Exhibit 10.4


 


SECOND AMENDMENT TO
SUBLEASE

Early Termination of the Entire Premises


 


This Second Amendment effective October 1, 2003, (the “Second
Amendment”) is to the Sublease effective March 7, 2000, as amended
September 3, 2002, (the “Sublease”) by and between FibroGen, Inc.
(“Sublessor”) and EOS Biotechnology, Inc. (the “Sublessee”) (collectively, the
“Parties”).  Unless otherwise defined
herein, any capitalized terms shall have the meaning ascribed to them in the
Sublease.


 


Sublessee wishes to early terminate the Sublease with respect to all
Premises (as defined in the Sublease) effective November 30, 2003.


 


If Sublessor is successful in negotiating with any third party
(“Subsequent Tenant”) to occupy any of the space contained in the Premises
(“Re-subleased Area”) prior to March 31, 2004, FibroGen will provide
Sublessee with a rebate for a pro rata portion of the fixed charges that would
have been due for the entire premises and a portion of the rent corresponding
to that Re-Subleased Area between the time the Subsequent Tenant commences a
sublease with Sublessor (“Start Date”) and March 31, 2004.


 


The Parties for good and valuable consideration, receipt of which is
hereby acknowledged, agree as follows:


 


(1)  Section 1.2.4 of
the Sublease shall be amended and restated in its entirety to read as follows:


 


“The Term for the
Premises shall expire on November 30, 2003.”


 


(2) In accordance with the requirements of Paragraph 1.6 of the
Sublease, Sublessee shall surrender the Premises and perform the following no
later than November 30, 2003:


 


•                  Certify that the
Premises are not contaminated with any hazardous biological or chemical
residues;


•                  Certify that the
labs in the Premises have been properly decommissioned in compliance with
regulations of the State of California;


•                  Negotiate in
good faith the timely completion of the repair of the items specified in
Exhibit A, attached hereto and incorporated herein;


•                  Supply drawings
of telephone and computer network cabling for the entire Premises; and


•                  Provide a representation
that the patch panels located in the EOS server rooms on the Premises have not
been disturbed.


 


(3) Sublessee shall assign to Sublessor complete ownership interest in
any furniture located on the Premises that it does not intend to remove no later
than October 31, 2003.  Any such
assignment shall include documentation indicating Sublessee’s title to such


 

















 


furniture free from any encumbrance as well as any documentation
necessary to perfect the assignment. 
Effective upon assignment, the disposition of the assigned furniture
shall be Sublessor’s sole responsibility. 
Sublessee will identify any furniture and equipment that it will not
assign to Sublessor no later than October 31, 2003, and remove any such
furniture and equipment by November 15, 2003.  Sublessor shall have the right to charge to Sublessee all costs
associated with disposing of furniture and equipment to which Sublessee does
not transfer title to Sublessor by November 15, 2003.


 


(4) On December 1, 2003, Sublessee shall pay to Sublessor a lump
sum payment comprising rent and fixed charges due for the Premises between
December 1, 2003, and March 31, 2004.  That amount is calculated to be $684,935.45.  If the Parties agree that all the conditions
have been met under this Second Amendment and the Sublease, then Sublessee’s
deposits totaling $339,618.94 shall be applied against the lump sum payment and
fixed charges due so that the revised payment due Sublessor shall be
$345,316.51.


 


(5) Sublessee
shall allow Sublessor and the Subsequent Tenant, and any of their agents and
contractors access to the Premises to make improvements subject to
Article 16 of the Master Lease between FibroGen and Britannia Gateway II
Limited Partnership.  Sublessor agrees
to indemnify Sublessor against all claims, damages, and liabilities (including
attorneys’ fees and costs) that may arise from such access.


 


(6) In the event that Sublessor enters into a sublease with a
Subsequent Tenant, for each Re-Subleased Area the Sublessor shall perform the
following:


 


(a) At least 30 days prior to the Start Date, Sublessor shall notify
Sublessee in writing of the actual Start Date and the area comprising the
Re-subleased Area.


 


(b) Sublessor
shall refund to Sublessee a pro rata share of the fixed Service charges based
on the square footage (defined as those charges for Security and Hazardous
Materials Storage) that would have been due for the Re-subleased Area during
the period beginning on that Start Date and ending on March 31, 2004.


 


(c) Thirty (30)
days after the Start Date of any Re-subleased Area Sublessor shall refund to
Sublessee the following amount calculated by multiplying two dollars and thirty
cents ($2.30) per square foot per month (or proportional fraction thereof) for
the period beginning on the Start Date of a given Re-subleased Area and ending
March 31, 2004, multiplied by the actual area comprising that Re-subleased
Area*.  The $2.30 per square foot per
month rebate is computed for a specific Subsequent Tenant and would need to be
re-computed if a new


 












* For example, if
the total area to be subleased by a Subsequent Tenant is 7,000 square feet and
the sublease with that Subsequent Tenant begins on December 1, 2003, then
Sublessor would pay Sublessee $64,400.00 calculated by multiplying $2.30 per
square foot per month by 7,000 square feet by 4 months.  In addition, Sublessor would pay Sublessee a
pro rata share of the fixed service charges for the Re-subleased Premises due
between December 1, 2003 and March 31, 2004.  


