Exhibit
10.13


 


FIRST
AMENDMENT TO LEASE


 


THIS
FIRST AMENDMENT TO LEASE (this “1st Amendment”) is made this 22nd day of
March, 2001 between SPIEKER PROPERTIES, L.P.,
a California limited partnership, (“LANDLORD”),
and BIOMEDICINES, INC., a Delaware
corporation (“Tenant”).


 


WHEREAS,
Landlord and Tenant entered into a Lease dated February 21, 2001, (as
amended, the “Lease”), for those
certain premises located at 2000 Powell Street, Suite 1666, Emeryville,
California (the “Premises”), as
more fully described in the Lease. Capitalized terms used but not otherwise
defined herein shall have the meanings given them in the Lease; and


 


WHEREAS,
Landlord and Tenant desire to modify the Lease as provided herein to restate
Paragraph 9.1 of the Lease.


 


NOW,
THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereby mutually agree as follows:


 


Paragraph 9.1 of
the Lease shall be deleted and replaced in its entirety with the following:


 


9.1                               Transfers:
Consent. Tenant shall not, without the prior written consent of
Landlord, (a) assign, transfer, mortgage, hypothecate, or encumber this Lease
or any estate or interest herein, whether directly, indirectly or by operation
of law, (b) permit any other entity to become a Tenant hereunder by merger,
consolidation, or other reorganization, (c) if Tenant is a corporation,
partnership, limited liability company, limited liability partnership, trust,
association or other business entity (other than a corporation whose stock is
publicly traded), permit, directly or indirectly, the transfer of any ownership
interest in Tenant so as to result in (i) a change in the current control of
Tenant, (ii) a transfer of twenty-five percent (25%) or more in the aggregate
in any twelve (12) month period in the beneficial ownership of such entity or
(iii) a transfer of all or substantially all of the assets of Tenant, (d)
sublet any portion of the Premises, or (e) grant any license, concession, or
other right of occupancy of or with respect to any portion of the Premises, or
(f) permit the use of the Premises by any party other than Tenant or a Tenant
Party (each of the events listed in this Paragraph 9.1 being referred to herein
as a “Transfer”).
Notwithstanding the foregoing, Tenant may assign this Lease or sublet the
Premises, or any portion thereof, without Landlord’s consent, to any entity
which controls, is controlled by, or is under common control with Tenant to any
entity which results from a merger of, reorganization of, or consolidation with
Tenant to any entity engaged in a joint venture with Tenant: or to any entity
which acquires substantially all of the stock or assets of Tenant, as a going
concern, with respect to the business that is being conducted in the Premises
(hereinafter each a “Permitted
Transfer”). In addition, a sale or transfer of the capital stock
of Tenant shall be deemed a Permitted Transfer if (1) such sale or transfer
occurs in connection with any bona fide financing or capitalization for the
benefit of Tenant, or (2) Tenant is or becomes a publicly traded corporation.
Landlord shall have no right to terminate the Lease in connection with, and
shall have no right to any sums or other economic consideration resulting from
any Permitted Transfer. Additionally, any rights that are personal to Tenant
shall also accrue to any Permitted Transferee. If Tenant requests Landlord’s
consent to any Transfer, then at least twenty (20) business days prior to the
effective date of the proposed Transfer, Tenant shall provide Landlord


 


1





















 


with a written
description of all terms and conditions of the proposed Transfer and all
consideration therefor (including a calculation of the Transfer Profits
described below), copies of the proposed documentation, and the following
information relating to the proposed transferee: name and address; information
reasonably satisfactory to Landlord concerning the proposed transferee’s
business and business history; its proposed use of the Premises; banking,
financial, and other credit information; and general references sufficient to
enable Landlord to determine the proposed transferee’s creditworthiness and
character. Landlord shall not unreasonably withhold its consent to any
assignment or subletting of the Premises, provided that the parties agree that
it shall be reasonable for Landlord to withhold any such consent if, without
limitation, Landlord determines in good faith that (A) the proposed transferee
is not of a reasonable financial standing or is not creditworthy, (B) the proposed
transferee is a governmental agency, (C) the proposed transferee, or any
affiliate thereof, is then an occupant In the Project or has engaged in
discussions with Landlord concerning a lease of direct space in the Project,
(D) the proposed Transfer would result in a breach of any obligation of
Landlord or permit any other tenant in the Project to terminate or modify its
lease, (E) there is then in effect an uncured Event of Default, (F) the
Transfer would increase the occupancy density or parking density of the Project
or any portion thereof, (G) the Transfer would result in an undesirable tenant
mix for the Project, as determined in good faith by Landlord, (H) the proposed
transferee does not enjoy a good reputation, as a business or as a tenant; or (I)
any guarantor of the Lease does not consent to such Transfer in a form
satisfactory to Landlord. Any Transfer made without Landlord’s consent shall be
void and, at Landlord’s election, shall constitute an Event of Default by
Tenant. Tenant shall also, within ten (10) days of written demand therefor, pay
to Landlord $500 as a review fee for each Transfer request, and reimburse
Landlord for its reasonable attorneys’ fees and all other costs incurred in
connection with considering any request for consent to a proposed Transfer. If
Landlord consents to a proposed Transfer, then the proposed transferee shall
deliver to Landlord Landlord’s standard form transfer consent and agreement
whereby the proposed transferee expressly assumes the Tenants obligations hereunder.
Landlord’s consent to a Transfer shall not release Tenant from its obligations
under this Lease (or any guarantor of this Lease of its obligations with
respect thereto), but rather Tenant and its transferee shall be jointly and
severally liable for all obligations under this Lease allocable to the space
subject to such Transfer. Landlord’s consent to any Transfer shall not waive
Landlord’s rights as to any subsequent Transfers. In the event of any claim by
Tenant that Landlord has breached its obligations under this Paragraph 9.1,
Tenant’s remedies shall be limited to recovery of its out-of-pocket damages and
injunctive relief.


 


2





















 


Except as expressly modified above, all terms
and conditions of the Lease remain in full force and effect and are hereby
ratified and confirmed.


 


IN
WITNESS WHEREOF, the parties hereto have entered into this
First Amendment as of the date first written above.


 


	
  LANDLORD:

  	
  TENANT

  
	
   

  	
   

  
	
  SPIEKER
  PROPERTIES, L.P.,

  	
  BIOMEDICINES,
  INC.

  
	
  a California
  limited partnership

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
  By: 

  	
  Spieker
  Properties, Inc., a Maryland 

  	
   

  
	
   

  	
  corporation

  	
  By:

  	
  /s/SM Moran

  	
   

  
	
   

  	
   

  	
   

  	
  Mark Moran, MD

  
	
  Its:

  	
  General Partner

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
  By:

  	
  /s/John R.
  Winther

  	
   

  	
   

  	
  President and
  CEO

  	
   

  
	
   

  	
  John R. Winther

  	
   

  	
   

  
	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
   

  
	
   

  	
  Senior Vice President

  	
   

  	
   

  
										



 


3