDRIA REAL ESTATE
EQUITIES, L.P. , a Delaware Limited
liability company
By: ARE-QRS Corp., a Maryland
Corporation, general partner
By /s/ Joel S. Marcus
------------------------------
Joel S. Marcus,
_____________
dt 181811
;
Memory Pharma
As referenced in this Investor Rights Agreement [Amended and Restated No. 4]:
Memory Pharmaceuticals Corp – AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT made as
of September 11, 2003 by and among (i) Memory Pharmaceuticals Corp ., a Delaware
corporation (the "Company"), (ii) Hoffmann-La Roche Inc. (the "Series Roche
Purchaser"), (iii) the Purchasers listed on Exhibit A (the "
_____________
Memory Pharmaceuticals Corp – not be used to effectuate
any such notice, request, consent or other communication to addresses outside
the United States.
If to the Company: Memory Pharmaceuticals Corp .
With a copy to: Sills Cummis Radin Tischman Epstein
& Gross, A Professional Corporation
One Riverfront Plaza
28
{PAGE}
Newark, New Jersey 07102-
_____________
MEMORY PHARMACEUTICALS CORP – have executed this
Agreement or caused this Agreement to be executed by their duly authorized
representatives as of the date first written above.
MEMORY PHARMACEUTICALS CORP .
By /s/ Tony Scullion
-------------------------------
Name: Tony Scullion
Title: Chief Executive Officer
SERIES A PURCHASERS:
OXFORD BIOSCIENCE
PARTNERS II L.P.
By: OBP
_____________
dt 181269
;
QRS
As referenced in this Investor Rights Agreement [Amended and Restated No. 4]:
-QRS Corp. – Van Beneden
------------------------------
Name: P. Van Beneden
Title: Vice-President
/s/ Dirk Boogmans
------------------------------
Name: Dirk Boogmans
Title: CEO
ALEXANDRIA REAL ESTATE
EQUITIES, L.P., a Delaware Limited
liability company
By: ARE-QRS Corp. , a Maryland
Corporation, general partner
By /s/ Joel S. Marcus
------------------------------
Joel S. Marcus, CEO
MEMORIES PLUS, LLC
By /s/ Robert DiVincent
------------------------------
Name: Robert DiVincent
Title: Pres.
M&G EQUITIES
_____________
dt 1450546
;
|
Columbia
As referenced in this Investor Rights Agreement [Amended and Restated No. 4]:
Columbia University' – s immediate
family and (B) any securities issued or issuable by the Company to Kandel, or
securities allocated or allocable to Kandel under Columbia University' s
inventorship policies, as royalties under a license by the Company of technology
of which Kandel is an inventor (the "University Shares"), unless
_____________
dt 181818
;
Dewey Ballantine
As referenced in this Investor Rights Agreement [Amended and Restated No. 4]:
Dewey Ballantine – does not
accept an opinion of counsel required hereby signed by the original holder's
counsel (it being agreed that an opinion of Dewey Ballantine LLP, Gibbons, Del
Deo, Dolan, Griffinger & Vecchione, P.C., Wollmuth Maher & Deutsch LLP or Sidley
Austin Brown & Wood LLP shall be considered
_____________
dt 180100
;
More... |
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| 2003 |
Lease Agreement
Lease Agreement (203K)
Doc #272217: Click preview link for longer preview.
LEASE AGREEMENT
Dated as of June 4, 1999
between
ARE-100 PHILIPS PARKWAY, LLC,
a Delaware limited liability company, as LANDLORD
and
MEMORY PHARMACEUTICALS CORP.,
a Delaware corporation, as TENANT
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
1. Lease of Premises ............................................... 1
2. Delivery; Acceptance of Premises; Commencement Date ............. 1
3. Rent ............................................................ 1
4. Additional TI Allowance ......................................... 2
5. Base Rent Adjustments ........................................... 2
6. Operating Expenses Payments ..................................... 3
7. Security Deposit ................................................ 4
8. Use ............................................................. 5
9. Holding Over .................................................... 5
10. Taxes ........................................................... 6
11. Parking ......................................................... 6
12. Utilities, Services ............................................. 6
13. Alterations and Tenant's Property ............................... 7
14. Landlord's Repairs .............................................. 7
15. Tenant's Repairs ................................................ 8
16. Mechanic's Liens ................................................ 8
17. Indemnification ................................................. 8
18. Insurance ....................................................... 9
19. Restoration ..................................................... 10
20. Condemnation .................................................... 10
21. Events of Default ............................................... 11
22. Landlord's Remedies ............................................. 12
23. Assignment and Subletting ....................................... 14
24. Estoppel Certificates ........................................... 15
25. Quiet Enjoyment ................................................. 15
26. Prorations ...................................................... 15
27. Rules and Regulations ........................................... 15
28. Subordination ................................................... 15
29. Surrender ....................................................... 16
30. Waiver of Jury Trial ............................................ 16
31. Environmental Requirements ...................................... 16
32. Tenant's Remedies/Limitation of Liability ....................... 18
33. Inspection and Access ........................................... 19
34. Security ........................................................ 19
35. Force Majeure ................................................... 19
36 Limitation on Landlord's Liability .............................. 19
37. Brokers, Entire Agreement, Amendment ............................ 19
38. Severability .................................................... 20
39. Landlord's Lien/Security Interest ............................... 20
40. Signs; Exterior Appearance ...................................... 20
41. Miscellaneous ................................................... 20
42. Expansion Space and Renewal Terms. .............................. 21
{/TABLE}
EXHIBIT A - DESCRIPTION OF PREMISES EXHIBIT B - DESCRIPTION OF PROJECT
EXHIBIT C - WORK LETTER EXHIBIT D - ACTUAL COMMENCEMENT DATE
EXHIBIT E - RULES AND REGULATIONS EXHIBIT F - TENANT'S PROPERTY
EXHIBIT G - ESTOPPEL CERTIFICATE EXHIBIT H - SUBORDINATION AGREEMENT
{PAGE}
LEASE AGREEMENT
THIS LEASE AGREEMENT ("LEASE") is made this fourth day of June, 1999,
between ARE-100 PHILIPS PARKWAY, LLC, a Delaware limited liability company
("LANDLORD"), and MEMORY PHARMACEUTICALS CORP., a Delaware corporation
("TENANT").
BASIC LEASE PROVISIONS
ADDRESS: 100 Philips Parkway, Montvale, New Jersey
PREMISES: That portion of the Project, containing
approximately 30,000 rentable square feet, as
determined by Landlord, shown hatched on Exhibit A.
BASE RENT: $13.00 per rentable square foot per year, subject
to adjustment as described in Sections 4 and 5
RENT ADJUSTMENT PERCENTAGE: 3.0% TENANT'S SHARE: 43.2%
RENTABLE AREA OF PREMISES: 32,000 sq. ft. RENTABLE AREA OF PROJECT: 74,000
sq. ft.
COMMENCEMENT DATE: The date hereof SECURITY DEPOSIT: $300,000
TERM: 120 months from the first day of the month
following the month in which the Rent Commencement
Date occurs
PERMITTED USE: Research and development laboratory and related
uses, including, but not limited to, a chemistry
laboratory, a biological laboratory and an animal
vivarium
TENANT'S BROKER: Insignia/ESG Jackson Cross
ADDRESS FOR RENT PAYMENT: LANDLORD'S NOTICE ADDRESS:
135 N. Los Robles Avenue, Suite 250 135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101 Pasadena, CA 91101
Attention: Accounts Receivable Attention: General Counsel
TENANT'S NOTICE ADDRESS:
3960 Broadway
New York, NY 10032
WITH A COPY TO:
Lewis Geffen, Esq.
Mintz, Levin Cohn Ferris Glovsky and Popeo PC
One Financial Center
Boston, MA 02111
AGREEMENT
1. LEASE OF PREMISES. Upon and subject to all of the terms and
conditions hereof, Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord, effective as of the date hereof. The
real property on which the building in which the Premises are located, together
with all improvements thereon and appurtenances thereto are collectively
referred to herein as the "PROJECT" and described on Exhibit B, and the portions
of the Project which are for the non-exclusive use of tenants of the Project are
collectively referred to herein at the "COMMON AREAS." Landlord reserves the
right to modify Common Areas, provided that such modifications do not materially
adversely affect Tenant's use of the Premises.
[100 Philips Parkway/Memory Pharmaceuticals- Page 1]
{PAGE}
2. DELIVERY; ACCEPTANCE OF PREMISES; COMMENCEMENT DATE. Landlord
shall use reasonable efforts to deliver the Premises to Tenant on or before July
1, 1999 (the "TARGET DELIVERY DATE"), with Landlord's Work, if any, sufficiently
completed to permit Tenant to commence its work under the Work Letter without
unreasonable cost or delay ("DELIVERY" or "DELIVER"). If Landlord fails to
Deliver the Premises, Landlord shall not be liable to Tenant for any loss or
damage resulting therefrom, and this Lease shall not be void or voidable except
as provided herein. If Landlord does not Deliver the Premises within 3 months of
the Target Delivery Date for any reason other than Force Majeure Delay or Tenant
Caused Delay, this Lease shall be voidable by Landlord or Tenant by written
notice to the other, and if voided by either: (a) the Security Deposit shall be
returned to Tenant, and (b) neither Landlord nor Tenant shall have any further
rights, duties or obligations under this Lease, except with respect to
provisions which expressly survive termination of this Lease. If neither party
elects to void this Lease within 5 business days of the lapse of such 3 month
period, such right to void this Lease shall be waived. The actual size of the
Premises and, if required, the Project shall be measured upon Delivery of the
Premises to Tenant, or at such later time as Landlord and Tenant shall agree, in
accordance with the 1996 Standard Method of Measuring Floor Area in Office
Buildings as adopted by the Building Owners and Managers Association (ANSI/BOMA
Z65.1-1996). The Rent payable hereunder and Tenant's Share shall be adjusted, if
required, on the basis of such measurement.
The "RENT COMMENCEMENT DATE" shall be earliest of: (i) the date
Tenant's Work for Phase I is Substantially Complete, and (ii) May 1, 2000. On
the Rent Commencement Date, Tenant shall pay Base Rent for the entire Premises.
Such Rent shall be calculated for Phase I of the Premises on the basis of the
actual TI Allowance provided by Landlord to Tenant for Phase I as set forth in
Section 4(a) below, and shall be calculated at $10.00 per rentable square foot
for any portion of the Premises not included in Phase I. When Tenant's Work for
Phase II is complete, the Rent for the balance of the Premises shall be adjusted
as set forth in Section 4(a) below on the basis of the actual TI Allowance
provided by Landlord to Tenant for Phase II. Upon request of Landlord, Tenant
shall execute and deliver a written acknowledgment of the Rent Commencement Date
and the expiration date of the Term when such are established and shall attach
the acknowledgment to this Lease as part of Exhibit D; provided, however,
Tenant's failure to execute and deliver such acknowledgment shall not affect
Landlord's rights hereunder.
Except as set forth in the Work Letter, Tenant shall accept the
Premises in their condition as of the date the Premises are Delivered, subject
to all applicable laws, ordinances, regulations, covenants and restrictions.
Neither Landlord nor any agent of Landlord has made any representation or
warranty with respect to the condition of any or all of the Premises (other than
Landlord's Work, if any) or the Project, and/or the suitability of the Premises
for the conduct of Tenant's business, and Tenant waives any implied warranty
that the Premises are suitable for Tenant's intended purposes. Except as set
forth in the Work Letter, if applicable: (i) Landlord have no obligation for
any defects in the Premises; and (ii) Tenant's taking possession of the Premises
shall be conclusive evidence that Tenant accepts the Premises and that the
Premises were in good condition at the time possession was taken. Any occupancy
of the Premises by Tenant before the Rent Commencement Date (other than for the
purpose of constructing Tenant's Work, as defined in the Work Letter) shall be
subject to all of the terms and conditions of this Lease, including the
obligation to pay Rent.
As used herein, the terms "FORCE MAJEURE DELAY," "PHASE I," "PHASE II,"
"TENANT CAUSED DELAYS," "TENANT'S WORK," and "SUBSTANTIALLY COMPLETE" shall have
the meanings set forth for such terms in the Work Letter.
3. RENT.
(a) BASE RENT. The first month's Base Rent and the Security
Deposit shall be due and payable on the date hereof. Tenant shall pay to
Landlord in advance, without demand, deduction or set-off, monthly installments
of Base Rent on or before the first day of each calendar month during the Term
hereof. Payments of Base Rent for any fractional calendar month shall be
prorated. All payments required to be made by Tenant to Landlord hereunder shall
be payable at the address Landlord specifies from time-to-time for payment of
Rent. The obligation of Tenant to pay Base Rent and other sums to Landlord and
the obligations of Landlord under this Lease are independent obligations. Tenant
shall have no right at any time to abate, reduce, or set-off any Rent due
hereunder except for any abatement as may be expressly provided in this Lease.
Tenant
[100 Philips Parkway/Memory Pharmaceuticals- Page 2]
{PAGE}
shall pay Base Rent and Additional Rent for the Office Space commencing upon
Tenant's occupancy thereof for the conduct of Tenant's business.
(b) ADDITIONAL RENT. In addition to Base Rent, Tenant agrees to
pay to Landlord as additional rent ("ADDITIONAL RENT"): (i) Tenant's Share of
"Operating Expenses," and (ii) any and all other amounts Tenant assumes or
agrees to pay under the provisions of this Lease, including, without limitation,
any and all other sums that may become due by reason of any default of Tenant or
failure to comply with the agreements, terms, covenants and conditions of this
Lease to be performed by Tenant, after any applicable notice and cure period.
(c) RENT. Base Rent and Additional Rent shall together be
denominated "RENT". Except as expressly provided in Section 19 hereof, Rent
shall be paid to Landlord, without abatement, deduction, or offset, in lawful
money of the United States of America, at the office of Landlord for payment of
Rent set forth above, or to such other person or at such other place as Landlord
may from time designate in writing. If the Term commences or ends on a day other
than the first day of a calendar month, then the Rent for such fraction of a
month shall be prorated and paid on the basis of a 30 day month.
4. ADDITIONAL TI ALLOWANCE.
(a) INCREASED TI ALLOWANCE. In addition to the TI Allowance
described in Exhibit C, Tenant shall have the right, upon written notice to
Landlord and provided that no Default, or event which with the giving of notice
or the passage of time, or both, would constitute an Default, has occurred and
is continuing, to increase the amount of the TI Allowance in the increments set
forth below up to a maximum increase of $180 per square foot of Rentable Area of
the Premises, not to exceed a total TI Allowance of $4,700,000 for the entire
Premises and not to exceed a TI Allowance of $3,500,000 for Phase I of the
Premises. If Tenant elects to increase the TI Allowance pursuant to this Section
4, Base Rent shall be adjusted for Phase I and for Phase II. as follows:
{TABLE}
{CAPTION}
TI Allowance Increase in Base Rent Initial Base Rent
-----------------------------------------------------------------------
{S} {C} {C}
$ 20.00 $0.00 $13.00/RSF
$ 35.00 $1.30 $14.30/RSF
$ 45.00 $1.30 $15.60/RSF
$ 55.00 $1.30 $16.90/RSF
$ 65.00 $1.30 $18.20/RSF
$ 75.00 $1.30 $19.50/RSF
$ 85.00 $1.30 $20.80/RSF
$ 95.00 $1.30 $22.10/RSF
$ 105.00 $1.30 $23.40/RSF
$ 115.00 $1.30 $24.70/RSF
$ 125.00 $1.40 $26.10/RSF
$ 135.00 $1.40 $27.50/RSF
$ 145.00 $1.40 $28.90/RSF
$ 155.00 $1.40 $30.30/RSF
$ 165.00 $1.40 $31.70/RSF
$ 175.00 $1.40 $33.10/RSF
{/TABLE}
[100 Philips Parkway/Memory Pharmaceuticals- Page 3]
{PAGE}
{TABLE}
{S} {C} {C}
$185.00 $1.40 $34.50/RSF
$195.00 $1.40 $35.90/RSF
$200.00 $0.70 $36.60/RSF
{/TABLE}
(b) PAYMENT. Base Rent, as increased pursuant to Section 4(a)
above, shall be paid as described in Section 3 and shall be adjusted as
described in Section 5.
5. BASE RENT ADJUSTMENTS. Base Rent shall be increased on the
second annual anniversary of the first day of the first full month during the
Term of this Lease, and on each annual anniversary of such date thereafter, by
multiplying the Base Rent payable immediately before such adjustment by the Rent
Adjustment Percentage and adding the resulting amount to the Base Rent payable
immediately before such adjustment. Base Rent, as so adjusted, shall thereafter
be due as provided herein. Base Rent adjustments for any fractional calendar
month shall be prorated.
6. OPERATING EXPENSES PAYMENTS. Landlord shall deliver to Tenant
a written estimate of Operating Expenses for each calendar year (the "ANNUAL
ESTIMATE"), which may be revised by Landlord from time to time during such
calendar year. During each month of the Term, on the same date that Base Rent is
due, Tenant shall pay Landlord an amount equal to 1/12 of the annual cost, as
reasonably estimated by Landlord from time to time, of Tenant's Share of
Operating Expenses for the Project. Payments for any fractional calendar month
shall be prorated. The term "OPERATING EXPENSES" means all costs and expenses of
any kind or description whatsoever incurred or accrued by Landlord with respect
to the Project (including Taxes, reasonable reserves consistent with good
business practice for future repairs and replacements, capital expenditures
amortized over the lesser of 7 years and the useful life of such capital items
and the costs of Landlord's third party property manager or, if there is no
third party property manager administration rent in the amount of 2.5% of Base
Rent) excluding only:
(a) the original construction costs of the Project and renovation
prior to the date of the Lease;
(b) renovating, painting, redecorating or other work, which
Landlord performs for specific tenants within their premises;
(c) capital expenditures for expansion of the Project or for the
remodeling or refurbishment of the Project to a materially higher standard than
existed on the date of this Lease (including, without limitation, any amounts
expended by Landlord pursuant to the Work Letter).
(e) interest and amortization of funds borrowed by Landlord,
whether secured or unsecured;
(f) depreciation of the Project (except for capital improvements
the cost of which are specifically includable in Operating Expenses);
(g) advertising, legal and space planning expenses and leasing
commissions incurred in procuring tenants for the Project;
(h) salaries, wages or other compensation paid to officers and
employees of Landlord who are not assigned to the operation; management
maintenance or repair of the Project;
(j) costs of utilities outside normal business hours sold to
tenants of the Project;
(k) any expenses otherwise includable within Operating Expenses to
the extent reimbursed by persons other than tenants of the Project under leases
for space in the Project;
(l) legal expenses incurred in the negotiation or enforcement of
leases;
(n) costs relating to maintaining Landlord's existence, either as
a corporation, partnership, or other entity;
[100 Philips Parkway/Memory Pharmaceuticals- Page 4]
{PAGE}
(o) cost (including attorneys' fees and costs of settlement,
judgments and payments in lieu thereof) arising from claims, disputes or
potential disputes pertaining to Landlord and/or the Project;
(p) costs incurred by Landlord due to the violation by Landlord or
any tenant of the terms and conditions of any lease of space in the Project;
(q) tax penalties incurred as a result of Landlord's negligence,
inability or unwillingness to make payment and/or to file any tax or
informational returns when due;
(r) costs incurred in connection with environmental clean up,
response action, or remediation on, in or under or about the Project, to the
extent related to known conditions existing in, on or under the Project on or
before the date hereof as disclosed by that certain Phase I Environmental Site
Assessment of 100 Philips Parkway, Montvale, New Jersey, dated October 21, 1998,
prepared by Dames & Moore, including without limitation any such costs incurred
in connection with the sewage holding tank disclosed therein;
(s) overhead and profit increment paid to the Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in or to the
Project to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on competitive basis;
(t) costs arising from Landlord's charitable or political
contributions;
(u) costs incurred in the sale or refinancing of the Project; and
(v) net income, franchise, capital stock, estate or inheritance
taxes.
Within 90 days after the end of each calendar year (or such longer
period as may be reasonably required), Landlord shall furnish to Tenant a
statement (an "ANNUAL STATEMENT") showing in reasonable detail: (a) the total
and Tenant's Share of actual Operating Expenses for the previous calendar year,
and (b) the total of Tenant's payments in respect of Operating Expenses for such
year. If Tenant's Share of actual Operating Expenses for such year exceeds
Tenant's payments of Operating Expenses for such year, the excess shall be due
and payable by Tenant as Rent no more than 30 days after delivery to Tenant of
such Annual Statement. If Tenant's payments of Operating Expenses for such year
exceed Tenant's Share of actual Operating Expenses for such year Landlord shall
pay the excess to Tenant within 30 days after delivery of such Annual Statement.
The Annual Statement shall be final and binding upon Tenant unless
Tenant, within 90 days after Tenant's receipt thereof, shall contest any item
therein by giving written notice to Landlord, specifying each item contested and
the reason therefor. If, during such 90 day period, Tenant reasonably and in
good faith questions or contests the correctness of Landlord's statement of
Tenant's Share of Operating Expenses, Landlord will provide Tenant with access
to Landlord's books and records and such information as Landlord reasonably
determines to be responsive to Tenant's questions. If after Tenant's review of
such information, Landlord and Tenant cannot agree upon the amount of Tenant's
Share of Operating Expenses, then Tenant shall have the right to have an
independent public accounting firm selected from among the 6 largest in the
United States, hired by Tenant (at Tenant's sole cost and expense) and approved
by Landlord (which approval shall not be unreasonably withheld or delayed),
audit and/or review such Landlord's books and records for the year in question
(the "INDEPENDENT REVIEW"). The results of any such Independent Review shall be
binding on Landlord and Tenant. If the Independent Review shows that Tenant's
pro rata share of the Operating Expenses actually paid by Tenant for the
calendar year in question exceeded Tenant's obligations for such calendar year,
Landlord shall at Landlord's option either (i) credit the excess amount to the
next succeeding installments of estimated Operating Expenses or (ii) pay the
excess to Tenant within 30 days after delivery of such statement, except that
after expiration of, or termination of the Term, Landlord shall pay the excess
to Tenant after deducting all other amounts due Landlord. If the Independent
Review shows that Tenant's payments of Tenant's Share of Operating Expenses for
such calendar year were less than Tenant's obligation for the calendar year,
Tenant shall pay the deficiency to the Landlord within 30 days after delivery of
such statement. If the Independent Review shows that Tenant has overpaid
Tenant's pro rata share of Operating Expenses by more than 5% then Landlord
shall reimburse Tenant for all costs incurred by Tenant for the Independent
Review. Operating Expenses for the calendar years in which Tenant's obligation
to share
[100 Philips Parkway/Memory Pharmaceuticals - Page 5]
{PAGE}
therein begins and ends shall be prorated. Notwithstanding anything set forth
herein to the contrary, if the Project is not at least 95% occupied on average
during any year of the Term, Tenant's Share of Operating Expenses for such year
shall be computed as though the Project had been 95% occupied on average during
such year.
