<PAGE>
UNITED STATESUNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1998
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____ TO ____
COMMISSION FILE NUMBER 000-23267
DEPOMED, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 94-3229046
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1170 B CHESS DRIVE
FOSTER CITY, CALIFORNIA 94404
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
(650) 513-0990
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
requirements for the past 90 days.
YES [X] NO [_]
The number of issued and outstanding shares of the Registrant's Common
Stock, no par value, as of May 8, 1998, was 6,463,438.
<PAGE>
DEPOMED, INC
PART I - FINANCIAL INFORMATION
<TABLE>
<CAPTION>
Item 1. Financial Statements:
PAGE
--------
<S> <C>
Unaudited Condensed Balance Sheet at March 31, 1998.......................................... 3
Unaudited Condensed Statements of Operations for the three month periods ended
March 31, 1998 and 1997 and the period from Inception (August 7, 1995) to
March 31, 1998........................................................................... 4
Unaudited Condensed Statements of Cash Flows for the three month periods ended
March 31, 1998 and 1997 and the period from Inception (August 7, 1995) to
March 31, 1998........................................................................... 5
Notes to Unaudited Condensed Financial Statements............................................ 6
Item 2. Management's Discussion and Analysis of Financial Condition and Results of
Operations............................................................................... 9
PART II - OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds.............................................. 15
Item 6. Exhibits and Reports on Form 8-K....................................................... 16
Signature...................................................................................... 17
</TABLE>
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<PAGE>
PART 1 FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
DEPOMED, INC.
(A Development Stage Company)
CONDENSED BALANCE SHEET
(Unaudited)
<TABLE>
<CAPTION>
March 31,
1998
----
ASSETS
Current assets:
<S> <C>
Cash and cash equivalents $10,992,565
Accounts receivable 109,500
Other current assets 72,819
-----------
Total current assets 11,174,884
Property and equipment, net 307,391
Other assets 12,557
-----------
$11,494,832
===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 71,606
Accrued compensation 63,272
Capital lease obligation, current portion 50,627
Other current liabilities 42,589
-----------
Total current liabilities 228,094
Capital lease obligation, non-current portion Commitments 90,536
Shareholders' equity:
Common Stock 14,515,337
Deferred Compensation (535,923)
Deficit accumulated during the development stage (2,803,212)
-----------
Total shareholders' equity 11,176,202
-----------
$11,494,832
===========
</TABLE>
See accompanying notes to Unaudited Condensed Financial Statements.
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<PAGE>
DEPOMED, INC.
(A Development Stage Company)
CONDENSED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Inception
March 31, (August 7, 1995) to
--------- March 31,
1998 1997 1998
---- ---- ----
<S> <C> <C> <C>
Product development revenue $ 109,500 $ 127,039 $ 1,032,347
Operating expenses:
Research and development 397,307 135,788 1,779,743
General and administrative 301,245 170,499 1,810,137
Purchase of in-process research and development - - 298,154
---------- ---------- -----------
Total operating expenses 698,552 306,287 3,888,034
Loss from operations (589,052) (179,248) (2,855,687)
Interest (income) expense, net (95,733) 4,470 (52,475)
---------- ---------- -----------
Net loss $ (493,319) $ (183,718) $(2,803,212)
========== ========== ===========
Basic and diluted net loss per share
(Historical in 1998 and pro forma in 1997) $(0.08) $(0.04)
---------- ----------
Shares used in computing basic and diluted net loss per
share
(Historical in 1998 and pro forma in 1997) 5,874,549 4,263,447
========== ==========
</TABLE>
See accompanying notes to Unaudited Condensed Financial Statements.
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<PAGE>
DEPOMED, INC.
(A Development Stage Company)
CONDENSED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Inception
Three Months Ended (August 7, 1995) to
March 31, March 31,
-------------------------
1998 1997 1998
---- ---- ----
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (493,319) $(183,718) $(2,803,212)
Adjustments to reconcile net loss to net cash used in operating
activities:
Depreciation and amortization 22,789 11,611 124,805
Accrued interest expense on notes - 3,884 13,618
Amortization of deferred compensation expense 43,191 21,271 159,527
Purchase of in-process research and development - - 298,154
Changes in assets and liabilities:
Accounts receivable 35,387 6,597 (109,500)
Other current assets (2,157) (111,494) (102,836)
Other assets 27,860 5,782 17,445
Accounts payable (207,650) 73,495 71,606
Accrued compensation 27,725 28,113 (4,204)
Other current liabilities (31,497) (2,638) 42,589
----------- --------- -----------
Net cash used in operating activities (577,671) (147,097) (2,292,008)
----------- --------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment (44,425) (19,533) (182,434)
Purchases of short-term investments - - (79,582)
Sales of short-term investments - - 79,582
----------- --------- -----------
Net cash used in investing activities (44,425) (19,533) (182,434)
----------- --------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Payments on capital lease obligations (8,151) (15,149) (108,642)
Proceeds from issuance of notes - - 1,050,000
Payments of notes - - (1,000,000)
Payment of shareholder loans - - (294,238)
Proceeds from issuance of common stock 7,493,267 278,500 13,819,887
----------- --------- -----------
Net cash provided by financing activities 7,485,116 263,351 13,467,007
----------- --------- -----------
Net increase in cash and cash equivalents 6,863,020 96,721 10,992,565
Cash and cash equivalents at beginning of period 4,129,545 10,802 -
----------- --------- -----------
Cash and cash equivalents at end of period $10,992,565 $ 107,523 $10,992,565
=========== ========= ===========
</TABLE>
See accompanying notes to Unaudited Condensed Financial Statements.
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<PAGE>
DEPOMED, INC.
(A Development Stage Company)
NOTES TO UNAUDITED CONDENSED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
These unaudited condensed financial statements and the related footnote
information of DepoMed, Inc. (the "Company") have been prepared pursuant to the
rules and regulations of the Securities and Exchange Commission ("SEC").
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted pursuant to such rules and regulations. In the
opinion of the Company's management, the accompanying interim unaudited
condensed financial statements include all adjustments (consisting only of
normal recurring adjustments) necessary for a fair presentation of the
information for the periods presented. The results for the interim period ended
March 31, 1998 are not necessarily indicative of results to be expected for the
entire year ending December 31, 1998 or future operating periods.
2. NET LOSS PER SHARE, HISTORICAL AND PRO FORMA
Basic and Diluted Net Loss Per Share (Historical)
-------------------------------------------------
In 1997, the Financial Accounting Standards Board issued Statement No. 128,
"Earnings Per Share" ("FAS 128"). FAS 128 replaced the calculation of primary
and fully diluted earnings per share with basic and diluted earnings per share.
Unlike primary earnings per share, basic earnings per share exclude any dilutive
effects of options, warrants and convertible securities. Diluted earnings per
share are very similar to the previously reported fully diluted earnings per
share. All earnings per share amounts for all periods have been restated to
conform to the FAS 128 requirements.
Except as noted below, net loss per share is computed using the weighted
average number of shares of common stock outstanding. Common stock equivalent
shares from convertible preferred stock and from stock options and warrants are
not included as the effect is antidilutive. Pursuant to the SEC Staff
Accounting Bulletin No. 98 ("SAB No. 98"), which was issued in February 1998,
common and common equivalent shares issued by the Company for nominal
consideration during any of the periods for which a statement of operations was
presented in the Company's initial public offering registration statement have
been included in the calculation of basic and diluted net loss per share for all
such periods in a manner similar to a stock split. The net loss per share
calculations have been restated for all periods presented in accordance with SAB
No. 98, which replaced SAB No. 83.
Pro forma
---------
Pro forma net loss per share has been computed as described above and also
gives effect to the conversion of convertible preferred shares not included
above that were automatically converted upon completion of the Company's
November 5, 1997 initial public offering (the "Initial Public Offering"), using
the as-if-converted method from the original date of issuance.
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The following table sets forth the computation of basic and diluted loss
per share, on an historical and pro forma basis.
<TABLE>
<CAPTION>
Three Months Ended
March 31,
---------
1998 1997
---- ----
<S> <C> <C>
Numerator:
Net loss $ (493,319) $ (183,718)
---------- ----------
Numerator for basic and diluted loss per share (493,319) (183,718)
========== ==========
Denominator:
Denominator for basic and diluted net loss per share
Historical 5,874,549 3,354,825
==========
Adjustments to reflect the effect of the assumed conversion of
Convertible preferred stock from the date of issuance 908,622
----------
Denominator for computing basic and diluted net loss per share
Pro forma 4,263,447
==========
Basic and diluted net loss per share - historical $ (0.08) $ (0.05)
========== ==========
Basic and diluted net loss per share - pro forma $ (0.04)
==========
</TABLE>
3. COMPREHENSIVE INCOME
As of January 1, 1998, the Company adopted Financial Accounting Standards
Board Statement No. 130, "Reporting Comprehensive Income" ("FAS 130"). FAS 130
establishes new rules for the reporting and displaying of comprehensive income
and its components; however, the adoption of this statement had no impact on the
Company's net loss or shareholders' equity.
4. RESEARCH ARRANGEMENTS
In March 1998, the Company entered into a joint research agreement with R.
W. Johnson Pharmaceutical Research Institute ("PRI"), a Johnson & Johnson unit,
to study the feasibility of an orally administered, controlled release
pharmaceutical product using the Company's Gastric Retention System (the "GR
System"). The Company will be paid for actual costs incurred, as incurred, at
the rates stipulated in the agreement. The agreement may be terminated by PRI
at any time upon 30 days written notice to the Company.
5. SHAREHOLDERS' EQUITY
In February 1998, the Company completed a private placement of 1,000,000
shares of common stock (the "Shares") for a purchase price of $8.00 per Share
(the "Private Placement"), with net proceeds of $7,504,920. The Company is
obligated to file a registration statement on Form S-3 registering the Shares no
later than November 6, 1998.
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<PAGE>
DEPOMED, INC.
(A Development Stage Company)
NOTES TO UNAUDITED CONDENSED FINANCIAL STATEMENTS
6. COMMITMENTS
Facilities Lease
In March 1998, the Company entered into a two-year sublease, which includes
an option to renew, subject to approval by the Company and the sublessor, for
two additional terms of twelve and ten months, respectively. Future payments
under the sublease for 1998, 1999 and 2000 are $207,900, $277,200 and $69,300,
respectively.
Financial Consulting Agreement
In February 1998, the Company entered into a three-year agreement with a
financial advisor. As consideration for services to be rendered under this
arrangement, the Company has granted the financial advisor options to purchase
40,000 shares of common stock at an exercise price of $4.0625 per share and
20,000 shares of common stock at an exercise price of $9.625 per share. One
third of the options vests on each of the three anniversary dates during the
term of the agreement. The fair value of these options is $178,400, as
determined using the Black-Scholes Pricing Model. The amount will be expensed
ratably over the term of the consulting agreement.
7. SUBSEQUENT EVENTS
In April 1998, an amendment to the 1995 Stock Option Plan of DepoMed, Inc.
(the "Plan") was approved by the Board of Directors, subject to shareholder
approval, to limit the number of shares with respect to which options may be
granted to no more than 500,000 shares to any one participant in any one-year
period.
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<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
------------------------------------------------------------------------
the Management's Discussion and Analysis of Financial Condition and Results of
- ------------------------------------------------------------------------------
Operations included with the Company's Annual Report on Form 10-KSB for the year
- --------------------------------------------------------------------------------
ended December 31, 1997, and the Company's Financial Statements and related
- ---------------------------------------------------------------------------
notes thereto appearing elsewhere in this Quarterly Report. Except for the
- --------------------------------------------------------------------------
historical information contained herein, the discussion in this Quarterly Report
- --------------------------------------------------------------------------------
contains certain forward-looking statements that involve risks and uncertainties
- --------------------------------------------------------------------------------
that could cause actual results to differ materially from those discussed here.
- -------------------------------------------------------------------------------
Factors that could cause or contribute to such differences include those
- ------------------------------------------------------------------------
discussed in "Factors That May Affect Future Results" and elsewhere herein; as
- ------------------------------------------------------------------------------
well as in the Company's Annual Report on Form 10-KSB for the year ended
- ------------------------------------------------------------------------
December 31, 1997 and in other reports filed with the SEC from time to time.
- ----------------------------------------------------------------------------
The Company expressly disclaims any obligations or undertaking to release
- -------------------------------------------------------------------------
publicly any updates or revisions to any forward-looking statements contained
- -----------------------------------------------------------------------------
herein to reflect any changes in the Company's expectations with regard thereto
- -------------------------------------------------------------------------------
or any change in events, conditions or circumstances on which any such statement
- --------------------------------------------------------------------------------
are based.
- ----------
GENERAL
Since its inception in August 1995, the Company has devoted substantially
all its efforts to research and development conducted on its own behalf and
through collaborations with pharmaceutical partners in connection with the GR
System and the Reduced Irritation System (the "RI System") and together with the
GR System, the DepoMed Systems ("DepoMed Systems"). The Company's primary
activities since inception (August 7, 1995) have been, in addition to research
and development, establishing its offices and research facilities, recruiting
personnel, filing patent applications, developing a business strategy and
raising capital. To date, the Company has received only limited revenue, all of
which has been from collaborative research and feasibility arrangements. At its
inception in 1995, the Company acquired $298,154 of in-process research and
development technology. This amount was recognized as operating expense in 1995.
There was no such expense in subsequent years. The Company has generated a
cumulative net loss of $2,803,212 for the period from inception through March
31, 1998.
The Company intends to continue investing in the further development of its
drug delivery technologies and the DepoMed Systems. The Company also intends to
develop generic compounds, such as a reduced irritation aspirin product and an
enhanced absorption calcium supplement product, internally. Depending upon a
variety of factors, including collaborative arrangements, available personnel
and financial resources, the Company will conduct or fund clinical trials on
such products and will undertake the associated regulatory activities. The
Company will need to make additional capital investments in laboratories and
related facilities, including acquisition of laboratory and pilot scale
manufacturing equipment. As additional personnel are hired in 1998 and beyond,
expenses can be expected to increase from their 1997 levels.
RESULTS OF OPERATIONS
Three Months Ended March 31, 1998 and 1997
Revenues for the three months ended March 31, 1998 and 1997 were
approximately $110,000 and $127,000, respectively, and consisted primarily in
1998 and entirely in 1997 of amounts earned under the research and development
arrangement with Bristol-Myers Squibb Company ("BMS"). The Company anticipates
that research and development payments from BMS will decline in 1998 as a result
of the Company having completed most of the technology transfer to BMS for the
GR System. The Company received research and development revenues in March 1998
in connection with the feasibility agreement with PRI entered into in March
1998. See Note 4 of the Notes to Unaudited Condensed Financial Statements.
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<PAGE>
Research and development expenses for the three months ended March 31, 1998
were approximately $397,000 compared to approximately $136,000 during the three
months ended March 31, 1997. The increase was due to the hiring of additional
employees and related expenses, and increased laboratory supplies. In March
1998, the Company entered into a sublease for additional space, part of which
will be allocated to research and development. The Company plans to hire
additional laboratory personnel and, accordingly, anticipates that research and
development salaries, benefits, supplies and related expenses will continue to
increase in 1998.
General and administrative expenses for the three months ended in March 31,
1998 were approximately $301,000 compared to approximately $170,000 during the
three months ended March 31, 1997. The increase was due to the hiring of
additional employees, and related expenses. Further, as the result of becoming a
public company in November 1997, the Company incurred for the first time such
associated expenses as directors' and officers' insurance, key person life
insurance, and investor relations. The Company entered into a sublease for
additional space in March 1998, which will result in higher occupancy expense.
The Company plans to hire additional administrative personnel and accordingly
anticipates that salaries, benefits and related expenses will increase in 1998.
Net interest income was approximately $96,000 for the three months ended in
March 31, 1998 compared to a net interest expense of approximately $4,500 during
the three months ended March 31, 1997. The increase was due to increased
interest income earned on funds raised in the Company's initial public offering
in November 1997 and a private placement in February 1998.
LIQUIDITY AND CAPITAL RESOURCES
Cash used in operations in the three months ended March 31, 1998 was
approximately $578,000 compared to approximately $147,000 for the three months
ended March 31, 1997. During the three months ended March 31, 1998 the net loss
and decreases in accounts payable and other current liabilities more than offset
the increases in accrued compensation and decreases in accounts receivable and
other assets. During the three months ended March 31, 1997 increases in
accounts payable and accrued compensation approximated the increase in prepaid
expenses, which were expenses that were capitalized as expenses of the initial
public offering.
Cash used in investing activities in the three months ended March 31, 1998
totaled approximately $44,000 and consisted of purchases of laboratory
equipment, fixtures and office equipment. Net cash used in investing activities
in the three months ended March 31, 1997 totaled approximately $20,000 and
consisted of purchases of laboratory equipment, fixtures and office equipment.
The Company expects that capital expenditures during the next 12 months will
include leasehold improvements on its newly leased facilities described in Note
6 of the Notes to Unaudited Condensed Financial Statements. The Company expects
that capital expenditures may also include pilot manufacturing equipment, and
product development and quality control laboratory equipment.
Cash provided by financing activities in the three months ended March 31,
1998 was approximately $7,485,000, which consists almost entirely of the
proceeds recognized when the Company completed a Private Placement of 1,000,000
shares of Common Stock at a price of $8.00 per share. See Note 5 of the Notes
to Unaudited Condensed Financial Statements. Cash provided by financing
activities in the three months ended March 31, 1997 was approximately $263,000,
which consisted primarily of the net proceeds from the Series B Preferred
financing which was subsequently converted into common stock in connection with
the Initial Public Offering.
The Company anticipates that its existing capital resources will enable it
to meet its capital and operational requirements through the end of 1999. Cash
needs of the Company may vary materially from those now planned because of
results of research and development, relationships with possible
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<PAGE>
collaborative partners, changes in the focus and direction of the Company's
research and development programs, competitive and technological advances,
results of clinical testing, requirements of the U.S. Food and Drug
Administration ("FDA") and comparable foreign regulatory processes and other
factors. The Company will require substantial funds of its own or from third
parties to conduct research and development, preclinical and clinical testing,
and to manufacture (or have manufactured) and market (or have marketed) the
products utilizing the DepoMed Systems. The Company's existing capital resources
may not be sufficient to fund the Company's operations through commercialization
of products yielding sufficient revenues to support the Company's operations.
The Company has no credit facility or other committed sources of capital. To the
extent capital resources are insufficient to meet future capital requirements,
the Company may have to raise additional funds to continue the development of
its technologies. There can be no assurance that such funds will be available on
favorable terms, or at all. To the extent that additional capital is raised
through the sale of equity or convertible debt securities, the issuance of such
securities could result in dilution to the Company's shareholders. If adequate
funds are not available, the Company may be required to curtail operations
significantly or to obtain funds through entering into collaboration agreements
on unattractive terms. The Company's inability to raise capital would have a
material adverse effect on the Company.
NET OPERATING LOSSES
The Company has not generated any taxable income to date. At March 31,
1998, the net operating losses available to offset future taxable income for
federal income tax purposes were approximately $2,100,000. Because the Company
has experienced ownership changes, future utilization of carry forwards may be
limited in any fiscal year pursuant to Internal Revenue Code regulations. The
carryforwards expire at various dates beginning in 2010 through 2012 if not
utilized. As a result of the annual limitation, anticipated and future losses,
all or a portion of these carryforwards may expire before becoming available to
reduce the Company's federal income tax liabilities.
FACTORS THAT MAY AFFECT FUTURE RESULTS
EARLY STAGE OF DEVELOPMENT; WORKING CAPITAL DEFICIT; LIMITED REVENUES; LIMITED
OPERATING HISTORY
The Company is at an early stage of development and is subject to all the
business risks associated with a new enterprise, including constraints on the
Company's financial and personnel resources, lack of established credit
facilities and collaborative partnering relationships, and uncertainties
regarding product development and future revenues. At March 31, 1998, the
Company had an accumulated deficit of approximately $2,803,000. The Company
anticipates that it will continue to incur substantial additional operating
losses for at least the next several years and expects cumulative losses to
increase as the Company's research and development efforts expand. The Company
has had only minimal revenues to date from collaborative research and
development arrangements and feasibility studies, and no revenues from product
sales. There can be no assurance as to when or whether it will be able to
develop significant sources of revenue or that its operations will become
profitable, even if it is able to commercialize any products. The Company has
only a limited history of operations, consisting primarily of development of its
products and sponsorship of research.
NO ASSURANCE OF SUCCESSFUL PRODUCT DEVELOPMENT
The Company's research and development programs are at an early stage of
development. Substantial additional research and development will be necessary
in order for the Company to develop the DepoMed Systems, and there can be no
assurance that the DepoMed Systems will be developed or that products utilizing
the DepoMed Systems will be commercialized by the Company or third parties in a
timely manner or at all. In addition to further research and development related
to the DepoMed Systems, products utilizing the DepoMed Systems will require
clinical testing, regulatory approval and substantial additional investment
prior to commercialization. There can be no assurance that products utilizing
the
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<PAGE>
DepoMed Systems will be successfully developed, prove to be safe and efficacious
in clinical trials, meet applicable regulatory standards, be capable of being
produced in commercial quantities at acceptable costs, be eligible for third-
party reimbursement from governmental or private insurers, be successfully
marketed or achieve market acceptance. Further, the DepoMed Systems may prove to
have undesirable or unintended side effects that may prevent or limit their
commercial use. The Company or its collaborative partners may find that products
that appeared promising in preclinical studies do not demonstrate efficacy in
larger-scale clinical trials and/or that such products will not receive
regulatory approvals. Accordingly, any product development program undertaken by
the Company may be curtailed, redirected or eliminated at any time which could
have a material adverse effect on the Company.
NEED FOR SUBSTANTIAL ADDITIONAL FUNDS
The Company anticipates that its existing capital resources will enable it
to meet its capital and operational requirements through the end of 1999.
However, this expectation is based on the Company's current operating plan which
can change as a result of many factors and the Company could require additional
funding sooner than anticipated. The Company's cash needs may also vary
materially from those now planned because of results of research and
development, relationships with possible collaborative partners, changes in the
focus and direction of the Company's research and development programs,
competitive and technological advances, results of clinical testing,
requirements of the FDA and comparable foreign regulatory agencies and other
factors. The Company will require substantial funds of its own or from third
parties to conduct research and development, preclinical and clinical testing,
and to manufacture (or have manufactured) and market (or have marketed) the
products utilizing the DepoMed Systems. The Company's existing capital resources
are not expected to be sufficient to fund the Company's operations through
commercialization of products yielding sufficient revenues to support the
Company's operations. The Company has no credit facility or other committed
sources of capital. To the extent capital resources are insufficient to meet
future capital requirements, the Company will have to raise additional funds to
continue the development of the DepoMed Systems. There can be no assurance that
such funds will be available on favorable terms, or at all. To the extent that
additional capital is raised through the sale of equity or convertible debt
securities, the issuance of such securities could result in dilution to the
Company's shareholders. If adequate funds are not available, the Company may be
required to curtail operations significantly or to obtain funds through entering
into collaboration agreements on unattractive terms. The Company's inability to
raise capital would have a material adverse effect on the Company.
