EXHIBIT 10.1


 


AMENDMENT NO. FOUR

TO BUILD-TO-SUIT LEASE


 


THIS AMENDMENT NO. FOUR (“Amendment”)
is made and entered into as of March 31, 2009, effective as of February 1,
2009 (the “Effective Date”), by and between HCP BTC, LLC (formerly known as Slough BTC, LLC),
a Delaware limited liability company (“Landlord”) and RIGEL PHARMACEUTICALS, INC., a Delaware corporation (“Tenant”).


 


RECITALS


 


A.            Landlord and Tenant are parties to that certain
Build-To-Suit Lease dated as of May 16, 2001 (the “Original Lease”),
as amended by Amendment No. One to Build-to-Suit Lease dated as of October 18,
2002 (the “First Amendment”), by Amendment No. Two to Build-to-Suit
Lease dated as of January 31, 2005 (the “Second Amendment”), and by
Amendment No. Three to Build-to-Suit Lease dated as of July 24, 2006
(the “Third Amendment”) (the Original Lease and the First Amendment, Second
Amendment and Third Amendment being referred to herein collectively as the “Lease”),
pursuant to which Landlord leases to Tenant, and Tenant leases from Landlord,
the two connected buildings commonly known as 1170 Veterans Boulevard and 1180
Veterans Boulevard, containing approximately 146,923 square feet in the
aggregate, in the Britannia Oyster Point business park, South San Francisco,
California.


 


B.            The Third Amendment provided for the deferral of a
portion of Tenant’s monthly rental obligation for the months from and including
May 2006 through December 2007; for the conversion of such deferred
rent, together with interest accrued thereon, to an “Amortizable Balance” (as
defined in the Third Amendment) as of December 31, 2008; and for the
repayment of such Amortizable Balance by Tenant over a period of four (4) years
beginning in January 2009 pursuant to a repayment schedule prescribed in
the Third Amendment.


 


C.            The Amortizable Balance as of December 31, 2008 was
$7,024,284.  Tenant made one amortization
payment with respect to such Amortizable Balance in January 2009.


 


D.            The parties wish to amend the Lease, effective as of the
Effective Date, to provide for, inter alia, (i) a
deferral of repayment of the remaining portion of the Amortizable Balance
(redefined below for purposes of this Amendment as the “Deferral Amount”), (ii) a
revised set of terms governing payment of the unpaid balance of such Deferral
Amount, and (iii) the cancellation of an existing warrant and issuance of a
new warrant to Landlord or its nominee, all subject to the terms and conditions
set forth herein.


 


E.             Unless otherwise defined herein, all capitalized terms
have the meanings assigned to them in the Lease.


 


THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:


 

















 


1.             Calculation
and Payment of Deferral Amount.


 


(a)           The
parties agree that the remaining Amortizable Balance as of the Effective Date
was $6,850,786 (the “Deferral Amount”).  The unpaid balance of the Deferral Amount
shall be deemed to increase at the rate of twelve percent (12%) per annum, compounded
monthly, during the Delay Period as defined below (the Deferral Amount, as so
increased from time to time, being sometimes referred to herein as the “Adjusted
Deferral Amount” and the amount by which the Adjusted Deferral Amount from
time to time exceeds the initial Deferral Amount as specified above being
sometimes referred to herein as the “Delay Period Adjustment Amount”).  For purposes of this Amendment, the term “Delay
Period” means the period from and including the Effective Date until and
including the earlier of (i) June 30, 2010 or (ii) the date the Adjusted
Deferral Amount has been paid in full by Tenant.


 


(b)           Tenant
shall pay the Adjusted Deferral Amount, together with accrued interest (if any)
pursuant to this subparagraph (b), in accordance with the provisions of
this subparagraph (b).  Payments
made by Tenant under the Lease shall be applied first to Tenant’s monetary
obligations due or past due under the Lease other  than pursuant
to this subparagraph (b) (including, but not limited to, Tenant’s
obligations for payment of monthly minimum rent, Operating Expenses, and
additional rent payable under any applicable provisions of the Lease as it
existed prior to Amendment No. Three), and shall be applied to Tenant’s
obligations under this subparagraph (b) only after all such other monetary
obligations are current.  All amounts
paid or payable by Tenant pursuant to this subparagraph (b) shall constitute
additional rent under the Lease and, when paid and properly applicable to
Tenant’s obligations under this subparagraph (b), shall be applied first
to accrued interest (if any) pursuant to the provisions of this
subparagraph (b), then to the Delay Period Adjustment Amount, and then to
the remaining balance of the Adjusted Deferral Amount.