"TENANT'S SHARE" shall be the percentage set forth in the Basic Lease
Provisions as Tenant's Share as reasonably adjusted by Landlord in the future
for changes in the physical size of the Premises or the Project. Landlord may
equitably increase Tenant's Share for any item of expense or cost reimbursable
by Tenant that relates to a repair, replacement, or service that benefits only
the Premises or only a portion of the Project that includes the Premises or that
varies with occupancy or use.
7. SECURITY DEPOSIT. Tenant shall deposit with Landlord on the
date of this Lease security (the "SECURITY DEPOSIT") for the performance of all
of its obligations in the amount set forth in the Basic Lease Provisions, which
security shall be in the form of either cash or an unconditional and irrevocable
letter of credit (the "LETTER OF CREDIT"): (i) in form and substance
satisfactory to Landlord, (ii) naming Landlord as beneficiary, (iii) expressly
allowing Landlord to draw upon it at any time from time to time by delivering to
the issuer notice that Landlord is entitled to draw thereunder, (iv) drawable on
an FDIC-insured financial institution satisfactory to Landlord, and (v)
redeemable in the state of Landlord's choice. If Tenant does not provide
Landlord with a substitute Letter of Credit complying with all of the
requirements hereof at least ten (10) days before the stated expiration date of
the current Letter of Credit Landlord shall have the right to draw upon the
current Letter of Credit and hold the funds drawn as the Security Deposit. The
Security Deposit shall be held by Landlord as security for the performance of
Tenant's obligations under this Lease. If Tenant defaults under this Lease,
Landlord may use any part of the Security Deposit to pay or perform any
obligation of Tenant under this Lease, or to compensate Landlord for any loss or
damage resulting from any default, without prejudice to any other remedy
provided herein or provided by law. Upon bankruptcy or other debtor-creditor
proceedings against Tenant, the Security Deposit shall be deemed to be applied
first to the payment of Rent and other charges due Landlord for periods prior to
the filing of such proceedings. To the extent any portion of the Security
Deposit is used, Tenant shall, within five (5) days after demand from Landlord,
reinstate the Security Deposit to its full amount. If Tenant shall perform all
of its obligations under this Lease and return the Premises to Landlord at the
end of the Term, Landlord shall return any remaining Security Deposit or Letter
of Credit to Tenant. Following an initial public offering of the capital stock
of Tenant, Landlord will reevaluate the Security Deposit required hereunder to
determine, in its sole good faith discretion, whether any reduction in the
amount of the Security Deposit held hereunder is appropriate.
If Landlord transfers its interest in the Project or this Lease,
Landlord shall either (a) transfer any Letter of Credit or Security Deposit then
held by Landlord to a person or entity assuming Landlord's obligations under
this Section 7, or (b) return to Tenant any Letter of Credit or Security Deposit
then held by Landlord and remaining after the deductions permitted herein. Upon
such transfer to such transferee or the return of the Letter of Credit and/or
Security Deposit to Tenant, Landlord shall have no further obligation with
respect to the Letter of Credit and/or Security Deposit, and Tenant's right
to the return of the Letter of Credit and/or Security Deposit shall apply solely
against Landlord's transferee. The Security Deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Tenant's default.
Landlord's obligation respecting the Security Deposit is that of a debtor, not a
trustee and no interest shall accrue thereon.
8. USE. The Premises shall be used solely for the Permitted Use
set forth in the Basic Lease Provisions and for lawful purposes incidental
thereto, all in compliance with all laws, orders, judgments, ordinances,
regulations, codes, directives, permits, licenses, covenants and restrictions
now or hereafter applicable to the Premises, and the use and occupancy thereof
(collectively, "LEGAL REQUIREMENTS"). Tenant shall, upon 5 days' written notice
from Landlord, discontinue any use of the Premises which is declared by any
governmental authority having jurisdiction to be a violation of any Legal
Requirement. Tenant will not use or permit the Premises to be used for any
purpose or in any manner that would void Tenant's or Landlord's insurance,
increase the insurance risk, or cause the disallowance of any sprinkler or other
credits. Tenant shall reimburse Landlord promptly upon demand for any additional
premium charged for any such policy by reason of Tenant's failure to comply with
the provisions of this Section. Tenant will use the Premises in a careful, safe
and proper manner and will not commit waste, overload the floor or structure of
the Premises, subject the Premises to use that would damage the Premises or
obstruct or interfere with the rights of Landlord or other tenants or occupants
of the Project, including conduct or give notice of any auction,
[100 Philips Parkway/Memory Pharmaceuticals- Page 6]
{PAGE}
liquidation, or going out of business sale on the Premises, or use or allow the
Premises to be used for any unlawful purpose. Tenant shall cause any office
equipment or machinery to be installed in the Premises so as to reasonably
prevent sounds or vibrations therefrom from extending into Common Areas, or
other space in the Project. Tenant shall not place any equipment weighing 1,000
pounds or more in or upon the Premises or transport or move such items through
the Common Areas of the Project or in the Project elevators without the prior
written consent of Landlord. Except as may be provided under the Work Letter,
Tenant shall not, without the prior written consent of Landlord, use the
Premises in any manner which will require ventilation, air exchange, heating,
gas, steam, electricity or water beyond the existing capacity of the Project as
proportionately allocated to the Premises based upon Tenant's Share as usually
furnished for the Permitted Use.
Tenant, at its sole expense, shall make any alterations or
modifications, to the interior or the exterior of the Premises or the Project,
that are required by Legal Requirements (including, without limitation,
compliance of the Premises with the Americans With Disabilities Act, 42 U.S.C.
Section 12101, et seq. (together with regulations promulgated pursuant thereto,
"ADA")) related to Tenant's use or occupancy of the Premises. Notwithstanding
any other provision herein to the contrary, Tenant shall be responsible for any
and all demands, claims, liabilities, losses, costs, expenses, actions, causes
of action, damages or judgments, and all reasonable expenses incurred in
investigating or resisting the same (including, without limitation, reasonable
attorneys' fees, charges and disbursements and costs of suit) (collectively,
"CLAIMS") arising out of or in connection with Legal Requirements and Tenant
shall indemnify, defend, hold and save Landlord harmless from and against any
and all Claims arising out of or in connection with any failure of the Premises
to comply with any Legal Requirement. Landlord shall be responsible for the
compliance of the common areas of the Project with the ADA as of the
Commencement Date, and Landlord shall indemnify, defend and hold Tenant harmless
from and against any loss, cost, liability or expense (including reasonable
attorneys fees and disbursements) arising out of any such failure to comply with
the ADA.
9. HOLDING OVER. If, with Landlord's express written consent,
Tenant retains possession of the Premises after the termination of the Term,
unless otherwise agreed in writing, such possession shall be subject to
immediate termination by Landlord at any time, and all of the other terms and
provisions of this Lease (including, without limitation, the adjustment of Base
Rent pursuant to Section 5 hereof) shall remain in full force and effect
(excluding any expansion or renewal option or other similar right or option)
during such holdover period, and in such case Tenant shall continue to pay Base
Rent in the amount payable upon the date of the expiration or earlier
termination of this Lease or such other amount as Landlord may indicate, in
Landlord's sole and absolute discretion, in such written consent. All other
payments shall continue under the terms of this Lease. If Tenant remains in
possession of the Premises after the expiration or earlier termination of the
Term without the express written consent of Landlord, Tenant shall become a
tenant at sufferance upon the terms of this Lease except that the monthly rental
shall be equal to 150% of the Rent in effect during the last 30 days of the
Term. In addition, Tenant shall be responsible for all damages suffered by
Landlord resulting from or occasioned by Tenant's holding over. No holding over
by Tenant, whether with or without consent of Landlord, shall operate to extend
this Lease except as otherwise expressly provided, and this Section 9 shall not
be construed as consent for Tenant to retain possession of the Premises.
Acceptance by Landlord of Rent after the Term Expiration Date or earlier
termination of this Lease shall not result in a renewal or reinstatement of this
Lease.
10. TAXES. Landlord shall pay, as part of Operating Expenses, all
taxes, levies, assessments and governmental charges of any kind (collectively
referred to as "TAXES") imposed by any federal, state, regional, municipal,
local or other governmental authority or agency, including, without limitation,
quasi-public agencies (collectively, "GOVERNMENTAL AUTHORITY") during the Term,
including, without limitation all Taxes: (i) imposed on or measured by or based,
in whole or in part, on rent payable to Landlord under this Lease and/or from
the rental by Landlord of the Project or any portion thereof, or (ii) based on
the square footage, assessed value or other measure or evaluation of any kind of
the Premises or the Project, or (iii) assessed or imposed by or on the operation
or maintenance of any portion of the Premises or the Project, including parking,
or (iv) assessed or imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by, any
Governmental Authority, or (v) imposed as a license or other fee on Landlord's
business of leasing space in the Project. Landlord may contest by appropriate
legal proceedings the amount, validity, or application of any Taxes or liens
securing Taxes. Taxes shall not include any net income,
[100 Philips Parkway/Memory Pharmaceuticals- Page 7]
{PAGE}
franchise, capital stock, estate or inheritance taxes imposed on Landlord unless
such net income taxes are in substitution for any Taxes payable hereunder. If
any such Tax is levied or assessed directly against Tenant, then Tenant shall be
responsible for and shall pay the same at such times and in such manner as the
taxing authority shall require. Tenant shall pay, prior to delinquency, any and
all Taxes levied or assessed against any personal property or trade fixtures
placed by Tenant in the Premises, whether levied or assessed against Landlord or
Tenant. If any Taxes on Tenant's personal property or trade fixtures are levied
against Landlord or Landlord's property, or if the assessed valuation of the
Project is increased by a value attributable to improvements in or alterations
to the Premises, whether owned by Landlord or Tenant and whether or not affixed
to the real property so as to become a part thereof, higher than the base
valuation on which Landlord from time-to-time allocates Taxes to all tenants in
the Project, Landlord shall have the right, but not the obligation, to pay such
Taxes. Landlord's reasonable determination of any excess assessed valuation
shall be binding and conclusive, absent manifest error. The amount of any such
payment by Landlord shall constitute Additional Rent due from Tenant to Landlord
immediately upon demand.
11. PARKING. Subject to any applicable local governmental
restrictions or requirements, Tenant shall have a revocable license to park in
common with other tenants of the Project 90 cars in those areas designated for
non-reserved parking subject to Landlord's rules and regulations and shall
further have 8 designated visitor parking spaces which shall be reserved for the
272217
|
Alexandria
As referenced in this Lease Agreement:
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – year first above written.
TENANT: LANDLORD:
MEMORY PHARMACEUTICALS CORP., ARE - 100 PHILLIPS PARKWAY, LLC,
a Delaware corporation a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. ,
a Delaware limited partnership, managing
member
By: /s/ Joanne Leonard
--------------------
Its: Vice President, CFO
A side Letter Agreement By: ARE-QRS CORP.,
_____________
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – TENANT: LANDLORD:
MEMORY PHARMACEUTICALS CORP., ARE -100 PHILLIPS PARKWAY, LLC,
a Delaware corporation a Delaware limited liability company
By:/s/ Joanne Leonard By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. , a
------------------------ corporation, general partner
Its: Vice President, CFO
By: /s/ Lynn Anne Shapiro
------------------------------
Its: LYNN ANNE SHAPIRO
GENERAL COUNSEL
[NOTARY SEAL]
[100
_____________
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – date first above
written.
TENANT: LANDLORD:
MEMORY PHARMACEUTICALS CORP., ARE - 100 PHILLIPS PARKWAY, LLC.
a Delaware corporation a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. , a
By:_________________________ Delaware limited partnership, managing member
Its:________________________
By: ARE-QRS CORP., a Maryland
corporation, general partner
By:______________________________________
Its:
_____________
dt 181812
;
Alexandria
As referenced in this Lease Agreement:
Alexandria Real Estate Equities, Inc – follows:
ARE-100 Philips Parkway, LLC
150 S. Los Robles Ave., Suite 250
Pasadena, California 91101
Attention: Corporate Secretary
with a copy to:
Alexandria Real Estate Equities, Inc .
135 N. Los Robles Ave., Suite 250
Pasadena, California 91101
Attention: General Counsel
if given to Mortgagee shall be addressed as follows:
_____________
dt 177460
;
Memory Pharma
As referenced in this Lease Agreement:
MEMORY PHARMACEUTICALS CORP – 4
LEASE AGREEMENT
Dated as of June 4, 1999
between
ARE-100 PHILIPS PARKWAY, LLC,
a Delaware limited liability company, as LANDLORD
and
MEMORY PHARMACEUTICALS CORP .,
a Delaware corporation, as TENANT
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
1. Lease of Premises ............................................... 1
2. Delivery; Acceptance of Premises;
_____________
MEMORY PHARMACEUTICALS CORP – AGREEMENT ("LEASE") is made this fourth day of June, 1999,
between ARE-100 PHILIPS PARKWAY, LLC, a Delaware limited liability company
("LANDLORD"), and MEMORY PHARMACEUTICALS CORP ., a Delaware corporation
("TENANT").
BASIC LEASE PROVISIONS
ADDRESS: 100 Philips Parkway, Montvale, New Jersey
PREMISES: That portion of the Project, containing
approximately
_____________
Memory Pharmaceuticals
Corp – at
the Base Rent payable hereunder immediately before the commencement of
such Extension Term, increased by 3%.
(iii) Extension Rights are personal to Memory Pharmaceuticals
Corp . and are not assignable separate and apart from this Lease.
(b) CONDITIONS TO EXERCISE.
(i) Notwithstanding anything set forth above to the
_____________
MEMORY PHARMACEUTICALS CORP – 26]
{PAGE}
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
TENANT: LANDLORD:
MEMORY PHARMACEUTICALS CORP ., ARE - 100 PHILLIPS PARKWAY, LLC,
a Delaware corporation a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware
_____________
Memory Pharmaceuticals Corp – this "WORK LETTER") is made and
entered into by and between ARE-100 Philips Parkway, LLC, a Delaware limited
liability company ("LANDLORD"), and Memory Pharmaceuticals Corp ., a Delaware
corporation ("TENANT"), and is attached to and made a part of the Lease dated
June 4, 1999 (the "Lease"), by
_____________
dt 181272
;
|
QRS
As referenced in this Lease Agreement:
-QRS CORP. – limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership, managing
member
By: /s/ Joanne Leonard
--------------------
Its: Vice President, CFO
A side Letter Agreement By: ARE-QRS CORP. , a Maryland
dated June 16, 1999 is being corporation, general partner
executed concurrent with this
Lease Agreement. By: /s/ LYNN ANNE SHAPIRO
-----------------------
LYNN ANNE SHAPIRO
Its: GENERAL COUNSEL
[Notary
_____________
-QRS CORP. – PHILLIPS PARKWAY, LLC.
a Delaware corporation a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., a
By:_________________________ Delaware limited partnership, managing member
Its:________________________
By: ARE-QRS CORP. , a Maryland
corporation, general partner
By:______________________________________
Its:_____________________________________
[NOTARY SEAL]
[100 Philips Parkway/Memory Pharmaceuticals- Page 35]
{PAGE}
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalk, entries, and
_____________
dt 1450547
;
ARE-100 Philips Parkway, LLC
|
Preview
Full Doc
| 2001 |
Lease Agreement
Lease Agreement (144K)
Doc #297842: Click preview link for longer preview.
LEASE AGREEMENT
This LEASE AGREEMENT is made this ___ day of June, 2001 (the "Lease Date"), between ARE-11025/11075 ROSELLE STREET, LLC, a Delaware limited liability company ("Landlord"), and CELL GENESYS, INC., a Delaware corporation ("Tenant").
RECITALS
- As of the Lease Date, the Premises (as defined in the Basic Lease Provisions) are subject to the following (collectively, the "Prior Lease"): (i) a certain Standard Industrial Lease-Net dated June 15, 1992, between Trust Company of the West, as Trustee of the ATF Dow Chemical Employees Retirement Trust, as lessor (the "ATF Dow . . .
297842
|
Alexandria
As referenced in this Lease Agreement:
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – Delaware corporation
By: ___________________________
Print Name: ____________________
Print Title: _________________________
LANDLORD:
AREA 1025/11075 ROSELLE STREET, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. ,
a Delaware limited partnership, managing member
By: ARE-QRS CORP.,
a Maryland corporation, general partner
By: ___________________________
Michael C. Kelcy,
Senior Vice
_____________
dt 264129
;
|
Cell Genesys
As referenced in this Lease Agreement:
CELL GENESYS, – this ___ day of June, 2001 (the "Lease Date"), between ARE-11025/11075 ROSELLE STREET, LLC, a Delaware limited liability company ("Landlord"), and CELL GENESYS, INC., a Delaware corporation ("Tenant").
RECITALS
As of the Lease Date, the Premises (as defined in the Basic Lease Provisions) are subject
_____________
Cell Genesys, – Accounts Receivable
Landlord's Notice Address:
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: General Counsel
Tenant's Notice Address:
Cell Genesys, Inc.
342 Lakeside Drive
Foster City, CA 94404
Attention: Mr. Richard Campbell
The following Exhibits and Addenda are attached hereto and incorporated
_____________
CELL GENESYS, – on next page]
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written.
TENANT:
CELL GENESYS, INC.,
a Delaware corporation
By: ___________________________
Print Name: ____________________
Print Title: _________________________
LANDLORD:
AREA 1025/11075 ROSELLE STREET, LLC,
a Delaware limited
_____________
dt 255917
|
| Full Doc
| 2000 |
Lease
Lease (218K)
Doc #307672: This document is immediately available for purchase, but does not have a preview available for viewing.
LEASE
-----
BY AND BETWEEN
ARE-50 WEST WATKINS MILL, LLC
AND
GENE LOGIC INC.
{PAGE} 2
{TABLE}
{CAPTION}
TABLE OF CONTENTS
-----------------
PAGE
----
{S} {C}
1. Lease of Premises. 1
2. Basic Lease Provisions. 1
3. Term. 3
4. Possession and Commencement Date. 3
5. Rent. 4
6. Rent Adjustments. 5
7. Operating Expenses. 5
8. Intentionally omitted. 9
9. Security Deposit. 10
10. Use. 11
11. Brokers. 14
12. Holding Over. 15
13. Taxes on Tenant's Property. 15
14. Condition of Demised Premises. 16
15. Common Areas and Parking Facilities. 16
16. Utilities and Services. 16
17. Alterations. 18
18. Repairs and Maintenance. 20
19. Liens. 21
20. Indemnification and Exculpation. 22
21. Insurance - Waiver of Subrogation. 23
22. Damage or Destruction. 24
23. Eminent Domain. 26
24. Tenant's Default and Landlord's Remedies. 27
25. Assignment or Subletting. 30
26. Intentionally omitted. 34
27. Bankruptcy. 34
28. Definition of Landlord. 34
29. Estoppel Certificate. 35
30. Intentionally omitted. 35
31. Limitation of Landlord's Liability. 35
32. Project Control by Landlord. 36
33. Quiet Enjoyment. 37
34. Intentionally Omitted. 37
35. Subordination and Attornment. 37
36. Surrender. 38
37. Waiver and Modification. 38
38. Intentionally omitted. 38
39. Intentionally omitted. 38
40. Hazardous Materials. 38
41. Intentionally omitted. 41
42. Options to Extend Term. 41
43. Miscellaneous. 42
{/TABLE}
{PAGE} 3
{TABLE}
{CAPTION}
EXHIBITS
--------
{S} {C}
A Legal Description and Site Plan
B Work Letter
C Rules and Regulations
D Estoppel Certificate
E Form of Acknowledgement
F Form of Non-Disturbance Agreement
G Parking
{/TABLE}
{PAGE} 4
LEASE
THIS LEASE is made as of July 21, 2000, by and between ARE-50 WEST
WATKINS MILL, LLC, a Delaware limited liability company (hereinafter called
"LANDLORD") and GENE LOGIC INC., a Delaware corporation (hereinafter called
"TENANT").
1. Lease of Premises.
1.1 Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord, that certain building located at the address set forth below
(hereinafter called the "Demised Premises" or the "Building"). The real property
upon which the Building is located, and all landscaping, parking facilities, and
other improvements and appurtenances related thereto, are hereinafter
collectively referred to as the "Project", the site plan and legal description
for which are attached hereto as Exhibit "A." All portions of the Project which
are for the non-exclusive use of tenants of the Building, including, without
limitation, driveways, sidewalks, parking areas, landscaped areas, service
corridors, stairways, elevators, public restrooms and Building lobbies, are
hereinafter referred to as "Common Area". Promptly following the execution
hereof, Landlord shall cause its architect to field measure the rentable square
footage of the Building, such measurement to be certified in accordance with, at
Landlord's option, either (a) the Building Owners and Managers Association
method of measurement (ANSI 265.1 1996) or (b) GWCAR. In the event that the
field measurement discloses that the rentable square footage of the Building is
more than two percent (2%) larger or smaller than 57,410, appropriate rental
adjustments shall be made by way of an amendment to this Lease. Landlord shall
furnish to Tenant a copy of Landlord's architect's field measurement report.