DEPENDENCE ON AND NEED FOR COLLABORATIVE PARTNERS
The Company's strategy for the research, development, clinical testing,
manufacturing and commercialization of products utilizing the DepoMed Systems
requires entering into collaborative arrangements with pharmaceutical and/or
biotechnology companies. The Company has received substantially all of its
revenues since inception from its collaborative partners and intends to enter
into additional collaborative arrangements to fund the continued development of
the DepoMed Systems, commercialize potential products utilizing the DepoMed
Systems and assist in obtaining regulatory approval. Although the Company has
entered into a joint research agreement with BMS and a feasibility study with
PRI, there can be no assurance that either BMS or PRI will choose to continue to
fund these projects or enter into arrangements to commercialize products
utilizing the DepoMed Systems or, if they do, that any products utilizing the
DepoMed Systems will be successfully developed or commercialized. For example,
in May 1996, the Company and GalaGen Inc. ("GalaGen") entered into a feasibility
study involving the use of the GR System to deliver oral immunoglobulin products
developed by GalaGen. Although the study demonstrated the effectiveness of the
GR System in protecting GalaGen's incorporated product while the GR System was
in simulated gastric fluid, GalaGen has not chosen to enter into a product
development agreement with the Company. Further, there can be no assurance that
any of the Company's present or future collaborative partners will perform their
obligations as expected or will devote sufficient resources to the development,
clinical testing or marketing of the Company's potential products developed
under the collaborations or that the Company will be able to negotiate future
collaborative arrangements on acceptable terms, if at all, or that such
collaborations will be successful. Any
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<PAGE>
parallel development by a collaborative partner of alternative technologies or
products, preclusion of the Company from entering into competitive arrangements,
failure to obtain timely regulatory approvals, premature termination of an
agreement, or failure by a collaborative partner to devote sufficient resources
to the development and commercialization of products utilizing the DepoMed
Systems could have a material adverse effect on the Company.
The Company's agreements with its collaborative partners are likely to be
complex. There may be provisions within such agreements which give rise to
disputes regarding the rights and obligations of the parties. These and other
possible disagreements could lead to delays in collaborative research,
development or commercialization of potential products, or could require or
result in litigation or arbitration, which would be time-consuming and
expensive, and could have a material adverse effect on the Company.
FLUCTUATIONS IN OPERATING RESULTS
The Company's quarterly operating results will depend upon variations in
revenues recognized under existing and possible future collaborative agreements,
including milestones, royalties, license fees and other contract revenues, and
the timing of any future product introductions by the Company and its
collaborative partners. The Company's quarterly operating results may also
fluctuate significantly depending on other factors, including the introduction
of new products by the Company's competitors, regulatory actions, market
acceptance of the DepoMed Systems, adoption of new technologies, manufacturing
costs and capabilities, changes in government funding, and third-party
reimbursement policies.
RELATIONSHIPS OF ADVISORS WITH OTHER ENTITIES
The Company has two groups of advisors (the Policy Advisory Board and
Development Advisory Board) that advise the Company on business and scientific
issues and on future opportunities. As compensation for these services, the
Company has granted the advisors options to purchase shares of Common Stock and,
in certain cases, pays them consulting fees. Certain members of the Company's
Policy Advisory Board and Development Advisory Board are employed on a full-time
basis by academic or research institutions. In some cases, members of the Policy
Advisory Board and Development Advisory Board also act as consultants to other
companies. In addition, except for work performed specifically for and at the
direction of the Company, any inventions or processes discovered by such persons
will be the intellectual property of their institutions or other companies. If
the Company desires access to inventions which are not its property, it will be
necessary for the Company to obtain licenses to such inventions from these
institutions or companies. In addition, invention assignment agreements executed
by such persons in connection with their relationships with the Company may be
subject to the rights of their primary employers or other third parties with
whom they have consulting relationships.
HEALTHCARE REFORM; UNCERTAIN AVAILABILITY OF HEALTHCARE REIMBURSEMENT
The healthcare industry is changing rapidly as the public, government,
medical professionals, third-party payors and the pharmaceutical industry
examine ways to contain or reduce the cost of health care. Changes in the
healthcare industry could impact the Company's business, particularly to the
extent that the Company develops the DepoMed Systems for use in prescription
drug applications. In certain foreign markets pricing or profitability of
prescription pharmaceuticals is subject to government control. In the United
States, there have been, and the Company expects that there will continue to be,
a number of federal and state proposals to implement similar government control
or cost containment, particular with respect to Medicare payments. In addition,
emphasis on managed care in the United States has increased and is expected to
continue to increase the pressure on pharmaceutical pricing. While the Company
cannot predict whether any such legislative or regulatory proposals will be
adopted or the effect such proposals or managed care efforts may have on its
business, the announcement of such proposals or efforts could have a material
adverse effect on the Company's ability to raise capital, and the adoption of
such proposals or efforts could have a material adverse effect on the Company.
Further, to the extent that such proposals or efforts have a material adverse
effect on pharmaceutical and biotechnology companies or other healthcare
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<PAGE>
providers that are prospective collaborative partners for the Company, the
Company's ability to establish collaborations may be adversely affected. In
addition, in both domestic and foreign markets, sales of products utilizing the
DepoMed Systems will depend in part on the availability of reimbursement from
third-party payors such as government health administration authorities, private
health insurers and other organizations. Third-party payors are increasingly
challenging the price and cost-effectiveness of prescription pharmaceutical
products. Significant uncertainty exists as to the reimbursement status of newly
approved healthcare products. There can be no assurance that products utilizing
the DepoMed Systems will be considered cost effective or that adequate third-
party reimbursement will be available to the Company's collaborators to maintain
price levels sufficient to realize an appropriate return on the Company's
investment in the DepoMed Systems.
YEAR 2000
As the year 2000 approaches, an issue impacting all companies has emerged
regarding how existing application software programs and operating systems can
accommodate this date value. In brief, many existing application software
products in the marketplace were designed to accommodate only a two digit date
position which represents the year (e.g., "95" is stored on the system and
represents the year 1995). As a result, the year 1999 (i.e., "99") could be the
maximum date value systems will be able to accurately process. Management is in
the process of working with its software consultants to assure that the Company
is prepared for the year 2000. Management does not anticipate that the Company
will incur significant operating expenses or be required to invest heavily in
computer system improvements to be year 2000 compliant.
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<PAGE>
PART II. OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
USE OF PROCEEDS FROM REGISTERED SECURITIES
On November 4, 1997, a Registration Statement on Form SB-2 (No. 333-25445)
was declared effective by the SEC pursuant to which the Company issued 1,200,000
units consisting of one share of Common Stock ("the Units") and one Common Stock
Purchase Warrant (the "Warrants"). The Units were sold for the account of the
Company at a price of $6.10 per Unit, generating $7,320,000 in gross proceeds to
the Company. On December 1, 1997, the Common Stock and Warrants commenced
trading separately, and on December 8, 1997, the Units ceased trading. The
initial public offering was managed by National Securities Corporation.
From the effective date of the Registration Statement to March 31, 1998,
the Company incurred approximately $586,000 in underwriting discounts and
commissions, approximately $231,000 of expenses paid to or for the underwriters,
and approximately $679,000 in other related expenses. The net proceeds of the
offering, after deducting the foregoing expenses, were approximately $5,824,000.
Approximately $1,650,000 of the proceeds of the initial public offering were
used to repay indebtedness of the Company, including repayment of indebtedness
of approximately $308,000 to certain related parties. In addition, upon
consummation of the Initial Public Offering, the Company paid Dr. John Fara, the
Company's Chief Executive Officer, an incentive bonus of $100,000.
From the effective date of the Registration Statement to March 31, 1998,
the Company has used approximately $812,000 to fund ongoing operations.
RECENT SALES OF UNREGISTERED SECURITIES
In February 1998, the Company sold 1,000,000 shares of its Common Stock at
$8.00 per share to three investors. Based on the representations made by such
investors in the common stock purchase agreement, the shares were issued
pursuant to an exemption under Section 4(2) of the Securities Act of 1933, as
amended.
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<PAGE>
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
4.1 Common Stock Purchase Agreement dated February 23, 1988
*10.1 R. W. Johnson Pharmaceutical Research Institute Joint
Research Agreement dated February 20, 1998
10.2 Sublease Agreement Relating to Property Located at 366
Lakeside Drive, Foster City, CA, dated February 18,
1998
27.1 Financial Data Schedule
(b) Reports on Form 8-K
None
* Confidential treatment requested with respect to certain
portions of the agreement.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Date: May 14, 1998 DEPOMED, INC.
By /s/ John F. Hamilton
-----------------------
John F. Hamilton
Vice President and
Chief Financial Officer
(Authorized Officer and
Principal Accounting
and Financial Officer)
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<PAGE>
Exhibit Index
Exhibit Description
4.1 Common Stock Purchase Agreement dated February 23, 1988
*10.1 R. W. Johnson Pharmaceutical Research Institute Joint Research Agreement
dated February 20, 1998
10.2 Sublease Agreement Relating to Property Located at 366 Lakeside Drive,
Foster City, CA, dated February 18, 1998
27.1 Financial Data Schedule
Reports on Form 8-K
None
* Confidential treatment requested with respect to certain portions of
the agreement.
<PAGE>
EXHIBIT 4.1
DEPOMED, INC.
COMMON STOCK
PURCHASE AGREEMENT
FEBRUARY 23, 1998
<PAGE>
ATTACHMENTS:
Exhibit A - Schedule of Purchasers
Exhibit B - Schedule of Exceptions
Exhibit C - Form of Legal Opinion
Appendix I - Stock Certificate Questionnaire
Appendix II - Purchaser's Certificate of Subsequent Sale
<PAGE>
COMMON STOCK
PURCHASE AGREEMENT
This Agreement ("Agreement") is made as of February 23, 1998 (the
"Effective Date"), by and among DepoMed, Inc., a California corporation (the
"Company"), and each of those persons and entities, severally and not jointly,
listed as a Purchaser on the Schedule of Purchasers attached as Exhibit A
hereto. Such persons and entities are hereinafter collectively referred to
herein as "Purchasers" and each individually as a "Purchaser."
AGREEMENT
In consideration of the mutual covenants contained in this Agreement, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and each Purchaser (severally and not jointly) hereby
agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF SHARES.
Subject to the terms and conditions of this Agreement, the Company has, or
before the Closing (as defined below) will have, authorized the sale and
issuance of up to 1,000,000 shares of its Common Stock (the "Common Stock").
The shares of Common Stock sold hereunder shall be referred to herein as the
"Shares."
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SHARES.
2.1 SALE OF SHARES. At the Closing (as defined in Section 3), the Company
will sell to each Purchaser, and each Purchaser will purchase from the Company,
at a purchase price of no less than $8.00 per Share, the number of Shares set
forth next to such Purchaser's name on the Schedule of Purchasers attached
hereto as Exhibit A (the "Schedule of Purchasers").
2.2 SEPARATE AGREEMENT. Each Purchaser shall severally, and not jointly,
be liable for only the purchase of the Shares that appear on Exhibit A hereto
and that relate to such Purchaser. The Company's agreement with each of the
Purchasers is a separate agreement, and the sale of Shares to each of the
Purchasers is a separate sale. The obligations of each Purchaser hereunder are
expressly not conditioned on the purchase by any or all of the other Purchasers
of the Shares such other Purchasers have agreed to purchase.
<PAGE>
SECTION 3. CLOSING AND DELIVERY.
3.1 CLOSING. The Closing of the purchase and sale of the Shares pursuant
to this Agreement (the "Closing") shall be held on February 23, 1998, at the
offices of Heller Ehrman White & McAuliffe, 525 University Avenue, Palo Alto,
California 94301, or on such other date and place as may be agreed to by the
Company and the Purchasers.
At or prior to the Closing, each Purchaser shall execute any related
agreements or other documents required to be executed hereunder, dated as of the
date of the Closing (the "Closing Date").
3.2 DELIVERY OF THE SHARES AT THE CLOSING. At the Closing, the Company
shall deliver to each Purchaser stock certificates registered in the name of
such Purchaser, or in such nominee name(s) as designated by such Purchaser,
representing the number of shares of Common Stock to be purchased by such
Purchaser at the Closing as set forth in the Schedule of Purchasers against
payment of the purchase price for such shares. The name(s) in which the stock
certificates are to be issued to each Purchaser are set forth in the Stock
Certificate Questionnaire in the form attached hereto as Appendix I, as
completed by each Purchaser.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Except as set forth on the Schedule of Exceptions attached hereto as
Exhibit B, the Company hereby represents and warrants as of the date hereof to,
and covenants with, the Purchasers as follows:
4.1 ORGANIZATION AND STANDING. The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
California, has full corporate power and authority to own or lease its
properties and conduct its business as presently conducted, and is duly
qualified as a foreign corporation and in good standing in all jurisdictions in
which the character of the property owned or leased or the nature of the
business transacted by it makes qualification necessary (except where the
failure to be so qualified would not have a material adverse effect on the
business, properties, financial condition or results or operations of the
Company). The Company has no subsidiaries or equity interest in any other
entity.
4.2 CORPORATE POWER; AUTHORIZATION. The Company has all requisite
corporate power, and has taken all requisite corporate action, to execute and
deliver this Agreement, sell and issue the Shares and carry out and perform all
of its obligations under this Agreement. This Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
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<PAGE>
affecting the enforcement of creditors' rights generally, (ii) as limited by
equitable principles generally, including any specific performance, and (iii) as
to those provisions of Section 8.3 relating to indemnity or contribution. The
execution and delivery of this Agreement does not, and the performance of this
Agreement and the compliance with the provisions hereof and the issuance, sale
and delivery of the Shares by the Company will not conflict with, or result in a
breach or violation of the terms, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of any lien pursuant to
the terms of, the Articles of Incorporation or Bylaws of the Company or any
statute, law, rule applicable to the Company or regulation or any state or
federal order, judgment or decree applicable to the Company or any material
indenture, mortgage, lease or other material agreement or instrument to which
the Company or any of its properties is subject, where such conflict, breach or
violation would have a material adverse effect on the Company.
4.3 ISSUANCE AND DELIVERY OF THE SHARES. The Shares, when issued and paid
for in compliance with the provisions of this Agreement, will be validly issued,
fully paid and nonassessable. The issuance and delivery of the Shares is not
subject to preemptive, co-sale, right of first refusal or any other similar
rights of the shareholders of the Company or any liens or encumbrances.
4.4 SEC DOCUMENTS; FINANCIAL STATEMENTS. The Company has filed in a
timely manner all documents that the Company was required to file with the
Securities and Exchange Commission (the "Commission" or the "SEC") under
Sections 13, 14(a) and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since becoming subject to the requirements of the Exchange
Act. As of their respective filing dates (or, if amended prior to the date of
this Agreement, when amended), all documents filed by the Company with the SEC
(the "SEC Documents") complied in all material respects with the requirements of
the Exchange Act. None of the SEC Documents as of their respective dates
contained any untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the financial position of the Company at
the dates thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal,
recurring adjustments).
4.5 INTELLECTUAL PROPERTY. To its knowledge, the Company owns or
possesses adequate rights to use all material patents, patent rights,
inventions, trade secrets and know-how described or referred to in the SEC
Documents as owned or used by it or that are necessary for the conduct of its
business as presently conducted and as described in
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<PAGE>
the SEC Documents. Except as set forth in the SEC Documents, the Company has not
received any notice of, nor has any knowledge of, any infringement of or
conflict with asserted rights of others with respect to any material patent,
patent right, invention, trade secret or know-how that, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a material adverse effect on the business, properties, financial condition
or results or operations of the Company.
4.6 CAPITALIZATION. All of the Company's outstanding shares of capital
stock have been duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued in violation of or subject to any
preemptive right or other rights to subscribe for or purchase securities. The
authorized and outstanding capital stock of the Company as of the date hereof is
as set forth in Section 4.6 of Exhibit B. Except as set forth in Exhibit B,
there are no outstanding options or warrants to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell
shares of the company's capital stock or any such options, rights, convertible
securities or obligations.
4.7 LITIGATION. There is no pending or, to the Company's knowledge,
threatened, action, suit or other proceeding to which the Company is a party or
to which its property or assets are subject.
4.8 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement except for (a) compliance with the securities and blue sky laws
in the states and other jurisdictions in which shares of Common Stock are
offered and/or sold, which compliance will be effected in accordance with such
laws, and (b) the filing of a registration statement and all amendments thereto
with the SEC as contemplated by Section 8.1 of this Agreement.
4.9 NO MATERIAL ADVERSE CHANGE. Since September 30, 1997, there have not
been any changes in the assets, liabilities, financial condition or operations
of the Company from that reflected in the Financial Statements except changes
which have not been, either individually or in the aggregate, materially
adverse.
4.10 LISTING; MAINTENANCE OF LISTING. The Company's Common Stock is
traded on the Nasdaq SmallCap Market. For so long as the Company is obligated to
keep in effect the Registration Statement provided for in Section 8 hereof, the
Company will use its reasonable efforts to maintain its listing on the Nasdaq
SmallCap Market; provided, however, that nothing herein shall preclude the
Company from having its securities alternatively quoted on the Nasdaq National
Market or listed on a national stock exchange.
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<PAGE>
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS.
5.1 Each Purchaser, severally and not jointly, represents and warrants to
and covenants with the Company that:
(a) Purchaser, taking into account the personnel and resources it can
practically bring to bear on the purchase of the Shares contemplated hereby, is
knowledgeable, sophisticated and experienced in making, and is qualified to
make, decisions with respect to investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments
in securities issued by the Company, and has requested, received, reviewed and
considered all information Purchaser deems relevant (including the SEC
Documents) in making an informed decision to purchase the Shares.
(b) Purchaser is acquiring the Shares pursuant to this Agreement in the
ordinary course of its business and for its own account for investment only and
with no present intention of distributing any of such Shares or any arrangement
or understanding with any other persons regarding the distribution of such
Shares, except in compliance with Section 5.1(c).
(c) Purchaser will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or
otherwise acquire or take a pledge of) any of the securities purchased hereunder
except in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), applicable blue sky laws, and the rules and regulations
promulgated thereunder.
(d) Purchaser has, in connection with its decision to purchase the Shares,
relied with respect to the Company and its affairs solely upon the SEC Documents
and the representations and warranties of the Company contained herein.
(e) Purchaser is an "accredited investor" within the meaning of Rule 501
of Regulation D promulgated under the Securities Act or a Qualified
Institutional Buyer within the meaning of Rule 144A promulgated under the
Securities Act.
(f) Purchaser has full right, power, authority and capacity to enter into
this Agreement and to consummate the transactions contemplated hereby and has
taken all necessary action to authorize the execution, delivery and performance
of this Agreement. Upon the execution and delivery of this Agreement by
Purchaser, this Agreement shall constitute a valid and binding obligation of
Purchaser, enforceable in accordance with its terms, except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting the enforcement of creditors' rights generally, (ii) as
limited by equitable principles generally, including any specific performance,
and (iii) as to those provisions of Section 8.3 relating to indemnity or
contribution.
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<PAGE>
(g) Purchaser represents and warrants to the Company that Purchaser was
not approached by the Company regarding the offer of the Shares prior to January
20, 1998.
5.2 Purchaser represents and warrants to and covenants with the Company
that Purchaser has not engaged and will not engage in any short sales of the
Company's Common Stock prior to the effectiveness of the Registration Statement,
except to the extent that any such short sale is fully covered by shares of
Common Stock of the Company other than the Shares.
5.3 Purchaser understands that nothing in this Agreement or any other
materials presented to Purchaser in connection with the purchase and sale of the
Shares constitutes legal, tax or investment advice. Purchaser has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of the Shares.
5.4 LEGENDS. It is understood that the Shares may bear one or more
legends in substantially the following form and substance:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED,
ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT UPON SATISFACTION OF
CERTAIN CONDITIONS, WHICH ARE SET FORTH IN THAT CERTAIN "COMMON
STOCK PURCHASE AGREEMENT" DATED FEBRUARY 23, 1998, WHICH ALSO
CONTAINS VARIOUS OTHER PROVISIONS AFFECTING THESE SECURITIES,
BINDING UPON TRANSFEREES HEREOF. INFORMATION CONCERNING THESE
RESTRICTIONS AND PROVISIONS MAY BE OBTAINED FROM THE CORPORATION
OR ITS LEGAL COUNSEL."
In addition stock certificates representing the Shares may contain:
(a) Any legend required by the laws of the State of California,
including any legend required by the California Department of Corporations.
(b) Any legend required by the blue sky laws of any other state to
the extent such laws are applicable to the sale of the Shares hereunder.
5.5 RESTRICTED SECURITIES. Such Purchaser understands that the Shares are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from the Company in a transaction not
involving a public offering and that under such laws and applicable regulations
such Shares may be resold without registration under the Securities Act only in
certain limited circumstances. In this
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connection, such Purchaser represents that it is familiar with Commission Rule
144, as presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act.
SECTION 6. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING.
The Company's obligation to complete the sale and issuance of the Shares
and deliver shares of Common Stock to each Purchaser, individually, as set forth
in the Schedule of Purchasers shall be subject to the following conditions to
the extent not waived by the Company:
6.1 RECEIPT OF PAYMENT. The Company shall have received payment, by check
or wire transfer of immediately available funds, in the full amount of the
purchase price for the number of Shares being purchased by such Purchaser at the
Closing as set forth in the Schedule of Purchasers.
6.2 REPRESENTATIONS AND WARRANTIES. The representations and warranties
made by such Purchaser in Section 5 hereof shall be true and correct in all
material respects when made, and shall be true and correct in all materials
respects on the Closing Date.
SECTION 7. CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING.
Each Purchaser's obligation to accept delivery of the Shares and to pay for
the Shares shall be subject to the following conditions to the extent not waived
by such Purchaser:
7.1 REPRESENTATIONS AND WARRANTIES CORRECT. The representations and
warranties made by the Company in Section 4 hereof shall be true and correct in
all material respects when made, and shall be true and correct in all material
respects on the Closing Date in all material respects.
7.2 COMPLIANCE CERTIFICATE. Each Purchaser shall have received a
certificate signed by an officer of the Company certifying to the fulfillment of
the conditions set forth in Section 7.
7.3 OPINION OF COUNSEL. The Purchasers shall have received an opinion of
Heller Ehrman White & McAuliffe, counsel to the Company, substantially in the
form attached hereto as Exhibit C.
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<PAGE>
SECTION 8. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES
ACT.
8.1 REGISTRATION PROCEDURES AND EXPENSES. The Company is obligated to do
the following:
(a) Not later than November 6, 1998, the Company shall prepare and
endeavor to file with the Commission a registration statement on Form S-3 (if
the Company is eligible to use such form) in order to register with the
Commission the resale by the Purchasers, from time to time, of the Shares
through Nasdaq or the facilities of any national securities exchange on which
the Company's Common Stock is then traded, or in privately-negotiated
transactions (a "Registration Statement"). The Company shall use its reasonable
efforts to cause such Registration Statement to be declared effective as soon
thereafter as reasonably practicable.
(b) If such a Registration Statement has been filed, the Company
shall prepare and file with the Commission (i) such amendments and supplements
to the Registration Statement and the prospectus used in connection therewith,
(ii) such SEC Reports and (iii) such other filings required by the Commission,
in each case as may be necessary to keep the Registration Statement effective
and not misleading until the earliest of (A) the second anniversary date of the
Closing Date, or (B) such time as all of the Shares held by the Purchasers can
be sold within a given three-month period pursuant to Rule 144 under the
Securities Act. Notwithstanding the foregoing, following the effectiveness of
the Registration Statement, the Company may, at any time, suspend the
effectiveness of the Registration Statement for up to 60 days, as appropriate (a
"Suspension Period"), by giving notice to the Purchasers, if the Company shall
have determined that the Company may be required to disclose any material
corporate development. Notwithstanding the foregoing, the Company may not
suspend the effectiveness of the Registration Statement more than twice during
any twelve (12) month period. Each Purchaser agrees that, upon receipt of any
notice from the Company of a Suspension Period, such Purchaser will not sell any
Shares pursuant to the Registration Statement until (i) such Purchaser is
advised in writing by the Company that the use of the applicable prospectus may
be resumed, (ii) such Purchaser has received copies of any additional or
supplemental or amended prospectus, if applicable, and (iii) such Purchaser has
received copies of any additional or supplemental filings which are incorporated
or deemed to be incorporated by reference in such prospectus.
(c) In order to facilitate the public sale or other disposition of
all or any of the Shares by each Purchaser, the Company shall furnish to each
Purchaser with respect to the Shares registered under the Registration Statement
such number of copies of prospectuses, prospectus supplements and preliminary
prospectuses as such Purchaser reasonably requests in conformity with the
requirements of the Securities Act.