 


(i)            Except as expressly provided in
subparagraph (b)(ii), (iii), (iv) or (v) below (if applicable),
Tenant shall not be required to make any repayment with respect to the Adjusted
Deferral Amount prior to July 1, 2010. 
If as of June 30, 2010 the Adjusted Deferral Amount has not been
paid in full and none of the events described in subparagraph (b)(ii), (iii) or
(iv) below has occurred, then (A) on July 1, 2010, Tenant shall make
a lump-sum payment to Landlord in an amount equal to the then applicable Delay
Period Adjustment Amount (which amount the parties agree will be $1,262,630 as
of June 30, 2010 if there are no prepayments of any portion of the Adjusted
Deferral Amount prior to that date), and (B) Tenant shall pay the entire remaining
balance of the Adjusted Deferral Amount (which should, in the absence of any
prepayments, be equal to the initial Deferral Amount as specified above) in
equal monthly installments of $173,498 per month for forty-seven (47) months (the
same payment terms previously in effect under the Third Amendment), including
interest accruing at nine percent (9%) per annum from July 1, 2010 on the
unpaid portion of the Adjusted Deferral Amount remaining outstanding from time
to time.  Such monthly payments shall be due, together with all minimum monthly
rent and all other additional rent otherwise payable under the Lease, on the
first day of each calendar month beginning on July 1, 2010 and continuing
through and including May 1, 2014.  The rent schedule set forth in Exhibit A attached hereto and
incorporated herein by this reference sets forth, for purposes of illustration,
the modified rent schedule that would be applicable under this Amendment if
this subparagraph (b)(i) applies and no prepayments of the Adjusted
Deferral Amount are made by Tenant prior to July 1, 2010.  In the event of any prepayment after 


 


2

















 


June 30, 2010 of less than the entire
then remaining balance of the Adjusted Deferral Amount and interest thereon,
the unpaid Adjusted Deferral Amount and accrued interest shall be recalculated
(after giving effect to such prepayment) and the required monthly amortization
payment under this subparagraph (b)(i) shall be recalculated to
provide for a level amortization of such recalculated Adjusted Deferral Amount,
with interest at nine percent (9%) per annum, compounded monthly, over the
number of full calendar months remaining from the date of such prepayment
(beginning with the first full calendar month following the actual prepayment
date) through and including May 2014.


 


(ii)           If
a Capital Event (as defined below) occurs prior to July 1, 2010 and the Transaction
Consideration (as defined below) received pursuant to or in connection with
such Capital Event is $200 million or more, then within forty-five (45) business
days after the closing of such Capital Event, Tenant shall pay Landlord a
lump-sum payment equal to the entire then outstanding Adjusted Deferral Amount,
in full and final satisfaction of Tenant’s payment obligations under this
subparagraph (b).


 


(iii)         If
a Capital Event occurs prior to July 1, 2010 and the Transaction
Consideration received pursuant to or in connection with such Capital Event is
less than $200 million but greater than or equal to $100 million, then (A) within
forty-five (45) business days after the closing of such Capital Event, Tenant
shall pay Landlord a lump-sum payment equal to fifty percent (50%) of the then
outstanding Adjusted Deferral Amount, and (B) on or before July 1,
2011, Tenant shall pay Landlord a further lump-sum payment equal to the entire
remaining balance of the Adjusted Deferral Amount, which for this purpose shall
be deemed to continue to increase at the rate of twelve percent (12%) per
annum, compounded monthly, from the date when the first lump-sum payment was
made pursuant to clause (A) above through and including June 30,
2011, which payments in the aggregate shall constitute full and final
satisfaction of Tenant’s payment obligations under this subparagraph (b).