2. Basic Lease Provisions.
2.1 For convenience of the parties, certain basic provisions of
this Lease are set forth herein. The provisions set forth herein are subject to
the remaining terms and conditions of this Lease and are to be interpreted in
light of such remaining terms and conditions.
2.1.1 Address of the Building: 50 West Watkins Mill Road
Gaithersburg, MD 20878
2.1.2 Designation of Tenant's Demised Premises 100% of the
Building as shown on Exhibit "A"
2.1.3 (a) Rentable Area of Demised Premises: 57,410 sq.
ft.
(b) Rentable Area of Building/Project: 57,410 sq.
ft.
2.1.4 Initial Basic Annual Rent: 57,410 sq. ft. x $14.50
per sq. ft. = $832,445, plus any additional Basic Annual Rent pursuant to
Section 8 of Exhibit "B" attached hereto; subject to the rental abatement set
forth in Section 5.1 hereof.
1
{PAGE} 5
2.1.5 Initial Monthly Rental Installments of Basic Annual
Rent: $69,370.42, plus any additional Basic Annual Rent pursuant to Section 8 of
Exhibit "B" attached hereto.
2.1.6 Tenant's Pro Rata Share: 100.00% of the Building
2.1.7 (a) Term Commencement Date: The date hereof
(b) Term Expiration Date: 120 months from the
first day of the month following the month in
which the Rent Commencement Date occurs
2.1.8 Security Deposit and Rent Deposit:
(a) $208,111.30 and
(b) $69,370.42
subject to application in accordance with Section 9.5 hereof.
2.1.9 Permitted Use: General office use,
bio-medical/bio-chemical laboratory use, storage and other incidental uses
consistent with the foregoing named uses.
2.1.10 Address for Rent Payment:
Alexandria Real Estate Equities, Inc.
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: Accounts Receivable
Address for Notices to Landlord:
Alexandria Real Estate Equities, Inc.
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: General Counsel
Address for Notices to Tenant:
Gene Logic Inc.
708 Quince Orchard Road
Gaithersburg, Maryland 20878
Attention: Chief Financial Officer
With, in each case, a copy to:
Silverstein and Mullins, P.L.L.C.
a division of Buchanan Ingersoll, P.C.
2
{PAGE} 6
1776 K Street, N.W.
Washington, D.C. 20006
Attention: Gary K. Bahena, Esq.
2.1.11 Guarantor of Lease: N/A
2.1.12 Space Plan Approval Date: N/A
2.1.13 The following Exhibits are attached hereto and
incorporated herein: A, B, C, D, E, F and G.
3. Term.
3.1 This Lease shall take effect upon the date of execution and
delivery hereof by all parties hereto and, except as specifically otherwise
provided within this Lease, each of the provisions hereof shall be binding upon
and inure to the benefit of Landlord and Tenant from the date of execution and
delivery hereof by all parties hereto.
3.2 The term of this Lease (the "TERM") shall commence on the
Term Commencement Date and shall expire on the Term Expiration Date subject to
earlier termination of this Lease as provided herein.
4. Possession and Commencement Date.
4.1 Landlord shall deliver two fully executed copies of the
Lease and tender to Tenant possession of the Demised Premises no later than the
fourth business day following the later of (i) the date of receipt by Landlord
from Tenant of four (4) copies of this Lease executed by Tenant and (ii) the
date the existing tenant of the Building vacates or surrenders same (the
"DELIVERY DATE"). In the event that the Demised Premises have not been delivered
to Tenant by August 4, 2000, then Tenant shall have the right to terminate this
Lease by written notice received by Landlord within ten (10) business days
thereafter.
4.2 Notwithstanding anything to the contrary set forth
elsewhere in this Lease, Tenant shall not have any obligation to pay to Landlord
Basic Annual Rent in respect of the Demised Premises until the earlier of (the
"RENT COMMENCEMENT DATE") (i) Tenant's occupancy and commencement of regular
business operations within the Demised Premises or (ii) January 1, 2001 (such
date, however, being extended by one day for each day following August 4, 2000
that Landlord has failed to make the Demised Premises available to Tenant for
Tenant's work under the Work Letter and such date to be further extended by one
day for each day of Landlord delay pursuant to Section 4.4 hereof).
4.3 From and after the date hereof Tenant shall be permitted to
enter upon the Demised Premises for the purposes of measurement and inspection.
The terms of this Section 4.3 shall no longer be applicable following delivery
of possession pursuant to Section 4.1 hereof.
4.4 Notwithstanding anything to the contrary set forth
elsewhere in this Lease, the Rent Commencement Date shall be extended by one day
for each day that substantial completion of Tenant's Work and/or Tenant
Performed Landlord Work (as
3
{PAGE} 7
such terms are defined in Exhibit "B") are delayed solely by the failure of
Landlord to respond in a timely fashion to Tenant's requests for review and
approval or to complete the Landlord Work (or coordinate same with Tenant) so as
to avoid delaying Tenant's timely performance of the Tenant's Work and/or the
Tenant Performed Landlord Work. Landlord shall have five (5) business days
following receipt of Tenant's request for review and approval to review and
approve or disapprove such request. Landlord and Tenant shall execute and
deliver written acknowledgment of the actual Rent Commencement Date in the form
of Exhibit "E." Further notwithstanding anything to the contrary contained in
this Lease, the Rent Commencement Date shall be extended by 1 day for each day
that the Landlord Work is not completed by January 1, 2001, or for Landlord
Delay pursuant to Schedule 1-A.
4.5 There shall be no charge to Tenant for Landlord's personnel
or engineer in connection with Tenant moving in and moving out of the Building.
4.6 The provisions governing the preparation of plans and the
performance of Tenant's Work are set forth in Exhibit "B" attached hereto and
made a part hereof.
5. Rent.
5.1 Tenant agrees, commencing on the Rent Commencement Date, to
pay Landlord as Basic Annual Rent for the Demised Premises the sum set forth in
Section 2.1.4 subject to the rental adjustments provided in Article 6 hereof.
Basic Annual Rent shall be paid in the equal monthly installments set forth in
Section 2.1.5, subject to the adjustments to Basic Annual Rent provided in
Article 6 hereof and in Section 8 of the Work Letter, each in advance on the
first day of each and every calendar month during the Term. Notwithstanding the
foregoing, but subject to one additional day of abatement for each day of
Landlord delay pursuant to Sections 4.2 and/or 4.4, monthly installments of the
Basic Annual Rent set forth in Section 2.1.4 shall be abated for January,
February and March and the rent due for April, 2001 shall be $45,638.75.
Commencing with May 2001 and each month thereafter, subject to adjustment as
herein provided, monthly installments of Basic Annual Rent shall be due and
payable in the full amount of $69,370.42 as increased pursuant to Section 8 of
the Work Letter. No Basic Annual Rent due in connection with the amortization of
any portion of the $4,592,800 additional Allowance which may be used by Tenant
pursuant to Section 8 of the Work Letter shall be abated pursuant any provision
of this Lease, including this Section 5.1.
5.2 In addition to Basic Annual Rent, Tenant agrees to pay to
Landlord as additional rent ("ADDITIONAL RENT") at times hereinafter specified
in this Lease (i) Tenant's pro rata share, as set forth in Section 2.1.6
("TENANT'S PRO RATA SHARE") of Operating Expenses as provided in Article 7 and
(ii) any other amounts that Tenant assumes or agrees to pay under the provisions
of this Lease that are owed to Landlord, including, without limitation, any and
all other sums that may become due by reason of any default of Tenant or failure
on Tenant's part to comply with the agreements, terms, covenants and conditions
of this Lease to be performed by Tenant, after notice and lapse of applicable
cure period.
5.3 Basic Annual Rent and Additional Rent shall together be
denominated "RENT". Rent shall be paid to Landlord, without abatement, deduction
or offset in lawful money of the United States of America, at the office of
Landlord as set forth
4
{PAGE} 8
in Section 2.1.10 or to such other person or at such other place as Landlord may
from time designate in writing. In the event the Term commences or ends on a day
other than the first day of a calendar month, then the Rent for such fraction of
a month shall be prorated for such period on the basis of a thirty (30) day
month and shall be paid at the then current rate for such fractional month.
6. Rent Adjustments.
6.1 Commencing with the monthly installment of Basic Annual
Rent which is due on or after the first anniversary of the first day of the
first full month following the Rent Commencement Date, and on the same day of
every calendar year thereafter for so long as this Lease continues in effect,
the Basic Annual Rent shall be increased by an amount equal to the greater of
2.5% or the CPI Adjustment Percentage multiplied by the Basic Annual Rent then
in effect; provided, however, that such adjustment shall not exceed 4.5% of the
Basic Annual Rent then in effect. Basic Annual Rent adjustments for any
fractional calendar month shall be prorated. "CPI ADJUSTMENT PERCENTAGE" means a
fraction, stated as a percentage, the numerator of which shall be the Index (as
defined below) for the calendar month 3 months before the month in which the
Basic Annual Rent adjustment is to be made, and the denominator of which shall
be the Index for the calendar month 3 months before the last Basic Annual Rent
adjustment or, if no prior Basic Annual Rent adjustment has been made, 3 months
before the first day of the first full month following the Rent Commencement
Date. Landlord shall give Tenant written notice indicating the Basic Annual
Rent, as adjusted pursuant to this Section, and the method of computation, and
Tenant shall pay to Landlord an amount equal to any underpayment of Basic Annual
Rent by Tenant within 30 days of Landlord's notice to Tenant. "INDEX" means the
"Consumer Price Index- All Urban Consumers-Washington-Baltimore Metropolitan
Area" compiled by the U.S. Department of Labor, Bureau of Labor Statistics,
(1987 = 100). If a substantial change is made in the Index, the revised Index
shall be used, subject to such adjustments as Landlord may reasonably deem
appropriate in order to make the revised Index comparable to the prior Index. If
the Bureau of Labor Statistics ceases to publish the Index, then the successor
or most nearly comparable index, as reasonably determined by Landlord, shall be
used, subject to such adjustments as Landlord may reasonably deem appropriate in
order to make the new index comparable to the Index.
7. Operating Expenses.
7.1 As used herein, the term "OPERATING EXPENSES" shall
include:
(a) Government impositions including, without
limitation, property tax costs consisting of real and personal property taxes
and assessments constituting a lien upon the Project, including amounts due
under any improvement bond upon the Building and/or Project including the parcel
or parcels of real property upon which the Building and areas serving such
Building are located or assessments levied in lieu thereof imposed by any
governmental authority or agency, any tax on or measured by gross rentals
received from the rental of space in the Building (i.e., made without regard to
or allowance for any expense or other deductions, allowances or the like), or
tax based on the square footage of the Demised Premises, Building, or Project as
well as any parking charges, utilities. surcharges, or any other costs levied,
assessed or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof,
{PAGE} 9
promulgated by any federal, state, regional, municipal or local government
authority in connection with the use or occupancy of the Building or the parking
facilities serving the Building, any tax on this transaction or any document to
which Tenant is a party creating or transferring an interest in the Demised
Premises, any fee for a business license to operate an office building, and any
expenses, including the reasonable cost of attorneys or experts, reasonably
incurred by Landlord in seeking reduction by the taxing authority of the
applicable taxes, less tax refunds obtained as a result of an application for
review thereof. Operating Expenses shall not include any net income, franchise,
capital stock, estate or inheritance taxes, or taxes which are the personal
obligation of Landlord or of another tenant of the Project, or taxes on or in
respect of personal property (or the value or cost thereof) not permanently
located at and used in connection with the Building or Project, or any "rent" or
similar tax unless applicable solely to landlords of real property or to real
property rental receipts, or any "gross receipts", "receipts" or other similar
tax unless measured, assessed and paid without regard to any deductions or
offsets against receipts, including without deduction for operating expenses, or
any income, transfer, business, unincorporated business or gains tax or any real
estate tax or other sum, charge, levy or tax attributable to any land or
improvements other than the Building and the land described in Exhibit "A". If
any assessments are payable in installments, then for the purpose hereof
(regardless of whether Landlord elects to pay same in installments) Operating
Expenses for any calendar year occurring during the Term shall include only
those installments, together with interest, that would have become due if
Landlord opted to pay same in the maximum number of installments permitted. All
real estate taxes and similar charges includable in Operating Expenses pursuant
to this Section 7.1(a) shall be computed as if the Building and Project were the
only asset of Landlord. Upon request by Tenant, Landlord shall furnish Tenant
with copies of all proposed assessments, assessments, real estate tax bills and
the like. Landlord shall also notify Tenant promptly following the filing or
commencement of, and again following any decision in or conclusion or settlement
of, any tax or assessment appeal, contest, reduction or challenge. On or before
the 40th day before the last day to file an application to contest any such tax
or assessment, Tenant may request Landlord to notify Tenant whether Landlord
intends to file such application and within ten (10) days after such request
Landlord shall notify Tenant whether or not Landlord will do so. If within such
ten (10) day period Landlord either does not so notify Tenant or notifies Tenant
that Landlord does not intend to file such an application, Tenant, at its sole
cost and expense, shall have the right (and Landlord hereby constitutes Tenant
as Landlord's attorney-in-fact to the extent required by law to enable Tenant)
to challenge and/or appeal any tax, assessment or other item includable in
Operating Expenses pursuant to this Section 7. 1 (a), and Landlord shall
cooperate with Tenant as requested by Tenant in any such challenge and/or
appeal. Tenant hereby agrees to save Landlord harmless from and against all
costs, expenses, loss or damage resulting from any such contest or appeal.
(b) All other reasonable costs of any kind paid or
incurred by Landlord in connection with the operation and maintenance of the
Building and the Project including, by way of examples and not as a limitation
upon the generality of the foregoing, costs of repairs and replacements to
improvements within the Project as appropriate to maintain the Project as
required hereunder, including cost of funding such reasonable reserves as
Landlord, consistent with good business practice, may establish (but in no event
in excess of Twenty Thousand Dollars ($20,000) per annum) to provide for future
repairs and replacements, costs of utilities furnished to the Common Areas,
sewer fees, cable T.V., when applicable, trash collection, cleaning, including
windows, heating, ventilation, air-conditioning, maintenance of landscape and
grounds, maintenance
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of drives and parking areas, security services and devices, building supplies,
maintenance and replacement to equipment utilized for operation and maintenance
of the Project, license, permit and inspection fees, sales, use and excise taxes
on goods and services purchased by Landlord in connection with the operation,
maintenance or repair of the Project and Building systems and equipment,
telephone, postage, stationary supplies and other expenses incurred in
connection with the operation, maintenance, or repair of the Project,
accounting, legal and other professional fees and expenses incurred in
connection with the Project, capital expenditures, costs of complying with any
applicable laws, hazardous waste remediation, rules or regulations, insurance
premiums including premiums for public liability, property casualty, earthquake
and environmental coverages, portions of insured losses paid by Landlord as part
of deductible portion of loss (not to exceed $50,000.00 for any single loss) by
reason of insurance policy terms, service contracts, costs of services of
independent contractors retained to do work of the nature before referenced, and
costs of compensation (including employment taxes and fringe benefits) of all
persons who perform regular and recurring on-site duties connected with the
day-to-day operation and maintenance of the Project, its equipment, the adjacent
walks, landscaped areas, drives, and parking areas, including without
limitation, janitors, floor waxers, window-washers, watchmen, gardeners,
sweepers, and handymen and costs of management services, which costs of
management services shall not exceed four percent (4%) of the Basic Annual Rent.
In the event that any capital expenditure by Landlord is in excess of
Seventy-Five Thousand Dollars ($75,000) there shall be included each calendar
year as an Operating Expense in respect of such expenditure only the amortized
cost of such item for that year (using the shorter of seven (7) years or the
useful life determined in accordance with the U.S. Internal Revenue Code
regulations in effect at the time the expenditure was made). Notwithstanding
anything to the contrary set forth elsewhere in this Lease, (i) in no event
shall Landlord establish reserves for the Building in excess of $100,000.00 and
(ii) in the event that a reserve is in existence and a capital expenditure is
required Landlord shall first use funds in reserve to pay for such capital
expenditure, in which event Landlord shall thereafter replenish the reserve
(subject to the $100,000.00 limitation).
(c) The foregoing notwithstanding, term "OPERATING
EXPENSES" shall not include (1) depreciation; (2) interest on and amortization
of debts; (3) leasehold improvements, alterations, decorations and painting done
for particular tenants or occupants of the Building; (4) leasing and brokerage
commissions; (5) refinancing costs; (6) the cost or repairs or replacements
incurred by reason of fire or other casualty to the extent covered by insurance
proceeds; (7) the cost of items, work, services or overtime heating, ventilation
or air conditioning for which Landlord is or may be entitled to be compensated
by payments by tenants or occupants, including Tenant which are not fixed annual
rent; (8) amounts received by Landlord through proceeds of insurance, to the
extent the proceeds are compensation for expenses which would be includable in
Operating Expenses; (9) advertising and promotional expenditures; (10) ground
rents; (11) legal fees (provided, however, that Landlord may be entitled to
collect legal fees pursuant to Section 24.2.5 hereof); (12) auditing or
accounting fees other than those reasonably incurred in the preparation of
statements and calculations pursuant to this Section 7.1; (13) wages, benefits
or other compensation or payments to or in respect of employees or other persons
not providing on-site services to the Project or to executives or other persons
above (or performing functions typically assigned to or performed by persons
above) the grade of building manager; (14) wages, benefits or other compensation
or payments to or in respect of any person owning or controlling, directly or
indirectly, any right, title, interest or estate, legal, beneficial, equitable
or otherwise, in or to all or any part
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{PAGE} 11
of Landlord, the Building and/or the Project and/or in or to any management
agent or company for either or both of the same; (15) management fees or other
markups of any kind or description other than for the management fee expressly
provided for in Section 7.1(b) above; (16) costs of Landlord's general overhead
and general administrative expenses (individual, partnership or corporate, as
the case may be); (17) charitable contributions; (18) any wages, benefits or
other compensation or payments paid clerks, attendants or other persons in
commercial concessions (such as snack bar or restaurant), if any, operated by
Landlord or in the Building; (19) costs attributable to the gross negligence of
Landlord, its agents, contractors or employees; (20) costs and expenses paid to
non-arms length contractors in excess of fair market value; (21) when operated
as a commercial concession or by a commercial parking operator, parking lot
garage maintenance or other costs in connection with any parking lot or garage;
(22) costs (including, but not limited to, rent) incurred in connection with or
otherwise attributable to office or other space used for or in connection with
the Building (including any management office space, but excluding any ordinary,
customary and reasonable amounts of space or area used solely for Building
mechanical, electrical, telephone, storage and/or engineering rooms); and (23)
costs or expenses associated with leasing other space in the Building and/or in
connection with any sale, financing and/or refinancing of the Building, the
Project or any interest of Landlord. In addition, Operating Expenses shall not
include any costs incurred by Landlord to test, survey, clean-up, contain,
abate, remove or otherwise remediate Hazardous Materials (as hereinafter
defined) in the Project unless such costs were incurred as a result of the acts
or omissions of Tenant.
7.2 Tenant shall pay to Landlord on the first day of each
calendar month of the Term, as Additional Rent, Landlord's reasonable estimate
of Tenant's Pro Rata Share (as set forth in Section 2.1.6) of Operating Expenses
with respect to the Project for such month. On or before December 15th of each
year, Landlord shall submit to Tenant Landlord's good faith estimate of the
Operating Expenses for the succeeding calendar year. Landlord shall be permitted
to submit revised estimates at any time and from time to time. In the event that
Landlord revises its estimate of Operating Expenses, payments by Tenant in
respect of Operating Expenses pursuant to the revised estimate shall commence on
the first payment data that is at least thirty (30) days following Tenant's
receipt of such estimate.
(a) Within ninety (90) days after the conclusion of each
calendar year (or such longer period as may be reasonably required), Landlord
shall furnish to Tenant a statement showing in reasonable detail the actual
Operating Expenses and Tenant's Pro Rata Share of Operating Expenses for the
previous calendar year. Any additional sum due from Tenant to Landlord shall be
due and payable within thirty (30) days following delivery of such written
statement. If the aggregate amount paid by Tenant pursuant to Section 7.2
exceeds Tenant's Pro Rata Share of Operating Expenses for the previous calendar
year, the difference shall be credited by Landlord against the Rent next due and
owing from Tenant; provided that if the Lease term has expired, Landlord shall
accompany said statement with payment for the amount of such difference.
(b) Any amount due under Section 7.2 for any period
which is less than a full month shall be prorated (based on a 30-day month) for
such fractional month.
(c) Landlord's annual statement, except as otherwise
provided in Section 7.3 below, shall constitute a final statement as to such
year, Anything
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{PAGE} 12
to the contrary contained herein notwithstanding, in the event that such
statement is not received by Tenant on or prior to August 31 of any calendar
year for the immediately preceding calendar year then Landlord may not
thereafter request payment of any deficiency on account of such prior year.
Landlord shall keep true and accurate books and records with respect to all
Operating Expenses in accordance with generally accepted accounting principals
consistently applied.
7.3 Landlord's annual statement shall be final and binding upon
Tenant unless Tenant, within ninety (90) days after Tenant's receipt thereof,
shall contest any item therein by giving written notice to Landlord, specifying
each item contested and the reason therefor. If, during such 90 day period,
Tenant reasonably and in good faith questions or contests the correctness of
Landlord's statement of Tenant's Pro Rata Share of Operating Expenses, (provided
that Tenant shall have paid to Landlord any additional sum due pursuant to
Section 7.2(a)) Landlord will provide Tenant and/or Tenant's designated
representative with access to Landlord's books and records and such information
as Landlord reasonably determines to be responsive to Tenant's questions.