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<PAGE>
(d) The Company shall file any documents required of the Company for
normal blue sky clearance in states specified in writing by each Purchaser;
provided, however, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not
now so qualified or has not so consented.
(e) Other than fees and expenses, if any, of counsel or other
advisers to the Purchasers, which fees and expenses shall be borne by the
Purchasers, the Company shall bear all expenses (exclusive of any brokerage
fees, underwriting discounts and commissions) in connection with the procedures
in paragraphs (a) through (d) of this Section 8.1.
(f) With a view to making available to the Purchasers the benefits of
Rule 144 promulgated under the Securities Act ("Rule 144") and any other rule or
regulation of the SEC that may at any time permit a Purchaser to sell Shares to
the public without registration or pursuant to registration, the Company
covenants and agrees to: (i) make and keep public information available, as
those terms are understood and defined in Rule 144, until the earlier of (A) the
second anniversary of the Closing Date or (B) such date as all of the Shares
shall have been resold; (ii) file with the SEC in a timely manner all reports
and other documents required of the Company under the Exchange Act; and (iii)
furnish to any Purchaser upon request, as long as the Purchaser owns any Shares,
(A) a written statement by the Company that it has complied with the reporting
requirements of the Exchange Act, (B) a copy of the most recent annual or
quarterly report of the Company, and (C) such other information as may be
reasonably requested in order to avail any Purchaser of any rule or regulation
of the SEC that permits the selling of any such Shares without registration
under the Securities Act.
8.2 TRANSFER OF SHARES AFTER REGISTRATION. Each Purchaser agrees that
such Purchaser will not effect any disposition of the Shares that would
constitute a sale within the meaning of the Securities Act, except:
(a) pursuant to the Registration Statement, in which case such
Purchaser shall submit the certificates evidencing the Shares to the Company's
transfer agent, accompanied by a separate "Purchaser's Certificate" (A) in the
form of Appendix II attached hereto, (B) executed by such Purchaser or by an
officer of, or other authorized person designated by, such Purchaser, and (C) to
the effect that (1) the Shares have been sold in accordance with the
Registration Statement and (2) the requirement of delivering a current
prospectus has been satisfied; or
(b) in a transaction exempt from registration under the Securities
Act, in which case such Purchaser shall, prior to effecting such disposition,
submit to the Company an opinion of counsel in form and substance reasonably
satisfactory to the Company to the effect that the proposed transaction is in
compliance with the Securities Act.
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8.3 INDEMNIFICATION. As used in this Section 8.3 the following terms
shall have the following respective meanings:
(a) "Selling Shareholder" shall mean a Purchaser of Shares under this
Agreement and any transferee of such a Purchaser who is entitled to resell
Shares pursuant to the Registration Statement;
(b) "Registration Statement" shall include any final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 8.1; and
(c) "Untrue Statement" shall include any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Shareholder
from and against any losses, claims, damages or liabilities to which such
Selling Shareholder may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any Untrue
Statement on or after the effective date of the Registration Statement, or on or
after the date of any prospectus or prospectus supplement or the date of any
sale by Purchaser thereunder, or arise out of any failure by the Company to
fulfill any undertaking included in the Registration Statement and the Company
will reimburse such Selling Shareholder for any reasonable legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim; provided, however, that the Company shall
not be liable to such Selling Shareholder in any such case to the extent that
such loss, claim, damage or liability arises out of, or is based upon, an Untrue
Statement made in such Registration Statement in reliance upon and in conformity
with information furnished to the Company by or on behalf of such Selling
Shareholder specifically for use in preparation of the Registration Statement,
or the failure of such Selling Shareholder to comply with the covenants and
agreements contained in Section 8.1 or 8.2 hereof respecting sale of the Shares
or any statement or omission in any Prospectus that is corrected in any
subsequent prospectus that was delivered to the Selling Shareholder prior to the
pertinent sale or sales by the Selling Shareholder.
Each Purchaser, severally and not jointly, agrees to indemnify and hold
harmless the Company (and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, each officer of the Company who
signs the Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the Company (or any
such officer, director or controlling person) may become subject (under the
Securities Act or otherwise), insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise
-10-
<PAGE>
out of, or are based upon, any failure to comply with the covenants and
agreements contained in Section 8.1 or 8.2 hereof respecting sale of the Shares,
or any Untrue Statement contained in the Registration Statement on or after the
effective date thereof, or in any prospectus supplement as of its issue date or
date of any sale by Purchaser thereunder, if such Untrue Statement was made in
reliance upon and in conformity with information furnished by or on behalf of
such Purchaser specifically for use in preparation of the Registration
Statement, and such Purchaser will reimburse the Company (or such officer,
director or controlling person), as the case may be, for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim.
Promptly after receipt by any indemnified person of a notice of a claim or
the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 8.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to represent both the
indemnified person and such indemnifying person or any affiliate or associate
thereof, the indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate
counsel for all indemnified parties.
8.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed by Section 4, Section 5 or this Section 8 upon the transferability of
the Shares shall cease and terminate as to any particular number of the Shares
when such Shares shall have been sold or otherwise disposed of in accordance
with the intended method of disposition set forth in the Registration Statement
covering such Shares or at such time as an opinion of counsel satisfactory to
the Company shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act.
8.5 INFORMATION AVAILABLE. So long as the Registration Statement is
effective covering the resale of Shares owned by the Purchasers, the Company
will furnish to the Purchasers:
-11-
<PAGE>
(a) as soon as practicable after available (but in the case of the
Company's Annual Report to Shareholders, within 150 days after the end of each
fiscal year of the Company), one copy of (i) its Annual Report to Shareholders
(which Annual Report shall contain financial statements audited in accordance
with generally accepted auditing standards certified by a national firm of
certified public accountants); (ii) its Annual Report on Form 10-KSB; (iii) its
quarterly reports on Form 10-QSB (the foregoing, in each case, excluding
exhibits); (iv) its Proxy Statement; and (v) its current reports on Form 8-K, if
any;
(b) upon the request of any Purchaser, all exhibits excluded by the
parenthetical to subparagraph (a)(iii) of this Section 8.5, in the form
generally available to the public; and
(c) upon the reasonable request of any Purchaser, an adequate number
of copies of the prospectuses and supplements to supply to any other party
requiring such prospectuses.
8.6 CHANGES IN PURCHASER INFORMATION. Each Purchaser agrees to promptly
notify the Company of any changes in the information set forth in the
Registration Statement regarding Purchaser or such Purchaser's plan of
distribution set forth in such Registration Statement.
SECTION 9. BROKER'S FEE.
The Company and each Purchaser (severally and not jointly) hereby represent
that, except for amounts to be paid to the Placement Agent by the Company as
described in Section 11.8 hereof, there are no brokers or finders entitled to
compensation in connection with the sale of the Shares, and shall indemnify each
other for any such fees for which they are responsible.
SECTION 10. NOTICES.
All notices, requests, consents and other communications hereunder shall be
in writing, shall be sent by confirmed facsimile or mailed by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, and shall be deemed given when so sent in the case of
facsimile transmission, or when so received in the case of mail or courier, and
addressed as follows:
(a) if to the Company, to:
DepoMed, Inc.
1770 B Chess Drive
Foster City, California 94404
Attention: President and Chief Executive Officer
Facsimile: (650) 513-0999
-12-
<PAGE>
with a copy so mailed to:
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301
Attention: Stephen C. Ferruolo, Esq.
Facsimile: (650) 324-0638
or to such other person at such other place as the Company shall designate
to the Purchasers in writing; and
(b) if to the Purchasers, at the address as set forth at the end of
this Agreement, or at such other address or addresses as may have been furnished
to the Company in writing.
SECTION 11. MISCELLANEOUS.
11.1 WAIVERS AND AMENDMENTS. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and holders of at least a
majority of the Shares.
11.2 HEADINGS. The headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed to
be part of this Agreement.
11.3 SEVERABILITY. In case any provision contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
11.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and performed entirely in California by California residents,
without regard to conflicts of law principles.
11.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
11.6 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
-13-
<PAGE>
11.7 ENTIRE AGREEMENT. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
11.8 PAYMENT OF FEES AND EXPENSES. Each of the Company and the Purchasers
shall bear its own expenses and legal fees incurred on its behalf with respect
to this Agreement and the transactions contemplated hereby (the "Offering");
provided, that the Company shall reimburse the placement agent retained in
connection with the Offering (the "Placement Agent") for certain fees and
expenses incurred by the Placement Agent in connection with the Offering.
Purchasers acknowledge that the Placement Agent will receive a commission. If
any action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, costs and necessary disbursements in addition to any other relief to which
such party may be entitled.
-14-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
DEPOMED, INC.
By:___________________________________
Name: John W. Fara
Title: President and Chief Executive Officer
PURCHASER
Purchaser Name:_______________________
By:___________________________________
Name:_________________________________
Title:________________________________
Address:___________________________________
___________________________________
___________________________________
Facsimile:_________________________________
-15-
<PAGE>
SUMMARY INSTRUCTION SHEET FOR PURCHASER
(TO BE READ IN CONJUNCTION WITH THE ENTIRE
PURCHASE AGREEMENT WHICH FOLLOWS)
A. Complete the following items on the Purchase Agreement, copies of which are
attached hereto for your convenience:
1. Signature Page.
2. Appendix I - Stock Certificate Questionnaire. Provide the information
requested by the Stock Certificate Questionnaire.
3. Return the properly completed and signed Purchase Agreement including
the properly completed and signed Appendix I to:
Mark Procopio, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, CA 94301
PLEASE RETURN THE COMPLETED AND SIGNED PURCHASE AGREEMENT AND QUESTIONNAIRE
BY FACSIMILE AT (650) 324-0638 BY FEBRUARY 27, 1998 WITH ALL OF THE
ORIGINAL DOCUMENTS FOLLOWING BY OVERNIGHT COURIER OR MAIL.
B. Please arrange to wire the purchase price on February 27, 1998 as follows:
Name of Account: Heller Ehrman White & McAuliffe Trust Account
Bank: Wells Fargo Bank
Address: The Crocker Officer
One Montgomery Street
San Francisco, CA 94163
Reference: DepoMed, Inc.
Account No._______________________________________________
ABA No.___________________________________________________
Contact:__________________________________________________
C. Upon the resale of the Shares by the Purchasers after the Registration
Statement covering the Shares is effective as described in the Purchase
Agreement, each Purchaser:
(I) must deliver a current prospectus to the buyer; and
A-1
<PAGE>
(II) must send a letter in the form of Appendix II to the Company so that
the Shares may be properly transferred.
2
<PAGE>
APPENDIX I
DEPOMED, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to _______________________________
be registered in (this is the name
that will appear on your stock
certificate(s)). You may use a nominee
name if appropriate:
2. The relationship between the Purchaser _______________________________
of the Shares and the Registered Holder
listed in response to item 1 above:
3. The mailing address and facsimile number _______________________________
of the Registered Holder listed in response
to item 1 above: _______________________________
_______________________________
Facsimile: ____________________
4. The Social Security Number or Tax _______________________________
Identification Number of the Registered
Holder listed in the response to
item 1 above:
Signature:___________________________
Print Name:__________________________
Title:_______________________________
3
<PAGE>
APPENDIX II
PURCHASER'S CERTIFICATE OF RESALE OF THE SHARES
The undersigned, an officer of, or other person duly authorized by
______________________________________ [fill in official name of individual or
institution] hereby certifies that he/she [said institution] is the Purchaser of
the Shares evidenced by the attached stock certificate(s) and as such, sold such
Shares on ________________ [date] in accordance with registration statement
number _________________________________ [fill in the number of or otherwise
identify registration statement] and the requirement of delivering a current
prospectus and current annual, quarterly and reports (Forms 10-KSB, 10-QSB, and
8-K) by the Company has been complied with in connection with such sale.
Print or Type:
Name of Purchaser (Individual or Institution):______________________________
Name of Individual representing Purchaser
(if an Institution): ______________________________
Title of Individual representing Purchaser
(if an Institution): ______________________________
Signature by:
Individual Purchaser or Individual
representing Purchaser: ______________________________
4
<PAGE>
NOTICE TO PURCHASERS IN ALL STATES:
IN MAKING AN INVESTMENT DECISION INVESTORS MUST RELY ON THEIR OWN EXAMINATION OF
THE ISSUER AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS
INVOLVED. THESE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE
SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING
AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS
DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO
REGISTRATION OR EXEMPTION THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL
BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE
PERIOD OF TIME.
5
<PAGE>
EXHIBIT A
SCHEDULE OF PURCHASERS
<TABLE>
<CAPTION>
NAME AND ADDRESS NUMBER OF AGGREGATE PURCHASE
---------------- --------- ------------------
SHARES PRICE
------ -----
<S> <C> <C>
Quantum Partners, LLC 175,000 $1,400,000
3131 Turtle Creek Blvd.
Suite 800
Dallas, Texas 75219
Caxton International Limited 113,750 910,000
3131 Turtle Creek Blvd.,Suite 800
Dallas, Texas 75219
White Rock Capital Partners, L.P. 85,000 680,000
3131 Turtle Creek Blvd.,Suite 800
Dallas, Texas 75219
Legion Strategies, Ltd. 60,000 480,000
3131 Turtle Creek Blvd.,Suite 800
Dallas, Texas 75219
White Rock Capital Offshore, Ltd. 35,000 280,000
3131 Turtle Creek Blvd.,Suite 800
Dallas, Texas 75219
Collins Capital Diversified Fund, L.P. 20,000 160,000
3131 Turtle Creek Blvd.,Suite 800
Dallas, Texas 75219
White Rock Capital Management 11,250 90,000
3131 Turtle Creek Blvd.,Suite 800
Dallas, Texas 75219
Clearwater Fund IV, LLC 250,000 2,000,000
611 Druid Road East, Suite 200
Clearwater, Florida 33756
</TABLE>
6
<PAGE>
<TABLE>
<S> <C> <C>
Aries Trust 167,500 1,340,000
787 7th Ave., 48th Floor
New York, New York 10019
Aries Domestic Fund, L.P. 82,500 660,000
787 7th Ave., 48th Floor
New York, New York 10019
Total 1,000,000 $8,000,000
========= ==========
</TABLE>
7
<PAGE>
EXHIBIT B
SCHEDULE OF EXCEPTIONS
Pursuant to Section 4 of the Common Stock Purchase Agreement, DepoMed, Inc.
(the "Company") is making the following exceptions to the representations and
warranties of the Company contained in Section 4:
SECTION 4.6.
CAPITAL STOCK
Common Stock: 25,000,000 authorized, 5,463,438 issued and outstanding;
Preferred Stock: 5,000,000 authorized, none issued and outstanding
WARRANTS AND OPTIONS TO PURCHASE COMMON STOCK
Publicly traded warrants to purchase Common Stock: 1,200,000 issued and
outstanding
Representative warrants to purchase Common Stock: 235,834 issued and
outstanding
Bridge loan warrants to purchase Common Stock: 83,337 issued and
outstanding
Options to purchase Common Stock: 648,499 issued and outstanding under the
Company's 1995 Stock Option Plan
8
<PAGE>
EXHIBIT C
1. The Company has been duly incorporated and is validly existing in good
standing under the laws of the State of California. The Company has the
requisite corporate power to own or lease its property and assets and to
conduct its business as currently conducted as described in the SEC
Documents.
2. The Purchase Agreement has been duly authorized by all necessary corporate
action on the part of the Company and has been duly executed and delivered
on behalf of the Company and constitutes a valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability relating to
or affecting creditors' rights, (ii) as limited by equitable principles
generally, whether such enforceability is considered in a proceeding in
equity or at law, and (iii) as to those provisions of Section 8.3 of the
Purchase Agreement relating to indemnity or contribution.
3. The Shares when issued and paid for in compliance with the Purchase
Agreement, will be duly authorized, validly issued, fully paid, and
nonassessable.
4. The execution and delivery of the Purchase Agreement and the consummation
of the sale of the Shares by the Company as contemplated therein do not
violate any provisions of the Company's Articles of Incorporation or
Bylaws, and do not violate or contravene (a) any law applicable to the
Company or (b) any order, writ, judgment, injunction, decree, determination
or award applicable to the Company and known to us.
5. To our knowledge there is no action proceeding or investigation pending or
threatened in writing against the Company.
6. The offer and sale of the Shares by the Company to the Purchasers should be
exempt from the registration requirements of the Securities Act.
7. No governmental consents, approvals, authorizations, orders, filings,
registrations or qualifications are required for the issuance of the Shares
by the Company under the Purchase Agreement except those that have been
made or obtained.
9
<PAGE>
Exhibit 10.1
------------
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
February 20, 1998
The R.W. Johnson Pharmaceutical Research Institute
Welsh and McKean Roads
Spring House, PA 19477-0776
Dear Sirs:
This Letter Agreement ("Agreement") sets forth the terms and conditions under
which The R.W. Johnson Pharmaceutical Research Institute, a division of Ortho-
McNeil Pharmaceutical, Inc. (PRI) and DepoMed, Inc. ("DepoMed") will collaborate
in a joint research project (the "Research") to determine optimal conditions for
the production of a product (the "Product") consisting of formulations of the
chemical compound known as [* *] incorporated in the DepoMed Gastric Retentive
System (the "GR System"). The specific terms and conditions of this Agreement
are as follows:
I. THE RESEARCH
A. DepoMed agrees to use its diligent efforts to implement and complete
the Research Plan attached herewith and fully incorporated herein as Appendix A.
Elements of this plan may be modified, but only by mutual written agreement of
PRI and DepoMed (the "Parties") at any time during the term of this Agreement.
B. PRI agrees to collaborate with and assist DepoMed in the
implementation and completion of the Research Plan set forth in Appendix A by
providing to DepoMed:
1. Bulk [* *] in sufficient quantities to perform the Research Plan;
2. Appropriate analytical and handling procedures for [* *]; and
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
3. Such other technology and expertise possessed by PRI which may be
deemed necessary, by subsequent mutual agreement of the Parties, to achieve the
objectives of this Agreement.
C. All [* *], including work in process, shall remain the sole property of
PRI. DepoMed agrees not to make any modifications of the [* *] provided by PRI
hereunder, except as required in the performance of the Research Plan.
D. The [* *] shall be used solely to conduct the Research Plan, and not
for any other purpose. The [* *] shall not be made available to anyone other
than employees of DepoMed working in furtherance of the Research Plan, shall not
be transferred to any other persons outside of DepoMed for any purpose, and
shall not be transferred to another institution or company without the prior
written consent of PRI.
E Nothing herein shall create or imply any license in intellectual
property rights related to [* *] owned or controlled by PRI to DepoMed, except
for the non-exclusive license to DepoMed to use the [* *] for the research
purposes expressly set forth herein. Similarly, nothing herein shall create or
imply any license in intellectual property rights related to the GR System to
PRI.
F. Upon conclusion of the Research Plan, or termination of this Agreement,
DepoMed shall discontinue use of the [* *] and will arrange for the return to
PRI of all unused [* *] and work in progress.
G. DepoMed will take appropriate steps to inform all Research Plan
personnel of their obligations under this Agreement and to obtain their
agreement to abide by the terms and conditions of this Agreement in the same
manner as DepoMed.
H. In the performance of the activities contemplated hereunder, the
parties including employees and agents of each, shall be that of independent
contractors, and not as employees, agents or fiduciaries of the other party, and
neither party shall have the right to make commitments for or on behalf of the
other party.
II. TERM
A. This Agreement is effective as of February 20, 1998, and shall continue
in effect for the time period necessary for DepoMed to complete the Research
Plan set forth in Appendix A, as estimated therein, or until DepoMed notifies
PRI in writing that the Research Plan has been completed, or that the Research
Plan is not likely to be successfully completed, if earlier.
2
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
B. The term of this Agreement may be extended by an amendment in writing
executed by both Parties.
III. COSTS/PAYMENTS
A. DepoMed agrees to use diligent efforts to complete the Research Plan
within the estimated cost figures provided in the Research Plan. However, PRI
acknowledges that the actual costs may exceed the estimates. DepoMed will
invoice PRI on a monthly basis for work completed on the Research Plan, and PRI
agrees to pay such invoices within 45 days.
B. PRI and DepoMed understand that developments, unforeseen circumstances
beyond the reasonable control of DepoMed or changes in the scope of the Research
or DepoMed's responsibilities for the Research may increase the funding
requirements for the Research. In such event, PRI and DepoMed agree to discuss
appropriate revisions in the Research Plan and estimated costs for further work
under the Research Plan.
C. PRI is under no obligation to make payments to DepoMed or to agree to
funding increases beyond the amount set forth in Appendix A.
D. DepoMed will maintain complete and accurate records which are relevant
to its execution of the Research Plan. DepoMed shall maintain such records,
including raw data, in good order. Such records shall be open during regular
business hours upon reasonable notice for a period of two (2) years from
creation of individual records for examination at PRI's expense.
IV. PROGRESS REPORTS/JOINT MEETINGS
DepoMed agrees to keep PRI informed through mutually agreeable means as
significant tasks of the Research Plan are completed. DepoMed shall furnish to
PRI appropriate technical information and reports describing the results
obtained in performance of the Research Plan. Upon completion DepoMed shall
provide PRI with a final written report on the results.
V. CONFIDENTIAL INFORMATION
A. During the term of Agreement and at such times as the parties shall
agree, each party shall disclose to the other, in confidence subject to this
Section V, relevant proprietary information useful to the activities of the
Research Plan which it considers confidential ("Confidential Information").
Such Confidential Information as well as all information generated in
performance of the Research Plan ("Plan Information") shall be
3
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
maintained in confidence by the other party and shall not be disclosed or
otherwise communicated to others, or used for any purpose, except pursuant to
and in order to carry out the terms and objectives of this Agreement, or the
performance of any future Development and/or license agreement entered into by
the parties under Section VI hereof. Each party hereby agrees to exercise
reasonable precautions to prevent the unauthorized disclosure of such
Confidential Information and Plan Information.
B. Section V.A. shall not apply to the extent such Confidential
Information or Plan Information:
(a) was known or used by the receiving party prior to its date of
disclosure to the receiving party as evidenced by the prior written records of
the receiving party; or
(b) either before or after the date of the disclosure to the
receiving party is lawfully disclosed to the receiving party by sources other
than the disclosing party rightfully in possession of the Confidential
Information or Plan Information; or
(c) either before or after the date of the disclosure to the
receiving party becomes published or generally known to the public, other than
through the sale of Products in the ordinary course of business through no fault
or omission on the part of the receiving party or an Affiliate; or
(d) is required to be disclosed by the receiving party to comply with
applicable laws, to defend or prosecute litigation or to comply with
governmental regulations, provided that the receiving party provides prior
written notice of such disclosure to the other party and takes reasonable and
lawful actions to avoid and/or minimize the degree of such disclosure.
C. Notwithstanding the foregoing, each party may disclose the other's
Confidential Information and Plan Information to its Affiliates, agents and
consultants who have a need to know and who are under an obligation of
confidentiality and non-use substantially equivalent to the obligations under
this Section V.
D. The provisions of this Section V shall supersede the Confidentiality
Agreement between the parties executed November 18, 1997 and shall survive
termination of this Agreement, but each party shall be released from the
obligations under this Section V after a period of fifteen (15) years from the
date of expiration or termination of this Agreement.
4
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
VI. FUTURE DEVELOPMENT
The decision as to whether to proceed with the preclinical and clinical
development and marketing of any Product containing formulations of [* *]
developed pursuant to this Agreement shall be in the sole discretion of PRI. At
the conclusion of Stage 1 of the Research Plan, and prior to commencing work on
Stage 2, the parties shall meet to negotiate the basic terms of a definitive
Development Agreement and License, which will provide, inter alia, for an
exclusive worldwide license to PRI and mutually agreeable development payments,
milestone payments and/or royalties payable to DepoMed on net sales by PRI, its
affiliates and sublicensees of any such product containing formulations of [* *]
utilizing the GR System. Provided the parties can agree upon such basic terms,
DepoMed will proceed with Stage 2 of the Research Plan hereunder, and the
parties will negotiate and execute a definitive Development and License
agreement incorporating such basic terms. Notwithstanding the foregoing, PRI
may decide to terminate negotiations under this Article at any time without any
resulting obligation or liability to DepoMed.