 


(iv)          If
a Capital Event occurs prior to July 1, 2010 and the Transaction
Consideration received pursuant to or in connection with such Capital Event is
less than $100 million but greater than or equal to $50 million, then Tenant
shall make payments to Landlord in the same manner and same amounts required
under subparagraph (b)(i) above, except that the lump-sum payment
described in clause (A) of subparagraph (b)(i) shall be
made on or before the first day of the calendar month following the month in
which such Capital Event occurs, and the monthly payments described in clause (B) of
subparagraph (b)(i) shall commence on the first day of the calendar
month following the month in which such Capital Event occurs and shall continue
for a total of forty-seven (47) calendar months, including the month in which
the first such monthly payment is made.


 


(v)            If
more than one Capital Event occurs prior to July 1, 2010, then the
Transaction Consideration received pursuant to or in connection with all such
Capital Events shall be aggregated, on a cumulative basis, for purposes of
applying subparagraphs (b)(ii), (iii) and (iv) above and the
governing payment provisions shall be those set forth in the subparagraph
applicable to a Capital Event with Transaction Consideration equal to such
aggregate amount, effective as of the closing of the later or last such Capital
Event to occur, with Tenant receiving a credit against its payment obligations
under such governing payment provisions to the extent of any payments already
made by Tenant to Landlord pursuant to the earlier-occurring Capital Event(s).


 


3

















 


(c)           The
unpaid balance of the Adjusted Deferral Amount (and interest accrued thereon,
if applicable) may be prepaid by Tenant voluntarily at any time, in whole or in
part, without penalty, in Tenant’s sole discretion, provided that at the
time of such prepayment Tenant is current in its payments with respect to all
monetary obligations under the Lease. 
Any such prepayment, after all other monetary obligations of Tenant
under the Lease have been brought current, shall be applied first to accrued
interest (if any), then to the unpaid balance (if any) of the Delay Period
Adjustment Amount, and then to the remaining balance of the Adjusted Deferral
Amount.  In the event of any such
prepayment made after amortization payments have commenced on July 1, 2010
pursuant to subparagraph (b)(i) above, there shall be a recalculation
of the required amortization payments (after giving effect to the prepayment)
as provided in the final sentence of such subparagraph (b)(i).


 


(d)           For
purposes of this Amendment, the term “Capital Event” means any of the
following:  (i) receipt by Tenant of
cash or cash-equivalent consideration in exchange for an issuance of equity
securities by Tenant (including, but not limited to, an issuance of warrants,
options or other securities exercisable for or convertible into equity
securities of Tenant), or in exchange for issuance by Tenant of a note or other
debt security convertible into equity securities of Tenant; (ii) receipt
by Tenant of cash or cash-equivalent consideration pursuant to a product
license by Tenant; (iii) receipt by Tenant of cash or cash-equivalent
consideration pursuant to a strategic partnership, joint venture, collaboration
or other similar arrangement with another person or entity; or (iv) occurrence
of any merger, consolidation, reorganization, sale of assets, sale of stock or
other similar transaction in which a material part of the consideration
received by Tenant or by any of its equity security holders in connection with
such transaction consists of cash or cash-equivalent consideration.  The term “Transaction Consideration”
means, with respect to a Capital Event, the aggregate cash and cash-equivalent
consideration received collectively by Tenant and, in the case of a Capital
Event defined in clause (iv) of the preceding sentence, by Tenant’s
equity security holders pursuant to or in connection with such Capital Event.


 


2.             Cancellation
and Issuance of Warrants. 
HCP Estates USA Inc., a Delaware corporation (“HCP Estates”), is
an affiliate of Landlord and is the holder of Warrant No. CS-23A, issued
by Tenant and dated as of February 26, 2009, for the purchase of 100,000
shares of Tenant’s common stock (the “Existing Warrant”), although
physical possession of the original Existing Warrant is presently maintained by
Tenant (for the benefit of HCP Estates). 
Concurrently with the mutual execution of this Amendment, (a) Tenant
shall execute, issue and deliver to Landlord or Landlord’s nominee (which
Landlord presently anticipates will be HCP Life Science REIT, Inc., a Maryland
corporation and an affiliate of Landlord) a Warrant dated as of the date of
execution of this Amendment, in the same form as the Existing Warrant (except
with such modifications as are reasonably necessary to reflect any new or
different terms specified in this Amendment), for 200,000 shares of Tenant’s Common Stock (the “New Warrant”),
and (b) the Existing Warrant (presently in Tenant’s possession as noted
above) shall be automatically cancelled and shall be of no further force or
effect.  The New Warrant shall be
exercisable at any time from the issue date through the seventh (7th) anniversary of the issue date, inclusive.  Neither the issuance nor the exercise of the
New Warrant shall result in any credit against any monetary obligations of
Tenant under the Lease or under this Amendment. 
The exercise price per share under the New Warrant, to be
inserted at the time of issuance, shall be equal to the average closing price of
Tenant’s Common Stock for the three (3) business days immediately
preceding the execution date of this Amendment.