Tenant's designated representative shall be an independent public accounting
firm working pursuant to a fee arrangement other than a contingent fee basis. In
the event that after Tenant's review of such information, Landlord and Tenant
cannot agree upon the amount of Tenant's Pro Rata Share of Operating Expenses,
then Tenant shall have the right to have an independent public accounting firm
working pursuant to a fee arrangement other than a contingent fee basis hired by
Tenant (at Tenant's sole cost and expense) and approved by Landlord (which
approval shall not be unreasonably withheld or delayed) audit and/or review such
Landlord's books and records for the year in question (the "INDEPENDENT
REVIEW"). The results of any such Independent Review shall be binding on
Landlord and Tenant. If the Independent Review shows that Tenant s Pro Rata
Share of Operating Expenses actually paid for the calendar year in question
exceeded Tenant's obligations for such calendar year, Landlord shall at Tenant's
option either (1) credit the excess to the next succeeding installments of
estimated Additional Rent or (2) pay the excess to Tenant within thirty (30)
days after delivery of such statement (provided, however, that in the event that
the Independent Review indicates that the amount of Operating Expenses paid by
Tenant with respect to a calendar year exceeded by more than five percent (5%)
the amount actually due from Tenant (exclusive of any difference between the
amount included in Operating Expenses in respect of insurance premiums and the
amount that should have been included in Operating Expenses in respect of
insurance premiums), then Landlord shall reimburse Tenant for the cost of such
Independent Review). If the Independent Review shows that Tenant's payments of
Tenant's Pro Rata Share of Operating Expenses for such calendar year were less
than Tenant's obligation for the calendar year, Tenant shall pay the deficiency
to the Landlord within thirty (30) days after delivery of such statement.
7.4 Tenant shall not be responsible for Operating Expenses
attributable to the time period prior to the Rent Commencement Date. The
responsibility of Tenant for Tenant's Pro Rata Share of Operating Expenses shall
continue to the later of (i) the date of termination of the Lease, or (ii) the
date Tenant has fully vacated the Demised Premises. Tenant shall not be deemed
to have fully vacated the Demised Premises until Tenant shall have removed all
items required to be removed and shall have completed all procedures necessary
to fully release and terminate any permits or licenses restricting the use of
the Demised Premises in any manner.
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{PAGE} 13
7.5 Operating Expenses for the calendar year in which Tenant's
obligation to share therein commences and in the calendar year in which such
obligation ceases, shall be prorated on the basis of the number of days in such
calendar year as are included within the Term over 360. Expenses such as taxes,
assessments and insurance premiums which are incurred for an extended time
period shall be prorated based upon time periods to which applicable so that the
amounts attributed to the Demised Premises relate in a reasonable manner to the
time period wherein Tenant has an obligation to share in operating Expenses.
8. Intentionally omitted.
9. Security Deposit.
9.1 On the date of delivery of the Demised Premises by Landlord
to Tenant, Tenant shall deposit with Landlord the sum set forth in Section
2.1.8(a) (the "SECURITY DEPOSIT") which sum shall be held by Landlord as
security for the faithful performance by Tenant of all of the terms, covenants,
and conditions of this Lease to be kept and performed by Tenant during the Term.
If an Event of Default shall occur, Landlord may (but shall not be required to)
use, apply or retain all or any part of the Security Deposit to the extent
necessary to remedy such Event of Default and/or to compensate Landlord for any
other loss or damage which Landlord may suffer by reason of such Event of
Default. If any portion of the Security Deposit is so used or applied, Tenant
shall, within ten (10) days following demand therefor, deposit cash with
Landlord in an amount sufficient to restore the Security Deposit to its original
amount and Tenant's failure to do so shall be a material breach of this Lease.
The term "SECURITY DEPOSIT" includes any interest to which Tenant is entitled
pursuant hereto on any cash portion of such Security Deposit. Landlord shall
deposit the cash portion of the Security Deposit in a segregated
interest-bearing account of its choice and Tenant shall be entitled to the
interest earned thereon. The Security Deposit may, at Tenant's election, and at
any time, be or be changed to be in the form of a letter of credit (the "LETTER
OF CREDIT"). Any Letter of Credit tendered as and for the Security Deposit shall
be (i) unconditional (except for standard conditions relating to presentation);
(ii) irrevocable; (iii) issued by a financial institution reasonably approved by
Landlord in Landlord's reasonable discretion; (iv) in a form reasonably approved
by Landlord, assignable (in accordance with the issuer's standard requirements)
and permitting partial and multiple drawings; (v) for either multiple terms of
one (1) year each in duration, renewed (unless automatically renewing) at least
sixty (60) days prior to the expiration thereof, the entire term extending until
the date which is ninety (90) days after the expiration of the Term, as such
Term may be extended pursuant to the provisions of this Lease, or at Tenant's
option for a single term extending until the date which is ninety (90) days
after the expiration of the Term, as such Term may be extended pursuant to the
provisions of this Lease; and (vi) be in form and substance acceptable to the
Landlord, in its reasonable discretion. Unless automatically renewing, Tenant
shall provide Landlord with a replacement Letter of Credit at least sixty (60)
days prior to the expiration of the immediately preceding Letter of Credit. If a
partial drawing occurs under the Letter of Credit, Tenant shall, upon demand but
not more than five (5) days after such partial drawing, cause the financial
institution to reissue the Letter of Credit in the amount then currently
required under the terms of this Lease. Notwithstanding the foregoing, Landlord
shall be entitled to draw down on the Letter of Credit, without any notice, at
any time on or after the earlier of (i) the, occurrence and continuance of an
Event of Default by Tenant under this Lease; or (ii) the thirtieth (30th) day
preceding the expiration date of the Letter of Credit in the event Tenant is
required to and fails to timely
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{PAGE} 14
replace the Letter of Credit. Landlord shall provide Tenant with written notice
of any draws made on the Letter of Credit.
9.2 In the event of bankruptcy or other debtor-creditor
proceedings against Tenant, the Security Deposit shall be deemed to be applied
first to the payment of Rent and other charges due Landlord for all periods
prior to the filing of such proceedings.
9.3 Landlord shall deliver the funds deposited hereunder by
Tenant to any purchaser of Landlord's interest in the Demised Premises and
thereupon Landlord shall be discharged from any further liability with respect
to such Security Deposit. This provision shall also apply to any subsequent
transfers.
9.4 To the extent the Security Deposit has not been applied
pursuant to this Article 9, the Security Deposit or any balance thereof, shall
be returned to Tenant (or, at Landlord's option, to the last assignee of
Tenant's interest hereunder) within thirty (30) days after the expiration or
earlier termination of this Lease.
9.5 Tenant shall, at the time it delivers the Security Deposit
to Landlord, deposit with Landlord the sum set forth in Section 2.1.8(b) (the
"RENT DEPOSIT") which sum shall be held by Landlord and applied against the
first full monthly payment of Basic Annual Rent.
9.6 If on the three year anniversary of the Rent Commencement
Date there is then no uncured Event of Default, the Security Deposit shall be
reduced to an amount equal to one month's then applicable monthly Basic Annual
Rent (the "REDUCED SECURITY DEPOSIT"). If Tenant qualifies for such reduction of
the Security Deposit, Tenant shall provide Landlord with written notice
requesting that Landlord reduce the Security Deposit as described above. If
Landlord agrees that the condition described above is met, Landlord shall return
the unapplied portion of the Security Deposit then held by Landlord, less the
Reduced Security Deposit, to Tenant within thirty (30) days of Tenant's delivery
of such written request. If the Security Deposit is then held in the form of a
Letter of Credit Landlord shall either draw the Letter of Credit and return to
Tenant any excess portion of the Security Deposit in accordance with this
Section, or Tenant shall supply Landlord with a replacement Letter of Credit in
the amount of the Reduced Security Deposit, in which case Landlord shall return
the original Letter of Credit to Tenant. From and after the date such monies are
returned to Tenant, the "Security Deposit" shall be deemed to be the Reduced
Security Deposit for all purposes of this Lease.
If thereafter there occurs an Event of Default hereunder resulting from
Tenant's failure to pay any Rent in an amount of $50,000 or more, the Reduced
Security Deposit shall be increased to an amount equal to the original amount of
the Security Deposit hereunder. Such increased Security Deposit shall be paid to
Landlord within 10 days of Landlord's written demand, in the case of an Event of
Default under the Lease. If Tenant is required to increase the Reduced Security
Deposit in accordance with this Section, then from and after the date such
monies are deposited with Landlord, the "Security Deposit" shall be deemed to be
the amount then held by Landlord hereunder.
10. Use.
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10.1 Tenant shall use the Demised Premises for the purpose set
forth in Section 2.1.9 and shall not use the Demised Premises, or permit or
suffer the Demised Premises to be used, for any other purpose without the prior
written consent of Landlord which may be withheld in Landlord's sole discretion,
(provided, however, that Landlord's approval of a change in use shall not be
unreasonably withheld, conditioned or delayed in the case of a change proposed
in connection with an assignment or subletting of the Lease and/or the Demised
Premises under circumstances where, pursuant to the terms of Section 25 below,
Landlord's consent to such assignment or subletting may not be unreasonably
withheld, conditioned or delayed). In no event shall Landlord be deemed to have
acted unreasonably in the event that Landlord does not approve a change in use
which would reduce the number of square feet of the Demised Premises maintained
as laboratories constructed in whole or in part using the Allowance under the
Work Letter unless Tenant as a condition to Landlord's consent agrees, upon
expiration or earlier termination of this Lease, either (i) to restore such
laboratory space or (ii) to pay Landlord the amount Landlord reasonably
estimates it will cost to cause such restoration and, in either case, provides
such security for such restoration obligation as Landlord shall reasonably
require.
10.2 Tenant shall not use or occupy the Demised Premises in
violation of any federal, state and local laws and regulations, zoning
ordinances, or of the certificate of occupancy issued for the Building, and
shall, upon five (5) days' written notice from Landlord, discontinue any use of
the Demised Premises which is declared or claimed by any governmental authority
having jurisdiction to be a violation of law, regulation or zoning ordinance or
of said certificate of occupancy. Tenant shall comply with any direction of any
governmental authority having jurisdiction which shall, by reason of the nature
of Tenant's use or occupancy of the Demised Premises, impose any duty upon
Tenant or Landlord with respect to the Demised Premises or with respect to the
use or occupation thereof. Provided non-compliance therewith shall not
constitute a crime or an offense punishable by imprisonment of Landlord and
provided non-compliance will not endanger the Demised Premises, Tenant may, at
its sole cost and expense, contest the application or validity of any such law
and such non-compliance shall not be deemed a breach of this Lease during such
contest provided such contest shall be diligently prosecuted.
10.3 Tenant shall not do or permit to be done anything which
will invalidate or increase the cost of any fire, environmental, extended
coverage or any other insurance policy covering the Building and Project and
shall comply with all rules, orders, regulations, and requirements of the
insurers of the Building and Project and Tenant shall within thirty (30) days
following written demand reimburse Landlord for any additional premium charged
for such policy by reason of Tenant's failure to comply with the provisions of
this Section.
10.4 Intentionally omitted.
10.5 No additional locks or bolts of any kind shall be placed
upon any of the doors or windows by Tenant nor shall any changes be made in
existing locks or the mechanism thereof without the prior written consent of
Landlord (or, alternatively, without furnishing to Landlord one or more master
keys therefor). Tenant must, upon termination of this Lease return to Landlord
all keys to offices and restrooms, either furnished to, or otherwise procured by
Tenant. The foregoing notwithstanding, Tenant shall have the right to designate
certain areas as "secure" areas and, subject to the
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{PAGE} 16
provisions of Section 32.3 hereof, to limit access thereto (including, but not
limited to, by installing locks or other apparatus to which Landlord is not
provided keys or other means of entry).
10.6 No awnings or other projection shall be attached to any
outside wall of the building. Neither the interior nor exterior of any windows
shall be coated or otherwise sunscreened without the express written consent of
Landlord.
10.7 No sign, advertisement or notice shall be exhibited,
painted or affixed by Tenant on the exterior of the Building without the prior
written consent of Landlord. Notwithstanding anything to the contrary contained
elsewhere in this Lease so long as Tenant occupies more than fifty percent (50%)
of the Building, Tenant shall have the right, at its sole cost and expense, to
install and maintain an illuminated exterior sign (if permitted by law and
matters currently of record affecting the Project) on the Building upon and
subject to the following terms and conditions:
(i) Tenant shall have submitted to Landlord for its
approval plans and specifications for such installation, including without
limitation, the size, weight, location, design and manner of affixation to the
Building;
(ii) Tenant shall have obtained all required governmental
approvals and permits and delivered copies of the same to Landlord prior to the
commencement of any such installation;
(iii) Tenant's installation shall be performed in
accordance with all applicable laws, applicable provisions of this Lease and
Landlord's reasonable requirements; and
(iv) If requested by Landlord, prior to the expiration or
earlier termination of this Lease, Tenant shall remove such sign and restore the
affected area of the Building to its condition prior to such installation.
Tenant's right to install signage on the exterior of the Building shall be
exclusive to Tenant so long as Tenant occupies more than fifty percent (50%) of
the Building, Notwithstanding the foregoing, Landlord (or if Landlord shall fail
to do so then Tenant, in addition to any Building mounted sign) may install and
maintain one or more monument signs for the Building or the Project and Tenant,
in common with other tenants of the Building and the Project shall have the
right to non-exclusive signage on such monument, subject to all applicable legal
requirements and Landlord's reasonable approval.
10.8 Tenant shall cause any office equipment or machinery to be
installed in the Demised Premises so as to reasonably prevent sounds or
vibrations therefrom from extending outside of the Building or, if other tenants
are occupying any part of the Building, from extending into Common Areas as
defined in Section 1.1 or other tenant offices in the Building. Tenant shall not
place a load on any floor of the Demised Premises exceeding a floor load of one
hundred (100) pounds per square foot (one hundred twenty five (125) pounds per
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{PAGE} 17
square foot with respect to the loading docks) without advance notice to and
reasonable approval by Landlord.
10.9 Tenant shall not do or permit anything to be done in or
about the Demised Premises which shall in any way obstruct or interfere with the
rights of other tenants or occupants of the Building, or injure or annoy them,
or use or allow the Demised Premises to be used for immoral or unlawful
purposes, nor shall Tenant knowingly cause, maintain or permit any nuisance or
waste in, on, or about the Demised Premises, Building or Project.
10.10 Notwithstanding any other provision herein to the contrary
except for the Landlord Work and the Tenant Performed Landlord Work, Tenant
shall be responsible for all liabilities, costs and expense arising out of or in
connection with the compliance of the Demised Premises with the Americans With
Disabilities Act, 42 U.S.C. Section 12101, et seq. (together with regulations
promulgated pursuant thereto, "ADA") and Tenant shall indemnify, defend and hold
harmless from and against any loss, cost, liability or expense (including
reasonable attorneys' fees and disbursements) arising out of any failure of the
Demised Premises to comply with the ADA.
10.11 Notwithstanding anything to the contrary contained
elsewhere in this Lease, Tenant shall have the non-exclusive right, at its sole
cost and expense but without charge by Landlord, to install and maintain
air-conditioning and communications equipment on the roof of the Building (if
permitted by law and matters currently of record affecting the Project) upon and
subject to the following terms and conditions:
(i) Tenant shall have submitted to Landlord for its
reasonable approval plans and specifications for such installation, including,
without limitation, the size, weight, location, design and manner of penetration
of the roof of the Building;
(ii) All equipment installed on the roof of the Building
shall be tastefully screened if required by applicable law (Landlord agreeing to
reasonably cooperate with Tenant, at no out-of-pocket cost to Landlord, in
seeking to obtain a waiver of any such requirement);
(iii) Tenant shall have obtained all required governmental
approvals and permits and delivered copies of the same to Landlord prior to the
commencement of any such installation;
(iv) Tenant's installation shall be performed in
accordance with all applicable laws, applicable provisions of this Lease and
Landlord's reasonable requirements; and
(v) If requested by Landlord, prior to the expiration or
earlier termination of this Lease, Tenant shall remove such installations and
restore the affected areas of the roof to a leak-free state.
14
{PAGE} 18
10.12 If the Project is annexed to any business or similar park,
then (a) Tenant shall not be liable for any costs or expenses associated with
such annexation, (b) Tenant shall not be required to pay any common area or
similar costs ("COMMON AREA COSTS") imposed on occupants of such business park,
except to the extent Landlord reasonably determines that the Project benefits
from the service or improvement paid for by such Common Area Cost, provided that
Tenant shall not be liable under any circumstances for any costs associated with
(i) undeveloped land in any such park, (ii) storm water management in any such
park, (iii) the initial cost of park improvements, or (iv) driveways or roads
which serve solely a single parcel or lot, and (c) neither Tenant nor this Lease
shall be subject to any covenants, conditions or restrictions affecting any such
park.
11. Brokers.
11.1 Landlord and Tenant represent and warrant that they have
had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease other than Scheer Partners and that they know of no
other real estate broker or agent who is or might be entitled to a commission in
connection with this Lease.
11.2 Tenant represents and warrants that no broker or agent has
made any representation or warranty relied upon by Tenant in Tenant's decision
to enter into this Lease other than as contained in this Lease.
11.3 Tenant acknowledges and agrees that the employment of
brokers by Landlord is for the purpose of solicitation of offers of lease from
prospective tenants and no authority is granted to any broker to furnish any
representation (written or oral) or warranty from Landlord unless expressly
contained within this Lease. Landlord in executing this Lease does so in
reliance upon Tenant's representations and warranties contained within Sections
11.1 and 11.2 herein.
12. Holding Over.
12.1 If, with Landlord's express written consent, Tenant holds
possession of all or any part of the Demised Premises after the Term, Tenant
shall become a tenant from month-to- month upon the date of such expiration or
earlier termination, and in such case Tenant shall continue to pay in accordance
with Article 5 the Basic Annual Rent as adjusted from the Rent Commencement Date
in accordance with Article 6, and Tenant's Pro Rata Share of Operating Expenses,
and such month-to-month tenancy shall be subject to every other term, covenant
and agreement contained herein.
12.2 Notwithstanding the foregoing, if Tenant remains in
possession of the Demised Premises after the expiration or earlier termination
of the Term without the express written consent of Landlord, Tenant shall become
a tenant at sufferance upon the terms of this Lease except that the monthly
Basic Annual Rent shall be equal to one hundred fifty percent (150%) of the
Basic Annual Rent in effect during the last thirty (30) days of the Term.
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{PAGE} 19
12.3 Acceptance by Landlord of Rent after such expiration or
earlier termination shall not result in a renewal or reinstatement of this
Lease.
12.4 The foregoing provisions of this Article 12 are in addition
to and do not affect Landlord's right to re-entry or any other rights of
Landlord hereunder or as otherwise provided by law.
12.5 If pursuant to the operation of Section 40.5 or the last
sentence of Section 7.4 Tenant shall not be deemed to have fully vacated the
Demised Premises, Tenant shall continue to pay in accordance with Article 5 the
Basic Annual Rent as adjusted in accordance with Article 6 and Tenant's Pro Rata
Share of Operating Expenses until such time as Tenant shall have complied with
its obligations pursuant to Section 40.5 or the last sentence of 7.4, as
applicable.
13. Taxes on Tenant's Property.
13.1 Tenant shall pay, prior to delinquency, any and all taxes
levied against any personal property or trade fixtures placed by Tenant in or
about the Demised Premises.
13.2 If any such taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or, if the assessed
valuation of the Building is increased by the inclusion therein of a value
attributable to Tenant's personal property or trade fixtures, and if Landlord
307672
|
Alexandria
As referenced in this Lease:
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – By: /s/ Philip L. Rohrer, Jr.
---------------------------
Its: Chief Financial Officer
-----------------------------
LANDLORD:
ARE - 50 WEST WATKINS MILL, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. ,
a Delaware limited partnership
By: ARE-QRS, CORP.,
a Delaware corporation
By: /s/ Joel S. Marcus
--------------------
Name: Joel S. Marcus
------------------
Its: Chief
_____________
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – ___________________
TENANT:
GENE LOGIC INC. , a Delaware corporation
By:
------------------------------
Its:
------------------------------
LANDLORD:
ARE - 50 WEST WATKINS MILL, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. ,
a Delaware limited partnership
By: ARE-QRS, CORP.,
a Delaware corporation
By:
--------------------------
Name:
------------------------
Its:
-------------------------
{PAGE} 66
EXHIBIT "F"
THIS SUBORDINATION, NON-DISTURBANCE
_____________
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – Delaware Corporation
By:
------------------------------------------------
Printed Name:
--------------------------------------
Title:
---------------------------------------------
AGREED AND CONSENTED TO:
"BORROWER"
ARE - 50 WEST WATKINS MILL, LLC, a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. ,
a Delaware limited partnership
By: ARE-QRS, CORP.,
a Delaware corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
{PAGE} 72
ACKNOWLEDGMENTS
[Insert appropriate state acknowledgments]
{PAGE}
_____________
dt 288644
;
Alexandria
As referenced in this Lease:
Alexandria Real Estate Equities, Inc – medical/bio-chemical laboratory use, storage and other incidental uses
consistent with the foregoing named uses.
2.1.10 Address for Rent Payment:
Alexandria Real Estate Equities, Inc .
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: Accounts Receivable
Address for Notices to Landlord:
Alexandria Real Estate Equities,
_____________
Alexandria Real Estate Equities, Inc – Alexandria Real Estate Equities, Inc.
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: Accounts Receivable
Address for Notices to Landlord:
Alexandria Real Estate Equities, Inc .
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: General Counsel
Address for Notices to Tenant:
Gene Logic Inc.
708
_____________
Alexandria Real Estate Equities, Inc – addresses, on the occurrence of any event or the discovery of
any fact that would make any representation contained in this Certificate
inaccurate:
Alexandria Real Estate Equities, Inc .