VII. PROPRIETARY RIGHTS
A. All rights, title and interest to inventions, discoveries or
improvements first conceived or made as a result of the performance of the
Research Plan ("Inventions") that relate solely to the GR System, shall belong
to DepoMed. All inventions that relate solely to [* *] shall belong to PRI.
B. DepoMed represents and warrants to PRI that any Inventions that may be
made by its employees in the performance of the Research Plan are owned by and
shall be assigned to DepoMed, wholly and completely.
C. DepoMed will promptly notify PRI in writing of any Inventions that
relate solely to [* *], conceived and/or made by DepoMed as a result of the
performance of the Research Plan. Such notice shall describe the substance of
any such Invention in writing in sufficient detail so as to enable PRI to
determine if a patentable Invention has been made.
VIII. PUBLICITY
A. Neither PRI nor DepoMed shall disclose the existence of or any terms of
this Agreement or any of the information contained in the Appendix to this
Agreement to any third party other than their professional advisors without the
prior written permission of the other Party, except where such disclosure is
required by law.
5
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
B. Neither PRI nor DepoMed shall use the name of the other Party in any
advertising or promotional context in any medium, except that a mutually
acceptable press release may be made by the parties.
IX. COVENANT AND WARRANTY
Each Party hereby warrants, as of the date hereof, and covenants that (a) it has
full right and authority to enter into this Agreement and to perform its
obligations hereunder and (b) it has not entered into and during the term of the
Agreement will not enter into any other agreement in conflict with this
Agreement.
X. ASSIGNMENT
This Agreement may not be assigned by either party without the prior written
consent of the other Party, except that PRI may assign its rights and/or
obligations hereunder to any affiliate owned or controlled by, or under common
ownership or control, or which owns or controls PRI. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the Parties
hereto and their respective heirs, legal and personal representatives, successor
and permitted assigns.
XI. NOTICES
All notices permitted or required under this Agreement shall be deemed effective
upon receipt by the Party to whom it is addressed, if made in writing and
deposited, postage prepaid in a facility for the collection of mail maintained
by the United States Post Office or if deposited with Federal Express or any
other generally recognized expedited delivery service, or if personally
delivered, or if transmitted by fax, addressed as follows:
To PRI:
Chairman
The R.W. Johnson Pharmaceutical Research Institute
Welsh and McKean Roads
Spring House, PA 19477-0776
FAX: (215) 540-4683
6
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
To DepoMed:
Dr. John W. Shell
Chairman and Chief Scientific Officer
DepoMed, Inc.
1170 B Chess Drive
Foster City, CA 94404-1167
FAX: (650) 513-0999
XII. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of New Jersey. Caption and paragraph headings are for convenience
only and shall not form an interpretive part of this Agreement. This Agreement
shall not be strictly construed against either Party hereto.
XIII. TERMINATION
A. This Agreement may be terminated by PRI with or without cause at any
time, including but not limited to the completion of Phase I, upon thirty days
written notice to DepoMed.
B. Upon any material breach by a party to the Agreement, the other party
may terminate this Agreement by thirty days written notice to the breaching
party, specifying the material breach, default or other defect. The termination
becomes effective, at the option of the non-breaching party, at the end of the
thirty days period unless the breaching party cures the breach during the thirty
day period.
C. Upon expiration or termination of this Agreement, the provisions of
Articles I.F, V, VI, VII, VIII, IX and XII shall continue in full force and
effect, as well as any other provision herein which, by its intent or meaning,
is intended to survive such expiration or termination.
D. Any expiration or early termination of this Agreement shall not
affect the rights and obligations of the Parties accruing under this Agreement
prior to the effective date of such expiration or termination, including, but
not limited to, any rights and obligations accruing under Articles I.F, V, VI,
VII, VIII, IX and XII.
7
<PAGE>
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
XIV. SEVERABILITY
The provisions of this Agreement are severable. If any item or provision of
this Agreement shall to any extent be invalid or unenforceable, the remainder of
this agreement shall not be affected thereby, and each term and provision of
this Agreement shall be valid and shall be enforced to the fullest extent
permitted by law.
XV. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between PRI and DepoMed with
respect to the subject matter hereof and supersedes any and all previous
understandings or agreements between the Parties, whether written or verbal. No
terms or provisions of this Agreement may be varied or modified by the Parties
hereto except by a written instrument specifically referring to and executed in
the same manner as this Agreement. No provision of this Agreement may be waived
by any act, omission or knowledge of a Party or its agents or employees, except
by a writing expressly waiving such provision and signed by the waiving Party.
The failure of a Party at any time or times to require performance of any
provision hereof shall in no manner affect its rights at a later time to enforce
the same. No waiver by a Party of any condition, remedy or term in any one or
more instance shall be construed as a continuing waiver of such condition,
remedy or term or any other condition, remedy or term on any successive
occasion. Any inconsistency between the terms of this Agreement and any
Appendix shall be resolved in favor of the text of this Agreement.
If this Letter Agreement correctly sets for the terms and conditions of our
agreement, please indicate the acceptance thereof by PRI in the space provided
below and return an original counterpart of this Agreement to the address first
shown above. The other original counterpart should be retained in your files.
Thank you.
Sincerely,
DepoMed, Inc.
By: /s/ John W. Shell
------------------------------
John W. Shell, Ph.D.
Title: Chairman and Chief Scientific Officer
8
<PAGE>
Exhibit 10.1
------------
CONFIDENTIAL TREATMENT REQUESTED
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
Accepted and agreed this 20th
Day of February, 1998
The R.W. Johnson Pharmaceutical Research Institute,
a division of Ortho-McNeil Pharmaceutical, Inc.
By:___________________________
Title:________________________
9
<PAGE>
APPENDIX A
THE SYMBOL "[* *]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
[* *]
<PAGE>
Exhibit 10.2
SUBLEASE
--------
THIS SUBLEASE (this "Sublease") is dated for reference purposes as of
February 18, 1998, and is made by and between Cell Genesys, Inc., a Delaware
corporation, ("Sublessor"), and DepoMed, Inc., a California corporation
("Sublessee"). Sublessor and Sublessee hereby agree as follows:
1. Recitals: This Sublease is made with reference to the following facts:
--------
Spieker Properties, successor in interest to Vintage Park Associates and WCB
Sixteen Limited Partnership, as Landlord ("Lessor"), and Sublessor, as tenant,
entered into that certain lease, dated as of November 1, 1994, including all
subsequent amendments, ("Master Lease") which includes several premises located
in the Vintage Park development in Foster City, California ("Space"). A copy of
the Master Lease is attached hereto as Exhibit A and incorporated herein by
reference. If any terms or conditions of this Sublease are in conflict with any
terms or conditions of the Master Lease or any Appendix or Exhibit to this
Sublease, the terms and conditions of this Sublease shall govern.
2. Premises: Sublessor hereby leases to Sublessee, and Sublessee hereby
--------
leases from Sublessor, approximately thirteen thousand two hundred (13,200)
rentable square feet of the Space which is located at 366A and 366B Lakeside
Drive in Foster City, California as denoted in Exhibit A of Amendment 2 to the
Master Lease (hereinafter the "Premises") on the terms set forth herein. A copy
of the floor plan of the Premises is attached hereto as Exhibit B and
incorporated herein by reference.
3. Term:
-----
3.1. Term. The term of this Sublease shall commence on April 1, 1998 (the
-----
"Commencement Date"), or when Lessor consents to this Sublease, whichever shall
occur last and end on March 31, 2000 (the "Expiration Date") (collectively
"Lease Term"), unless otherwise sooner terminated in accordance with the terms
of this Sublease or the Master Lease. In the event the Term commences on a date
other than the Commencement Date, Sublessor and Sublessee shall execute a
memorandum of understanding setting forth the actual date of the commencement of
the Lease Term. Possession of the premises ("Possession") shall be delivered to
Sublessee on the commencement of the Lease Term. If for any reason Sublessor
does not deliver Possession to Sublessee on the commencement of the Lease Term,
Sublessor shall not be subject to any liability for such failure, the Expiration
Date shall not be extended by the delay, and the validity of this Sublease shall
not be impaired, but rent shall abate until delivery of Possession.
Notwithstanding the foregoing, if Sublessor has not delivered Possession to
Sublessee within sixty (60) days of the Commencement Date, then at any time
thereafter and before delivery of Possession, sublessee may give written notice
to Sublessor of Sublessee's intention to cancel this Sublease. Said notice
shall set forth an effective date for such cancellation which shall be at lease
ten (10) days after delivery of said notice to Sublessor. If Sublessor delivers
Possession to Sublessee on or before such effective date, this Sublease shall
remain in full force and effect. If Sublessor fails to deliver Possession to
Sublessee on or before such effective date, this Sublease shall be canceled, in
which case all consideration previously
1
<PAGE>
paid by Sublessee to Sublessor on account of this Sublease shall be returned to
Sublessee, this Sublease shall thereafter be of no further force or effect, and
Sublessor shall have no further liability to Sublessee on account of such delay
or cancellation.
3.2. Early Possession. If Sublessor vacates the Premises prior to the
-----------------
Commencement Date, Sublessor shall provide written notice to Sublessee that
Sublessor has vacated the Premises, and Sublessee shall have the right to enter
and occupy the Premises at the time of Sublessor's vacation of the Premises to
construct its tenant improvements. Such occupancy (i) shall be subject to all of
the provisions of this Sublease, except for the obligation to pay Rent (as
defined below); and (ii) shall not advance the Expiration Date of this Sublease.
4. Rent:
-----
4.1. Rental Structure. Sublessee shall pay to Sublessor as base rent
----------------
for the Premises, without deduction, setoff, notice, or demand the amount of
twenty three thousand one hundred ($23,100.00) dollars per month for the period
April 1, 1998 through March 31, 2000 ("Base Rent"). Base Rent shall be paid on
or before the first (1st) day of each month of the Lease Term. Base Rent for any
period during the Term hereof which is for less than one month of the Term shall
be a pro rata portion of the monthly installment based on a 30-day month. Base
Rent shall be payable without notice or demand and without any deduction,
offset, or abatement in lawful money of the United States of America. Base Rent
shall be paid directly to Sublessor at 342 Lakeside Drive, Foster City,
California, 94404 Attention: Accounting Department, or such other address as
may be designated in writing by Sublessor.
4.2. Payment of First Month's Rent. Upon execution of this Sublease,
-----------------------------
Sublessee shall pay to Sublessor the sum of twenty three thousand one hundred
($23,100.00)which shall constitute Base rent for the first month of the Lease
Term.
4.3. Operating Costs. The Master Lease requires Sublessor to pay to
---------------
Lessor expenses of operating the Premises ("Operating Costs"), including but not
limited to taxes, utilities, and insurance. Such additional rent shall be
payable as and when Operating Costs are payable by Sublessor to Lessor. The
Master Lease provides for payment by Sublessor of Operating Costs on an
estimated basis and when adjustments between estimated and actual Operating
costs are made pursuant to the Master Lease, the obligations of Sublessor and
Sublessee hereunder shall be adjusted in a like manner; and if any such
adjustment shall occur after the expiration or earlier termination of the Lease
Term, then the obligations of Sublessor and Sublessee under this Subsection 4.3
shall survive such expiration or termination. Sublessor shall, upon request by
Sublessee, furnish Sublessee with copies of all statements submitted by Lessor
of actual or estimated Operating Costs during the Lease Term.
5. Security Deposit and Letter of Credit: Sublessee shall deposit with
-------------------------------------
Sublessor upon execution of this Sublease, the sum of twenty three thousand one
hundred ($23,100.00) dollars (the "Security Deposit"), in cash, as security for
the performance by Sublessee of the terms and conditions of this Sublease. If
Sublessee fails to pay rent or other charges due hereunder or otherwise defaults
with respect to any provision of this Sublease, then Sublessor may draw upon,
2
<PAGE>
use, apply or retain all or any portion of the Security Deposit for the payment
of any rent or other charge in default or breach, for the payment of any other
sum which Sublessor has become obligated to pay by reason of Sublessee's
default, or to compensate Sublessor for any loss or damage which Sublessor has
suffered thereby. If Sublessor so uses or applies all or any portion of the
Security Deposit, then Sublessee, within ten (10) days after demand therefor,
shall deposit cash with Sublessor in the amount required to restore the Security
Deposit to the full amount stated above, and failure by Sublessee to do so shall
constitute a default and breach under this Sublease. Sublessor shall not be
required to keep the Security Deposit separate form its general accounts, and
shall have no obligation or liability for payment of interest on the Security
Deposit. In the event Sublessor assigns its interest in this Sublease, Sublessor
shall deliver to its assignee so much of the Security Deposit as is then held by
Sublessor. Upon the expiration or earlier termination of this Sublease, if
Sublessee is not in default, Sublessor shall return to Sublessee so much of the
Security Deposit as has not been applied by Sublessor pursuant to this
paragraph, or which is not otherwise required to cure Sublessee's defaults.
Additionally, in the event that Sublessee's cash and securities, as reported in
Sublessee's quarterly and annual filings with the Securities and Exchange
Commission ("SEC") on forms 10-QSB and 10-KSB (the "Forms") respectively, shall
fall below one million five hundred thousand ($1,500,000.00) dollars Sublessee
shall obtain and keep current throughout the remaining lease term a letter of
credit in favor of Sublessor, from a reputable bank or financial institution, in
the amount of two hundred thirty-two thousand one hundred thousand ($232,100.00)
dollars ("Letter of Credit"), subject to annual review of Sublessee's credit.
Sublessee shall provide copies of the Forms to Sublessor within five days (5)
days of filing the Forms with the SEC. If after drawing upon the Security
Deposit, Sublessee still fails to pay rent or other charges due hereunder or
otherwise defaults with respect to any provision of this Sublease, then
Sublessor may draw upon, use, apply or retain all or any portion of the Letter
of Credit for the payment of any rent or other charge in default or breach, for
the payment of any other sum which Sublessor has become obligated to pay by
reason of Sublessee's default, or to compensate Sublessor for any loss or damage
which Sublessor has suffered thereby.
6. Repairs: The parties acknowledge and agree that Sublessee is subleasing
--------
the Premises on an "as is" basis, and that Sublessor has made no representations
or warranties with respect to the condition of the Premises. Sublessor shall
have no obligation whatsoever to make or pay the cost of any alterations,
improvements or repairs to the Premises, including, without limitation, any
improvement or repair required to comply with any law, regulation, building code
or ordinance (including the Americans with Disabilities Act of 1990). Although
Sublessor shall have no liability other to use its reasonable efforts to cause
Lessor to perform needed repairs, Sublessee shall look solely to Lessor for
performance of any repairs required to be performed by Lessor under the terms of
the Master Lease. Separate from Sublessee's obligations under Section 4 herein,
Sublessee shall only be obligated to pay costs and expenses of maintenance and
repair associated with the Premises.
7. Indemnity: Except to the extent caused by the negligence or willful
---------
misconduct of Sublessor, its agents, employees, contractors or invitees,
Sublessee shall indemnify, defend with counsel reasonable acceptable to
Sublessor, protect and hold Sublessor harmless from and against any and all
claims, liabilities, judgments, causes of action, damages, costs and expenses
3
<PAGE>
(including reasonable attorneys' and experts' fees), caused by or arising in
connection with: (i) the use, occupancy or condition of the Premises by
Sublessee; (ii) the negligence or willful misconduct of Sublessee or its
employees, contractors, agents or invitees; or (iii) a breach of Sublessee's
obligations under this Sublease. Sublessee's indemnification of Sublessor shall
survive termination of this Sublease for any breach of this lease and for acts
by Sublessee which occurred during the term of the Sublease.
8. Use:
----
8.1. Sublessee may use the Premises to provide research and laboratory
services related to the development of drug delivery systems and for no other
purpose without first obtaining the written consent of Sublessor.
8.2 Sublessee's business shall be established and conducted throughout
the term hereof in a first class manner. The Premises shall not be overloaded
and no machinery, apparatus or other appliance shall be used or operated upon
the Premises which will in any manner injure, vibrate or shake the Premises or
the building of which it is a part. No use shall be made of the Premises which
will in any way impair the efficient operation of the sprinkler system within
the building containing the Premises. Except for the uses permitted hereunder,
Sublessee shall not use or permit the use of the Premises or any part thereof
for any purposes which will increase the existing rate of insurance upon the
building in which the Premises are located, or cause a cancellation of any
insurance policy covering the building or any part thereof. If any act on the
part of Sublessee or use of the Premises by Sublessee shall cause directly or
indirectly, any increase of Sublessor's or Lessor's insurance expense, said
additional expense shall be paid by Sublessee to Sublessor upon demand. No such
payment by Sublessee shall limit Sublessor in the exercise of any other rights
or remedies, or constitute a waiver of Sublessor's right to require Sublessee to
discontinue such act or use.
8.3 Sublessee shall not use, store, transport or dispose of any Hazardous
Materials in or about the Premises, without the written consent of Sublessor,
which shall not be unreasonably withheld, and as required by Lessor. Sublessee
represents and warrants that Sublessee will use its best efforts not to
contaminate any portion of the Premises, including without limitation air,
water and soil associated with the Premises. Sublessee shall remedy any
contamination of the Premises related to or caused by Sublessee's use of the
Premises. In the event that another sublessee interferes with Sublessee's use
of the Premises or in any way contaminates the Premises, Sublessee's sole remedy
shall be against such other sublessee and in no event against Sublessor.
9. Insurance: Sublessee shall obtain and keep in full force and effect, at
---------
Sublessee's sole cost and expense, during the Term the insurance required of
Tenant under the Master Lease and include Sublessor as a named additional
insured on any such policy.
10. Broker: Sublessor warrants and represents that Catalyst Real Estate Group
------
was Sublessor's sole real estate broker involved in connection with the
negotiation and consummation of this Sublease. Sublessee warrants and
represents that West Bay Commercial Real Estate was Sublessee's sole real estate
broker involved in connection with the negotiation and consummation
4
<PAGE>
of this Sublease. Sublessor agrees to pay the total real estate fees which will
be split equally between Catalyst Real Estate Group and West Bay Commercial Real
Estate respectively. Each party agrees to hold the other party harmless from and
against all claims for brokerage commissions, finder's fees or other
compensation made by any other agent, broker, salesman or finder as a
consequence of said party's actions or dealings with such agent broker, salesman
or finder in regard to this Sublease.
11. Notices: Unless at least five (5) days' prior written notice is given in
-------
the manner set forth in this paragraph, the address of each party for all
purposes connected with this Sublease shall be: for Sublessor; 342 Lakeside
Drive, Foster City, California 94404 attention Director of Operations and for
Sublessee; 366 Lakeside Drive, Foster City, California 94404. All notices,
demands or communications in connection with this Sublease shall be (a)
personally delivered; or (b) properly addressed and (i) submitted to an
overnight courier service, charges prepaid, or (ii) deposited in the mail
(registered or certified, return receipt requested, and postage prepaid).
Notices shall be deemed effective upon receipt or refusal to accept delivery (if
personally delivered), the next business day (if submitted to an overnight
courier) or forty-eight (48) hours after being deposited in the mail (if
mailed). Notwithstanding the foregoing, all notices to be given to Lessor shall
be effective only when delivered in accordance with the Master Lease.
12. Signs: Sublessee may place signage on the Premises with the consent of
-----
Lessor and Sublessor with all costs relating to the approval, installation,
removal and repair of such signage to be borne by Sublessee. Sublessee shall,
at its own expense, remove such signage at the end of the Lease Term unless
otherwise permitted by Lessor and Sublessor. Sublessor shall remove all of its
exterior and interior corporate logo and signage in the Premises prior to
Sublessee's occupancy.
13. Parking: Sublessee shall have all rights of Sublessor with regard to
-------
parking that are set forth in the Master Lease.
14. Assignment and Subletting: Notwithstanding anything to the contrary in the
-------------------------
Master Lease, under no circumstances shall Sublessee be permitted to assign (by
operation of law or otherwise), transfer or otherwise sublease the Premises
during the Lease Term without the prior written authorization of Sublessor and
Lessor and Sublessor will not unreasonably withhold it's consent to sublease all
or part of the Premises.
15. Option to Extend Sublease Term:
------------------------------
15.1 Sublessee shall have two options to extend the term of this
Sublease, one for a period of one year starting April 1, 2000 and ending March
31, 2001 (the "First Option Period") and a second option for ten additional
months for the period of April 1, 2001 through January 31, 2002 (the "Second
Option Period"), subject to the following conditions:
(i) Sublessor shall inform Sublessee in writing within six (6) months
of the expiration of the Sublease whether the Premises shall be available for
sublease during the First Option Period and if the Premises is available for
such sublease period, Sublessee shall inform Sublessor in writing within thirty
(30) days of receipt of such notice from Sublessor whether Sublessee elects to
exercise it's option for the First Option Period;
5
<PAGE>
(ii) Rent for the First Option Period shall be twenty three thousand
seven hundred sixty ($23,760.00) dollars per month;
(iii) If Sublessee exercises it's First Option Period, Sublessor
shall inform Sublessee in writing within six (6) months of the expiration of the
First Option Period as to whether the Premises shall be available for sublease
during the Second Option Period and if the Premises is available for such
sublease period, Sublessee shall inform Sublessor in writing within thirty (30)
days of receipt of such notice from Sublessor whether Sublessee elects to
exercise it's option for the Second Option Period;
(iv) Rent for the Second Option Period shall be twenty four thousand
four hundred twenty ($24,420.00) dollars per month; and
(v) At the time each option is exercised; the Sublease shall be in
full force and effect, Sublessee shall not be in default thereunder, Sublessee's
credit-worthiness shall be at least equal to that as of the date the Sublease is
exercised, and all other terms of the Sublease shall continue in full force and
effect for each exercised option period.
(vi) If Sublessor informs Sublessee that the Premises is not
available for sublease during the First Option Period or the Second Option
Period, respectively, pursuant to Sections 15.1 (i) and 15.1(iii) hereof,
Sublessor shall not sublease the Premises to an unaffiliated third party during
such option period, provided, however that Sublessor's election not to sublease
the Premises during the First Option Period shall not limit Sublessor's rights
to sublease the Premises during the period of the Second Option Period to a
third party.
16. Other Sublease Terms: The terms and conditions of this Sublease shall
--------------------
include all sections of the Master Lease, and are incorporated into this
Sublease as if fully set forth, except as modified in this paragraph and except
that: (i) each reference in such incorporated sections to "Lease" shall be
deemed a reference to "Sublease"; (ii) each reference to "Landlord" and "Tenant"
shall be deemed a reference to "Sublessor" and "Sublessee," respectively, except
as otherwise expressly set forth herein; (iii) with respect to work, services,
repairs, restoration, insurance, indemnities, representations, warranties or the
performance of any other obligation of Lessor under the Master Lease, the sole
obligation of Sublessor shall be to request the same in writing from Lessor as
and when requested to do so by Sublessee, and to use Sublessor's reasonable
efforts (without requiring Sublessor to spend more than a nominal sum) to cause
Lessor's performance; (iv) with respect to any approval required to be obtained
from the "Landlord" under the Master Lease,, such consent must be obtained from
Lessor and Sublessor, and the approval of Sublessor may be withheld if Lessor's
consent is not obtained; (iv) in any case where the "Landlord" reserves or is
granted the right to manage, supervise, control, repair, alter, regulate the use
of, enter or use the Premises or any areas beneath, above or adjacent thereto,
such reservation or grant of right of entry shall be deemed to be for the
benefit of Lessor and Sublessor; (vii) in any case where "Tenant" is to
indemnify, release or waive claims against "Landlord," such indemnity, release
or waiver shall be deemed to run from Sublessee to Lessor and Sublessor; (viii)
in any case where "Tenant" is to execute and deliver certain documents or
notices to "Landlord", such obligation shall be deemed to run from Sublessee to
Lessor and Sublessor; and (ix) the following provisions of the Master Lease are
excluded from this Sublease: (a) Basic Lease Information located pages 1 and 2;
(b) from the Research and Development Lease Sections 1, 2, 3(a) and 15, (c) from
the Addendum to Lease Sections 12, 22, 23, 24, 25, and including Exhibits A-1,
A-2, A-3, B-1, B-2 and B-3; (d) Amendment 1 excepting reference
6
<PAGE>
to 366 Lakeside Drive in Section 1; (e) Amendment 2 Section 1 pertaining to
rental amounts; and (e) Amendment 3 with the exception of term expiration clause
in Section 1.
