EX-10.1






EXHIBIT 10.1



FOURTH AMENDMENT TO LEASE




This Fourth Amendment to Lease (“Amendment”) is made and entered into effective as of April
11, 2016 (the “Effective Date”), by and between METROPOLITAN LIFE INSURANCE COMPANY, a New York
corporation (“Landlord”), and HERON THERAPEUTICS, INC., a Delaware corporation, f/k/a AP Pharma,
Inc., a Delaware corporation, f/k/a Advanced Polymer Systems, a Delaware corporation (“Tenant”),
with reference to the following facts (“Recitals”):



A. Landlord and Tenant are the current parties to that certain Lease dated as of November 7,
1997 (the “Original Lease’, as amended, collectively, the “Existing Lease”), as amended by: (i)
that certain Amendment to Lease Agreement (the “First Amendment”) dated as of March 29, 2004, (ii)
that certain Second Amendment to Lease dated as of April 1, 2011, and (iii) that certain Third
Amendment to Lease (the “Third Amendment”) dated as of July 28, 2011. Pursuant to the Existing
Lease, Tenant leases from Landlord, and Landlord leases to Tenant, certain Premises described
therein, containing approximately 26,067 rentable square feet and commonly known as 123 Saginaw
Drive, Redwood City, California 94063, all as more particularly described in the Existing Lease.



B. Tenant and Landlord now desire to provide for the extension of the Third Extended Term (as
defined in the Third Amendment) and other amendments of the Existing Lease, but only in strict
accordance with and as more particularly set forth in this Amendment.



NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants set forth
herein and of other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:



Section 1. Scope of Amendment; Defined Terms.  Except as expressly provided in
this Amendment, the Existing Lease shall remain in full force and effect. Should any inconsistency
arise between this Amendment and the Existing Lease as to the specific matters which are the
subject of this Amendment, the terms and conditions of this Amendment shall control. The term
“Lease” as used herein and, from and after the Effective Date, in the Existing Lease shall refer to
the Existing Lease as modified by this Amendment. Unless otherwise indicated, capitalized terms
used in this Amendment shall be defined as set forth in the Lease. Landlord and Tenant agree that
this Amendment shall be effective from and after the Effective Date with the same force and effect
as if executed on that date.



Section 2. Extension of Third Extended Term.  Landlord and Tenant acknowledge
and agree that notwithstanding any provision of the Existing Lease to the contrary, the current
Third Extended Term expires on November 30, 2016, and that the Third Extended Term is hereby
extended for a period of thirty (30) months (the “Fourth Extended Term”) commencing on December 1,
2016 (the “Fourth Extension Commencement Date”) and expiring May 31, 2019 (hereafter, the
“Expiration Date” in lieu of the date provided in the Existing Lease), unless sooner terminated
pursuant to the terms of the Lease. This extension is with respect to the entire Premises and
this extension is further upon and subject to the same conditions, terms, covenants and agreements
contained in the Existing Lease, except as otherwise provided in this Amendment. Landlord and
Tenant acknowledge and agree that this Amendment provides all rights and obligations of the parties
with respect to extension of the current Third Extended Term, whether or not in accordance with any
other provisions, if any, of the Existing Lease or otherwise regarding renewal or extension,
including, without limiting the generality of the foregoing, the Option to Extend set forth in
Section 3 of the Rider to the Original Lease and Section 7 of the Third Amendment, and
any such provisions, options or rights for renewal or extension are hereby deleted as of the
Effective Date.



Section 3. Basic Annual Rent.  Notwithstanding any provision of the Existing
Lease to the contrary, commencing on the Fourth Extension Commencement Date and continuing through
the Expiration Date of the Fourth Extended Term, Basic Annual Rent and Monthly Rental Installments
thereof shall continue to be due and payable by Tenant with respect to the Fourth Extended Term in
the same manner required under the Existing Lease therefor in the following amounts:



	 	 	 	 	 
	Period From/To

	 	Monthly Rental Installments
	 	Basic Annual Rent
	 

	 	 
	 	 
	December 1, 2016 – November 30, 2017

December 1, 2017 – November 30, 2018

December 1, 2018 – May 31, 2019

	 	$82,111.05

$84,574.38

$87,111.62
	 	$985,332.60

$1,014,892.56

$1,045,339.44






Section 4. Tenant’s Share. During the Fourth Extended Term, Tenant shall pay
all Additional Rent payable under the Lease, including Tenant’s Share of Operating Expenses.
Notwithstanding any provisions of the Existing Lease to the contrary, Tenant’s Share of Operating
Expenses shall continue to be as set forth in the Original Lease and the First Amendment.