135 North Los Robles Avenue
Suite 250
Pasadena, California 91101
Attn: General Counsel
-----------------------------
-----------------------------
-----------------------------
-----------------------------
Lessee makes this Certificate with the knowledge that it
_____________
dt 284308
;
|
Gene Logic
As referenced in this Lease:
GENE LOGIC INC – w42028ex10-67.txt
{DESCRIPTION}LEASE AGREEMENT
{TEXT}
{PAGE} 1
EXHIBIT 10.67
LEASE
-----
BY AND BETWEEN
ARE-50 WEST WATKINS MILL, LLC
AND
GENE LOGIC INC .
{PAGE} 2
{TABLE}
{CAPTION}
TABLE OF CONTENTS
-----------------
PAGE
----
{S} {C}
1. Lease of Premises. 1
2. Basic Lease Provisions. 1
3. Term.
_____________
GENE LOGIC INC – as of July 21, 2000, by and between ARE-50 WEST
WATKINS MILL, LLC, a Delaware limited liability company (hereinafter called
"LANDLORD") and GENE LOGIC INC ., a Delaware corporation (hereinafter called
"TENANT").
1. Lease of Premises.
1.1 Landlord hereby leases to Tenant and Tenant hereby leases
from
_____________
Gene Logic Inc – Alexandria Real Estate Equities, Inc.
135 N. Los Robles Avenue, Suite 250
Pasadena, CA 91101
Attention: General Counsel
Address for Notices to Tenant:
Gene Logic Inc .
708 Quince Orchard Road
Gaithersburg, Maryland 20878
Attention: Chief Financial Officer
With, in each case, a copy to:
Silverstein and Mullins, P.
_____________
GENE LOGIC INC – benefitting Tenant.
47
{PAGE} 51
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
date first above written.
TENANT:
GENE LOGIC INC ., a Delaware Corporation
By: /s/ Philip L. Rohrer, Jr.
---------------------------
Its: Chief Financial Officer
-----------------------------
LANDLORD:
ARE - 50 WEST WATKINS MILL, LLC,
a Delaware
_____________
Gene Logic Inc – monument sign.
{PAGE} 61
EXHIBIT "D"
FORM OF ESTOPPEL CERTIFICATE
This Tenant Estoppel Certificate (this "Certificate"), dated as of
________, is executed by Gene Logic Inc . ("Lessee") in favor of
_____________ , a ________________________________ ("Lessor") and
("________").
RECITALS
A. Lessee and Lessor have entered Into a Lease dated as
_____________
dt 316847
;
Buchanan
As referenced in this Lease:
Buchanan Ingersoll, – Maryland 20878
Attention: Chief Financial Officer
With, in each case, a copy to:
Silverstein and Mullins, P.L.L.C.
a division of Buchanan Ingersoll, P.C.
2
{PAGE} 6
1776 K Street, N.W.
Washington, D.C. 20006
Attention: Gary K. Bahena, Esq.
2.1.11
_____________
dt 304563
|
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| 2003 |
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LEASE
LAKE UNION STEAM PLANT BUILDING
THIS LEASE is entered into and effective as of October 4, 2002 ("Effective
Date"), between ARE-1201/1208 EASTLAKE AVENUE, LLC, a Delaware limited liability
company ("Landlord") and ZYMOGENETICS, INC., a Washington corporation
("Tenant").
The parties agree as follows:
1. PREMISES/LEASE
1.1 Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord on the terms contained herein all property purchased by
Landlord from Tenant and located at 1201 Eastlake Avenue East, Seattle,
Washington ("Premises"), including (Section 27.2) the land described on Exhibit
A, together with the easements, rights and appurtenances thereto and the
buildings and other improvements located thereon ("Improvements"); including the
Fixed Equipment (Section 8.8) and excluding the Removable Equipment (Section
8.8).
1.2 Operating Lease. Landlord and Tenant stipulate that this Lease
is a true lease and does not represent a financing arrangement. Each party shall
reflect the transactions represented by this Lease in a manner consistent with
"true lease" treatment rather than "financing" treatment in all applicable
books, records and reports (including income tax filings). Tenant intends to
record this Lease as an operating lease for SEC reporting purposes in accordance
with generally accepted accounting principles ("GAAP"), but failure to do so
shall not be considered a default under this Lease.
1.3 Acceptance of Premises. As the prior owner of the Premises,
Tenant designed and constructed substantial modifications to the Improvements on
the Premises and has occupied the Improvements since completion of those
modifications and is therefore completely familiar with the condition of the
Improvements. By entering this Lease, Tenant is deemed to have accepted the
Premises in its current condition, AS-IS and with all faults. To the extent
necessary to comply with its obligations to maintain and repair the Premises,
Tenant shall enforce the warranties and other obligations of contractors and
suppliers for the original construction of the Premises and Landlord shall
cooperate with Tenant in doing so, but Landlord shall have no other
responsibility or liability for the design, construction or condition of
Premises and makes no warranties with respect thereto and Tenant shall reimburse
Landlord for all its reasonable out-of-pocket third party costs and expenses,
including its attorneys' fees, incurred in connection with its cooperation.
Landlord shall not be required to make any repairs or replacements of any kind
whatsoever during the Term. Notwithstanding the sale of the Premises to
Landlord, all warranties and guaranties regarding the development of the
Premises remain with Tenant for the Term and any remaining warranties and
guaranties will be deemed automatically transferred to Landlord upon termination
of this Lease.
2. TERM
2.1 Initial Term. The "Initial Term" of this Lease shall be 15
years commencing on October 4, ("Commencement Date") and ending on October 3,
2017, unless sooner terminated pursuant to any provision hereof. Tenant and
Landlord's affiliate are parties to the Earl Davie Building Lease (Section
15.2). If the Initial Term of the Earl Davie Building Lease is extended by
operation of Section 24.11 of the Earl Davie Building Lease, then the Initial
Term of this Lease will be extended to the same expiration date, and the parties
shall enter into an amendment to this Lease in the form of Exhibit I evidencing
such extension. As used herein, "Term" shall mean the Initial Term and any
Renewal Term (Section 2.2) which becomes effective hereunder.
2.2 Extensions. Provided that Tenant is not in default on exercise
of a right to extend or on the commencement of the Renewal Term (unless such
default is cured within any applicable cure period),
1
{PAGE}
Tenant shall have the right to extend this Lease for 4 consecutive renewal terms
(each, a "Renewal Term") of 5 years each, with at least 16 months prior written
notice to Landlord. If Landlord does not receive such notice 16 months prior to
the end of a current Term, Tenant's renewal rights shall lapse. The rights to
extend the Lease for the Renewal Terms are personal to Tenant and may not be
assigned, pledged or transferred to any third party. Notwithstanding the
foregoing, such rights may be assigned or transferred to Tenant's Affiliates
(Section 13.2).
2.3 Rent For Renewal Terms. As of the commencement of each Renewal
Term, the Base Rent (Section 3.1) shall be adjusted to the greater of (a) the
fair market rental value of the Premises as of the commencement of the Renewal
Term, or (b) 90% of the Base Rent applicable to the last year of the term prior
to commencement of the applicable Renewal Term. Fair market rental value shall
be the amount of rent which a well-informed tenant, willing, but not obliged to
lease the Premises, would pay, and which a well-informed landlord, willing, but
not obligated to lease, would accept, taking into consideration all uses to
which the Premises is adapted and might in reason be applied, and the then
market terms being offered in the Seattle metropolitan area (e.g. including
Elliott Bay, the University District, Queen Anne/Interbay, Lake Union, Denny
Triangle, etc.) for space reasonably comparable to the Premises. If, after
bargaining in good faith for 30 days (the "Bargaining Period"), the parties have
not reached agreement on the fair market rental value, it shall be established
by binding arbitration in accordance with Section 2.4. Commencing at the start
of the second year of each Renewal Term and continuing each year thereafter, the
Renewal Term's Base Rent shall be increased by 3.5%.
2.4 Arbitration. The arbitration process outlined below must be
commenced no more than 18 months before the first day of the ensuing Renewal
Term and pursued in good faith. Each arbitrator shall be an MAI real estate
appraiser with at least 7 years experience in appraising real property used for
comparable "wet science" biological laboratory and research and development
facilities or such similar uses to which the parties agree ("Arbitrator"). If
the parties are able to reach agreement on a single Arbitrator within 10 days
after the end of the Bargaining Period, that Arbitrator shall determine the fair
market rental value. Otherwise, each party shall select its own Arbitrator and
shall provide the name to the other party within 15 days following expiration of
the Bargaining Period. The two Arbitrators shall meet within 20 days following
their selection and attempt in good faith during such 20 days to reach agreement
on the fair market rental value of the Premises. If the two Arbitrators are
unable to agree, they shall jointly select a third Arbitrator. If they fail to
either agree on the fair market rental value or appoint a third Arbitrator
within 20 days following their appointments, the third Arbitrator shall be
selected by the then Presiding Judge of King County Superior Court upon the
request of either party. Within 10 days after the appointment of the third
Arbitrator, the first two Arbitrators shall each submit in writing to the third
Arbitrator the amount which they propose be established as the Renewal Term's
Base Rent ("Submissions"). The Submissions shall not be disclosed by the third
Arbitrator until the third Arbitrator has received both of the other
Arbitrators' Submissions. Each Arbitrator may include in such Submissions any
information which he/she deems relevant or helpful to the third Arbitrator in
determining the fair market rental value of the Premises, and the third
Arbitrator may not obtain, accept or consider any additional information in
making its decision. The third Arbitrator's determination of the fair market
rental value is strictly limited to selection, as the more reasonable
approximation of the fair market rental value of the Premises, of the amount
stated in one of the Submissions, and third Arbitrator may not select or declare
any third number. The third Arbitrator's decision shall be made within 20 days
after delivery of the Submissions, by a report in writing to each of the parties
and in any event at least 12 1/2 months before the commencement of the Renewal
Term. Each party shall pay the costs of its own Arbitrator and one-half of the
single Arbitrator or the third Arbitrator's fee. If the Arbitrator's
determination of fair market rental value is greater than 110% of the then Base
Rent payable during the 12 months immediately preceding the applicable Renewal
Term, Tenant may elect to rescind exercise of the option by written notice to
Landlord given at least 12 months before the commencement of the Renewal Term.
Notwithstanding the provisions of this Section 2.4, if during the arbitration
period, Tenant and Landlord reach agreement on fair market rental value
(independent of Arbitrator's findings), the arbitration shall be terminated and
the determination of the parties shall govern.
2
{PAGE}
3. RENT
3.1 Base Rent. Commencing on the Commencement Date, and continuing
on the first of each month thereafter, Tenant shall pay to Landlord $284,220.54
per month ("Base Rent"). Base Rent shall be remitted to the Landlord at its
address stated for notices in this Lease as the same may be amended from time to
time or to such other address required by Landlord in a written notice to Tenant
and shall be due and payable on the first day of each month during the Term and
tendered in cash. Base Rent for any partial month shall be prorated based on the
number of days in the applicable calendar month.
3.2 Increases in Base Rent. Commencing one year after the
Commencement Date and continuing annually thereafter, the Base Rent shall be
increased by 3.5%.
3.3 Intentionally Omitted
3.4 Additional Rent. All amounts other than Base Rent due by
Tenant to Landlord under this Lease shall be deemed "Additional Rent" and
Landlord shall have all of the same remedies for Tenant's failure to pay
Additional Rent as for failure to pay Base Rent. The term "Rent" shall mean the
combined Base Rent and Additional Rent. Tenant's obligations to pay Rent are in
the nature of independent covenants and all Rent shall be paid without demand,
notice, abatement, reduction or offset, except that Additional Rent may be
subject to demand or notice where provided in this Lease.
3.5 Late Fee. If any installment of Base Rent is not received by
Landlord by the 5/th/ of the month, Tenant shall pay to Landlord, on demand, a
late charge equal to six percent (6%) on such overdue installment of Base Rent
(the "Late Fee"). Notwithstanding the foregoing, Landlord agrees that pursuant
to Section 15.2 below, Landlord will deliver notice to Tenant of any such
delinquency and, not more than once each Lease Year, Landlord will waive the
Late Fee if such delinquency is paid within three business days after Tenant's
receipt of such notice. Tenant acknowledges that such late charge represents a
reasonable estimate of the costs Landlord will incur as a result of such late
payment.
3.6 Fines/Penalties. Subject to Section 22, Tenant shall pay and
discharge when due all other amounts and obligations which Tenant assumes or
agrees to pay pursuant to this Lease.
3.7 Abatement of Rent. Except as expressly agreed upon in Sections
10 and 12 below, Tenant's obligations to pay Rent shall not abate during any
period that the Premises or any part thereof are untenantable regardless of the
cause of such untenantability.
3.8 Asset Management Fee. In addition to the Base Rent, Tenant
shall pay to Landlord each month with the Base Rent an asset management fee
equal to one-half of one percent (0.5%) of the Base Rent.
4. USE
4.1 Use. Tenant may use the Premises only for office and
laboratory, and research and development facilities and uses that are a
reasonably necessary adjunct thereto. "Laboratory" as used herein refers to that
portion of the Premises devoted to "wet" laboratory and related research and
development use. Exhibit H shows the current allocation of Laboratory and office
spaces. Changes resulting in more than 50% or less than 25% of the net rentable
square feet of the Premises designated for office use will be considered a
change in use. The methodology which will be used for calculating the percent of
use will be calculated consistent with the methodology as was employed to
calculate the current use percentage as described on Exhibit H (said uses and
the permitted deviation in the ratio being hereinafter referred to as the "Use
Requirements"). Any other uses or changes in uses shall require Landlord's
approval, in accordance with the approval standards set forth in Section 8. The
Premises shall not be used for any purpose which would constitute a public or
private nuisance or waste, or violate the agreements listed on Exhibit B ("Title
Encumbrances").
3
{PAGE}
4.2 Compliance with Laws. Tenant shall, at its cost, comply with all
Laws (Section 27.2) and the requirements of any board of fire underwriters,
including all modifications required thereby, relating to or affecting the
condition, use or occupancy of the Premises. Upon request of Landlord, Tenant
shall provide Landlord with copies of all documents evidencing Tenant's
compliance with any particular Law specified by Landlord. Tenant shall notify
Landlord in writing immediately of any threatened or actual notice or citation,
regarding an alleged failure of the Premises to comply with any Law.
4.3 Mechanic's Liens. Except for claims for delinquent payments
for which Landlord is contractually obligated, which shall be the sole
responsibility of Landlord, Tenant agrees that during the Term hereof it shall
not do or suffer any waste to the Premises, or cause, suffer or permit any liens
for labor, services or materials to attach to the Premises by reason of any act
or omission of Tenant or person claiming through Tenant. If any lien is filed
arising out of work performed for Tenant, Tenant shall either discharge the lien
or post a bond pursuant to RCW 60.04.161 to remove the lien from the Premises
within 30 days after it receives notice of the lien.
4.4 Quiet Enjoyment. So long as no Event of Default (Section 15.2)
exists hereunder, Landlord covenants that Tenant shall have quiet occupation and
enjoyment of the Premises from any person claiming through Landlord.
4.5 Development Agreement. During the Term, Tenant shall be
responsible for all of Tenant's obligations under that certain Real Estate
Agreement, Development Conditions, and Physical Restrictions for Lake Union
Steam Plant dated May 5, 1993 (the "Development Agreement"). Capitalized terms
used in this Section 4.5 which are not defined in this Lease shall have the
meanings set forth in the Development Agreement. Tenant's obligations under the
Development Agreement shall not include the following:
(a) without impairing Tenant's own obligations to cooperate,
any failure of Landlord to cooperate with the City of Seattle (the "City") as
required by Section 7.1.1 of the Development Agreement;
(b) any exoneration of the City from liability under the
Development Agreement as a result of Landlord's entering into a consent decree
or consent order under Section 7.1.4 of the Development Agreement without the
consent of Tenant;
(c) the costs of any remediation of Hazardous Materials under
any consent decree or consent order under Section 7.1.4 of the Development
Agreement that was entered into without the consent of Tenant unless such
remediation is otherwise an obligation of Tenant under this Lease and its
failure to pursue the same is an Event of Default;
(d) any costs, expenses, penalties, attorneys' or consultants'
fees which become owed to the City under Section 7.1.5 of the Development
Agreement as a result of the release of Historic Contamination by Landlord or
Landlord Related Parties (Section 14); or
(e) any costs, expenses, damages, fees or penalties relating
to the remediation of Historic Contamination that become owed to the City under
Section 7.5 of the Development Agreement as a result of the action of Landlord
or Landlord Related Parties; provided, however, Tenant's use and occupancy of
the Premises and the obligations of Tenant under the Lease to maintain,
construct, alter, expand, repair, or restore any existing or future improvements
on the Premises shall be deemed the sole acts of Tenant hereunder, whether the
same are performed by (a) Tenant, or (b) Landlord on behalf of Tenant as a
result of any Event of Default.
5. MAINTENANCE AND REPAIR
5.1 Tenant's Obligations. Tenant shall keep and maintain all
portions of the Premises in good order and condition, in a manner typical of
other properly maintained and operated facilities of a
4
{PAGE}
similar nature and in accordance with all Laws and with the standards of
maintenance and repair adhered to by Tenant prior to the Commencement Date.
Tenant shall promptly make all repairs and replacements required in order to
keep and maintain the Premises in such order and condition. Tenant shall also
keep the Premises in compliance with all Laws and the requirements of the
property and environmental insurance coverages. The provisions of this Section
shall not conflict with Tenant's rights to obtain insurance and condemnation
proceeds under Sections 10, 11 and 12. If Tenant fails to perform the required
maintenance and repairs, Landlord shall have the cure rights described in
Section 15.7.
5.2 Condition on Surrender. Upon termination of this Lease, Tenant
shall remove its personal property, repair any damage caused by removal, comply
with any removal and Restoration Requirements (Section 8), and leave the
Premises in good repair and condition, subject to Section 10.3. In addition,
prior to termination of the Lease, Tenant shall perform all decommissioning
required by governmental agencies and shall provide copies of all
decommissioning reports to Landlord. If Tenant has failed to complete the
governmental decommissioning process by the expiration or earlier termination
date of this Lease, and as a result, the Premises cannot be relet, the Tenant
shall be required to continue to pay full Rent and perform its obligations
hereunder until such decommissioning is complete. The foregoing shall also be
considered holding over and be subject to the terms of Section 27.13 if, and for
so long as, Tenant fails to pursue such decommissioning with due diligence. The
Fixed Equipment then existing in the Premises shall be surrendered with the
Premises in good and operating condition and free of any liens, financing leases
or other encumbrances created by or imposed against Tenant, and belong solely to
Landlord.
6. UTILITIES AND TAXES
6.1 Utilities. Subject to Section 22, Tenant shall pay when due
all charges for utility services provided to the Premises including power, water
and sewer, and gas. No interruption of utility service shall give Tenant the
right to abate Rent or terminate this Lease.
6.2 Taxes. Subject to Section 22, Tenant shall pay when due all
Real Property Taxes. "Real Property Taxes" shall mean: (i) the ad valorem
property taxes and other similar taxes levied against the Premises which become
due and payable during the Term, (ii) all installments of assessments imposed by
governmental entities on the Premises which become due and payable during the
Term, and (iii) governmental licensing or similar fees. Real Property Taxes
shall include all taxes and assessments levied against the Premises other than
conveyance taxes arising from Landlord's transfer of the Premises, Landlord's
rental taxes (if any), Landlord's business and occupation taxes, franchise or
net income taxes of Landlord, any estate, succession, gift, capital levy or
similar taxes. If any assessment may be paid in installments, Tenant shall be
responsible only for those installments due and payable during the Term and for
those portions of installments to the extent they accrued during the Lease Term,
even if they are payable thereafter. If Landlord enters into private agreements
for off-site improvements for the benefit of the Premises which are in lieu of
government imposed improvements, Tenant shall pay Landlord's installments
thereunder to the extent they accrued during the Term. Notwithstanding the
foregoing, if the amortization period used in calculating the amount of the
installments is less than the amortization period that would have been used for
the government assessment that would have otherwise been imposed, then Tenant
shall pay a portion of the Landlord's installments due under such private
agreements, to the extent they accrued during the Term, recalculated using the
same amortization period as would have been used for the government assessment.
Tenant shall pay all personal property taxes levied against the Premises as and
when due to the extent the levy thereof is attributable to the Term and all such
taxes are assessed against its own property. It is Landlord's and Tenant's
express intent that all Fixed Equipment identified on Exhibit G and all
substitutions, modifications or additions thereto, is part of the real property
and not personal property. No personal property is being leased by Landlord to
Tenant. Notwithstanding the foregoing, if the Department of Revenue assesses any
personal property taxes relating to the Premises, the Fixed Equipment or this
Lease, Tenant shall pay such taxes, subject to Section 22.
5
{PAGE}
7. SECURITY DEPOSIT
7.1 General Requirements. Upon execution of this Lease, Tenant
will provide to Landlord a security deposit ("Security Deposit") in the amount
of $568,441.08 (i.e. two months Base Rent). Tenant shall increase the amount of
the Security Deposit to correspond to increases in Base Rent at the time such
adjustments become effective. Tenant can elect to provide the Security Deposit
in the form of either a letter of credit ("LOC"), or pledged marketable
securities from Tenant's corporate cash investment portfolio, or a combination
thereof, variable over the Term. Landlord will hold the Security Deposit as
security for the performance of Tenant's obligations under the Lease. The
Security Deposit will not be considered an advance payment of Rent or a measure
of Tenant's liability for damages. Landlord may, from time to time, without
prejudice to any other remedy, upon the occurrence of an Event of Default, use
all or a portion of the Security Deposit to cure any Event of Default. Following
any such application of the Security Deposit, Tenant will replenish the Security
Deposit to its required amount. Landlord shall transfer the Security Deposit to
any subsequent owner of the Premises. Landlord and its successors and assigns
will not be bound by any assignment or encumbrance of the Security Deposit by
Tenant, provided, however, if Tenant's interest in the Lease has been assigned,
Landlord will return the Security Deposit to such assignee in accordance with
the terms and conditions hereof. Within 30 days following the expiration of this
Lease and the performance by Tenant of all of its obligations hereunder,
Landlord shall return the then existing balance of the Security Deposit to
Tenant. Landlord shall have no obligation to pay interest on the Security
Deposit. If Landlord returns the Security Deposit to Tenant's assignee as
aforesaid, Landlord will have no further obligation to any party with respect
thereto. Tenant shall not encumber the Security Deposit.