17. Conditions Precedent: This Sublease and Sublessor's and Sublessee's
--------------------
obligations hereunder are conditioned upon the written consent of Lessor. If
Sublessor fails to obtain Lessor's consent by July 1, 1998, then Sublessor or
Sublessee may terminate this Sublease by giving the other party written notice
thereof, and Sublessor shall return to Sublessee its payment of the first
month's rent paid by Sublessee, if any, pursuant to Paragraph 4 hereof and the
Security Deposit, pursuant to Paragraph 5 hereof.
18. Authority to Execute: Sublessee and Sublessor each represent and warrant
--------------------
to the other that each person executing this Sublease on behalf of each party is
duly authorized to execute and deliver this Sublease on behalf of that party.
19. Notices: Sublessor shall send in a timely manner to Sublessee copies of
-------
all notices and other communications it sends to or receives from Lessor which
would effect the Sublessee or Sublessee's occupancy of the Premises.
20. Sublessor Representations: Sublessor represents that the Sublessor's
-------------------------
sublease agreement with Lessor and the Master Lease are in full force and effect
and that there are not defaults on Sublessor's part under either its sublease
agreement or the Master Lease. Sublessor further represents that it is not aware
of any default by Lessor under the Master Lease.
21. Attorney's Fees: In the event either party brings any action, either in
---------------
Court or through arbitration, against the other arising out of this Sublease,
the losing party shall be obligated to pay to the prevailing party the
prevailing party's reasonable attorneys' fees and costs incurred in the action.
22. Sublessor's Covenant: Sublessor hereby covenants to use reasonable efforts
--------------------
to cause Lessor to perform all its obligations under the Master Lease.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the day
and year first above written.
DEPOMED, INC. CELL GENESYS, INC.
By: /s/ John F. Hamilton By: /s/ Kathleen Sereda Glaub
---------------------------- -------------------------------
Kathleen Sereda Glaub
Sr. VP & Chief Financial Officer
Name: John F. Hamilton
----------------------------
Its: VP & CFO Date:2-27-98
---------------------------- --------------------------
Date: 9 March 98
----------------------------
7
<PAGE>
Exhibit A
---------
VINTAGE PARK
------------
Foster City, California
RESEARCH AND DEVELOPMENT LEASE
BASIC LEASE INFORMATION
DATE: November 1, 1994 LEASE REFERENCE
LANDLORD: VINTAGE PARK ASSOCIATES, a California general
partnership
TENANT: CELL GENESYS, a Delaware corporation
PREMISES AND BUILDING: PARAGRAPH 1
342 "B" Lakeside Drive, approximately 4,159 square
feet depicted on Exhibit A-1
-----------
322 Lakeside Drive, approximately 23,280 square feet
depicted on Exhibit A-2
-----------
324 Lakeside Drive, approximately 22,479 square feet
depicted on Exhibit A-3
-----------
366 "A" Lakeside Drive, approximately 6,337 square
feet depicted on Exhibit A-4
-----------
Total square footage: +/- 56,255 square feet
TERM COMMENCEMENT: PARAGRAPH 2
February 1, 1995, except March 1, 1995 for 366 "A"
Lakeside Drive, subject to extension to April 1,
1995 by Landlord's notice to Tenant given by
January 17, 1995.
TERM EXPIRATION: January 31, 1998 PARAGRAPH 2
BASE RENT: PARAGRAPH 3(A)
February 1, 1995 through January 31, 1996:
$61,880.50 (less $6,970.70 until term commences
for 366 "A" Lakeside Drive)
February 1, 1996 through January 31, 1997:
$64,693.25
February 1, 1997 through January 31, 1998:
$67,506.00
<PAGE>
First Option Period:
February 1, 1998 through January 31, 2000:
$70,318.75
February 1, 2000 through January 31, 2002:
$73,131.50
TENANT'S PERCENTAGE SHARE: PARAGRAPH 4(A)
342 Lakeside Drive: 12.79%
322 Lakeside Drive 55.15%
324 Lakeside Drive 100%
366 Lakeside Drive 46.5%
USE: Laboratory Research and Development,
Biopharmaceutical Manufacturing, Paragraph 6
Process Research and Development, and Office
SECURITY DEPOSIT: $37,778 PARAGRAPH 15
TENANT'S ADDRESS FOR NOTICES: PARAGRAPH 19
Cell Genesys
322 Lakeside Drive
Foster City, CA 94404
Attn: Stephen A. Sherwin
LANDLORD'S ADDRESS FOR NOTICES: PARAGRAPH 19
Vintage Park Associates
393 Vintage Park Drive, Suite 220
Foster City, CA 94404
EXHIBIT(S) AND ADDENDUM: PARAGRAPH 21
Exhibit A: Diagram of Premises
Exhibit B: Spaces Subject to Right of First Offer
Addendum
2
<PAGE>
The provisions of the Lease identified above in the margin are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information. In the event
of any conflict between any Basic Lease Information and the Lease, the latter
shall control.
TENANT LANDLORD
CELL GENESYS, INC., a Delaware corporation VINTAGE PARK ASSOCIATES, a
California general partnership
By: /s/ Kathleen Sereda Glaub By: ITS AUTHORIZED AGENT WCB
-------------------------------------- PROPERTIES LIMITED
Its: Chief Financial Officer PARTNERSHIP, a Delaware
--------------------------------- limited partnership
By:_______________________________________
By: WCB MANAGEMENT GEN-PAR, INC.,
Its:__________________________________ a Delaware corporation
By: /s/ Wallace G. Murfit
--------------------------
Wallace G. Murfit
Senior Vice President -
Northern California
3
<PAGE>
VINTAGE PARK
RESEARCH & DEVELOPMENT
LEASE
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
1. Premises.................................................................................. 1
2. Term...................................................................................... 1
3. Rent...................................................................................... 1
4. Taxes and Operating Expenses.............................................................. 2
5. Other Taxes............................................................................... 4
6. Use....................................................................................... 4
7. Utilities................................................................................. 5
8. Maintenance, Repairs and Alterations...................................................... 6
9. Insurance and Indemnity................................................................... 7
10. Damage or Destruction..................................................................... 9
11. Eminent Domain............................................................................ 9
12. Assignment and Subletting................................................................. 10
13. Default by Tenant......................................................................... 13
14. Default by Landlord....................................................................... 15
15. Security Deposit.......................................................................... 15
16. Estoppel Certificate...................................................................... 16
17. Subordination............................................................................. 16
18. Attorneys' Fees........................................................................... 17
19. Notices................................................................................... 17
</TABLE>
<PAGE>
<TABLE>
<S> <C>
20. General Provisions........................................................................ 17
21. Exhibits.................................................................................. 20
</TABLE>
EXHIBIT A (Outline of Premises)
EXHIBIT B (Initial Improvement of the Premises)
<PAGE>
RESEARCH AND DEVELOPMENT
NET LEASE
_____________________
THIS LEASE, dated May 21, 1997 for purposes of reference only, is made and
entered into by and between VINTAGE PARK ASSOCIATES, a partnership ("Landlord")
and_____________________________________________________________________________
________________________________________________________________________________
_______________________________________________________ ("Tenant").
WITNESSETH
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord for the term of this Lease and at the rental and upon the
conditions set forth below, the premises described in the Basic Lease
information and identified on the floor plan attached hereto as Exhibit A.
Subject to any obligations of Landlord as set forth in an exhibit to this
Lease relating to initial improvement of the premises. Tenant shall accept
the premises in its "as-is" condition at the commencement of the term. The
premises are located within the building (the "Building") commonly known as
described in the Basic Lease Information.
2. TERM. The term of this Lease shall commence and, unless sooner terminated
as hereinafter provided, shall and on the dates respectively specified in
the Basic Lease Information. If Landlord, for any reason whatsoever, cannot
deliver possession of the premises to Tenant at the commencement of the
term, this Lease shall not be void or voidable, nor shall Landlord be
liable to Tenant for any loss or damage resulting therefrom, but in that
event, subject to any contrary provisions in any agreement with Landlord
related to the initial improvement of the premises, rental shall be waived
for the period between commencement of the term and the time when Landlord
can deliver possession. No delay in delivery of possession shall operate to
extend the term.
3. RENT.
(a) Tenant shall pay to Landlord as rental the amount specified in the
Basic Lease Information as the Base Rent, payable in advance on the
commencement of the term and on or before the first day of each and
every successive calendar month during the term. If the term commences
on other than the first day of a calendar month, the first payment of
rent shall be appropriately prorated on the basis of a 30-day month.
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<PAGE>
(b) Tenant shall pay, as additional rent, all amounts of money required to
be paid to Landlord by Tenant hereunder in addition to monthly rent,
whether or not the same be designated "additional rent." If such
amounts are not paid at the time provided in this Lease, they shall
nevertheless be a collectable as additional rent with the next
installment of monthly rent thereafter falling due, but nothing herein
contained shall be deemed to suspend or delay the payment of any
amount of money at the time the same becomes due and payable
hereunder, or limit any other remedy of Landlord.
(c) Tenant hereby acknowledges that late payment by Tenant to Landlord of
rent and other amounts due hereunder after the expiration of any
applicable grace period will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which
may be imposed on Landlord by the terms of any trust deed covering the
premises. Accordingly, if any installment of rent or any other sums
due from Tenant shall not be received by Landlord when due, Tenant
shall pay to Landlord a late charge equal to 6% of such overdue
amount. The parties hereby agree that such late charge represents a
fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such late charge by
Landlord shall in no event constitute a waiver of Tenant's default
with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
(d) Any amount due to Landlord, if not paid when due, shall bear interest
from the date due until paid at the rate of 10% per annum or, if a
higher rate is legally permissible, at the highest rate legally
permitted, provided that interest shall not be payable on late charges
incurred by Tenant nor on any amounts upon which late charges are paid
by Tenant to the extent such interest would cause the total interest
to be in excess of that legally permitted. Payment of interest shall
not excuse or cure any default hereunder by Tenant.
(e) All payments due from Tenant to Landlord hereunder shall be made to
Landlord without deduction or offset in lawful money of the United
States of America at Landlord's address for notices hereunder, or to
such other person or at such other place as Landlord may from time to
time designate in writing to Tenant.
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<PAGE>
4. TAXES AND OPERATING EXPENSES.
(a) This Lease is a net lease and Base Rent and additional rent shall be
paid to and received by Landlord net of all costs and expenses to
Landlord other than taxes upon the income of Landlord from all
sources. Tenant shall pay its percentage share, as specified in the
Basic Lease Information, of all Property Taxes assessed in respect of
the Building during the term, and its percentage share of all
Operating Expenses paid or incurred by Landlord during the term. For
the purposes hereof, "Property Taxes" shall mean all real property
taxes and assessments or governmentally imposed fees or charges (and
any tax or fee levied wholly or partly in lieu thereof) levied,
assessed, confirmed, imposed, or which have become a lien against the
Building (which for the purposes of defining "Property Taxes" shall
include the land underlying the Building) or payable during the term.
For the purposes hereof, "Operating Expenses" shall mean all expenses
and costs of every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the ownership and
operation of the Building and surrounding property and supporting
facilities, including, without limitation: (1) all costs of operation,
maintenance and repair of the Building, (2) the cost of all Insurance
maintained by Landlord with respect to the Building, and (3) the share
allocable to the Building of dues and assessments payable under any
reciprocal easement or common area maintenance agreements or
declarations or to any owners' associations affecting the Building.
Landlord shall not collect in excess of one hundred percent (100%) of
all of Landlord's Operating Expenses and Landlord shall not recover,
through Operating Expenses, any item of costs more than once.
Operating Expenses for each calendar year shall be adjusted to equal
Landlord's reasonable estimate of Operating Expenses had the total
rentable area of the Building been occupied.
(b) In the event the Building is not separately assessed for tax purposes,
then the Property Taxes to be paid by Tenant shall be Tenant's
percentage share of the product obtained by multiplying the total of
the real property taxes and assessments levied against the tax parcel
of which the Building is a part by a fraction the numerator of which
is the rentable area of the Building and the denominator of which is
total rentable area of all improvements located within the tax parcel
of which the Building is a part.
(c) Tenant shall pay to Landlord each month at the same time and in the
same manner as monthly rent Tenant's percentage share of 1/12th of
Landlord's estimate of Property Taxes and Operating Expenses for the
then current calendar year, which for the calendar year for term
commencement as set
3
<PAGE>
forth in the Basic Lease Information shall be the monthly amount
specified therein. Within 90 days after the close of each calendar
year, or as soon after such 90-day period as practicable, Landlord
shall deliver to Tenant a statement of actual Property Taxes and
Operating Expenses for such calendar year. If on the basis of such
statement Tenant owes an amount that is less than the estimated
payments for such calendar year previously made by Tenant, Landlord
shall refund such excess to Tenant. If on the basis of such statement
Tenant owes an amount that is more than the estimated payments for
such calendar year previously made by Tenant, Tenant shall pay the
deficiency to Landlord within 30 days after delivery of the statement.
The obligations of Landlord and Tenant under this subparagraph with
respect to the reconciliation between estimated payments and actual
Property Taxes and Operating Expenses for the last year of the term
shall survive the termination of the Lease.
5. OTHER TAXES. Tenant shall pay or reimburse Landlord for (i) any taxes upon,
measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures, and other personal property located in the
premises or leasehold improvements made in or to the premises at Tenants
expense, (ii) any taxes, assessments, fees, or charges imposed by any
public authority or private community maintenance association upon or by
reason of the development possession, use or occupancy of the premises or
the parking facilities used by Tenant in connection with the premises, and
(iii) any gross receipts tax imposed with respect to the rental payable
hereunder.
6. USE.
(a) The premises shall be used and occupied by Tenant solely for the use
set forth in the Basic Lease Information. Tenant shall, at Tenant's
expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders, and requirements in effect during the term
regulating Tenant's activities or the use by Tenant of the premises.
Tenant shall not use or permit the use of the premises in any manner
that will tend to create waste or a nuisance, which shall tend
unreasonably to disturb other tenants of the Building, or which shall
violate the terms of any recorded restrictions affecting the Building,
nor shall Tenant place or maintain any signs on or visible from the
exterior of the premises without Landlord's written consent, or use
any corridors, sidewalks, or other areas outside of the premises for
storage or any purpose other than access to the premises.
Notwithstanding any other provision of this Lease, Tenant shall not
use, keep, or permit to be used or kept on the premises any foul or
noxious gas or substance or any hazardous or toxic material, nor shall
Tenant do or permit to be done
4
<PAGE>
anything in and about the premises, either in connection with
activities hereunder expressly permitted or otherwise, which would
cause a cancellation of any policy of insurance maintained by Landlord
in connection with the premises or the Building or which would violate
the terms of any covenants, conditions, or restrictions affecting the
Building or the land on which it is located.
(b) Tenant shall not cause, or allow anyone else to cause, any hazardous,
toxic, or radioactive materials (collectively "Hazardous Materials")
to be used, generated, stored, or disposed of on or about the premises
or the Building without the prior written consent of Landlord, which
consent may be withheld in the sole discretion of Landlord, and which
consent may be revoked at any time. Tenant shall strictly comply with
all statutes, laws, ordinances, rules, regulations, and precautions
now or hereafter mandated or advised by any federal, state, local or
other governmental agency with respect to the use, generation,
storage, or disposal of Hazardous Materials. As herein used,
Hazardous Materials shall include, but not be limited to, those
materials identified in Sections 66680 through 66685 of Title 22 of
the California Administrative Code, Division 4, Chapter 30, as amended
from time to time, and those substances defined as "hazardous
substances," "hazardous materials," "hazardous wastes," or other
similar designations in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., the Hazardous Materials Transportation Act, 49
U.S.C. Section 1801 et seq. and any other governmental statutes, laws,
ordinances, rules, regulations, and precautions.
7. UTILITIES.
(a) Tenant shall pay for all water, sewer, gas, electricity, heat, cooling
energy, telephone, refuse collection, and other utility-type services
furnished to Tenant or the premises, together with all related
installation or connection charges or deposits. Wherever it is
practical to do so such services shall be separately metered or
charged to Tenant by the provider thereof and paid for directly by
Tenant. To the extent any of the foregoing services are provided by
Landlord, Tenant shall reimburse Landlord for all costs incurred by
Landlord in connection with the provision of such services based on
Landlord's reasonable estimate of the level of Tenant's use or
consumption of such services. Landlord shall bill Tenant on a monthly
or other periodic basis for such services and payment shall be made by
Tenant within 10 days after submittal of Landlord's statement.
5
<PAGE>
(b) Landlord shall not be in default hereunder or be liable for any
damages directly or indirectly resulting therefrom, and there shall
not be any rent abatement, by reason of any interruption or
curtailment whatsoever in utility services.
8. MAINTENANCE, REPAIRS AND ALTERATIONS.
(a) Subject to the provisions of paragraph 10 below, and except for
damages caused by Tenant, its agents or invitees, Landlord shall keep
in good condition and repair the foundations and exterior walls and
roof of the Building and all common areas within the Building not
leased to tenants. Tenant expressly waives the benefits of any statute
now or hereafter in effect which would otherwise afford Tenant the
right to make repairs at Landlord's expense or to terminate this Lease
because of Landlord's failure to keep the premises or the Building in
good order, condition, and repair.
(b) Tenant shall, at Tenant's expense, maintain the interior portion of
the premises (including, but not limited to, all plumbing and
electrical connections, outlets and lightbulbs) and any exterior glass
or skylights in good condition and repair. If Tenant fails to do so
Landlord may, but shall not be required to, enter the premises and put
them in good condition, and Landlord's costs thereof shall
automatically become due and payable as additional rent. Tenant shall
be responsible for the provision, at its own expense, of appropriate
janitorial service for the premises. Tenant shall also cause to be
maintained, at its expense and in good operating condition and repair,
all heat, ventilating, and air conditioning equipment installed in the
premises. If Landlord so elects, Tenant shall retain the services of
Landlord or a maintenance company retained by it to perform
maintenance of Tenant's heating, ventilating and air conditioning
equipment and shall reimburse Landlord for the cost thereof upon
demand. At the expiration of the term Tenant shall deliver up
possession of the premises in good condition and repair, only ordinary
wear and tear excepted.
(c) Tenant shall not, without Landlord's prior consent, make any
alterations, improvements, or additions in or about the premises. In
requesting Landlord's consent, Tenant shall submit to Landlord
complete drawings and specifications describing such work and the
identity of the proposed contractor. As a condition to giving such
consent, Landlord may, among other things, require that Tenant remove
any such alterations, improvements or additions at the expiration of
the term, and to restore the premises to their prior condition. Before
commencing any work relating to alterations, additions, or
improvements affecting the premises, Tenant shall notify
6
<PAGE>
Landlord of the expected date of commencement thereof and of the
anticipated cost thereof, and shall furnish such information as shall
reasonably be requested by Landlord substantiating Tenant's ability to
pay for such work. Landlord shall then have the right at any time and
from time to time to post and maintain on the premises such notices as
Landlord reasonably deems necessary to protect the premises and
Landlord from mechanics' liens or any other liens. In any event,
tenant shall pay when due all claims for labor or materials furnished
to or for Tenant at or for use in the premises. Tenant shall not
permit any mechanics' liens to be levied against the premises for any
labor or materials furnished to Tenant or claimed to have been
furnished to Tenant or to Tenant's agents or contractors in connection
with work of any character performed or claimed to have been performed
on the premises by or at the direction of Tenant. All alterations,
improvements, or additions in or about the premises performed by or on
behalf of Tenant shall be done in a first-class, workmanlike manner
and in compliance with all applicable laws, ordinances, regulations,
and orders of any governmental authority having jurisdiction
thereover, as well as the requirements of insurers of the premises and
the Building. Upon Landlord's request, Tenant shall remove any
contractor, subcontractor, or material supplier from the premises and
the Building if the work or presence of such person or entity results
in labor disputes in or about the Building, or damage to the premises
or Building. Unless Landlord requires their removal, as set forth
above, all alterations, improvements, or additions which may be made
on the premises shall become the property of Landlord and remain upon
and be surrendered with the premises at the expiration of the term;
provided, however, that Tenant's machinery, equipment, and trade
fixtures, other than any which may be affixed to the premises so that
they cannot be removed without material damage to the premises, shall
remain the property of Tenant and may be removed by Tenant.
9. INSURANCE AND INDEMNITY.
(a) Tenant shall obtain and maintain during the term of this Lease general
liability insurance on an occurrence basis with a combined single
limit for personal injury and property damage in a form and with
carriers acceptable to Landlord and an amount not less than
$1,000,000, and employer's liability and workers' compensation
insurance as required by law. Tenant's comprehensive general
liability insurance policy shall be endorsed to provide that (i) it
may not be canceled or altered in such a manner as adversely to affect
the coverage afforded thereby without 30 days' prior written notice to
Landlord, (ii) Landlord is named as additional insured,
7
<PAGE>
(iii) the insurer acknowledges acceptance of the mutual waiver of
claims by Landlord and Tenant pursuant to subparagraph (b) below, and
(iv) such insurance is primary with respect to Landlord and that any
other insurance maintained by Landlord is excess and noncontributing
with such insurance. If, in the opinion of landlord's insurance
adviser, based on a substantial increase in recovered liability claims
generally, the specified amounts of coverage are no longer adequate,
such coverage shall be appropriately increased. Prior to the
commencement of the term, Tenant shall deliver to Landlord a duplicate
of such policy or a certificate thereof to Landlord for retention by
it, with endorsements, and at least 30 days prior to the expiration of
such policy or any renewal thereof, Tenant shall deliver to Landlord a
replacement or renewal binder, followed by a duplicate policy or
certificate within a reasonable time thereafter. If Tenant fails to
obtain such insurance or to furnish Landlord any such duplicate policy
or certificate as herein required, Landlord may, at its election,
without notice to Tenant and without any obligation to do so, procure
and maintain such coverage and Tenant shall reimburse Landlord on
demand as additional rent for any premium so paid by Landlord.
(b) Landlord hereby waives all claims against Tenant, and Tenant's
officers, directors, partners, employees, agents and representatives
for loss or damage to the extent that such loss or damage is insured
against under any valid and collectable insurance policy insuring
Landlord or would have been insured against but for any deductible
amount under any such policy, and Tenant waives all claims against
Landlord including Landlord's officers, directors, partners,
employees, agents, and representatives for loss or damage to the
extent such loss or damage is insured against under any valid and
collectable insurance policy insuring Tenant or required to be
maintained by Tenant under this Lease, or would have been insured
against but for any deductible amount under any such policy.
(c) As this Lease does not involve the public interest and insurance is
available to Tenant which will protect it against such claims, damage,
injury or death, Tenant hereby waives all claims against Landlord for
damage to any property or injury to or death of any person in, upon or
about the premises or the Building arising at any time and from any
cause. Tenant shall hold Landlord harmless from and defend Landlord
against all claims (except those arising from the solo negligence or
willful misconduct of Landlord, its agents, employees or contractors)
(i) for damage to any property or injury to or death of any person
arising from the use of the premises by Tenant, or (ii) arising from
the negligence or willful misconduct of Tenant, its employees, agents,
or contractors in, upon or about those portions of the
8
<PAGE>
Building other than the premises, or (iii) any breach or default by
Tenant under this Lease. The foregoing indemnity obligation of Tenant
shall include reasonable attorneys' fees, investigation costs, and all
other reasonable costs and expenses incurred by Landlord from the
first notice that any claim or demand is to be made or may be made.