Section 5. Condition of Premises.  Notwithstanding any provision of the
Existing Lease to the contrary, Tenant acknowledges and agrees that: (1) Tenant has been in
occupancy of the Premises since 1997; (2) Tenant has investigated the condition of the Premises to
the extent Tenant desires to do so; (3) Tenant is leasing the Premises in its “As Is” condition;
(4) no representation regarding the condition of the Premises has been made by or on behalf of
Landlord; and (5) in connection with this Amendment, Landlord has no obligation to remodel or to
make any repairs, alterations or improvements in connection with this Amendment, or to provide
Tenant any allowance therefor.



Section 6. Limitation of Landlord’s Liability. Notwithstanding any provision
of the Existing Lease to the contrary (including, without limitation, Section 19(b) of the Original
Lease), Tenant agrees, on its behalf and on behalf of its successors and assigns, that any
liability or obligation of Landlord in connection with the Lease shall only be enforced against
Landlord’s equity interests in the Project up to a maximum of Three Million Dollars ($3,000,000.00)
and in no event against any other assets of the Landlord, or Landlord’s officers or directors or
partners, and that any liability of Landlord with respect to this Lease shall be so limited and
Tenant shall not be entitled to any judgment in excess of such amount.



Section 7. Time of Essence.  Without limiting the generality of any other
provision of the Existing Lease, time is of the essence to each and every term and condition of
this Amendment.



Section 8. Brokers.   Notwithstanding any other provision of the Existing
Lease to the contrary, Tenant represents that in connection with this Amendment it is represented
by Cushman and Wakefield (“Tenant’s Broker”) and, except for Tenant’s Broker and Newmark Cornish &
Carey (“Landlord’s Broker”), Tenant has not dealt with any real estate broker, sales person, or
finder in connection with this Amendment, and no such person initiated or participated in the
negotiation of this Amendment. Tenant hereby indemnifies and agrees to protect, defend and hold
Landlord and Landlord’s Broker harmless from and against all claims, losses, damages, liability,
costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) by
virtue of any broker, agent or other person claiming a commission or other form of compensation by
virtue of alleged representation of, or dealings or discussions with, Tenant with respect to the
subject matter of this Amendment, except for Landlord’s Broker and except for a commission payable
to Tenant’s Broker to the extent provided for in a separate written agreement between Tenant’s
Broker and Landlord’s Broker. Tenant is not obligated to pay or fund any amount owed by Landlord
to Landlord’s Broker or Tenant’s Broker, and Landlord hereby agrees to pay a commission to
Landlord’s Broker and Tenant’s Broker in connection with the subject matter of this Amendment
pursuant to Landlord’s separate written agreement with Landlord’s Broker (such commission shall
include an amount to be shared by Landlord’s Broker with Tenant’s Broker to the extent that
Tenant’s Broker and Landlord’s Broker have entered into a separate agreement between themselves to
share the commission paid to Landlord’s Broker by Landlord. The provisions of this Section shall
survive the expiration or earlier termination of the Existing Lease, as amended by this Amendment.



Section 9. Attorneys’ Fees.  Each party to this Amendment shall bear its own
attorneys’ fees and costs incurred in connection with the discussions preceding, negotiations for
and documentation of this Amendment. In the event any party brings any suit or other proceeding
with respect to the subject matter or enforcement of this Amendment or the Lease, the prevailing
party (as determined by the court, agency or other authority before which such suit or proceeding
is commenced) shall, in addition to such other relief as may be awarded, be entitled to recover
attorneys’ fees, expenses and costs of investigation as actually incurred, including court costs,
expert witness fees, costs and expenses of investigation, and all attorneys’ fees, costs and
expenses in any such suit or proceeding (including in any action or participation in or in
connection with any case or proceeding under the Bankruptcy Code, 11 United States Code Sections
101 et seq., or any successor statutes, in establishing or enforcing the right to
indemnification, in appellate proceedings, or in connection with the enforcement or collection of
any judgment obtained in any such suit or proceeding).