7.2 Letter of Credit. During any period that Tenant elects to
satisfy all or any portion of the Security Deposit with an LOC, the LOC must be
an irrevocable and unconditional standby letter of credit, issued by the Bank of
America or its successors or another financial institution reasonably
satisfactory to Landlord and with a term of at least one year substantially in
the form of Exhibit D. Landlord may draw upon the LOC to cure any Event of
Default, as described in Section 7.1. In addition, if at any time there are less
than 30 days remaining before the expiration of the LOC, and if Tenant does not
deliver an extension or replacement of the LOC within 5 business days after
notice from Landlord, Landlord may draw upon the LOC; provided that if Tenant
subsequently provides a replacement LOC, and to the extent Landlord has not
applied the same to any default, Landlord will return the funds drawn to Tenant
without interest.
7.3 Pledged Securities. So long as Tenant's reported Cash Position
(defined below) is at least $50,000,000.00 (the "Cash Position Minimum"), Tenant
may satisfy all or any portion of the Security Deposit with marketable
securities satisfying the criteria stated in this Section 7.3. "Cash Position"
is defined as the sum of unrestricted cash, cash equivalents and marketable
securities as determined by reference to GAAP. If Tenant's reported Cash
Position drops below the Cash Position Minimum at any time, then Tenant shall
immediately convert all of its Security Deposit to an LOC. Tenant may
subsequently satisfy its Security Deposit with marketable securities once Tenant
has again exceeded the Cash Position Minimum for at least two consecutive
quarters. During any period that Tenant elects to satisfy all or any portion of
the Security Deposit with marketable securities, the pledge will be of short
term (2 years or less) fixed income marketable securities from Tenant's
corporate cash investment portfolio, including money market funds, rated not
lower than Aa, AA, A1 or P1 or equivalent by a nationally recognized credit
rating service. The pledged marketable securities will be held by Union Bank of
California or another bank or financial institution mutually approved by
Landlord and Tenant as custodian for Landlord, either in a separate custodian
account or as specially designated securities within a larger custodian account.
The pledge agreement must be substantially in the form of Exhibit E and provide
Landlord with a perfected first lien security interest in the pledged
securities. The custodial agreement must be substantially in the form of Exhibit
F and provide direct access authorization which would permit Landlord in an
Event of Default, without approval of Tenant, to authorize the sale of the
securities and the withdrawal of the proceeds thereof (not to exceed the amount
of the then required Security Deposit) for application by Landlord to cure any
Event of Default, as described in Section 7.1. So long as the value of the
pledged securities comply with the requirements of this Lease, Tenant will be
entitled to retain all interest and other earnings generated by the pledged
securities. If the market value
6
{PAGE}
of the pledged securities drops below the required amount of the Security
Deposit, Tenant will immediately add additional marketable securities to the
pledge to increase the value of the pledged securities to equal or exceed the
required level. Failure of Tenant to increase the pledged securities as required
within 3 business days of notice from Landlord and/or the account custodian will
constitute an Event of Default. Tenant will have the right to substitute
marketable securities meeting the rating criteria and having all of the other
characteristics specified above for the securities subject to the pledge.
8. ALTERATIONS
8.1 General. All alterations of Premises shall be made at Tenant's
sole cost and expense. All alterations shall be made in a good and workmanlike
manner and in compliance with all Laws and insurance requirements and Tenant
shall enforce any warranties to the extent necessary to cause any defects in
workmanship or materials to be corrected. Subject to Section 8.6, all
alterations shall be fully consistent with the overall character of the Premises
as a first class scientific research and development facility (the "Function
Requirements") and the Use Requirements. Tenant shall indemnify, defend and hold
Landlord harmless from all claims, costs (including attorneys' fees and costs)
or damage occurring in connection with Tenant's alterations; notwithstanding the
foregoing, Tenant shall not be liable to reimburse Landlord for Landlord's
overhead and expenses in reviewing any plans, specifications and other documents
or in otherwise confirming Tenant's conformance to the requirements of this
Section 8 ("Review Costs") except that for Category D and E Alterations, Tenant
shall pay Landlord a fee equal to the lesser of $10,000 or 5% of all costs
incurred by Tenant or its contractors or agents in connection with any Category
D or E Alteration, to defray Landlord's Review Costs. Prior to commencing any
alterations, Tenant shall obtain all necessary permits from governmental
authorities. Irrespective of Landlord's receipt, review and any approval of the
plans and specifications for Tenant's alterations, Tenant, and not Landlord,
shall have sole responsibility for the accuracy or sufficiency of the plans and
specifications, their compliance with applicable Laws, codes, regulations or
statutes, and their fitness for Tenant's purpose. If any alterations by Tenant
trigger any legal requirements to make other modifications to the Premises,
Tenant shall make such modifications at its sole cost and expense. Tenant shall
provide to Landlord as-built drawings for all alterations by Tenant promptly
after completion of the alteration. Except for Removable Equipment, all
alterations shall become the property of Landlord immediately upon installation
or completion and shall be subject to all of the terms of this Lease. Prior to
commencing any Category "B-E" Alteration, Tenant must deliver to Landlord
evidence of insurance from all contractors and subcontractors reasonably
satisfactory to Landlord to protect Landlord against liability for personal
injury or property damage during construction, naming Landlord as an additional
insured.
8.2 Category "A" Alterations. An alteration is a "Category A
Alteration" if the estimated cost of such alteration is less than $5,000 and the
alteration does not fall within the definition of Category D or E Alterations.
For Category A Alterations, in addition to the requirements of Section 8.1,
Tenant will deliver notice to Landlord describing the alteration promptly after
its completion, in the manner stated in Section 27.3.
8.3 Category "B" Alterations. An alteration is a "Category B
Alteration" if the estimated cost of such alteration is between $5,000 and
$25,000, and the alteration does not fall within the definition of Category D or
E Alterations. For Category B Alterations, in addition to the requirements of
Section 8.1, Tenant shall notify Landlord, in the manner stated in Section 27.3,
of the planned alteration at least 5 business days prior to commencement of the
work, providing a brief description of the work, the estimated cost, and any
permit drawings, if applicable.
8.4 Category "C" Alterations. An alteration is a "Category C
Alteration" if the estimated cost of such alteration exceeds $25,000 and the
alteration does not fall within the definition of Category D or E Alterations.
For Category C Alterations, in addition to the requirements of Section 8.1,
Tenant shall notify Landlord, in the manner stated in Section 27.3, of the
planned alteration at least 10 business days prior to the commencement of the
work, providing a description of the work, the estimated cost and any permit
drawings for Landlord's review and approval. Landlord will not withhold its
approval of the alteration, however Landlord may impose reasonable conditions on
the alteration to the extent necessary to protect its investment, provided that
Landlord may not require Tenant to restore the Premises or
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remove the Category C Alteration as a condition of its consent. For Category C
Alterations, if Landlord does not respond to Tenant's notice of such alteration
within the 10 business day period, Landlord shall be deemed to have approved
such alteration without conditions.
8.5 Category "D" Alterations. An alteration is a "Category D
Alteration," regardless of estimated cost, if such alteration does not fall
within the definition of a Category E Alteration, and either (a) such alteration
when aggregated with past alterations and concurrent alterations, fails to
comply with the Use Requirements, or (b) such alteration results in a net change
in rentable square footage for any Function which is outside of the "Function
Tolerances" set forth in the Table of Uses contained in Exhibit H.
"Function" is defined by reference to physical and functional
distinctions evident in the floor plans attached as Exhibit H. For Category D
Alterations, in addition to the requirements of Section 8.1, Tenant must obtain
Landlord's prior written approval, which shall not be unreasonably withheld. To
request Landlord's approval, Tenant shall provide to Landlord schematic drawings
for Category D Alterations and Landlord shall respond with its comments on such
proposed alteration within 10 business days after receipt thereof. Such approval
is also subject to Landlord's subsequent 10 business day review and approval of
the construction drawings for the proposed alteration. Landlord shall be
required to approve the Category D Alteration and the construction drawings, if
(i) Landlord had previously approved the schematic drawings, and (ii) the
construction drawings reflect the same alterations as such schematic drawings.
If Landlord disapproves of either the schematic drawings or the construction
drawings, it shall provide Tenant with reasonably detailed reasons therefor.
Failure to provide any such notice shall not be construed as an approval of or
consent to any alteration. Landlord may condition its approval of Category D
Alterations on a Restoration Requirement (Section 8.7).
8.6 Category "E" Alterations. An alteration is a "Category E
Alteration," regardless of estimated cost, if such alteration (a) fails to
comply with the Function Requirements, (b) incorporates materials or employs
construction standards that are of a materially lesser quality than those used
in the then existing Premises, (c) decreases the number of net rentable square
feet in the Premises, (d) involves any alterations to the foundation, roof or
structural components of the Improvements, (e) alters the exterior appearance of
the Premises (but specifically excluding landscaping, Removable Equipment,
antennas or mechanical systems on the roof, and signage when reasonably required
for Tenant's business); (f) is designed for any use that is not expressly
permitted under Section 4.1; (g) results in Laboratory space being improved for
use as a "Process Lab" (defined by reference to Exhibit H) outside of the
"Extreme Max" Function Tolerances set forth in Exhibit H; (h) results in more
than 60% of the Premises being improved for office use; or (i) results in more
than 80% of the Premises being improved for Laboratory use (Section 4.1). For
Category E Alterations, in addition to the requirements of Section 8.1, Tenant
must request Landlord's prior written approval, which is subject to Landlord's
sole discretion. To request Landlord's approval, Tenant shall provide to
Landlord schematic drawings for Category E alterations and Landlord shall
respond with its comments on the proposal within 10 business days after receipt
thereof, which is subject to Landlord's subsequent 10 business day review and
approval of the construction drawings. Landlord shall approve the Category E
Alteration and the construction drawings, if (i) Landlord had previously
approved the schematic drawings, and (ii) the construction drawings reflect the
same alterations as such schematic drawings. If Landlord disapproves of either
the schematic drawings or the construction drawings, it shall provide Tenant
with reasonably detailed reasons therefor. Failure to provide any such notice
shall not be construed as an approval of or consent to any alteration. Landlord
may condition its approval of Category E Alterations on a Restoration
Requirement.
8.7 Restoration Requirement and Restoration Deposit. Landlord may
condition its approval of Category D and E Alterations on a requirement that
Tenant remove such alterations at the end of the Term and fully restore the
Premises to the location, size, design, configuration, condition and state of
improvement and fixturing that existed immediately prior to making such
alterations and consistent with the degree of maintenance and repair required by
this Lease (the "Restoration Requirement"). If Landlord conditions its approval
of a Category D or E Alteration on a Restoration Requirement, Landlord may
further require that Tenant post a deposit (the "Restoration Deposit") in an
amount equal to Landlord's reasonable estimate of the removal and restoration
costs in any circumstance
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in which the same exceed $100,000 and which shall be subject to the same terms
and conditions as those that are applicable to the Security Deposit; provided,
however, the Restoration Deposit shall be returned to Tenant to the extent and
at the earlier of such time as (a) Landlord waives its requirement in writing
that such alterations be removed and the Premises restored, which election shall
be at Landlord's sole and absolute discretion, or (b) Tenant completes the
removals and restorations, Landlord accepts the same as having complied with
Tenant's obligations under this section, and Tenant provides Landlord with final
lien waivers and evidence of payment for all of the costs and expenses incurred
to do so. Notwithstanding the foregoing, in no event shall Tenant be required to
post a Restoration Deposit unless (a) Landlord has made a good faith
determination that Restoration will likely be required and (b) Tenant's cash
flow position drops below the Cash Position Minimum (Section 7.3).
8.8 Fixed and Removable Equipment. This Lease arises
simultaneously with the sale of the Premises by Tenant to Landlord pursuant to
that certain Agreement of Purchase and Sale dated August 29, 2002, as amended
(the "Purchase Agreement"). In order to establish which elements and/or pieces
of equipment within the Premises were included in the sale and which were not,
the parties applied the criteria listed below to develop the listing contained
on Exhibit G containing those items which were considered affixed and part of
the Premises. All other items not listed on Exhibit G were considered personal
property retained by Tenant. "Fixed Equipment" is defined as the equipment
listed on Exhibit G, plus any new equipment brought onto the Premises which
either replaces the items listed on Exhibit G, has the same the physical and
functional distinctions as the equipment listed on Exhibit G, or satisfies the
criteria stated below.
FIXED EQUIPMENT CRITERIA:
1) Equipment that is built into the facility in such a manner
that it will require the removal of walls, floors, ceilings or
additions to or modifications of existing structural support,
whether temporary or permanent, to install or relocate it;
2) Equipment that is connected to common building systems in such
a way that the service must be modified outside the local area
or room where the equipment is located when the equipment is
disconnected; or
3) Equipment that provides service to other Fixed Equipment or
without which such other Fixed Equipment would not be
functional.
As new equipment is brought into the Premises, the determination of
whether such equipment is considered Fixed Equipment or Removable Equipment will
be made by using the physical and functional distinctions evident in the listing
attached as Exhibit G and where that does not provide sufficient guidance,
applying the above Fixed Equipment criteria. If any alteration is intended to
include attached equipment, Tenant shall give written notice to Landlord of its
suggested classification as either Fixed or Removable when it gives the notices
or requests the approvals as required above. New Fixed Equipment shall become
Landlord's property immediately. No Fixed Equipment may be leased or subject to
any lien or security interest by Tenant.
9. INSURANCE
9.1 Tenant's Insurance. Tenant shall maintain at its sole cost and
expense the following insurance on the Premises, and in all cases such policies
shall name as additional insureds (a) Landlord, (b) any lender of Landlord
holding any security interest in the Premises, and (c) any management company
retained by Landlord to manage the Premises:
9.1.1 Property. Insurance against loss or damage to the
Premises on an all risk basis, including sprinkler damage and flood for an
amount not less than the actual replacement cost of the Premises. The insurance
shall include coverage from business interruption and extra expense for a period
of not less than 18 months. Tenant shall also carry earthquake insurance and
insurance against damage caused by terrorism and acts of war to the extent the
same is or are available at commercially
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reasonable rates and is required by Landlord. In determining whether such
insurance is available at a commercially reasonably rate, the parties will take
into consideration the cost and availability of similar policies for Landlord's
(or its affiliates') other Seattle properties (or in similarly rated seismic
areas if Landlord or its affiliates no longer own other Seattle properties). At
Tenant's option, the Premises may be included in Landlord's (or its affiliates')
blanket policy of insurance, if and for so long as the same is maintained by
Landlord (or its affiliates), in which case the cost of insurance allocable to
the Premises will be based on the insurer's cost calculations. In addition,
Tenant shall maintain during the Term all risk insurance for Tenant's personal
property (including business interruption and extra expense coverage) covering
the full replacement cost of all property, improvements and equipment placed in
or on the Premises by Tenant, with the understanding that the proceeds of such
policies shall be paid to and belong to Tenant.
9.1.2 Liability. Commercial liability insurance with a
combined single limit (including umbrella) of at least $10 million per
occurrence and $10 million in the aggregate, naming Landlord as an additional
insured and such insurance shall be primary to and not contributory with any
insurance carried by Landlord regarding events that occur in the Premises.
9.1.3 Boiler. Insurance against loss or damage from explosion
of any steam or pressure boilers or similar apparatus located in or about the
Premises in an amount not less than the actual cost to repair or replace the
insured equipment/machinery. At Tenant's option, the Premises may be included in
Landlord's (or its affiliates') blanket policy of insurance, if and so long as
the same is maintained by Landlord (or its affiliates), in which case the cost
allocable to the Premises will be based on the insurer's cost calculations.
9.1.4 Builder's Risk. Whenever Tenant, whether as Landlord's
construction agent or otherwise, is engaged in alterations costing in excess of
$5 million, Tenant shall obtain completed value builder's risk insurance.
9.1.5 Environmental Insurance. To the extent available at a
commercially reasonable rate, pollution legal liability insurance with a limit
of not less than $10,000,000 covering the Premises and contamination therefrom.
In determining whether such insurance is available at a commercially reasonable
rate, the parties will take into consideration the cost and availability of
similar policies for other of Landlord's (or its affiliates') similar
properties. Such insurance shall be on a claims-made basis. At Tenant's option,
the Premises may be included in Landlord's (or its affiliates') blanket policy
of insurance, if and for so long as Landlord (or its affiliates) maintains such
policies, in which case the cost of such insurance allocable to the Premises
will be based on the insurer's cost calculations.
9.1.6 Workers' Compensation. Tenant shall maintain workers'
compensation insurance with no less than the minimum limits required by law.
9.1.7 Other Tenant Insurance. In addition to the insurance
coverage listed above in this Section 9.1, at Tenant's and Landlord's option,
Tenant may be included in Landlord's (or its affiliates') blanket policy for
other insurance (e.g. mold insurance), if and for so long as Landlord (or its
affiliates) maintains such policies, in which case the cost of such insurance
allocable to the Premises will be based on the insurer's cost calculations.
9.1.8 Landlord's Evidence of Insurance. In those instances
where Tenant is included in Landlord's (or its affiliates') blanket policies of
insurance, at Tenant's request, Landlord shall provide Tenant with insurance
certificates, or such other reasonable evidence of coverage under such policies.
9.2 Rating. The insurance required by Section 9.1 shall be written
by companies rated not less than A - and having a size rating of X or higher in
the current edition of A. M. Best's Key Rating Guide, and all such companies
shall be authorized to do insurance business in Washington, or otherwise agreed
to by Landlord. The insurance policies shall be in amounts sufficient at all
times to satisfy any coinsurance requirements thereof. If said insurance or any
part thereof shall expire or be withdrawn,
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Tenant shall immediately obtain new or additional insurance reasonably
satisfactory to Landlord. As of the date of the Lease, Tenant's insurers are
rated A++ (Chubb) and A+ (FM Global).
9.3 Mortgagee. Each insurance policy referred to in Sections 9.1.1,
9.1.3 and 9.1.4, shall contain standard non-contributory mortgagee clauses in
favor of any mortgagee. Each such policy shall provide that the issuer will
endeavor to notify the mortgagee if there are any material changes to the
policy.
9.4 Renewal. Tenant shall pay when due all premiums for the insurance
required by this Section 9 and shall deliver to Landlord copies of any insurance
policy upon Landlord's request and a certificate or other evidence (reasonably
satisfactory to Landlord) of the existing policies and of renewal or replacement
policies prior to the policy expiration date (which may be by extension of the
existing policy). If Tenant fails to comply with the requirements of this
Section 9 within 5 business days after written notice by Landlord to Tenant,
Landlord shall be entitled to procure such insurance pursuant to Section 15.7.
9.5 Landlord's Blanket Policies. As noted in Sections 9.1.1, 9.1.3, and
9.1.5, Tenant shall have the option of obtaining the insurance through
Landlord's (or its affiliates') blanket insurance policies for its portfolio to
obtain improved coverage or cost savings, if and for so long as Landlord (or its
affiliates) maintains such policies. At Tenant's request, Landlord will provide
Tenant with premium rating information, copies of insurance policies, and other
information reasonably necessary to facilitate Tenant's evaluation of this
option.
9.6 Landlord's Insurance. Landlord, at its expense, shall carry
comprehensive general liability insurance with a combined single limit
(including umbrella) of at least $5 million per occurrence and $5 million in the
aggregate.
9.7 Waiver of Subrogation. Notwithstanding any other provisions of
this Lease to the contrary, Landlord and Tenant waive their respective rights of
recovery against the other and the officers, employees, agents and
representatives of such other party for damage to the property of the other by
fire or other casualty to the extent such damage is insured or required
hereunder to be insured. The insurance policies carried by Landlord and Tenant
shall include a waiver of the insurer's rights of subrogation.
10. CASUALTY; OBLIGATION TO RESTORE
10.1 Definitions.
"Casualty" shall mean damage to or destruction of the Premises by
storm, fire, lightning, earthquake, or from any other cause, other than such
damage or destruction which is the subject of a Condemnation (Section 12).
"Excess Insurance Proceeds" shall mean that portion of any Insurance
Proceeds which are received by the Landlord or its mortgagee that are not used
to pay the third party costs of restoring any damage to the Premises or any
other third party out of pocket costs incurred, including attorneys' fees, in
connection with the Casualty, including such costs to obtain the Insurance
Proceeds, but in any event excluding Tenant's Proceeds. The determination of
Excess Insurance Proceeds shall be made upon completion of the Casualty
Restoration.
"Excess Insurance Proceeds Rent Reduction" shall mean a dollar for
dollar reduction to the Base Rent for the then remainder of the Term until
exhausted, from and after the date Landlord receives any Excess Insurance
Proceeds.
"Fair Market Value of Premises" for purposes of this Section 10 is
defined in Exhibit L.
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"Insurance Proceeds" shall mean the proceeds of any insurance
maintained by Tenant under Section 9, which is paid for a Casualty Restoration
(Section 10.4), but excludes Tenant's Proceeds.