The provisions of this paragraph 9 shall survive the termination of
this Lease with respect to any damage, injury, or death occurring
prior to such termination.
10. DAMAGE OR DESTRUCTION.
(a) If during the term the premises are totally or partially destroyed, or
any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a
risk which is wholly covered by insurance the proceeds of which are
made available to Landlord, Landlord shall proceed with reasonable
diligence to repair the damage or destruction and this Lease shall not
be terminated; provided, however, that if in the opinion of Landlord's
architect the work of repair cannot be completed in 90 days Landlord
may at its election terminate the Lease by notice given to Tenant.
(b) If during the term the premises are totally or partially destroyed, or
any other portion of the Building is damaged in such a way that
Tenant's use of the premises is materially interfered with, from a
risk which is not wholly covered by insurance, Landlord may at its
election restore the premises or terminate this Lease.
(c) In case of destruction or damage which materially interferes with
Tenant's use of the premises, if this Lease is not terminated as above
provided, rent shall be abated during the period required for the work
of repair based upon the degree of interference with Tenant's use of
the premises. Except for abatement of rent, Tenant shall have no claim
against Landlord for any loss suffered by Tenant due to damage or
destruction of the premises or any work of repair undertaken as herein
provided. The provisions of this paragraph 10 shall supersede any
provisions of Section 1932 and Section 1933(4) of the California Civil
Code (which might permit Tenant to terminate the Lease or withhold
rent) to the contrary.
11. EMINENT DOMAIN. If all or any part of the premises shall be taken as a
result of the exercise of the power of eminent domain or sold by Landlord
under threat of the exercise of such power, this Lease shall terminate as
to the part so taken as of the date of taking or sale, and, in the case of
a partial taking, either Landlord or Tenant shall have the right to
terminate this Lease as to the balance of the premises
9
<PAGE>
by notice to the other within 30 days after such date if the portion of the
premises taken shall be of such extent and nature as substantially to
handicap, impede or impair Tenant's use of the balance of the premises for
Tenant's purposes. In the event of any taking or such sale, Landlord shall
be entitled to any and all compensation, damages, income, rent, awards, or
any interest therein whatsoever which may be paid or made in connection
therewith, and tenant shall have no claim against Landlord for the value of
any unexpired term of this Lease or otherwise. In the event of a partial
taking or sale of the premises which does not result in a termination of
this Lease, the monthly rental thereafter to be paid shall be equitably
reduced on a square footage basis.
12. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not assign this Lease or any interest herein or sublet
the premises or any part thereof without the prior consent of
Landlord, which consent shall not be unreasonably withheld; Tenant
shall not hypothecate this Lease or any interest herein or permit the
use of the premises by any party other than Tenant without the prior
consent of Landlord, which consent may be withheld by Landlord in its
absolute discretion. This Lease shall not, nor shall any interest
herein, be assignable as to the interest of Tenant by operation of law
without the consent of Landlord. Any of the foregoing acts without
such consent shall be void and shall, at the option of Landlord,
terminate this Lease. In connection with each consent requested by
Tenant, Tenant shall submit to Landlord the terms of the proposed
transaction, the identity of the parties to the transaction, the
proposed documentation for the transaction, current financial
statements of any proposed assignee or sublessee and all other
information reasonably requested by Landlord concerning the proposed
transaction and the parties involved therein.
(b) Without limiting the other instances in which it may be reasonable for
Landlord to withhold its consent to an assignment or subletting,
Landlord and Tenant acknowledge that it shall be reasonable for
Landlord to withhold its consent in the following instances:
(1) if the proposed assignee or sublessee is a governmental agency;
(2) if, in Landlord's reasonable judgment, the use of the premises by
the proposed assignee or sublessee would entail any alterations
which would lessen the value of the leasehold improvements in the
premises, or would require increased services by Landlord;
10
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(3) if, in Landlord's reasonable judgment, the financial worth of the
proposed assignee or sublessee does not meet the credit standards
applied by Landlord for other tenants under leases with
comparable terms, or the character, reputation or business of the
proposed assignee or sublessee is not consistent with the quality
of the other tenancies in the Building;
(4) in the case of a subletting of less than the entire premises, if
the subletting would result in the division of the premises into
more than two subparcels, would create a subparcel of a
configuration that is not suitable for normal leasing purposes,
or would require access to be provided through space leased or
held for lease to another tenant or improvements to be made
outside of the premises; or
(5) if at the time consent is requested or at any time prior to the
granting of consent, Tenant is in default under the Lease or
would be in default under the Lease but for the pendency of any
grace or cure period under paragraph 13 below.
(c) If at any time or from time to time during the term of this Lease
Tenant desires to sublet all or any part of the premises, Tenant shall
give notice to Landlord setting forth the terms of the proposed
subletting and the space so proposed to be sublet. Landlord shall have
the option, exercisable by notice given to Tenant within 20 days after
Tenant's notice is given, either to sublet from Tenant such space at
the rental and other terms set forth in Tenant's notice, or, if the
proposed subletting is for the entire premises for a sublet term
ending within the last year of the term of this Lease, to terminate
this Lease. If Landlord does not exercise such option, Tenant shall be
free to sublet such space to any third party on the same terms set
forth in the notice given to Landlord, subject to obtaining Landlord's
prior consent as hereinabove provided.
(d) As used in this paragraph 12, the term "assign" or "assignment" shall
include, without limitation, any sale, transfer, or other disposition
of all or any portion of Tenant's estate under this Lease, whether
voluntary or involuntary, and whether by operation of law or otherwise
including any of the following:
(1) If Tenant is a corporation: (i) any dissolution, merger,
consolidation, or other reorganization of Tenant or (ii) a sale
of more than 50% of the value of the assets of Tenant or (iii) if
Tenant is a corporation with fewer than 500 shareholders, sale or
other transfer of a
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controlling percentage of the capital stock of Tenant. The phrase
"controlling percentage" means the ownership of, and the right to
vote, stocks possessing at least 50% of the total combined voting
power of all classes of Tenant's stock issues, outstanding and
permitted to vote for the election of directors;
(2) If Tenant is a trust the transfer of more than 50% of the
beneficial interest of Tenant, or the dissolution of the trust;
(3) If Tenant is a partnership or joint venture, the withdrawal, or
the transfer of the interest of any general partner or joint
venturer or the dissolution of the partnership or joint venture;
(4) If Tenant is composed of tenants-in-common, the transfer of
interest of any co-tenants or the partition or dissolution of the
co-tenancy.
(e) No sublessee (other than Landlord if it exercises its option pursuant
to subparagraph(c) above) shall have a right further to sublet, and
any assignment by a sublessee of its sublease shall be subject to
Landlord's prior consent in the same manner as if Tenant were entering
into a new sublease.
(f) In the case of an assignment, all sums or other economic consideration
received by Tenant as a result of such assignment shall be paid to
Landlord after first deducting the unamortized cost of leasehold
improvements paid for by Tenant, and the cost of any real estate
commissions incurred in connection with such assignment. In the event
such consideration is received by Tenant in installments, the portion
of each installment to be paid to Landlord shall be determined by
multiplying the installment by a fraction, the numerator of which is
the total amount of the foregoing permitted deductions and the
denominator of which is the total consideration receivable by Tenant
as a result of such assignment.
(g) In the case of a subletting, all sums or economic consideration
received by Tenant as a result of such subletting shall be paid to
Landlord after first deducting (i) the rental due hereunder, prorated
to reflect only rental allocable to the sublet portion of the
premises, (ii) the cost of leasehold improvements made to the sublet
portion of the premises at Tenant's cost, amortized over the term of
this Lease except for leasehold improvements made for the specific
benefit of the sublessee, which shall be amortized over the term of
the sublease, and (iii) the cost of any real estate commissions
incurred in connection with such subletting, amortized over the term
of the sublease.
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(h) Regardless of Landlord's consent, no subletting or assignment shall
release Tenant of Tenant's obligation or alter the primary liability
of Tenant to pay the rental and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Landlord
from any other person shall not be deemed to be a waiver by Landlord
of any provision hereof. Consent to one assignment or subletting shall
not be deemed consent to any subsequent assignment or subletting. In
the event of default by any assignee of Tenant or any successor of
Tenant in the performance of any of the terms hereof, Landlord may
proceed directly against Tenant without the necessity of exhausting
remedies against such assignee or successor. Landlord may consent to
subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant, and without obtaining
its or their consent thereto and such action shall not relieve Tenant
of liability under this Lease.
(i) In the event Tenant shall assign or sublet the premises or request the
consent of Landlord to any assignment or subletting or if Tenant shall
request the consent of Landlord for any act that Tenant proposes to
do, then Tenant shall pay Landlord's reasonable attorneys' fees
incurred in connection therewith.
13. DEFAULT BY TENANT.
(a) The following events shall constitute events of default under this
Lease:
(1) a default by Tenant in the payment of any rent or other sum
payable hereunder for a period of 10 days after the same is due,
provided that if Tenant has failed one or more times in any
twelve-month period to pay any rent or other sum within 10 days
after the due date, no grace period shall thereafter be
applicable hereunder;
(2) a default by Tenant in the performance of any of the other terms,
covenants, agreements, or conditions contained herein and, if the
default is curable, the continuation of such default for a period
of 10 days after notice by Landlord or beyond the time reasonably
necessary for cure if the default is of the nature to require
more than 10 days to remedy, provided that if Tenant has
defaulted in the performance of the some obligation one or more
times in any twelve-month period and notice of such default has
been given by Landlord in each instance, no cure period shall
thereafter be applicable hereunder:
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<PAGE>
(3) the bankruptcy or insolvency of Tenant, any transfer by Tenant in
fraud of creditors, assignment by Tenant for the benefit of
creditors, or the commencement of any proceedings of any kind by
or against Tenant under any provision of the Federal Bankruptcy
Act or under any other insolvency, bankruptcy or reorganization
act unless, in the event any such proceedings are involuntary,
Tenant is discharged from the same within 60 days thereafter; the
appointment of a receiver for a substantial part of the assets of
Tenant; or the levy upon this Lease or any estate of Tenant
hereunder by any attachment or execution; or
(4) the abandonment of the premises.
(b) Upon the occurrence of any event of default by Tenant hereunder,
Landlord may, at its option and without any further notice or demand,
in addition to any other rights and remedies given hereunder or by
law, do any of the following:
(1) Landlord shall have the right, so long as such default continues,
to give notice of termination to Tenant, and on the date
specified in such notice this Lease shall terminate.
(2) In the event of any such termination of this Lease, Landlord may
then or at any time thereafter, re-enter the premises and remove
therefrom all persons and property and again repossess and enjoy
the premises, without prejudice to any other remedies that
Landlord may have by reason of Tenant's default or of such
termination.
(3) In the event of any such termination of this Lease, and in
addition to any other rights and remedies Landlord may have,
Landlord shall have all of the rights and remedies of a landlord
provided by Section 1951.2 of the California Civil Code. The
amount of damages which Landlord may recover in event of such
termination shall include, without limitation, (i) the worth at
the time of award (computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent) of the amount by which the unpaid
rent for balance of the term after the time of award exceeds the
amount of rental loss that Tenant proves could be reasonably
avoided, (ii) all legal expenses and other related costs incurred
by Landlord following Tenant's default, (iii) all costs incurred
by Landlord in restoring the premises to good order and
condition, or in remodeling, renovating or otherwise preparing
the
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premises for reletting, and (iv) all costs (including, without
limitation, any brokerage commissions) incurred by Landlord in
reletting the premises.
(4) For the purpose of determining the unpaid rent in the event of a
termination of this Lease, or the rent due hereunder in the event
of a reletting of the premises, the monthly rent reserved in this
Lease shall be deemed to be the sum of the rental due under
paragraph 3 above and the amounts last payable by Tenant pursuant
to paragraph 4 above.
(5) After terminating this Lease, Landlord may remove any and all
personal property located in the premises and place such property
in a public or private warehouse or elsewhere at the sole cost
and expense of Tenant.
(c) Even though Tenant has breached this Lease and abandoned the premises,
this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession, and Landlord may enforce all
its rights and remedies under this Lease, including the right to
recover rental as it becomes due under this Lease. Acts of maintenance
or preservation, efforts to relet the premises, or the appointment of
a receiver upon initiative of Landlord to protect Landlord's interest
under this Lease, shall not constitute a termination of Tenant's right
to possession.
(d) The remedies provided for in this Lease are in addition to any other
remedies available to Landlord at law or in equity, by statute or
otherwise.
14. DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord hereunder within a reasonable
time, but in no event later than 30 days after notice by Tenant to Landlord
specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that
more than 30 days are required for performance, then Landlord shall not be
in default if Landlord commences performance within such 30 day period and
thereafter diligently prosecutes the same to completion.
15. SECURITY DEPOSIT. On execution of this Lease Tenant shall deposit with
Landlord the sum specified in the Basic Lease Information (the "deposit").
The deposit shall be held by Landlord as security for the performance by
Tenant of all of the provisions of this Lease. If Tenant fails to pay rent
or other charges due hereunder, or otherwise defaults with respect to any
provision of this Lease, Landlord may
15
<PAGE>
use, apply, or retain all or any portion of the deposit for the payment of
any rent or other charge in default, or the payment of any other sum to
which Landlord may become obligated by reason of Tenant's default, or to
compensate Landlord for any loss or damage which Landlord may suffer
thereby. If Landlord so uses or applies all or any portion of the deposit,
then within 10 days after demand therefor Tenant shall deposit cash with
Landlord in an amount sufficient to restore the deposit to the full amount
thereof, and Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep the deposit separate from its
general accounts. If Tenant performs all of Tenant's obligations hereunder,
the deposit, or so much thereof as has not theretofore been applied by
Landlord, shall be returned, without payment of interest for its use, to
Tenant (or, at Landlord's option, to the last assignee, if any, of Tenant's
interest hereunder) at the expiration of the term hereof, and after Tenant
has vacated the premises. No trust relationship is created herein between
Landlord and Tenant with respect to the deposit.
16. ESTOPPEL CERTIFICATE.
(a) Tenant shall at any time upon not more than 10 days' prior notice from
Landlord execute, acknowledge and deliver to Landlord a statement
certifying (i) that this Lease is unmodified and in full force and
effect (or, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and
effect) (ii) the date to which the rent, security deposit, and other
sums payable hereunder have been paid, (iii) acknowledging that there
are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord hereunder, or specifying such defaults, if any, which are
claimed, and (iv) such other matters as may reasonably be requested by
Landlord. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Building.
(b) Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant, (i) that this Lease is in full force and
effect, without modification except as may be represented by Landlord,
(ii) that there are no uncured defaults in Landlord's performance, and
(iii) that not more than one month's rent has been paid in advance.
(c) If Landlord desires to finance or refinance the Building, Tenant
agrees to deliver to any lender designated by Landlord such financial
statements of Tenant as may be reasonably required by such lender. All
such financial statements shall be received by Landlord in confidence
and shall be used only for the purposes herein set forth.
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17. SUBORDINATION. This Lease, at Landlord's option, shall subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation for
security now or hereafter placed upon the Building and to any and all
advances made on the security thereof and to all renewals, modifications,
consolidations, replacements and extensions thereof. Notwithstanding such
subordination, Tenant's right to quiet possession of the premises shall not
be disturbed if Tenant is not in default and so long as Tenant shall pay
the rent and observe and perform all of the provisions of this Lease,
unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee, or ground lessor shall elect to have this Lease prior
to the lien of its mortgage, deed of trust or ground lease, and shall give
notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage, deed of trust, or ground lease, whether this Lease is dated prior
to or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof. If any mortgage or deed of trust to
which this Lease is subordinate is foreclosed or a deed in lieu of
foreclosure is given to the mortgagee or beneficiary, Tenant shall attorn
to the purchaser at the foreclosure sale or to the grantee under the deed
in lieu of foreclosure; if any ground lease to which this Lease is
subordinate is terminated, Tenant shall attorn to the ground lessor. Tenant
agrees to execute any documents required to effectuate such subordination
or to make this Lease prior to the lien of any mortgage, deed of trust or
ground lease, as the case may be, or to evidence such attornment.
18. ATTORNEYS' FEES. If as a result of any breach or default in the performance
of any of the provisions of this Lease, Landlord uses the services of an
attorney in order to secure compliance with such provisions or recover
damages therefor, or to terminate this Lease or evict Tenant, Tenant shall
reimburse Landlord upon demand for any and all attorneys' fees and expenses
so incurred by Landlord, provided that if Tenant shall be the prevailing
party in any legal action brought by Landlord against Tenant, Tenant shall
be entitled to recover for the fees of its attorneys in such amount as the
court may adjudge reasonable.
19. NOTICES. All notices, consents, demands, and other communications from one
party to the other given pursuant to the terms of this Lease shall be in
writing and shall be deemed to have been fully given when deposited in the
United States mail, certified or registered, postage prepaid, and addressed
as follows: to Tenant at the address specified in the Basic Lease
Information or to such other place as Tenant may from time to time
designate in a notice to Landlord; to Landlord at the address specified in
the Basic Lease Information, or to such other place and with such other
copies as Landlord may from time to time designate in a notice to Tenant;
or, in the case of Tenant, delivered to Tenant at the premises.
20. GENERAL PROVISIONS.
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(a) This Lease shall be governed by and construed in accordance with
the laws of the state of California.
(b) The invalidity of any provision of this Lease, as determined by a
court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
(c) This Lease contains all agreements of the parties with respect to
any matter mentioned herein and only may be modified in a writing
executed by the parties.
(d) No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision or of any subsequent breach by
Tenant of the same or any other provision. Landlord's consent to
or approval of any act shall not be deemed to render unnecessary
the obtaining of Landlord's consent to or approval of any
subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant
of any provision hereof, other than the failure of Tenant to pay
the particular rent accepted, regardless of Landlord's knowledge
of such preceding breach at the time of acceptance of such rent.
(e) If Tenant remains in possession of the premises or any part
thereof after the expiration of the term with the consent of
Landlord, such occupancy shall be a tenancy from month to month
at a rental in the amount of twice the last month's rental during
the term plus all other charges payable hereunder, and upon all
of the terms hereof.
(f) Subject to the provisions of this Lease restricting assignment or
subletting by Tenant, this Lease shall bind the parties, their
personal representatives, successors, and assigns.
(g) Landlord and Landlord's agents shall have the right to enter the
premises at reasonable times for the purpose of inspecting the
same, showing the same to prospective purchasers or lenders, and
making such alterations, repairs, improvements, or additions to
the premises or to the Building as Landlord may deem necessary or
desirable. Landlord may at any time during the last 120 days of
the term place on or about the premises any ordinary "For Lease"
sign.
(h) The voluntary or other surrender of this Lease by Tenant, the
mutual cancellation thereof or the termination of this Lease by
Landlord as a result of Tenant's default shall, at the option of
Landlord, terminate all or any existing subtenancies or may, at
the option of Landlord, operate as an
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assignment to Landlord of any or all of such subtenancies.
(i) If Tenant is a corporation, each individual executing this Lease
on behalf of Tenant represents and warrants that he is duly
authorized to execute and deliver this Lease on behalf of the
corporation in accordance with a duly adopted resolution of the
Board of Directors and that this Lease is binding upon the
corporation in accordance with its terms.
(j) The term "Landlord" as used herein means the then owner of the
Building and in the event of a sale of the Building the selling
owner shall be automatically relieved of all obligations of
Landlord hereunder, except for acts or omissions of Landlord
theretofore occurring.
(k) Tenant covenants for itself, its heirs, executors,
administrators. and assigns, and all persons claiming under or
through it, and this Lease is made and accepted upon it subject
to the condition that there shall be no discrimination against or
segregation of any person or group of persons, on account of
race, color, creed, religion, sex, marital status, national
origin, or ancestry in the leasing, subleasing, transferring,
use, occupancy, tenure, or enjoyment of the premises herein
leased nor shall the Tenant itself, or any person claiming under
or through it, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection,
location, number, use, or occupancy of tenants, subtenants, or
vendees in the premises.
(l) The term "day" as used herein means a calendar day.
(m) The obligations of Landlord under this Lease do not constitute
personal obligations of the partners, directors, officers,
shareholders, or trustees of Landlord, and Tenant shall look
solely to the Building and to no other assets of the Landlord or
any of its trustees, partners, officers, directors, employees, or
consultants for satisfaction of any liability in respect of this
Lease and Tenant will not seek recourse against the individual
partners, directors, officers, shareholders, or trustees of
Landlord or any of their personal assets for such satisfaction.
(n) Within 10 days of Landlord's request therefor, Tenant shall
execute and deliver such amendments of this Lease as shall have
been required by Landlord's lender in connection with the making
of a loan to be secured by the premises or the Building, provided
such amendment does not increase the obligations of Tenant under
this Lease or materially adversely affect Tenant's leasehold
interest. Such amendment shall include, without
19
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limitation, one requiring Tenant to provide any such lender with notices
hereunder or a copy of notices sent to Landlord hereunder, or granting any
such lender reasonable opportunities to cure any default by Landlord under
this Lease .
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21. EXHIBITS. The exhibits and addendum, if any, specified in the Basic Lease
Information are attached to this Lease and by this reference made a part
hereof.
IN WITNESS WHEREOF, the parties have executed this Lease on the respective
dates indicated below.
TENANT LANDLORD
By: /s/ Kathleen Sereda Glaub VINTAGE PARK ASSOCIATES, a
----------------------------------
Its: Chief Financial Officer California general partnership
------------------------------
By: ITS AUTHORIZED AGENT
WCB PROPERTIES LIMITED
By:__________________________________ PARTNERSHIP, a Delaware
Its:______________________________ limited partnership
By: WCB MANAGEMENT GEN-PAR, INC., a
Delaware corporation
By: /s/ Wallace G. Murfit
--------------------------
Its: V.P.
----------------------
Date of Execution Date of Execution
by Tenant: __________________________ by Landlord: 12/9/94
----------------------
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<PAGE>
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE ("Addendum") is dated for reference purposes as of
November 1, 1994, and is made between VINTAGE PARK ASSOCIATES, a partnership
("Landlord"), and CELL GENESYS, INC. a Delaware corporation ("Tenant"), to be a
part of that certain Research and Development Lease, of even date herewith
between Landlord and Tenant (herein the "Lease Form") concerning approximately
56,255 square feet of space, located in Vintage Park (the "Project"), Foster
City, State of California (the "Premises"). That certain improved real property
constituting the Project is described with particularity on Exhibit A attached
---------
to the Lease Form and incorporated herein by this reference. Landlord and Tenant
agree that the Lease Form is hereby modified and supplemented as follows:
1. Amendment of Paragraph 1:
------------------------
The following language is hereby added at the end of Paragraph 1 of the
Lease Form to read as follows:
(a) Notwithstanding anything to the contrary in the Lease, Tenant shall
have the nonexclusive right to use the parking areas and other areas
of common use located in the Project.
(b) Tenant's acceptance of the Premises shall not be deemed a waiver of
any of Landlord's repair, maintenance or replacement obligations set
forth elsewhere in the Lease. Tenant's acceptance of that portion of
the Premises depicted on Exhibit A-4 hereto (the "Exhibit A-4 Space")
or the Oracle Diagnostics space (defined in Paragraph 25 of this
Addendum) shall not be deemed a waiver of Tenant's right to have
defects in such portion of the Premises repaired at Landlord's sole
expense, including, without limitation, the heating, ventilating, and
air conditioning system. For purposes of this paragraph 1, a "defect"
is a failure of a Building component or system to be in good working
order and condition, but shall not mean a failure of a Building
component or system or the premises to be fit for Tenant's intended
purposes. Tenant shall give notice to Landlord whenever any such
defect becomes reasonably apparent, and Landlord shall repair such
defect as soon as practicable. Landlord shall provide Tenant the
benefits of all warranties with respect to the Premises which would
reduce Tenant's maintenance obligations hereunder and shall cooperate
with Tenant to enforce all such warranties.