 


4

















 


3.             Usury
Laws Not Applicable.


 


(a)           The
parties are entering into this Amendment in reliance upon their mutual understanding
and agreement that the California usury laws are not applicable to the
transactions contemplated by this Amendment, including (but not limited to) the
deferral and repayment provisions contained herein and the manner in which
Tenant’s repayment obligation is calculated. 
Without limiting the generality of the foregoing, the parties acknowledge
and agree that the relationship established by the Lease is fundamentally a
real property leasing relationship and does not involve a lending or borrowing
of money as between Landlord and Tenant, and that the modified rent structure
and repayment obligations set forth in this Amendment are part of the
negotiated consideration for Tenant’s leasing of the Premises (as defined in
the Lease).


 


(b)           If,
notwithstanding the intention and understanding of the parties as set forth
above, it is determined at any time or under any circumstances pursuant to a
final judgment by a court of competent jurisdiction that (i) the
provisions of this Amendment are subject to the California usury laws, (ii) no
exemption from such usury laws is available for the transactions contemplated
in this Amendment and (iii) the fulfillment of any provision of this
Amendment would result in Landlord receiving or being deemed to receive interest
at a rate exceeding the highest lawful rate permissible under applicable
California usury laws, then (A) the relevant provisions of this Amendment
shall be automatically amended in such a manner as to reduce Tenant’s monetary
obligations hereunder to the maximum limit permissible under applicable
California usury laws, and (B) to the extent Landlord has actually
received amounts determined by such court to constitute interest in an amount
in excess of the highest lawful rate, then the amount that would otherwise
constitute excessive interest shall instead be deemed to be applied in
reduction of the unpaid principal balance of Tenant’s obligations under this
Amendment rather than being a payment of interest under this Amendment, or, if
such excessive interest exceeds the unpaid principal balance of Tenant’s
obligations under this Amendment, then such excess amount shall be refunded to
Tenant.


 


4.             No
Brokers.  Each
party respectively (i) represents and warrants that no broker represented
or acted for such party in connection with the consummation of this Amendment
or of the transactions contemplated herein, and (ii) agrees to indemnify,
defend and hold the other party harmless against any liability, cost or
expense, including (but not limited to) reasonable attorneys’ fees, arising out
of any claims for brokerage commissions or other similar compensation by any
broker or agent alleging to have represented or acted on behalf of the
indemnifying party in connection with this Amendment and the transactions contemplated
herein.


 


5.             Entire
Agreement; Confidentiality.  This Amendment constitutes the entire
agreement between Landlord and Tenant regarding the subject matter hereof and
supersedes all prior negotiations, discussions, terms sheets, letters,
understandings and agreements, whether oral or written, between the parties
with respect to such subject matter (other than the Lease itself, as expressly
amended hereby).  The parties agree that
all correspondence, terms sheets, drafts, letters, communications, understandings
and agreements (if any), whether oral or written, exchanged or reached between
them prior to the execution of this Amendment and relating in any way to the
subject matter of this Amendment, and all information contained in any of the 


 


5

















 


foregoing (except insofar as any such information is expressly set
forth in this Amendment itself), are and shall remain confidential information
and shall not be disclosed by either party or its respective agents or
employees to any other person or entity, except that either party may disclose
such confidential information to its respective employees, agents and financial
and legal consultants provided that (a) such disclosure is
reasonably necessary to advance or protect the disclosing party’s interests and
(b) the disclosing party advises such recipients of the confidential
nature of such information and requires them to respect and maintain the
confidentiality thereof.


 


6.             No
Other Modifications. 
Except as otherwise expressly provided herein, the terms and provisions
of the Lease are unmodified and remain in full force and effect.