"Substantial or Full Casualty" shall mean a Casualty which is
certified, by an affidavit from Tenant's president, chief executive officer or
chief financial officer, stating with a reasonable basis that such event has
rendered the Premises (taken separately from any other properties owned or
leased by Tenant) unavailable for Tenant's continued business operations in
compliance with the Use Requirements and Function Requirements for more than 12
months and the cost of restoring the Premises is reasonably estimated to exceed
$10,000,000.
"Tenant's Proceeds" shall mean any proceeds of insurance policies
payable for Tenant's business interruption or damage to Tenant's personal
property.
10.2 Substantial or Full Casualty in Last 18 Months of Term. If and
only if there is a Substantial or Full Casualty of the Premises during the last
18 months of the then current Term, then (i) Landlord will receive the Insurance
Proceeds; and (ii) provided Tenant has maintained the insurance coverages
required under this Lease, the Lease will terminate effective as of the date of
the Casualty, and Tenant's obligations under the Lease will be replaced by an
obligation for Tenant to pay any deductibles under applicable insurance
policies, plus Rent for the balance of the then current Term.
10.3 Substantial or Full Casualty Prior to Last 18 Months of Term.
If and only if there is a Substantial or a Full Casualty of the Premises prior
to the last 18 months of the then current Term, then Tenant shall have the
option to either (i) continue the Lease pursuant to Section 10.3.1 below; or
(ii) make a rejectable offer to purchase pursuant to Section 10.3.2 below. If
Tenant makes a rejectable offer to purchase, unless and until Tenant closes on
the purchase, or the Lease terminates pursuant to 10.3.2, Tenant shall continue
to pay Rent when due.
10.3.1 Lease Continuation. If there is a Substantial or Full
Casualty of the Premises prior to the last 18 months of the then current Term,
unless Tenant delivers a Termination Notice under Section 10.3.2 below, the
Lease shall continue in full force and effect, and no Rent shall abate under
this Lease as a result of such Substantial or Full Casualty; provided, however,
the Base Rent under this Lease shall be subject to an Excess Insurance Proceeds
Rent Reduction (as defined above). In such event, Tenant's restoration
obligations set forth in Section 10.4 below shall apply. If Tenant elects to
restore, and pursuant to Tenant's rights to sublet or assign under Section 13,
Tenant may exercise up to 2 of its remaining 5 year Renewal Options. In such
event Tenant waives its rescission right under Section 2.4 as it relates to such
exercise only.
10.3.2 Lease Termination. If there is a Substantial or Full
Casualty of the Premises prior to the last 18 months of the then current Term,
and Tenant will not be re-occupying the Premises following such Substantial or
Full Casualty Restoration, then Tenant may elect to terminate this Lease by
delivering notice of such election to Landlord within 90 days after the Casualty
("Casualty Termination Notice"). The Casualty Termination Notice shall include
an offer by Tenant to purchase the Premises from Landlord for the greater of (i)
the original purchase price paid by Landlord for the Premises; or (ii) the Fair
Market Value of the Premises. Within 60 days from Landlord's receipt of the
Casualty Termination Notice, Landlord will notify Tenant whether it will accept
or reject Tenant's offer to purchase the Premises, with Landlord's silence
deemed rejection.
If Landlord accepts Tenant's offer to purchase, then notwithstanding
Section 10.5 below, Tenant shall be entitled to all Insurance Proceeds, and such
purchase shall close on the later of (i) 10 business days after Tenant's receipt
of all Insurance Proceeds; or (ii) 30 days after Tenant's receipt of Landlord's
acceptance of such offer.
If Landlord rejects, or is deemed to have rejected, Tenant's offer to
purchase, then the Lease will be deemed terminated effective as of the date of
Landlord's rejection, with Landlord retaining the Insurance Proceeds. In such
event, Tenant shall also be liable to pay Landlord any applicable deductibles on
insurance policies relating to the Casualty Restoration, and Tenant shall pay
such
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deductible amount to Landlord within 30 days of the date of Landlord's rejection
and the Lease's termination date.
10.4 Obligation to Restore. If there is a Casualty and the Lease
has not terminated by the application of Sections 10.2 or 10.3 above, then,
irrespective of the extent of the Casualty or whether the cause is covered by
insurance, Tenant shall repair, restore and rebuild the Premises in accordance
with the Function Requirements and the Use Requirements and all applicable
building and zoning codes at the time of rebuilding to substantially the same
location, size, design, configuration and condition immediately prior to damage
or destruction (with any departures from said characteristics in accordance with
Section 8 for Alterations) and this Lease shall remain in full force and effect.
Such repair, restoration and rebuilding, including the repair, restoration or
replacement of Fixed Equipment (all of which are herein called a "Casualty
Restoration") shall be commenced as soon as reasonably practical and taking into
consideration a reasonable time for the insurance adjustment of the loss, the
work to design the repairs/replacements, and permitting delays; and shall be
diligently pursued to completion.
10.5. Insurance Proceeds. Insurance Proceeds shall be paid to Tenant
for application to costs of Casualty Restoration; provided that if the proceeds
exceed $3 million (unless Landlord's mortgagee should require a lesser amount,
but in no event less than $1 million), they shall be held by an insurance
trustee pursuant to Section 11. If the Insurance Proceeds are insufficient to
cover the cost of repair, the deficit shall be paid by Tenant. Any Excess
Insurance Proceeds shall be paid and belong to Landlord. For avoidance of doubt,
this Section 10.5 shall not apply to Tenant's Proceeds; in every instance
Tenant's Proceeds shall be paid to and be the sole property of Tenant.
10.6 No Casualty Termination. Notwithstanding any other provisions
of this Lease to the contrary, unless Sections 10.2 or 10.3 above apply, this
Lease may not be terminated by Tenant or Landlord as a result of a Casualty to
the Premises, irrespective of the extent thereof, whether such loss is insured
or when such Casualty occurs, or whether such damage is legally permitted to be
restored, and Tenant and Landlord waive the provisions of any Law permitting
termination of a lease due to destruction of the Premises.
10.7 No Abatement of Rent. Except to the extent stated in Sections
10.2 and 10.3 above, no Rent shall abate under this Lease as a result of any
Casualty, whether or not or to the extent the same may be insured, and
irrespective of whether or not such damage or destruction is prohibited from
being repaired or restored; provided, however, the Base Rent shall be subject to
an Excess Insurance Proceeds Rent Reduction.
11. INSURANCE TRUSTEE
11.1 Procedure. If the Insurance Proceeds exceed $3 million (unless
Landlord's mortgagee should require a lesser amount, but in no event less than
$1 million) and this Lease has not terminated by application of Sections 10.2 or
10.3, then such Insurance Proceeds shall be held by an insurance trustee which
shall be a financial institution jointly selected by Landlord and Tenant and
reasonably satisfactory to any mortgagee(s) (the "Trustee"). If Landlord's
mortgagee is an institutional lender, such lender may elect to be the Trustee.
Each insurer is authorized to make payment directly to the Trustee; and Tenant
and Landlord each appoints such Trustee as its attorney-in-fact to endorse any
check for Insurance Proceeds after approval by Tenant of the Trustee (if other
than Landlord's mortgagee). The Insurance Proceeds, net of reasonable expenses
incurred in obtaining them, shall be retained in a separate interest-bearing
federally insured account by the Trustee for application to restoration, with
the interest added to the proceeds. The Trustee shall make the net Insurance
Proceeds available to Tenant for restoration, in accordance with the provisions
of this Section 11. The net Insurance Proceeds held by the Trustee shall be
disbursed in accordance with the following conditions:
11.1.1 Landlord's Approval. The plans and specifications for
the restoration shall be subject to Landlord's reasonable approval, which
approval shall be granted to the extent that the plans and specifications
conform with the conditions specified in Section 10.4.
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11.1.2 No Default. At the time of any disbursement, no Event
of Default shall exist and no mechanics' or materialmen's liens shall have been
filed and remain undischarged or unbonded except to the extent the disbursement
would satisfy and discharge such liens.
11.2 Disbursements. After all of the uninsured costs to repair and
restore the Premises have been paid by Tenant out of its own funds,
disbursements shall be made monthly by the Trustee to reflect that percentage of
the work that is being paid for with the Insurance Proceeds that has been
completed since the prior disbursement upon receipt of (1) a Draw Certificate
(Section 11.3), (2) completion and performance of the work to date in a good and
workmanlike manner in accordance with the contracts, plans and specifications,
(3) customary lien waivers for the work covered by the prior progress payments,
and (4) other reasonable evidence of cost and payment so that Trustee can verify
that the amounts disbursed from time to time constitute the same percentage of
the total budgeted Casualty Restoration costs, as such budget may be adjusted
from time to time.
11.3 Draw Certificates. Each request for disbursement shall be
accompanied by a certificate using AIA Forms G702 and G703 ("Draw
Certificates"), as the same may be amended or replaced by AIA or a similar
entity describing the work, materials or other costs or expenses, for which
payment is requested, stating the cost incurred in connection therewith and
stating that Tenant has not previously received payment for such work or
expense. For soft costs, where the referenced AIA Forms would not apply,
Tenant's delivery of reasonable documentation of such costs shall satisfy the
Draw Certificate requirement. The Draw Certificate to be delivered by Tenant
upon completion of the work shall, in addition, state that the work covered by
the request has been substantially completed.
12. CONDEMNATION
12.1 Definitions.
"Condemnation" shall mean any taking of the Premises by condemnation or
other eminent domain proceedings pursuant to any Law or any conveyance under
threat thereof.
"Excess Condemnation Award" shall mean that portion of any Condemnation
Award which is paid to Landlord or its mortgagee and not used by Landlord, its
mortgagee or Tenant to pay the third party out of pocket costs of restoring any
damage to the Premises caused by the Condemnation or any third party out of
pocket costs, including attorneys' fees, incurred by Landlord or its mortgagee
in connection with the Condemnation.
"Fair Market Value of Premises" for purposes of this Section 12 is
defined in Exhibit L.
"Substantial or Complete
332015
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Alexandria
As referenced in this Lease:
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – executed as of
the day and year first written above.
LANDLORD:
ARE-1201/1208 Eastlake Avenue, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.
a Delaware limited partnership, its managing member
By: ARE-QRS CORP.,a Maryland corporation,
general partner
By: /s/ Peter J. Nelson
----------------------------
Peter
_____________
ALEXANDRIA REAL ESTATE
EQUITIES, L.P. – the
instrument and acknowledged it as the Chief Financial Officer of ARE-QRS, CORP.,
a Maryland corporation, which is the General Partner of ALEXANDRIA REAL ESTATE
EQUITIES, L.P. , a Delaware limited partnership, which is the Managing Member of
ARE-1201/1208EASTLAKE AVENUE, LLC, to be the free and voluntary act
_____________
ALEXANDRIA REAL ESTATE EQUITIES, L.P. – effect and has not been modified or amended.
DATED: _______________________.
LANDLORD:
ARE-1201/1208 Eastlake Avenue, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P. ,
a Delaware limited partnership,
managing member
By: ARE-QRS CORP.,
a Maryland corporation,
general partner
By: ___________________________
Peter J. Nelson, CFO
M-
_____________
Alexandria Real Estate Equities, L.P. – he/she was authorized to execute the
instrument and acknowledged it as the Chief Financial Officer of ARE-QRS Corp.,
general partner of Alexandria Real Estate Equities, L.P. , the Managing Member of
ARE-1201/1208 Eastlake Avenue, LLC, to be the free and voluntary act of such
party for the
_____________
dt 627812
;
Alexandria
As referenced in this Lease:
Alexandria Real Estate Equities, Inc – In addition to the foregoing, any notice Tenant gives to Landlord which in any
manner relates to any Alterations shall be given to:
Alexandria Real Estate Equities, Inc .
9820 Willow Creek Road
Suite 440
San Diego, CA 98131
Attn: Senior Vice President,
Construction & Development
Telephone: (858) 530-8190
Fax: (858)
_____________
dt 654602
;
QRS
As referenced in this Lease:
-QRS CORP. – written above.
LANDLORD:
ARE-1201/1208 Eastlake Avenue, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.
a Delaware limited partnership, its managing member
By: ARE-QRS CORP. ,a Maryland corporation,
general partner
By: /s/ Peter J. Nelson
----------------------------
Peter J. Nelson, Chief Financial
Officer
TENANT:
ZYMOGENETICS, INC.
a Washington corporation
By: /s/ James A. Johnson
----------------------------------------------
James A.
_____________
-QRS, CORP. – and said person acknowledged that
he signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the Chief Financial Officer of ARE-QRS, CORP. ,
a Maryland corporation, which is the General Partner of ALEXANDRIA REAL ESTATE
EQUITIES, L.P., a Delaware limited partnership, which is the Managing Member of
ARE-1201/1208EASTLAKE AVENUE,
_____________
-QRS CORP. – amended.
DATED: _______________________.
LANDLORD:
ARE-1201/1208 Eastlake Avenue, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership,
managing member
By: ARE-QRS CORP. ,
a Maryland corporation,
general partner
By: ___________________________
Peter J. Nelson, CFO
M-1
{PAGE}
TENANT:
ZYMOGENETICS, INC.,
a Washington corporation
By _______________________________________
Name:__________________________________________________
Title:_________________________________________________
STATE OF WASHINGTON )
)
_____________
-QRS Corp. – person acknowledged that he/she
signed this instrument, on oath stated that he/she was authorized to execute the
instrument and acknowledged it as the Chief Financial Officer of ARE-QRS Corp. ,
general partner of Alexandria Real Estate Equities, L.P., the Managing Member of
ARE-1201/1208 Eastlake Avenue, LLC, to be the free and voluntary act of such
party
_____________
dt 1450549
;
|
ZymoGenetics
As referenced in this Lease:
ZYMOGENETICS, INC – and effective as of October 4, 2002 ("Effective
Date"), between ARE-1201/1208 EASTLAKE AVENUE, LLC, a Delaware limited liability
company ("Landlord") and ZYMOGENETICS, INC ., a Washington corporation
("Tenant").
The parties agree as follows:
1. PREMISES/LEASE
1.1 Premises. Landlord hereby leases to Tenant and Tenant
_____________
ZymoGenetics, Inc – David H. Rockwell
600 University Street, Suite 3600
Seattle, WA 98101-3197
Telephone: (206) 386-7694
Fax: (206) 386-7500
If to Tenant: ZymoGenetics, Inc .
Attn: Chief Financial Officer
1201 Eastlake Avenue E.
Seattle, WA 98102
Telephone: (206) 442-6600
Fax: (206) 442-6808
With a copy
_____________
ZYMOGENETICS, INC – managing member
By: ARE-QRS CORP.,a Maryland corporation,
general partner
By: /s/ Peter J. Nelson
----------------------------
Peter J. Nelson, Chief Financial
Officer
TENANT:
ZYMOGENETICS, INC .
a Washington corporation
By: /s/ James A. Johnson
----------------------------------------------
James A. Johnson
Senior Vice President - Chief Financial Officer
EXHIBITS:
Exhibit A: Legal Description
_____________
ZYMOGENETICS, INC – stated that he/she was authorized to
execute the instrument and acknowledged it as the Senior Vice President and
Chief Financial Officer of ZYMOGENETICS, INC . to be the free and voluntary act
of such party for the uses and purposes mentioned in this instrument.
DATED: October 16,
_____________
ZYMOGENETICS, INC – AND OTHER PRODUCTS FROM
THIS AND OTHER PROPERTY, AS RESERVED IN DEEDS REFERRED TO ABOVE.
AGREEMENT AND THE TERMS AND CONDITIONS THEREOF:
BETWEEN: ZYMOGENETICS, INC . AND: CITY OF SEATTLE
RECORDED: MARCH 15, 1993
RECORDING NUMBER: 9303150948
REGARDING: TRANSPORTATION MANAGEMENT PLAN
AGREEMENT AND THE TERMS AND CONDITIONS THEREOF:
_____________
dt 651668
;
 Union Bank of CA
As referenced in this Lease:
Union Bank of
California – than Aa, AA, A1 or P1 or equivalent by a nationally recognized credit
rating service. The pledged marketable securities will be held by Union Bank of
California or another bank or financial institution mutually approved by
Landlord and Tenant as custodian for Landlord, either in a separate custodian
account or
_____________
UNION BANK
OF CALIFORNIA, – CONTROL AGREEMENT
THIS ACCOUNT CONTROL AGREEMENT (this "Agreement") is made and entered into
as of the _____________day of _________________, 200_, by and among UNION BANK
OF CALIFORNIA, N.A., a national banking association ("Securities Intermediary'),
___________________________________, a ___________________("Customer"), and
____________________________________, a
_________________________________________("Secured Party").
RECITALS:
A. Pursuant to
_____________
Union Bank of California, – day, if sent by overnight
courier service of recognized standing, and (d) upon telephoned confirmation of
receipt, if telecopied:
If to Securities Intermediary:
Union Bank of California, N.A.
_______________________________
_______________________________
_______________________________
If to Secured Party:
_______________________________
_______________________________
_______________________________
If to Customer:
_______________________________
_______________________________
_______________________________
F-3
{PAGE}
19.
_____________
dt 647256
;
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LEASE
EARL DAVIE BUILDING
THIS LEASE is entered into and effective as of October 4, 2002 ("Effective
Date"), between ARE-1208 EASTLAKE AVENUE, LLC, a Delaware limited liability
company ("Landlord") and ZYMOGENETICS, INC., a Washington corporation
("Tenant").
The parties agree as follows:
1. PREMISES/LEASE
1.1 Premises. Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord on the terms contained herein all property purchased by Landlord
from Tenant and located at 1208 Eastlake Avenue East, Seattle, Washington
("Premises"), including (Section 27.2) the land described on Exhibit A, together
with the easements, rights and appurtenances thereto and the buildings and other
improvements located thereon ("Improvements"); including the Fixed Equipment
(Section 8.8) and excluding the Removable Equipment (Section 8.8).
1.2 Operating Lease. Landlord and Tenant stipulate that this Lease is a
true lease and does not represent a financing arrangement. Each party shall
reflect the transactions represented by this Lease in a manner consistent with
"true lease" treatment rather than "financing" treatment in all applicable
books, records and reports (including income tax filings). Tenant intends to
record this Lease as an operating lease for SEC reporting purposes in accordance
with generally accepted accounting principles ("GAAP"), but failure to do so
shall not be considered a default under this Lease.
1.3 Acceptance of Premises. As the prior owner of the Premises, Tenant
designed and constructed the Improvements on the Premises and has occupied the
Improvements since their completion and is therefore completely familiar with
the condition of the Improvements. By entering this Lease, Tenant is deemed to
have accepted the Premises in its current condition, AS-IS and with all faults.
To the extent necessary to comply with its obligations to maintain and repair
the Premises, Tenant shall enforce the warranties and other obligations of
contractors and suppliers for the original construction of the Premises and
Landlord shall cooperate with Tenant in doing so, but Landlord shall have no
other responsibility or liability for the design, construction or condition of
Premises and makes no warranties with respect thereto and Tenant shall reimburse
Landlord for all its reasonable out-of-pocket third party costs and expenses,
including its attorneys' fees, incurred in connection with its cooperation.
Landlord shall not be required to make any repairs or replacements of any kind
whatsoever during the Term. Notwithstanding the sale of the Premises to
Landlord, all warranties and guaranties regarding the development of the
Premises remain with Tenant for the Term and any remaining warranties and
guaranties will be deemed automatically transferred to Landlord upon termination
of this Lease.
2. TERM
2.1 Initial Term. The Initial Term of this Lease shall be 15 years
commencing on October 4, , 2002 ("Commencement Date") and ending on October 3,
2017, unless sooner terminated pursuant to any provision hereof. The Initial
Term is subject to extension pursuant to Section 24. As used herein, "Term"
shall mean the Initial Term and any Renewal Term (Section 2.2) which becomes
effective hereunder.
2.2 Extensions. Provided that Tenant is not in default on exercise of a
right to extend or on the commencement of the Renewal Term (unless such default
is cured within any applicable cure period), Tenant shall have the right to
extend this Lease for 4 consecutive renewal terms (each, a "Renewal Term") of 5
years each, with at least 16 months prior written notice to Landlord. If
Landlord does not receive such notice 16 months prior to the end of a current
Term, Tenant's renewal rights shall lapse. The rights to extend the Lease for
the Renewal Terms are personal to Tenant and may not be assigned,
1
{PAGE}
pledged or transferred to any third party. Notwithstanding the foregoing, such
rights may be assigned or transferred to Tenant's Affiliates (Section 13.2).
2.3 Rent For Renewal Terms. As of the commencement of each Renewal Term,
the Base Rent (Section 3.1) shall be adjusted to the greater of (a) the fair
market rental value of the Premises as of the commencement of the Renewal Term,
or (b) 90% of the Base Rent applicable to the last year of the term prior to
commencement of the applicable Renewal Term. Fair market rental value shall be
the amount of rent which a well-informed tenant, willing, but not obliged to
lease the Premises, would pay, and which a well-informed landlord, willing, but
not obligated to lease, would accept, taking into consideration all uses to
which the Premises is adapted and might in reason be applied, and the then
market terms being offered in the Seattle metropolitan area (e.g. including
Elliott Bay, the University District, Queen Anne/Interbay, Lake Union, Denny
Triangle, etc.) for space reasonably comparable to the Premises. If, after
bargaining in good faith for 30 days (the "Bargaining Period"), the parties have
not reached agreement on the fair market rental value, it shall be established
by binding arbitration in accordance with Section 2.4. Commencing at the start
of the second year of each Renewal Term and continuing each year thereafter, the
Renewal Term's Base Rent shall be increased by 3.5%.