<PAGE>
(c) Landlord represents and warrant's that, to the best of Landlord's
knowledge, there will be no Hazardous Materials in, on, under or about
the Exhibit A-4 Space as of the date on which the term of the Lease
commences and that there will be no Hazardous Materials in, on, under
or about the Oracle Diagnostics Space as of the date on which Tenant
takes possession of such space pursuant to Paragraph 25 of this
Addendum. If, on or before the date of the commencement of the term of
the Lease, Landlord becomes aware that the foregoing representation
and warranty is not true with respect to the Exhibit A-4 Space,
Landlord shall so notify Tenant in writing. Tenant shall have the
right to terminate the Lease with respect to the Exhibit A-4 Space
within five (5) days after receipt of such notice from Landlord. If,
prior to the date on which Tenant takes possession of the Oracle
Diagnostics Space pursuant to Paragraph 25 of this Addendum, Landlord
becomes aware that the foregoing representation and warranty is not
true with respect to the Oracle Diagnostics Space, Landlord shall so
notify Tenant, and Tenant shall have the right to rescind any option
exercised prior to the date of such notice or rescind any lease Tenant
has entered into with respect to such space within five (5) days after
receipt of such notice from Landlord. If Tenant's lease of the Oracle
Diagnostics Space is accomplished by adding it to the space leased
pursuant to the Lease, the foregoing right to terminate any lease
entered into with respect to the Oracle Diagnostics Space shall
operate to terminate this Lease with respect to the oracle Diagnostics
Space only.
2. Amendment of Paragraph 3:
------------------------
The following language is hereby added at the end of Paragraph 3 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease, (i) no late charge
or interest shall be imposed on Tenant with respect to any overdue payment
subject to the payment of a late charge or interest (or both) under this Lease
until such payment is more than three (3) days delinquent.
4. Amendment of Paragraph 4:
------------------------
The last sentence of Paragraph 4(a) of the Lease Form is hereby deleted.
The following language is hereby added at the end of Paragraph 4 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease, in no event shall
Tenant have any obligation to perform or to pay directly, or to reimburse
Landlord for, all or any
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portion of the following repairs, maintenance, improvements, replacements,
premiums, claims, losses, fees, charges, costs and expenses (collectively
"Costs") :
A. Losses Caused By Others: Costs occasioned by the act, omission
-----------------------
or violation of Law by Landlord, any other occupant of the Project, or their
respective agents, employees or contractors.
B. Casualties and Condemnations: Costs occasioned by fire, acts of
----------------------------
God, or other casualties or by the exercise of the power of eminent domain.
C. Capital Improvements: Costs relating to repairs, alterations,
--------------------
improvements, equipment and tools which would properly be capitalized under
generally accepted accounting principles, except to the extent that (i) the
foregoing reduces the expenses otherwise payable by Tenant under the Lease and
(ii) Tenant's share of such Cost during any twelve-month period of the Lease is
equitably determined based on Tenant's usage and amortized over the useful life
of the capital item in question.
D. Reimbursable Expenses: Costs for which Landlord has a right of
---------------------
reimbursement from others.
E. Real Estate Taxes: Taxes, assessments, all other governmental
-----------------
levies, and any increases in the foregoing occasioned by or relating to (i)
assessments and other fees for improvements and services which do not benefit
the Premises or (ii) construction of improvements for other occupants of the
Project.
F. Construction Defects: Costs to correct any construction defect
--------------------
in the Premises or the Project or to comply with any CC&R, underwriter's
requirement or Law applicable to the Premises or the Project on the Commencement
Date.
G. Interior Improvements: The cost of any renovation, improvement,
---------------------
painting or redecorating of any portion of the Project not made available for
Tenant's use.
H. Leasing Expenses: Fees, commissions, attorneys' fees, Costs or
----------------
other disbursements incurred in connection with negotiations or disputes with
any other occupant of the Project and Costs arising from the violation by
Landlord or any occupant of the Project (other than Tenant) of the terms and
conditions of any lease or other agreement.
I. Reserves: Depreciation, amortization or other expense reserves.
--------
J. Mortgages: Interest, charges and fees incurred on debt, payments
---------
on mortgages and rent under ground leases.
<PAGE>
K. Concessions and Parking: Costs incurred in connection with the
-----------------------
operation of any parking or commercial concession within the Project.
L. Promotion: Advertising or promotional Costs.
---------
M. Capital Leases: Lease payments and Cost for capital machinery
--------------
and equipment, such as air conditioners, elevators, and the like.
N. Art: Costs of sculptures, fountains, paintings and other art
---
objects.
O. Insurance: Insurance Costs for coverage not customarily
---------
paid by tenants of similar projects in the vicinity of the Premises, increases
in insurance Costs caused by the activities of another occupant of the Project,
insurance deductibles, and co-insurance payments.
P. Hazardous Materials: Costs incurred to investigate the presence
-------------------
presence of any Hazardous Material (defined in Paragraph 6 of the Lease) , Costs
to respond to any claim of Hazardous Material contamination or damage, Costs to
remove any Hazardous Material from the Project and any judgments or other Costs
incurred in connection with any Hazardous Material exposure or releases, except
to the extent caused by the storage, use or disposal of the Hazardous Material
in question by Tenant.
Q. Management: Wages, salaries, compensation, and labor burden for
----------
any employee not stationed on the Project on a full-time basis or any fee,
profit or compensation retained by Landlord or its affiliates for management and
administration of the Project in excess of the management fee which would be
charged by a professional management services for operation of comparable
projects in the vicinity. Notwithstanding the foregoing, throughout the term of
the Lease, Tenant's percentage share of management fees will not exceed one
percent (1%) of rent and expenses collected, and the amount paid by Tenant as
Tenant's percentage share of any management fees incurred by Landlord as part of
Operating Expenses shall not increase by more than 3% in any one calendar year.
For purposes of this paragraph 4 (Q), the base year for management fees shall be
1994.
R. Duplication: Costs and expenses for which Tenant reimburses
-----------
Landlord directly or which Tenant pays directly to a third person.
5. Amendment of Paragraph 6:
------------------------
The words "Notwithstanding any other provisions of this Lease" are
hereby deleted from the fourth (4th) sentence of Paragraph 6(a) of the Lease
Form.
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<PAGE>
The following language is hereby added at the end of Paragraph 6(b) of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
A. Landlord acknowledges that Tenant will use, generate, store and
dispose of Hazardous Materials (defined in Paragraph 6(b) of the Lease Form)
which are necessary or desirable in connection with Tenant's use of the Premises
as set forth in the Basic Lease Information. Tenant shall comply with applicable
laws and regulations in connection with such use, storage and disposal.
B. Landlord acknowledges that Tenant will use the Premises as
indicated in the Basic Lease Information, and Landlord acknowledges (i) other
tenants in the Project use portions of the Project for similar purposes and (ii)
electricity, water, janitorial, heating, ventilating, air conditioning and other
services, at the levels generally provided for similar uses in comparable
buildings in the vicinity of the Premises, will be available to Tenant at all
times during the Lease term.
C. Tenant shall not be required to construct or pay the cost of
complying with any CC&R's, underwriter's requirements or Laws requiring
construction of improvements in the Premises which are properly capitalized
under general accounting principles, unless such compliance is necessitated
solely because of Tenant's particular use of the Premises.
6. Amendment of Paragraph 8:
------------------------
The following language is hereby added at the end of Paragraph 8 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
A. Repairs and Maintenance: Landlord shall perform and construct,
-----------------------
and Tenant shall have no responsibility to perform or construct, any repair,
maintenance or improvement (i) necessitated by the acts or omissions of Landlord
or any other occupant of the Project, or their respective agents, employees or
contractors, (ii) occasioned by fire, acts of God or other casualty or by the
exercise of the power of eminent domain, (iii) required as a consequence of any
violation of applicable building codes or construction defect in the Premises or
the Project as of the Commencement Date, (iv) for which Landlord has a right of
reimbursement from others, (v) which would be treated as a "capital expenditure"
under generally accepted accounting principles, and (vi) to any portion of the
Project outside of the demising walls of the Premises. Tenant's obligation, if
any, to reimburse Landlord for the costs of such repairs, maintenance and
improvements shall be governed by the other provisions of this Lease.
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B. Surrender: Tenant's obligation to surrender the Premises shall
---------
be fulfilled if Tenant surrenders possession of the Premises with each portion
of the Premises in the condition existing at the commencement of the Lease with
respect to that portion, ordinary wear and tear, acts of God, casualties,
condemnation, Hazardous Materials (other than those stored, used or disposed of
by Tenant in or about the Premises), and interior improvement which Landlord
states in writing may be surrendered at the termination of the Lease excepted.
C. Alterations, Additions and Improvements:
---------------------------------------
(i) Tenant may construct non-structural alterations, additions
and improvements ("Alterations") in the Premises without Landlord's prior
approval, if the cost of such work does not exceed Five Thousand Dollars
($5,000). If Landlord's consent is required for an Alteration and Landlord does
not notify Tenant in writing of its approval or disapproval within fifteen (15)
days following Tenant's request for approval, then Landlord shall be deemed to
have approved the proposed Alteration. Landlord shall not unreasonably withhold
its consent to any proposed alteration.
(ii) Upon request, Landlord shall advise Tenant in writing
whether it reserves the right to require Tenant to remove any Alterations from
the Premises upon termination of the Lease.
(iii) All Alterations, trade fixtures and personal property
installed in the Premises at Tenant's expense ("Tenant's Property") shall at all
times remain Tenant's property and Tenant shall be entitled to all depreciation,
amortization and other tax benefits with respect thereto. Except for Alterations
which cannot be removed without structural injury to the Premises, at any time
Tenant may remove Tenant's Property from the Premises, provided Tenant repairs
all damage caused by such removal.
(iv) Landlord shall have no lien or other interest whatsoever
in any item of Tenant's Property, or any portion thereof or interest therein
located in the Premises or elsewhere, and Landlord hereby waives all such liens
and interests. Within ten (10) days following Tenant's request, Landlord shall
execute documents in reasonable form to evidence Landlord's waiver of any right,
title, lien or interest in Tenant's Property located in the Premises.
(v) Tenant shall have no obligation to insure any property in
the Premises, other than Tenant's Property, from fire or any other casualty and
Tenant shall be entitled to all insurance proceeds and condemnation awards and
settlements payable with respect to Tenant's Property.
7. Amendment of Paragraph 9:
------------------------
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The following language is hereby added at the end of Paragraph 9 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
A. Tenant shall not indemnify or release Landlord with respect to:
(i) the negligence or willful misconduct of Landlord, the other occupants of the
Project, or their respective agents, employees, contractors or invitees; or (ii)
a breach of Landlord's obligations or representations under this Lease.
B. Landlord shall indemnify, defend, protect and hold harmless
Tenant from all damages, liabilities, claims, judgments, actions, attorneys'
fees, consultants' fees, cost and expenses arising from the negligence or
willful misconduct of Landlord or its employees, agents, contractors or invitees
occurring outside the Premises, but only to the extent of the greater of (i)
actual insurance coverage or (ii) insurance coverage under a policy or policies
of insurance required to be maintained pursuant to this Lease.
C. Landlord shall indemnify, defend, protect and hold Tenant, its
employees, agents, officers and directors, harmless from and against any claims,
actions, suits, proceedings, judgments, losses, costs, damages, liabilities and
expenses (including, without limitation, reasonable attorneys' fees) resulting
from or arising out of the presence of any Hazardous Materials on, under, in or
about the Premises, the Building and/or the Project, prior to the Commencement
Date of this Lease. Landlord waives all claims, known or unknown, against Tenant
with respect to any Hazardous Materials on, under, in or about the Premises, the
Building and/or the Project after the Commencement Date if such Hazardous
Materials were not released, emitted or discharged by Tenant or persons under
Tenant's control, and Tenant shall have all rights against Landlord with respect
to such Hazardous Materials which are available at law or in equity.
D. Tenant shall indemnify, defend, protect and hold Landlord, its
partners and its and their employees, agents, offices and directors, harmless
from and against all claims, actions, suits, proceedings, judgments, losses,
costs, damages, liabilities and expenses (including, without limitation,
reasonable attorneys' fees) resulting from or arising out of the presence,
release, emission or discharge by Tenant or persons under Tenant's control, of
Hazardous Materials or, in, under or from the Premises.
E. The indemnities of Landlord and Tenant granted in this Paragraph
9 shall survive expiration or sooner termination of the term of this Lease and
shall survive any transfer or sale of all or any portion of the Project.
8. Amendment of Paragraph 10:
-------------------------
28
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The following language is hereby added at the end of paragraph 10 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
A. Landlord shall carry the standard form of risk of direct physical
loss insurance excluding earthquake and flood. Landlord shall also carry
commercially reasonable liability insurance covering the Project, which shall
include, without limitation, a broad form blanket contractual liability
endorsement.
B. Landlord shall not have the right to terminate the Lease if
damage to or destruction of the Premises or the Building, or both, results from
a casualty ordinarily covered by insurance required to be carried by Landlord
under the Lease.
C. In the case of damage which is not required to be covered by
insurance, Landlord shall not have the right to terminate the Lease (i) if the
damage is relatively minor (e.g., repair or restoration would take fewer than
one hundred eighty (180) days or would cost less than ten percent (10%) of the
replacement cost of the Building) or (ii) if Tenant agrees to pay the cost of
repair in excess of a pre-agreed base amount.
D. Landlord shall notify Tenant within fifteen (15) days following
any damage to or destruction of the Premises (or the Building if such damage or
destruction interferes with Tenant's use of the Premises) the length of time
Landlord reasonably estimates to be necessary for repair or restoration. Tenant
shall have the right to terminate the Lease within fifteen (15) days following
receipt of such notice if restoration or repair of the Premises will take more
than one hundred eighty (180) days.
E. If the Lease is not terminated by Landlord or Tenant pursuant to
this Paragraph 10, Landlord shall restore the Building and all tenant
improvements installed by Landlord to the condition in which they existed
immediately prior to the destructive event.
9. Amendment of Paragraph 11:
-------------------------
The following language is hereby added at the end of Paragraph 11 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease, Tenant shall receive
a portion of the condemnation proceeds (whether by award or payment under threat
of condemnation) awarded explicitly for (i) the unamortized value, allocable to
the remainder of the Lease term, of any improvements installed at Tenant's
expense, which
29
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are not removable; and (ii) Tenant's moving cost. Tenant shall have the right to
seek a separate award from the condemning authority for Tenant's interests.
10. Amendment of Paragraph 12:
-------------------------
A. Subparagraphs 12(f) and 12(g) of the Lease are deleted and the
following paragraph is added in their place:
In the case of an assignment or in the case of a subletting, all sums or
other economic consideration received by Tenant as a result of that
assignment or subletting over and above all sums due to Landlord from
Tenant, shall be retained by Tenant; provided that in the case of a
subletting, once Tenant has received an amount in excess of all sums due
Landlord prorated over the portion of the Premises sublet which is adequate
to recover that portion of the original cost to Tenant of the improvements
made to the sublet portion of the Premises which has not yet been amortized
over the term of the Prior Lease (as defined in paragraph 28 of the
Addendum) and of this Lease, together with out-of-pocket costs such as
brokerage commissions, legal fees and tenant improvements incurred in
connection with such subletting, then one-half of all amounts received by
Tenant in connection with the subletting which are in excess of amounts
payable to Landlord for the sublet portion, shall be paid to Landlord as
and when received by Tenant.
B. The last sentence of Paragraph 12(h) of the Lease Form is hereby
deleted.
C. The following language is hereby added at the end of Paragraph 12
of the Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
Tenant may, without Landlord's prior written consent and without any
participation by Landlord in assignment and subletting proceeds, sublet the
Premises or assign the Lease to: (i) a subsidiary, affiliate, division or
corporation controlled or under common control with Tenant; (ii) a successor
corporation related to Tenant by merger, consolidation, non-bankruptcy
reorganization, or government action; or (iii) a purchaser of substantially all
of Tenant's assets located in the Premises. For the purpose of this Lease, sale
of Tenant's capital stock through any public exchange shall not be deemed an
assignment, subletting, or any other transfer of the Lease or the Premises.
Landlord's consent to any proposed assignment or subletting or use of the
Premises by any party other than Tenant shall not be unreasonably withheld or
delayed, and, if not given or withheld within fourteen (14) days following
Tenant's written request for consent, shall
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be deemed given. At Tenant's request, Landlord shall execute and acknowledge a
Nondisturbance, Recognition and Attornment Agreement benefiting each subtenant
named in any sublease approved by Landlord.
11. Amendment of Paragraph 13:
-------------------------
A. The following subparagraph (5) is hereby added to Paragraph 13
(a) of the Lease, to read as follows:
(5) an Event of Default under that certain Research and Development Lease
of even date herewith between Tenant and Landlord with respect to
premises located at 344 Lakeside Drive, Foster City.
B. The following language is hereby added at the end of Paragraph 13
of the Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease (i) no Event of
Default on the part of Tenant shall have occurred as a result of Tenant's
failure to perform any covenant of this Lease, (other than a covenant to pay
money to Landlord), unless Tenant's failure to perform such covenant continues
after Tenant's actual receipt of written notice for a period of thirty (30) days
or such longer time as may reasonably be required to cure the default; and (ii)
no Event of Default on the part of Tenant shall have occurred solely because
Tenant abandons or vacates the Premises, or as a consequence of the filing of an
involuntary bankruptcy petition, the appointment of a receiver, the attachment
of any interest in the Lease or of Tenant's other assets or the exercise by any
third party of any other remedy with respect to Tenant, Tenant's interest in
this Lease or Tenant's other assets, unless the petition, receiver, attachment
or other remedy is not discharged within sixty (60) days.
12. Amendment of Paragraph 15:
-------------------------
The following language is hereby added at the end of paragraph 15 of the
Lease to read as follows:
Notwithstanding anything to the contrary in the Lease, Tenant may provide
the deposit in the form of a certificate of deposit in the amount of the
deposit, issued by a bank in San Francisco or San Mateo County, with interest
payable to Tenant. The certificate of deposit shall provide that the balance
cannot be drawn down by Tenant without Landlord's consent but that the balance
may be drawn down by Landlord at any time for use as the deposit.
13. Amendment of Paragraph 16:
-------------------------
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<PAGE>
The following language is hereby added at the end of Paragraph 16 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
A. Landlord shall at any time upon not more than 10 days' prior
notice from Tenant execute, acknowledge and deliver to Tenant a statement
certifying (i) that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect); (ii) the date to which the
rent, security deposit, and other sums payable hereunder have been paid; (iii)
acknowledging that there are not, to Landlord's knowledge, any uncured defaults
on the part of the Tenant hereunder, or specifying such defaults, if any, which
are claimed; and (iv) such other matters as may reasonably be requested by
Tenant. Any such statement may be conclusively relied upon by any prospective
sublessee or assignee of all or any part of Tenant's interest in the Premises.
B. Landlord's failure to deliver such statement within such time
shall be conclusive upon Landlord, (i) that this Lease is in full force and
effect, without modification except as may be represented by Tenant, and (ii)
that there are no uncured defaults in Tenant's performance.
14. Amendment of Paragraph 17:
-------------------------
The following language is hereby added at the end of Paragraph 17 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
This Lease shall not be subject to or subordinate to any ground or
underlying lease or to any lien, mortgage, deed of trust, or security interest
now or hereafter affecting the Premises, nor shall Tenant be required to execute
any documents subordinating this Lease, unless the ground lessor, lender, or
other holder of the interest to which this Lease shall be subordinated
contemporaneously executes a recognition and nondisturbance agreement which (i)
provides that this Lease shall not be terminated so long as Tenant is not in
default under this Lease and (ii) recognizes all of Tenant's rights hereunder.
Landlord shall use commercially responsible good faith efforts to obtain from
any holders in the future of interests in the Premises to which this Lease will
be subordinate, a customary subordination and non-disturbance agreement, the
benefits of which will be transferable to an assignee or subtenant of Tenant. As
a condition of such efforts by Landlord, the identity of the Proposed assignee
or subtenant shall be reasonably acceptable to Landlord and shall be acceptable
to any such ground lessor, lender or other holder of a prior interest at the
time of the proposed assignment or subletting. Further, Tenant shall have no
obligation to attorn to any successor-in-interest or ground lessor, nor
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to execute any documents evidencing attornment, unless the successor-in-interest
or ground lessor in question assumes, in writing, all obligations of the
Landlord under this Lease. If Landlord sells or otherwise conveys its interest
in the Premises, Landlord shall not be relieved of its obligations under the
Lease, unless and until Landlord transfers any security deposit of Tenant to its
successor and the successor assumes in writing the obligations to be performed
by Landlord on and after the effective date of the transfer. Tenant's
obligations under this Lease are conditioned upon Landlord's obtaining a written
Nondisturbance and Attornment Agreement, in form and substance reasonably
acceptable to Tenant, from the current holder of any lien encumbering all or any
part of the Premises. Landlord will use its good faith efforts to obtain such an
agreement with respect to the Oracle Diagnostics space if Tenant exercises its
expansion rights under Paragraph 25 of this Addendum.
15. Amendment of Paragraph 18:
-------------------------
The following language is hereby added at the end of Paragraph 18 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
If either Landlord or Tenant shall bring any action or legal proceeding for
an alleged breach of any provision of this Lease, to recover rent, to terminate
this Lease or otherwise to enforce, protect or establish any term or covenant of
this Lease, the prevailing party shall be entitled to recover as a part of such
action or proceeding, or in a separate action brought for that purpose,
reasonable attorneys' fees, court costs, and expert fees as may be fixed by the
court. "Prevailing party" as used in this Paragraph 18 includes a party who
dismisses an action for recovery hereunder in exchange for sums allegedly due,
performance of covenants allegedly breached or considerations substantially
equal to the relief sought in the action.
16. Amendment of Paragraph 19:
-------------------------
The following language is hereby added at the end of Paragraph 19 of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease, any notice or report
required or desired to be given regarding this Lease shall be in writing may be
given by personal delivery, by facsimile, by courier service or by mail. Any
notice or report addressed to Tenant at the Premises or to Landlord at the
address specified in the Basic Lease Information, as appropriate, shall be
deemed to have been given (i) on the third business day after mailing if such
notice or report was deposited it the United States mail, certified or
registered, postage prepaid, (ii) when delivered if given by personal delivery,
(iii) one day following deposit, cost prepaid, with Federal Express or similar
private
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carrier, (iv) instantaneously upon confirmation of receipt of facsimile, and (v)
in all other cases when actually received. Either party may change its address
by giving notice of the sane in accordance with this Paragraph.
17. Amendment of Paragraph 20(d):
----------------------------
The following language is hereby added at the end of Paragraph 20(d) of
the Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
No waiver of any provision hereof shall be deemed a waiver of any other
provision or of any subsequent breach of the same or any other provision.
Approval of any act shall not be deemed to render unnecessary the obtaining of
consent to approval of any subsequent act.
18. Amendment of Paragraph 20(g):
----------------------------
The following language is hereby added at the end of Paragraph 20(g) of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
Landlord and Landlord's agents, except in the case of emergency, shall
provide Tenant with twenty-four (24) hours' notice prior to entry of the
Premises. Such entry by Landlord and Landlord's agents shall not impair Tenant's
operations more than reasonably necessary. During any such entry, Landlord and
Landlord's agents shall at all times be accompanied by Tenant.
19. Amendment of Paragraph 20(j):
----------------------------
The following language is hereby added at the end of Paragraph 20(j) of the
Lease Form to read as follows:
Notwithstanding anything to the contrary in the Lease:
Upon transfer of the Premises during the term of this Lease, including any
extended term, Landlord shall transfer any portion of the deposit then held by
Landlord (or any rights Landlord might then have with respect to the deposit or
any portion thereof) to Tenant or to Landlord's successor in interest in
accordance with the applicable provisions of California Civil Code Section
1950.7 or any successor statute(s), and if Landlord fails to do so, Landlord
shall continue to be liable to Tenant for performance of such obligation.