 

















 


Subsequent Tenant
were to negotiate for space.  The amount
of the rebate is net of Sublessor’s cost to secure the new Subsequent Tenant.


 


(7)  Except as otherwise provided herein, the Sublease has not been
modified or amended and remains in full force and effect.


 


IN WITNESS WHEREOF, the Parties have executed this Amendment on the
dates indicated below:


 


	
   

  	
  FIBROGEN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Wilbert Lee

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  EOS BIOTECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Pat Caldwell

  
	
   

  	
   

  	
  VP, Finance & Controller

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
						



 

















 


Exhibit A


 


	
  Build

  #

  	
   

  	
  Room

  #

  	
   

  	
  Project Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  201

  	
   

  	
  1012

  	
   

  	
  FB #6 VCT was installed
  instead of carpet during construction

  
	
  201

  	
   

  	
  1013

  	
   

  	
  FB #6 VCT was installed
  instead of carpet during construction

  
	
  201

  	
   

  	
  1021

  	
   

  	
  FB #3 Power drops may need to
  be removed

  
	
  201

  	
   

  	
  1024

  	
   

  	
  Replace damaged floor tile in
  room 1024 as well as in the main hallway

  
	
  201

  	
   

  	
  1026

  	
   

  	
  FB #3 Case work added along
  the wall may need to be removed

  
	
  201

  	
   

  	
  1051

  	
   

  	
  FB #3 Power drops may need to
  be removed

  
	
  201

  	
   

  	
   

  	
   

  	
  Obtain drawings and
  specification for the phone and data cables

  
	
  201

  	
   

  	
   

  	
   

  	
  Identify areas that need
  repairs associated with the removal of equipment to property such as holes in
  the walls, damage to the floor under equipment, ceiling damage

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  225

  	
   

  	
  123

  	
   

  	
  Review the electrical configuration,
  drops may need to be removed

  
	
  225

  	
   

  	
  124

  	
   

  	
  Review the electrical
  configuration, drops may need to be removed

  
	
  225

  	
   

  	
  136

  	
   

  	
  Animal area.  There may be exhausts that need to be
  removed

  
	
  225

  	
   

  	
  213

  	
   

  	
  Confirm that plumbing has not
  been removed, this room was setup to be a GW area

  
	
  225

  	
   

  	
  214

  	
   

  	
  Chemistry hood in this room
  may have been removed or disabled

  
	
  225

  	
   

  	
  219

  	
   

  	
  Remove the carpet in room 219
  and make sure that the tile is in acceptable condition

  
	
  225

  	
   

  	
  215

  	
   

  	
  Remove the carpet in room 215
  and make sure that the tile is in acceptable condition

  
	
  225

  	
   

  	
  215

  	
   

  	
  Conference Room.  Cooling may not be adjusted properly.

  
	
  225

  	
   

  	
  218

  	
   

  	
  Telecom room, there may need
  to be some conversion done to bring it back to a regular room

  
	
  225

  	
   

  	
  218

  	
   

  	
  EOS didn’t want a sink in the
  room and agreed to pay to install it at the end of the lease

  
	
  225

  	
   

  	
  216

  	
   

  	
  Rear door added to the room,
  it may need to be removed and a solid wall installed

  
	
  225

  	
   

  	
  216

  	
   

  	
  Walled area added in this
  room, it may need to be removed

  
	
  225

  	
   

  	
  204

  	
   

  	
  Changed the plan to offices
  from labs, cash agreed upon comp 
  $2.1k or $4.9k at end of lease

  
	
  225

  	
   

  	
   

  	
   

  	
  Identify areas that need
  repairs associated with the removal of equipment property such as holes in
  the walls, damage to the floor under equipment,  ceiling damage

  
	
  225

  	
   

  	
   

  	
   

  	
  Confirm the electrical
  drawings are updated and identify any needed changes to the system to remove
  EOS only wire and make the space acceptable for general use.

  
	
  225

  	
   

  	
   

  	
   

  	
  All hoods should be inspected
  to make sure that they are certified and in good working order

  
	
  225

  	
   

  	
   

  	
   

  	
  Above ceiling penetrations
  that may have been done by EOS that are not calked for FD Code

  
	
  225

  	
   

  	
   

  	
   

  	
  Obtain drawings and
  specification for the phone and data cables

  
	
  225

  	
   

  	
   

  	
   

  	
  Return of keys including
  master keys to Dave and Shari.