2.4 Arbitration. The arbitration process outlined below must be commenced
no more than 18 months before the first day of the ensuing Renewal Term and
pursued in good faith. Each arbitrator shall be an MAI real estate appraiser
with at least 7 years experience in appraising real property used for comparable
"wet science" biological laboratory and research and development facilities or
such similar uses to which the parties agree ("Arbitrator"). If the parties are
able to reach agreement on a single Arbitrator within 10 days after the end of
the Bargaining Period, that Arbitrator shall determine the fair market rental
value. Otherwise, each party shall select its own Arbitrator and shall provide
the name to the other party within 15 days following expiration of the
Bargaining Period. The two Arbitrators shall meet within 20 days following their
selection and attempt in good faith during such 20 days to reach agreement on
the fair market rental value of the Premises. If the two Arbitrators are unable
to agree, they shall jointly select a third Arbitrator. If they fail to either
agree on the fair market rental value or appoint a third Arbitrator within 20
days following their appointments, the third Arbitrator shall be selected by the
then Presiding Judge of King County Superior Court upon the request of either
party. Within 10 days after the appointment of the third Arbitrator, the first
two Arbitrators shall each submit in writing to the third Arbitrator the amount
which they propose be established as the Renewal Term's Base Rent
("Submissions"). The Submissions shall not be disclosed by the third Arbitrator
until the third Arbitrator has received both of the other Arbitrators'
Submissions. Each Arbitrator may include in such Submissions any information
which he/she deems relevant or helpful to the third Arbitrator in determining
the fair market rental value of the Premises, and the third Arbitrator may not
obtain, accept or consider any additional information in making its decision.
The third Arbitrator's determination of the fair market rental value is strictly
limited to selection, as the more reasonable approximation of the fair market
rental value of the Premises, of the amount stated in one of the Submissions,
and third Arbitrator may not select or declare any third number. The third
Arbitrator's decision shall be made within 20 days after delivery of the
Submissions, by a report in writing to each of the parties and in any event at
least 12 1/2 months before the commencement of the Renewal Term. Each party
shall pay the costs of its own Arbitrator and one-half of the single Arbitrator
or the third Arbitrator's fee. If the Arbitrator's determination of fair market
rental value is greater than 110% of the then Base Rent payable during the 12
months immediately preceding the applicable Renewal Term, Tenant may elect to
rescind exercise of the option by written notice to Landlord given at least 12
months before the commencement of the Renewal Term. Notwithstanding the
provisions of this Section 2.4, if during the arbitration period, Tenant and
Landlord reach agreement on fair market rental value (independent of
Arbitrator's findings), the arbitration shall be terminated and the
determination of the parties shall govern.
3. RENT
3.1 Base Rent. Commencing on the Commencement Date, and continuing on the
first of each month thereafter, Tenant shall pay to Landlord $140,317.86 per
month ("Base Rent"). Base Rent shall be remitted to the Landlord at its address
stated for notices in this Lease as the same may be amended from time to time or
to such other address required by Landlord in a written notice to Tenant
2
{PAGE}
and shall be due and payable on the first day of each month during the Term and
tendered in cash. Base Rent for any partial month shall be prorated based on the
number of days in the applicable calendar month.
3.2 Increases in Base Rent. Commencing one year after the Commencement Date
and continuing annually thereafter, the Base Rent shall be increased by 3.5%.
3.3 Expansion. See Section 24.10.
3.4 Additional Rent. All amounts other than Base Rent due by Tenant to
Landlord under this Lease shall be deemed "Additional Rent" and Landlord shall
have all of the same remedies for Tenant's failure to pay Additional Rent as for
failure to pay Base Rent. The term "Rent" shall mean the combined Base Rent and
Additional Rent. Tenant's obligations to pay Rent are in the nature of
independent covenants and all Rent shall be paid without demand, notice,
abatement, reduction or offset, except that Additional Rent may be subject to
demand or notice where provided in this Lease.
3.5 Late Fee. If any installment of Base Rent is not received by Landlord
by the 5th of the month, Tenant shall pay to Landlord, on demand, a late charge
equal to six percent (6%) on such overdue installment of Base Rent (the "Late
Fee"). Notwithstanding the foregoing, Landlord agrees that pursuant to Section
15.2 below, Landlord will deliver notice to Tenant of any such delinquency and,
not more than once each Lease Year, Landlord will waive the Late Fee if such
delinquency is paid within three business days after Tenant's receipt of such
notice. Tenant acknowledges that such late charge represents a reasonable
estimate of the costs Landlord will incur as a result of such late payment.
3.6 Fines/Penalties. Subject to Section 22, Tenant shall pay and discharge
when due all other amounts and obligations which Tenant assumes or agrees to pay
pursuant to this Lease.
3.7 Abatement of Rent. Except as expressly agreed upon in Sections 10 and
12 below, Tenant's obligations to pay Rent shall not abate during any period
that the Premises or any part thereof are untenantable regardless of the cause
of such untenantability.
3.8 Asset Management Fee. In addition to the Base Rent, Tenant shall pay to
Landlord each month with the Base Rent an asset management fee equal to one-half
of one percent (0.5%) of the Base Rent.
4. USE
4.1 Use. Tenant may use the Premises only for office and laboratory, and
research and development facilities and uses that are a reasonably necessary
adjunct thereto. "Laboratory" as used herein refers to that portion of the
Premises devoted to "wet" laboratory and related research and development use.
Exhibit H shows the current allocation of Laboratory and office spaces. Changes
resulting in more than 40% or less than 25% of the net rentable square feet of
the Premises designated for office use will be considered a change in use. The
methodology which will be used for calculating the percent of use will be
calculated consistent with the methodology as was employed to calculate the
current use percentage as described on Exhibit H (said uses and the permitted
deviation in the ratio being hereinafter referred to as the "Use Requirements").
Any other uses or changes in uses shall require Landlord's approval, in
accordance with the approval standards set forth in Section 8. The Premises
shall not be used for any purpose which would constitute a public or private
nuisance or waste, or violate the agreements listed on Exhibit B ("Title
Encumbrances").
4.2 Compliance with Laws. Tenant shall, at its cost, comply with all Laws
(Section 27.2) and the requirements of any board of fire underwriters, including
all modifications required thereby, relating to or affecting the condition, use
or occupancy of the Premises. Upon request of Landlord, Tenant shall provide
Landlord with copies of all documents evidencing Tenant's compliance with any
particular Law specified by Landlord. Tenant shall notify Landlord in writing
immediately of any
3
{PAGE}
threatened or actual notice or citation, regarding an alleged failure of the
Premises to comply with any Law.
4.3 Mechanic's Liens. Except for claims for delinquent payments for which
Landlord is contractually obligated, which shall be the sole responsibility of
Landlord, Tenant agrees that during the Term hereof it shall not do or suffer
any waste to the Premises, or cause, suffer or permit any liens for labor,
services or materials to attach to the Premises by reason of any act or omission
of Tenant or person claiming through Tenant. If any lien is filed arising out of
work performed for Tenant, Tenant shall either discharge the lien or post a bond
pursuant to RCW 60.04.161 to remove the lien from the Premises within 30 days
after it receives notice of the lien.
4.4 Quiet Enjoyment. So long as no Event of Default (Section 15.2) exists
hereunder, Landlord covenants that Tenant shall have quiet occupation and
enjoyment of the Premises from any person claiming through Landlord.
5. MAINTENANCE AND REPAIR
5.1 Tenant's Obligations. Tenant shall keep and maintain all portions of
the Premises in good order and condition, in a manner typical of other properly
maintained and operated facilities of a similar nature and in accordance with
all Laws and with the standards of maintenance and repair adhered to by Tenant
prior to the Commencement Date. Tenant shall promptly make all repairs and
replacements required in order to keep and maintain the Premises in such order
and condition. Tenant shall also keep the Premises in compliance with all Laws
and the requirements of the property and environmental insurance coverages. The
provisions of this Section shall not conflict with Tenant's rights to obtain
insurance and condemnation proceeds under Sections 10, 11 and 12. If Tenant
fails to perform the required maintenance and repairs, Landlord shall have the
cure rights described in Section 15.7.
5.2 Condition on Surrender. Upon termination of this Lease, Tenant shall
remove its personal property, repair any damage caused by removal, comply with
any removal and Restoration Requirements (Section 8), and leave the Premises in
good repair and condition, subject to Section 10.3. In addition, prior to
termination of the Lease, Tenant shall perform all decommissioning required by
governmental agencies and shall provide copies of all decommissioning reports to
Landlord. If Tenant has failed to complete the governmental decommissioning
process by the expiration or earlier termination date of this Lease, and as a
result, the Premises cannot be relet, the Tenant shall be required to continue
to pay full Rent and perform its obligations hereunder until such
decommissioning is complete. The foregoing shall also be considered holding over
and be subject to the terms of Section 27.13 if, and for so long as, Tenant
fails to pursue such decommissioning with due diligence. The Fixed Equipment
then existing in the Premises shall be surrendered with the Premises in good and
operating condition and free of any liens, financing leases or other
encumbrances created by or imposed against Tenant, and belong solely to
Landlord.
6. UTILITIES AND TAXES
6.1 Utilities. Subject to Section 22, Tenant shall pay when due all charges
for utility services provided to the Premises including power, water and sewer,
and gas. No interruption of utility service shall give Tenant the right to abate
Rent or terminate this Lease.
6.2 Taxes. Subject to Section 22, Tenant shall pay when due all Real
Property Taxes. "Real Property Taxes" shall mean: (i) the ad valorem property
taxes and other similar taxes levied against the Premises which become due and
payable during the Term, (ii) all installments of assessments imposed by
governmental entities on the Premises which become due and payable during the
Term, and (iii) governmental licensing or similar fees. Real Property Taxes
shall include all taxes and assessments levied against the Premises other than
conveyance taxes arising from Landlord's transfer of the Premises, Landlord's
rental taxes (if any), Landlord's business and occupation taxes, franchise or
net income taxes of Landlord, any estate, succession, gift, capital levy or
similar taxes. If any assessment may be paid in installments, Tenant shall be
responsible only for those installments due and payable
4
{PAGE}
during the Term and for those portions of installments to the extent they
accrued during the Lease Term, even if they are payable thereafter. If Landlord
enters into private agreements for off-site improvements for the benefit of the
Premises which are in lieu of government imposed improvements, Tenant shall pay
Landlord's installments thereunder to the extent they accrued during the Term.
Notwithstanding the foregoing, if the amortization period used in calculating
the amount of the installments is less than the amortization period that would
have been used for the government assessment that would have otherwise been
imposed, then Tenant shall pay a portion of the Landlord's installments due
under such private agreements, to the extent they accrued during the Term,
recalculated using the same amortization period as would have been used for the
government assessment. Tenant shall pay all personal property taxes levied
against the Premises as and when due to the extent the levy thereof is
attributable to the Term and all such taxes are assessed against its own
property. It is Landlord's and Tenant's express intent that all Fixed Equipment
identified on Exhibit G and all substitutions, modifications or additions
thereto, is part of the real property and not personal property. No personal
property is being leased by Landlord to Tenant. Notwithstanding the foregoing,
if the Department of Revenue assesses any personal property taxes relating to
the Premises, the Fixed Equipment or this Lease, Tenant shall pay such taxes,
subject to Section 22.
7. SECURITY DEPOSIT
7.1 General Requirements. Upon execution of this Lease, Tenant will provide
to Landlord a security deposit ("Security Deposit") in the amount of $280,635.72
(i.e. two months Base Rent). Tenant shall increase the amount of the Security
Deposit to correspond to increases in Base Rent at the time such adjustments
become effective. Tenant can elect to provide the Security Deposit in the form
of either a letter of credit ("LOC"), or pledged marketable securities from
Tenant's corporate cash investment portfolio, or a combination thereof, variable
over the Term. Landlord will hold the Security Deposit as security for the
performance of Tenant's obligations under the Lease. The Security Deposit will
not be considered an advance payment of Rent or a measure of Tenant's liability
for damages. Landlord may, from time to time, without prejudice to any other
remedy, upon the occurrence of an Event of Default, use all or a portion of the
Security Deposit to cure any Event of Default. Following any such application of
the Security Deposit, Tenant will replenish the Security Deposit to its required
amount. Landlord shall transfer the Security Deposit to any subsequent owner of
the Premises. Landlord and its successors and assigns will not be bound by any
assignment or encumbrance of the Security Deposit by Tenant, provided, however,
if Tenant's interest in the Lease has been assigned, Landlord will return the
Security Deposit to such assignee in accordance with the terms and conditions
hereof. Within 30 days following the expiration of this Lease and the
performance by Tenant of all of its obligations hereunder, Landlord shall return
the then existing balance of the Security Deposit to Tenant. Landlord shall have
no obligation to pay interest on the Security Deposit. If Landlord returns the
Security Deposit to Tenant's assignee as aforesaid, Landlord will have no
further obligation to any party with respect thereto. Tenant shall not encumber
the Security Deposit.
7.2 Letter of Credit. During any period that Tenant elects to satisfy all
or any portion of the Security Deposit with an LOC, the LOC must be an
irrevocable and unconditional standby letter of credit, issued by the Bank of
America or its successors or another financial institution reasonably
satisfactory to Landlord and with a term of at least one year substantially in
the form of Exhibit D. Landlord may draw upon the LOC to cure any Event of
Default, as described in Section 7.1. In addition, if at any time there are less
than 30 days remaining before the expiration of the LOC, and if Tenant does not
deliver an extension or replacement of the LOC within 5 business days after
notice from Landlord, Landlord may draw upon the LOC; provided that if Tenant
subsequently provides a replacement LOC, and to the extent Landlord has not
applied the same to any default, Landlord will return the funds drawn to Tenant
without interest.
7.3 Pledged Securities. So long as Tenant's reported Cash Position (defined
below) is at least $50,000,000.00 (the "Cash Position Minimum"), Tenant may
satisfy all or any portion of the Security Deposit with marketable securities
satisfying the criteria stated in this Section 7.3. "Cash Position" is defined
as the sum of unrestricted cash, cash equivalents and marketable securities as
determined by reference to GAAP. If Tenant's reported Cash Position drops below
the Cash Position
5
{PAGE}
Minimum at any time, then Tenant shall immediately convert all of its Security
Deposit to an LOC. Tenant may subsequently satisfy its Security Deposit with
marketable securities once Tenant has again exceeded the Cash Position Minimum
for at least two consecutive quarters. During any period that Tenant elects to
satisfy all or any portion of the Security Deposit with marketable securities,
the pledge will be of short term (2 years or less) fixed income marketable
securities from Tenant's corporate cash investment portfolio, including money
market funds, rated not lower than Aa, AA, A1 or P1 or equivalent by a
nationally recognized credit rating service. The pledged marketable securities
will be held by Union Bank of California or another bank or financial
institution mutually approved by Landlord and Tenant as custodian for Landlord,
either in a separate custodian account or as specially designated securities
within a larger custodian account. The pledge agreement must be substantially in
the form of Exhibit E and provide Landlord with a perfected first lien security
interest in the pledged securities. The custodial agreement must be
substantially in the form of Exhibit F and provide direct access authorization
which would permit Landlord in an Event of Default, without approval of Tenant,
to authorize the sale of the securities and the withdrawal of the proceeds
thereof (not to exceed the amount of the then required Security Deposit) for
application by Landlord to cure any Event of Default, as described in Section
7.1. So long as the value of the pledged securities comply with the requirements
of this Lease, Tenant will be entitled to retain all interest and other earnings
generated by the pledged securities. If the market value of the pledged
securities drops below the required amount of the Security Deposit, Tenant will
immediately add additional marketable securities to the pledge to increase the
value of the pledged securities to equal or exceed the required level. Failure
of Tenant to increase the pledged securities as required within 3 business days
of notice from Landlord and/or the account custodian will constitute an Event of
Default. Tenant will have the right to substitute marketable securities meeting
the rating criteria and having all of the other characteristics specified above
for the securities subject to the pledge.
8. ALTERATIONS
8.1 General. Except as provided in Section 24 regarding the Expansion, all
alterations of Premises shall be made at Tenant's sole cost and expense. All
alterations shall be made in a good and workmanlike manner and in compliance
with all Laws and insurance requirements and Tenant shall enforce any warranties
to the extent necessary to cause any defects in workmanship or materials to be
corrected. Subject to Section 8.6, all alterations shall be fully consistent
with the overall character of the Premises as a first class scientific research
and development facility (the "Function Requirements") and the Use Requirements.
Tenant shall indemnify, defend and hold Landlord harmless from all claims, costs
(including attorneys' fees and costs) or damage occurring in connection with
Tenant's alterations; notwithstanding the foregoing, Tenant shall not be liable
to reimburse Landlord for Landlord's overhead and expenses in reviewing any
plans, specifications and other documents or in otherwise confirming Tenant's
conformance to the requirements of this Section 8 ("Review Costs") except that
for Category D and E Alterations, Tenant shall pay Landlord a fee equal to the
lesser of $10,000 or 5% of all costs incurred by Tenant or its contractors or
agents in connection with any Category D or E Alteration, to defray Landlord's
Review Costs. Prior to commencing any alterations, Tenant shall obtain all
necessary permits from governmental authorities. Irrespective of Landlord's
receipt, review and any approval of the plans and specifications for Tenant's
alterations, Tenant, and not Landlord, shall have sole responsibility for the
accuracy or sufficiency of the plans and specifications, their compliance with
applicable Laws, codes, regulations or statutes, and their fitness for Tenant's
purpose. If any alterations by Tenant trigger any legal requirements to make
other modifications to the Premises, Tenant shall make such modifications at its
sole cost and expense. Tenant shall provide to Landlord as-built drawings for
all alterations by Tenant promptly after completion of the alteration. Except
for Removable Equipment, all alterations shall become the property of Landlord
immediately upon installation or completion and shall be subject to all of the
terms of this Lease. Prior to commencing any Category "B-E" Alteration, Tenant
must deliver to Landlord evidence of insurance from all contractors and
subcontractors reasonably satisfactory to Landlord to protect Landlord against
liability for personal injury or property damage during construction, naming
Landlord as an additional insured.
8.2 Category "A" Alterations. An alteration is a "Category A Alteration" if
the estimated cost of such alteration is less than $5,000 and the alteration
does not fall within the definition of Category D or E Alterations. For Category
A Alterations, in addition to the requirements of Section 8.1, Tenant will
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deliver notice to Landlord describing the alteration promptly after its
completion, in the manner stated in Section 27.3.
8.3 Category "B" Alterations. An alteration is a "Category B Alteration" if
the estimated cost of such alteration is between $5,000 and $25,000, and the
alteration does not fall within the definition of Category D or E Alterations.
For Category B Alterations, in addition to the requirements of Section 8.1,
Tenant shall notify Landlord, in the manner stated in Section 27.3, of the
planned alteration at least 5 business days prior to commencement of the work,
providing a brief description of the work, the estimated cost, and any permit
drawings, if applicable.
8.4 Category "C" Alterations. An alteration is a "Category C Alteration" if
the estimated cost of such alteration exceeds $25,000 and the alteration does
not fall within the definition of Category D or E Alterations. For Category C
Alterations, in addition to the requirements of Section 8.1, Tenant shall notify
Landlord, in the manner stated in Section 27.3, of the planned alteration at
least 10 business days prior to the commencement of the work, providing a
description of the work, the estimated cost and any permit drawings for
Landlord's review and approval. Landlord will not withhold its approval of the
alteration, however Landlord may impose reasonable conditions on the alteration
to the extent necessary to protect its investment, provided that Landlord may
not require Tenant to restore the Premises or remove the Category C Alteration
as a condition of its consent. For Category C Alterations, if Landlord does not
respond to Tenant's notice of such alteration within the 10 business day period,
Landlord shall be deemed to have approved such alteration without conditions.
8.5 Category "D" Alterations. An alteration is a "Category D Alteration,"
regardless of estimated cost, if such alteration does not fall within the
definition of a Category E Alteration, and either (a) such alteration when
aggregated with past alterations and concurrent alterations, fails to comply
with the Use Requirements, or (b) such alteration results in a net change in
rentable square footage for any Function which is outside of the "Function
Tolerances" set forth in the Table of Uses contained in Exhibit H.
"Function" is defined by reference to physical and functional distinctions
evident in the floor plans attached as Exhibit H. For Category D Alterations, in
addition to the requirements of Section 8.1, Tenant must obtain Landlord's prior
written approval, which shall not be unreasonably withheld. To request
Landlord's approval, Tenant shall provide to Landlord schematic drawings for
Category D Alterations and Landlord shall respond with its comments on such
proposed alteration within 10 business days after receipt thereof. Such approval
is also subject to Landlord's subsequent 10 business day review and approval of
the construction drawings for the proposed alteration. Landlord shall be
required to approve the Category D Alteration and the construction drawings, if
(i) Landlord had previously approved the schematic drawings, and (ii) the
construction drawings reflect the same alterations as such schematic drawings.
If Landlord disapproves of either the schematic drawings or the construction
drawings, it shall provide Tenant with reasonably detailed reasons therefor.
Failure to provide any such notice shall not be construed as an approval of or
consent to any alteration. Landlord may condition its approval of Category D
Alterations on a Restoration Requirement (Section 8.7).
8.6 Category "E" Alterations. An alteration is a "Category E Alteration,"
regardless of estimated cost, if such alteration (a) fails to comply with the
Function Requirements, (b) incorporates materials or employs construction
standards that are of a materially lesser quality than those used in the then
existing Premises, (c) decreases the number of net rentable square feet in the
Premises, (d) involves any alterations to the foundation, roof or structural
components of the Improvements, (e) alters the exterior appearance of the
Premises (but specifically excluding landscaping, Removable Equipment, antennas
or mechanical systems on the roof, and signage when reasonably required for
Tenant's business); (f) is designed for any use that is not expressly permitted
under Section 4.1; (g) results in Laboratory space being improved for use as a
"Process Lab" (defined by reference to Exhibit H) or "Vivarium" (as defined by
reference to Exhibit H) outside of the "Extreme Max" Function Tolerances set
forth in Exhibit H; (h) results in more than 60% of the Premises being improved
for office use; or (i) results in more than 80% of the Premises being improved
for Laboratory use (Section 4.1). For Category E Alterations, in addition to the
requirements of Section 8.1, Tenant must request Landlord's prior written
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