 


IN WITNESS WHEREOF, the parties have executed this Amendment No. Four
as of the date first set forth above, effective as of the Effective Date.


 


 


	
  LANDLORD:

  	
  HCP BTC, LLC (formerly known as Slough BTC,
  LLC), a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  HCP ESTATES USA INC. (formerly known as Slough Estates USA
  Inc.), a Delaware corporation, Its
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jonathan M. Bergschneider

  
	
   

  	
   

  	
  Name:

  	
  Jonathan M. Bergschneider

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  TENANT:

  	
  RIGEL PHARMACEUTICALS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James M. Gower

  
	
   

  	
  Name:

  	
  James M. Gower

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ryan Maynard

  
	
   

  	
  Name:

  	
  Ryan Maynard

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


Attachment:


Exhibit A                Adjusted
Rent Schedule (Subparagraph 1(b)(i))


 


6

















 


EXHIBIT A


Adjusted Rent Schedule
(Subparagraph 1(b)(i))


 


Pursuant to Subparagraph 1(b)(i) of
the foregoing Amendment, the schedule of current monthly minimum rental
payments for Months 73 through 180 of the Lease term (2/1/09 through
1/31/18) would be as follows, assuming no prepayments of the Adjusted Deferral
Amount by Tenant prior to July 1, 2010:


 


	
  Months

  	
   

  	
  Previously

  Scheduled Monthly

  Rent (per Lease) *

  	
   

  	
  Additional Monthly

  Rent (per Amendment,

  Subparagraph 1(b)(i))

  	
   

  	
  Total Adjusted

  Monthly Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  073 — 084

  (2/1/09 —
  1/31/10)

  	
   

  	
  $

  	
  1,203,153

  	
   

  	
  none

  	
   

  	
  $

  	
  1,203,153

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  085 — 089

  (2/1/10 —
  6/30/10)

  	
   

  	
  $

  	
  1,025,154

  	
   

  	
  none

  	
   

  	
  $

  	
  1,025,154

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  090 (7/1/10)

  	
   

  	
  $

  	
  1,025,154

  	
   

  	
  $

  	
  1,436,128

  	
   

  	
  $

  	
  2,461,282

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  091 — 096

  (8/1/10 —
  1/31/11)

  	
   

  	
  $

  	
  1,025,154

  	
   

  	
  $

  	
  173,498

  	
   

  	
  $

  	
  1,198,652

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  097 — 108

  (2/1/11 —
  1/31/12)

  	
   

  	
  $

  	
  1,066,548

  	
   

  	
  $

  	
  173,498

  	
   

  	
  $

  	
  1,240,046

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  109 — 120

  (2/1/12 —
  1/31/13)

  	
   

  	
  $

  	
  1,109,686

  	
   

  	
  $

  	
  173,498

  	
   

  	
  $

  	
  1,283,184

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  121 — 132

  (2/1/13 —
  1/31/14)

  	
   

  	
  $

  	
  1,154,583

  	
   

  	
  $

  	
  173,498

  	
   

  	
  $

  	
  1,328,081

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  133 — 136

  (2/1/14 —
  5/31/14)

  	
   

  	
  $

  	
  1,199,781

  	
   

  	
  $

  	
  173,498

  	
   

  	
  $

  	
  1,373,279

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  137 — 144

  (6/1/14 —
  1/31/15)

  	
   

  	
  $

  	
  1,199,781

  	
   

  	
  none

  	
   

  	
  $

  	
  1,199,781

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  145 — 156

  (2/1/15 —
  1/31/16)

  	
   

  	
  $

  	
  1,248,232

  	
   

  	
  none

  	
   

  	
  $

  	
  1,248,232

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  157 — 168

  (2/1/16 —
  1/31/17)

  	
   

  	
  $

  	
  1,298,481

  	
   

  	
  none

  	
   

  	
  $

  	
  1,298,481

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  169 — 180

  (2/1/17 —
  1/31/18)

  	
   

  	
  $

  	
  1,350,544

  	
   

  	
  none

  	
   

  	
  $

  	
  1,350,544

  	
   

  



 






* Excludes amortization
amounts that would have been payable under Amendment No. Three, to reflect
the further deferral of such amounts pursuant to this Amendment.