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20. Amendment of Paragraph 20:
-------------------------
The following language is hereby added at the end of Paragraph 20:
Notwithstanding anything to the contrary in the Lease:
A. Approvals: Notwithstanding anything to the contrary in the
---------
Lease, whenever the Lease requires an approval, consent, designation,
determination or judgment by either Landlord or Tenant, such approval, consent,
designation, determination or judgment (including, without limiting the
generality of the foregoing, those required in connection with assignment and
subletting) shall not be unreasonably withheld or delayed and in exercising any
right or remedy hereunder, each party shall at all times act reasonably and in
good faith.
B. Reasonable Expenditures: Notwithstanding anything to the contrary
------------------------
in the Lease, any expenditure by a party permitted or required under the Lease,
for which such party is entitled to demand and does demand reimbursement from
the other party, shall be limited to the fair market value of the goods and
services involved, shall be reasonably incurred, and shall be substantiated by
documentary evidence available for inspection and review by the other party or
its representative during normal business
C. Lien Waiver: Notwithstanding anything to the contrary in the
-----------
Lease, upon Tenant's request, Landlord shall sign a lien waiver, pursuant to
which Landlord will waive any claim of lien against Tenant's property and
improvements located in the Premises, in order that Tenant may use the property
as security for loans and financing leases.
D. Quiet Possession: Tenant shall peacefully have, hold and enjoy
----------------
the Premises, subject to the other terms of this Lease, provided that Tenant
pays the Rent and performs all of Tenant's covenants and agreement contained in
this Lease. This covenant and the other covenants of Landlord contained in this
Lease shall be binding upon Landlord and its successors only with respect to
breaches occurring during its and their respective ownerships of
Landlord's interest hereunder.
E. Memorandum of Lease: Landlord and Tenant shall execute and
-------------------
acknowledge a Memorandum of Lease in form and substance reasonably acceptable to
both. Tenant may record such Memorandum of Lease in the Official records of the
County of San Mateo,
21. Omitted.
22. Option to Extend Term:
---------------------
35
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A. Tenant shall have the option to extend the term of this Lease for
two (2) periods of four (4) years each (collectively, the "Option Periods";
individually, the "Option Period"), with the first Option Period, commencing
upon expiration of the initial term of this Lease and the second Option Period
commencing upon expiration of the first option Period, subject to the following
conditions:
(i) The option with respect to the first Option Period shall be
exercised by notice of exercise given to Landlord not more than twelve (12)
months nor less than six (6) months prior to the expiration of the initial term,
and the option with respect to the second Option Period shall be given not more
than twelve months nor less than six months prior to the expiration of the first
Option Period.
(ii) At the time each option is exercised, and at the
commencement of each Option Period, the Lease shall be in full force and effect
and no Event of Default shall then exist, and, with respect to the second option
Period, Tenant shall have timely exercised its option with respect to the first
option Period and the Lease shall be in full force and effect.
B. In the event the option is timely exercised, the Lease shall be
extended for the term of the Option Period in question upon all the terms and
conditions of the Lease, however, provided that the Base Rent during the first
option Period shall be as set forth in the Basic Lease Information and the Base
Rent during the Second Option Period shall be ninety five percent (95%) of the
then Fair Market Rent for the premises as of the commencement of the second
Option Period.
C. If Tenant exercises its option as to the second Option
Period, Landlord shall give its determination of Fair Market Rent by notice to
Tenant not less than 20 days after Tenant's notice of exercise of the option,
provided, however, that if Tenant believes that the Fair Market Rent specified
by Landlord exceeds the actual Fair Market Rental for the premises as of such
date, Tenant shall so notify Landlord within five business days following the
giving of Landlord's notice and the amount of Base Rent during the second Option
Period shall be determined as follows:
(i) Within 20 days after Landlord's notice of Fair Market Rent
is given to Tenant, Tenant, at its sole expense, shall obtain a determination of
Fair Market Rent for the Premises for a three year term as of commencement of
the option Period from a broker ("Tenant Broker") licensed in the State of
California and engaged in the office/R&D brokerage business in the Foster City
area and shall submit such determination to Landlord.
The term "Fair Market Rent" shall mean the rate then being
charged for comparable office/research and development space in the Foster City
area,
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taking into account location, physical configuration, the relative quality of
the building, leasehold improvements or allowances provided under this Lease
excluding any tenant improvements paid for by Tenant, the extent of services
provided, the time the particular rate became or is to become effective, the
number of years such rate is to be fixed, and any other relevant terms. If
Landlord accepts such determination, the Base Rent upon commencement of the
second Option Period shall be increased to the amount so determined.
(ii) If Landlord does not accept such determination, Landlord
shall, within five days after notice of the determination of Tenant's broker of
Fair Market Rent is given Landlord, designate a broker ("Landlord broker")
licensed in the state of California and engaged in the office/R&D brokerage
business in the Foster City area, and Landlord's broker and Tenant's broker
shall name a third broker, similarly qualified, and, within 20 days of their
selection, each of said three brokers shall determine Fair Market Rent for the
premises as of such date. If Landlord's broker and Tenant's broker fail to
select a third broker within 10 days, the Base Rent shall be the arithmetic
average of the two determinations pursuant to the first grammatical paragraph of
paragraph 22.C and 22.C(i). The Base Rent during the second Option Period shall
be increased to the arithmetic average of such three determinations; provided;
however, if any such determination deviates more than ten percent from the
median of such determinations, the Base Rent payable shall be the average of the
two closest determinations. After such final determination of Base Rent, Tenant
shall have five days in which to rescind its option to extent by notice to
Landlord.
(iii) Landlord shall pay the costs and fees of Landlord's broker
in connection with any determination hereunder, and Tenant shall pay the costs
and fees of Tenant's broker in connection with such determination. The costs and
fees of such third broker shall be paid one-half by Landlord and one-half by
Tenant.
(iv) If the amount of increased Base Rent has not been
determined as of the commencement of the second Option Period, then Tenant shall
continue to pay the Base Rent then in effect until the amount of such increased
Base Rent is determined. When such determination is made, Tenant shall pay to
Landlord an amount sufficient to increase the aggregate amount of Base Rent paid
by Tenant from the commencement of the second Option Period to the date of such
payment to Fair Market Rent as d etermined pursuant to this paragraph 22.C.
23. Right of First Offer.
--------------------
(a) At any and every time during the term of the Lease, including any
extended term, all or any part of the space depicted on Exhibit B attached
---------
hereto consisting of portions of the first and second floors of 322 Lakeside
Drive with a total of 18,931 square
37
<PAGE>
feet, 320 Lakeside Drive, with a total of 25,719 square feet, and all of 333
Lakeside Drive) is vacant or any lease of such space is scheduled to or does
terminate and the present tenant of such space or its successor does not remain
as a tenant in such space, Landlord shall deliver to Tenant a notice in writing
of the rent Landlord desires to charge for such space and of the terms on which
Landlord is prepared to rent such space. Tenant shall have the right for fifteen
(15) days thereafter to enter into a lease for such space on the terms and for
the rent specified in such notice.
(b) If with respect to the space consisting of portions of 320, 322
or 333 Lakeside Drive, Tenant does not lease such space in accordance with the
foregoing, Landlord may then lease such space to a third party, provided that
the "effective rent" under such lease is not less than 90% of the effective rent
at which Landlord offered such space to Tenant. If Landlord does not so lease
such space within one hundred eighty (180) days following the giving of
Landlord's notice to Tenant, or if Landlord desires to lease such space for a
rent which is less than 90% of the effective rent at which the space was
previously offered to Tenant, or if circumstances which would originally have
triggered this right of first offer arise again, then Landlord shall again offer
such space to Tenant upon the revised terms. "Effective rent" means the
discounted present value of total rental revenues to be received by Landlord
under the proposed lease after deducting for any costs of leasing commissions,
tenant improvements, rental credits, taxes, operating expenses and any other
items to be borne by Landlord in connection with the proposed lease.
24. Preservation of Tenant's Rights. Landlord acknowledges that the following
-------------------------------
language is included in that certain Gilead Sciences Research and Development
Lease dated March 27, 1992, between Landlord, as landlord, and Gilead Sciences,
as tenant, for certain space in the Project of which portions of the Premises
are a part and Tenant acknowledges the disclosure to it of such language:
(b) Cell Genesys Space. Tenant shall have the option to enter into a New
------------------
Lease for 4,159 square foot suite presently occupied by Cell Genesys
(or Xenotech or any other affiliate in which Cell Genesys has a 25% or
greater ownership interest) at 342 Lakeside Drive and for the 16,372
square foot suite presently leased. by Cell Genesys at 344 Lakeside
Drive. Tenant's option shall be subordinate to the existing rights of
Cell Genesys to extend its current leases for such premises or to
continue in occupancy of such premises pursuant to new leases. Any new
lease entered into between Landlord and Cell Genesys or any further
extension of the term of the existing Cell Genesys lease which is not
presently provided for under such lease shall specifically prohibit
any successor of Cell Genesys, including, without limitation, any
sublessee, other than Xenotech or an affiliate in which Cell Genesys
has a 25% or greater ownership interest, from exercising any new
rights to extend the term
38
<PAGE>
of such lease until Tenant has declined to exercise its right to a New
Lease for such space.
Landlord shall perform in accordance with the foregoing provision and Tenant
acknowledges the limitations of the rights conferred on Tenant by the provisions
quoted from the Gilead Lease and acknowledges that Tenant is a third party
beneficiary but only to the extent of the rights described therein.
25. Option to Expand. In the event that the existing lease between Landlord
----------------
and Oracle Diagnostics for space (the "Oracle Diagnostics Lease") consisting of
approximately 7,045 square feet identified as Suite B, 366 Lakeside Drive (the
"Oracle Diagnostics Space") terminates before May 31, 1997, Landlord shall give
notice to Tenant of the anticipated date of availability of the Oracle
Diagnostics Space ("Landlord's Availability Notice"). Provided that at the time
such option is exercised and at the time such space is added to the Premises the
Lease shall be in full force and effect and no Event of Default then exists,
Tenant shall have the option to cause the Oracle Diagnostics Space to be added
to the Premises as of the expiration of the Oracle Diagnostics lease or as of
Tenant's timely exercise of its option following the earlier termination of the
Oracle Diagnostics lease as described below. In the event that the Oracle
Diagnostics Lease is not terminated prior to its scheduled May 31, 1997
expiration date, Tenant shall exercise this option to expand, if at all, no
later than November 30, 1996. In the event that the Oracle Diagnostics Lease is
terminated prior to May 31, 1997, Tenant shall exercise this option to expand,
if at all, within 10 days following Landlord's Availability Notice or within 10
days following the date of termination of the Oracle Diagnostics Lease,
whichever is later. Upon the timely exercise by Tenant of this option and
delivery of the Space to Tenant, the Oracle Diagnostics Space shall be added to
the Premises upon all of the terms of the Lease and the Base Rent shall be
increased by the product of the Base Rent per square foot of rentable area than
in effect under this Lease and the area of the Oracle Diagnostics space, and
Tenant's percentage share of 366 Lakeside Drive/shall be proportionately
increased based upon the 13,382 square feet total rentable areas of 366 Lakeside
Drive.
26. Defined Terms. All terms used herein with initial capital letters (excluding
-------------
the terms used in the quoted provision of Paragraph 24 above which relates to a
different lease) , if not specifically defined herein, shall have the meaning
ascribed to them in the Lease. Notwithstanding any provision to the contrary in
the Lease or any amendment or addendum thereto, whenever the "term of the Lease"
is referred to in the Lease or any amendment or addendum thereto, whether by use
of the foregoing phrase or by use of any other word or phrase, the term referred
to shall be deemed to include the initial term and any extensions or renewals
thereof. By way of example and not limitation, Section 12(g) (ii) of the Lease
shall be deemed to read as follows: "(ii) the cost of leasehold improvements
made to the sublet portion of the premises at Tenant's cost, amortized over
39
<PAGE>
the term of this Lease, including any extensions or renewals thereof, except for
leasehold improvements made for the specific benefit of the sublessee, which
shall be amortized over the term of the sublease, and".
27. Effect of Addendum. In the event of any inconsistency between this Addendum
------------------
and the Lease Form, the terms of this Addendum shall prevail. As used herein,
the term "Lease" shall mean the Lease Form, this Addendum and all riders,
exhibits, rules, regulations, covenants, conditions and restrictions referred to
in the Lease Form or this Addendum.
28. Effective Date of Lease/Termination of Prior Lease. Landlord's predecessor-
--------------------------------------------------
in-interest, Vintage Park Associates, ("Prior Landlord") and Tenant are parties
to that certain Vintage Park Research and Development Lease dated November 28,
1989, as amended by that certain First Addendum dated November 28, 1989, that
certain Revised Amendment No. 2 dated January 22, 1991, that certain Amendment
No. 3 dated April 3, 1992, that certain Amendment No. 4 dated November 18, 1992,
that certain Amendment No. 5 dated March 1, 1993, that certain Amendment No. 6
dated June 25, 1993, that certain Amendment No. 7 dated October 1, 1993 and that
certain Amendment No. 8 dated December 22, 1993 (which Lease, Addendum and
Amendments are, collectively, the "Prior Lease") . The term of this Lease shall
commence on February 1, 1995, at which time it shall supersede the Prior Lease
in its entirety, and no further obligations of Landlord or Tenant shall
thereafter accrue under the Prior Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as
of the date first set forth above.
TENANT: LANDLORD:
CELL GENESYS, INC., a VINTAGE PARK ASSOCIATES,
Delaware corporation a California general partnership
By: /s/ Kathleen Sereda Glaub
----------------------------
Its: Chief Financial Officer
-----------------------
By: _________________________________ By: ITS AUTHORIZED AGENT
WCB PROPERTIES LIMITED
Its:______________________________ PARTNERSHIP,
a Delaware limited partnership
By: WCB MANAGEMENT GEN-PAR,
INC., a Delaware corporation
40
<PAGE>
By: /s/ Wallace G. Murfit
-----------------------------
Wallace G. Murfit
Senior Vice President-Northern
California
41
<PAGE>
[Schematic Drawings of leased facilities]
<PAGE>
AMENDMENT NO. 1 TO
------------------
VINTAGE PARK RESEARCH AND DEVELOPMENT LEASE
-------------------------------------------
THIS AMENDMENT NO. 1 TO VINTAGE PARK RESEARCH AND DEVELOPMENT LEASE is made
and entered into as of June 7, 1996 by and between WCB SIXTEEN LIMITED
PARTNERSHIP, a Delaware limited partnership ("Landlord"), and CELL GENESYS,
INC., a Delaware corporation ("Tenant").
Landlord's predecessor-in-interest, Vintage Park Associates, and Tenant
entered into that certain Vintage Park Research and Development Lease ("Lease")
dated November 1, 1994. Landlord and Tenant now desire to amend the Lease to
expand the Premises and therefore do hereby agree as follows:
1. Amendment of Basic Lease Information. The items below from the Basic
Lease Information of the Lease are hereby amended to read as follows:
Premises and Building: 342 Lakeside Drive, approximately 32,494 sq.
ft. as depicted on Exhibit A to Amendment No. 1
---------
322 Lakeside Drive, approximately 23,280 sq.
ft., depicted on Exhibit A-2
-----------
324 Lakeside Drive, approximately 22,479 sq.
ft., depicted on Exhibit A-3
-----------
366 Lakeside Drive, approximately 6,337 sq.
ft., depicted on Exhibit A-4
-----------
TOTAL: Approximately 84,590 sq. ft.
Term Commencement: February 1, 1995, except April 1, 1995 for 366
"A" Lakeside Drive and July 1, 1996 for
remainder of 342 Lakeside Drive
Base Rent:
February 1, 1996 through
June 30, 1996: $64,693.25
July 1, 1996 through
January 31, 1997: $93,028.25
1
<PAGE>
February 1, 1997 through
January 31, 1998: $95,841.00
First Option Period:
February 1, 1998 through
January 31, 2000: $105,737.50
February 1, 2000 through
January 31, 2002: $109,967.00
Tenant's Percentage Share:
342 Lakeside Drive: Through June 30, 1996:
12.79%; from July 1, 1996:
100%
322 Lakeside Drive: 55.15%
324 Lakeside Drive: 100.00%
366 Lakeside Drive: 46.50%
Landlord's Address for Notices:
WCB Sixteen Limited Partnership
c/o WCB Properties
393 Vintage Park Drive, Suite 200
Foster City, CA 94404
2. Expansion of Premises. Commencing July 1, 1996, the remaining space
---------------------
in the building commonly known as 342 Lakeside Drive, consisting of
approximately 28,335 rentable square feet, shall be added to and become part of
the premises in its then "as is" condition; provided, however, that the then-
existing improvements in the Premises shall comply with local and state building
standards regulations and with Americans with Disabilities Act requirements and
provided that all HVAC, electrical and plumbing systems within and serving the
Premises, together with a roof, shall be in good condition and repair.
3. Termination of Right of First Offer. Tenant's right of first offer as
-----------------------------------
set forth in paragraph 23 of the Addendum to the Lease is hereby terminated with
respect to the 333 Lakeside Drive Building.
2
<PAGE>
4. Ratification. Landlord and Tenant hereby ratify and confirm the terms
------------
of the Lease as amended in paragraphs 1 through 3 above.
3
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first above written.
TENANT: LANDLORD:
CELL GENESYS, INC., WCB SIXTEEN LIMITED
a Delaware Corporation PARTNERSHIP,
a Delaware limited partnership
By: /s/ Kathleen Sereda Glaub By: WCB SIXTEEN, INC.,
--------------------------
a Delaware corporation,
Its: SVP & CFO general partner
----------------
By: /s/ Wallace G. Murfit
Its: V.P.
---------------------------
4
<PAGE>
AMENDMENT NO. 2 TO
VINTAGE PARK RESEARCH AND DEVELOPMENT LEASE
THIS AMENDMENT NO. 2 is made and entered into as of December 9, 1996, by
and between WCB SIXTEEN, LIMITED PARTNERSHIP ("Landlord") and CELL GENESYS,
INC., a Delaware corporation ("Tenant").
Landlord and Tenant have entered into that certain Vintage Park Research
and Development Lease dated November 1, 1994 and amended by that certain
Amendment No. 1 dated June 7, 1996 (which Research and Development Lease and
Amendment No. I are hereinafter, collectively called, the "Lease").
Landlord and Tenant now desire to further amend the Lease to expand the premises
to include additional space in the building located at 366 Lakeside Drive and,
therefore, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, do hereby agree as follows:
1. Amendment of Basic Lease Information. The provisions set forth below
------------------------------------
are hereby added to the Basic Lease Information of the Lease as follows:
PREMISES AND BUILDING: 366 Lakeside Drive, Suite B Approximately
7,045 rentable square feet (hereinafter
the "Expansion Premises') as outlined in
Exhibit A.
TERM COMMENCEMENT FOR June 1, 1997
EXPANSION PROMISES:
RENT COMMENCEMENT FOR June 1, 1997
EXPANSION PREMISES:
BASE RENT: $8,454.00 per month or $1.20 psf per month
TERM EXPIRATION: January 31, 1998
BASE RENT FOR FIRST OPTIONAL PERIOD:
February 1, 1998 - January 31, 2000 - $8,806.25 per month or $1.25 psf per month
February 1, 2000 - January 31, 2002 - $9,158.50 per month or $l.30 psf per month
BASE RENT FOR SECOND OPTIONAL PERIOD:
February 1, 2002 - January 31, 2006 - 95% of fair market value.
1
<PAGE>
Paragraph 22 of the Addendum to Research and Development Lease, dated November
1, 1994, further describes the terms and conditions of the option periods.
TENANT IMPROVEMENT: None
2. Ratification. Landlord and Tenant hereby ratify and confirm all of
------------
the terms and provisions of the Lease as modified by paragraph 1 above.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 2
as Of the date first above written.
TENANT: LANDLORD:
CELL GENESYS, INC., WCB SIXTEEN LIMITED PARTNERSHIP,
a Delaware Corporation a Delaware limited partnership
By: WCB SIXTEEN, INC.,
a Delaware corporation, general
partner
By: /s/ Kathleen Sereda Glaub By: /s/ Wallace G. Murfit
-------------------------- -------------------------------
Its: SVP & CFO Its: V.P.
------------------------------ ------------------------------
Date: 12/9/96 Date: 12-16-96
------------------------------- -----------------------------
2
<PAGE>
[Schematic Drawing of leased facility]
<PAGE>
AMENDMENT NO. 3 TO
VINTAGE PARK RESEARCH AND DEVELOPMENT LEASE
THIS AMENDMENT NO. 3 TO VINTAGE PARK RESEARCH AND DEVELOPMENT LEASE (this
"Amendment") is made and entered into as of August 1, 1997, by and between WCS
SIXTEEN LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord"), and
CELL GENESYS, INC., a Delaware corporation ("Tenant").
Landlord's predecessor-in-interest, Vintage Park Associates, and Tenant
entered into that certain Vintage Park Research and Development Lease dated
November 1, 1994 as amended by those certain Amendments Nos. 1 and 2, between
Landlord and Tenant, dated June 7, 1996 and December 9, 1996, respectively
(collectively referred to herein as the "Lease"). Landlord and Tenant now desire
to further amend the Lease to extend the term and to make other amendments, all
as set forth below. Therefore, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Landlord and Tenant do hereby
agree as follows:
1. Amendment of Basic Lease Information. The provisions set forth below
------------------------------------
from the Basic Lease Information of the Lease are hereby amended to read as
follows:
Term Expiration: January 31, 2002
Base Rent: First Option Period: February 1, 1998
through January 31, 2000: $114,543.75
February 1, 2000 through January 31,
2002: $119,125.50
(NOTE: The above Base Rent figures for the First Option Period are inclusive of
the Base Rent for 336B Lakeside Drive, the "Expansion Premises" added in
Amendment No. 2)
2. Brokers. Tenant represents that no broker, agent or finder has any
-------
claim under, by or through Tenant for a commission or fee in connection with the
extension of the Term contemplated by this Amendment.
3. Capitalized Terms. Capitalized terms used herein and not otherwise
-----------------
defined shall have the meanings given to such terms in the Lease.
4. Lease in Effect. Landlord and Tenant acknowledge and agree that the
---------------
Lease, except as amended by this Amendment, remains unmodified and in full force
and effect in accordance with its terms.
1
<PAGE>
5. Entire Agreement. This Amendment embodies the entire understanding
----------------
between Landlord and Tenant with respect to the subject matter hereof and can be
changed only by an instrument in writing executed by both Landlord and Tenant.
6. Conflict of Terms. In the event that there is any conflict or
-----------------
inconsistency between the terms and conditions of the Lease and those of this
Amendment, the terms and conditions of this Amendment shall control and govern
the rights and obligations of the parties.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as
of the date first above written.
LANDLORD: TENANT:
WCB SIXTEEN LIMITED PARTNERSHIP, CELL GENESYS, INC.,
a Delaware limited partnership a Delaware Corporation
By: WCB SIXTEEN, INC., By: /s/ Kathleen Sereda Glaub
----------------------------------
a Delaware corporation, General
Partner Name: Kathleen Sereda Glaub
--------------------------------
Its: SVP & CFO
---------
By: /s/ Wallace G. Murfit
-------------------------------
Wallace G. Murfit
Senior Vice President
2
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<PAGE>
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<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<CASH> 10,992,565
<SECURITIES> 0
<RECEIVABLES> 109,500
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<PP&E> 307,391
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0
0
<COMMON> 14,515,337
<OTHER-SE> (535,923)
<TOTAL-LIABILITY-AND-EQUITY> 11,494,832
<SALES> 0
<TOTAL-REVENUES> 109,500
<CGS> 0
<TOTAL-COSTS> 698,552
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<INCOME-PRETAX> (493,319)
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<NET-INCOME> (493,319)
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