Section 10. Effect of Headings; Recitals: Exhibits. The titles or headings
of the various parts or sections hereof are intended solely for convenience and are not intended
and shall not be deemed to or in any way be used to modify, explain or place any construction upon
any of the provisions of this Amendment. Any and all Recitals set forth at the beginning of this
Amendment are true and correct and constitute a part of this Amendment as if they had been set
forth as covenants herein. Exhibits, schedules, plats and riders hereto which are referred to
herein are a part of this Amendment.



Section 11. Entire Agreement; Amendment.  This Amendment taken together with
the Existing Lease, together with all exhibits, schedules, riders and addenda to each, constitutes
the full and complete agreement and understanding between the parties hereto and shall supersede
all prior communications, representations, understandings or agreements, if any, whether oral or
written, concerning the subject matter contained in this Amendment and the Existing Lease, as so
amended, and no provision of the Lease as so amended may be modified, amended, waived or
discharged, in whole or in part, except by a written instrument executed by all of the parties
hereto.



Section 12. OFAC.  Landlord advises Tenant hereby that the purpose of this
Section is to provide to the Landlord information and assurances to enable Landlord to comply with
the law relating to OFAC.



Tenant hereby represents, warrants and covenants to Landlord, either that (i) Tenant is
regulated by the SEC, FINRA or the Federal Reserve (a “Regulated Entity”) or (ii) neither Tenant
nor any person or entity that directly or indirectly (a) controls Tenant or (b) has an ownership
interest in Tenant of twenty-five percent (25%) or more, appears on the list of Specially
Designated Nationals and Blocked Persons (“OFAC List”) published by the Office of Foreign Assets
Control (“OFAC”) of the U.S. Department of the Treasury.



If, in connection with the Lease, there is one or more Guarantors of Tenant’s obligations
under the Lease, then Tenant further represents, warrants and covenants either that (i) any such
Guarantor is a Regulated Entity or (ii) neither Guarantor nor any person or entity that directly
or indirectly (a) controls such Guarantor or (b) has an ownership interest in such Guarantor of
twenty-five percent (25%) or more, appears on the OFAC List.



Tenant covenants during the term of the Lease to provide to Landlord information reasonably
requested by Landlord, including, without limitation, organizational structural charts and
organizational documents, which Landlord may deem to be necessary (“Tenant OFAC Information”) in
order for Landlord to confirm Tenant’s continuing compliance with the provisions of this Section.
Tenant represents and warrants that the Tenant OFAC Information it has provided or to be provided
to Landlord or Landlord’s Broker in connection with the execution of this Amendment is true and
complete.



Section 13. Ratification.  Tenant represents to Landlord as of the Effective
Date that: (a) the Existing Lease is in full force and effect and has not been modified except as
provided by this Amendment; (b) that to Tenant’s actual knowledge, there are no defaults or
unfulfilled obligations on the part of Landlord under the Lease; and (c) Tenant is currently in
possession of the entire Premises and neither the Premises, nor any part thereof, is occupied by
any subtenant or other party other than Tenant.



Section 14. Authority.  Each party represents and warrants to the other that
it has full authority and power to enter into and perform its obligations under this Amendment,
that the person executing this Amendment is fully empowered to do so, and that no consent or
authorization is necessary from any third party. Landlord may request that Tenant provide Landlord
evidence of Tenant’s authority.



Section 15. Disclosure Regarding Certified Access Specialist. Pursuant to
California Civil Code Section 1938, Landlord hereby notifies Tenant that as of the date of this
Amendment, the Premises has not undergone inspection by a “Certified Access Specialist (CASp)” to
determine whether the Premises meet all applicable construction-related accessibility standards
under California Civil Code Section 55.53.



Section 16. Energy Utility Usage. If Tenant is billed directly by a public
utility with respect to Tenant’s energy usage at the Premises, then, promptly following Landlord’s
delivery of written request therefor, Tenant shall provide monthly energy utility usage information
for the Premises to Landlord for the period of time requested by Landlord (in electronic or paper
format) or, at Landlord’s option, provide any written authorization or other documentation
reasonably required for Landlord to request information regarding Tenant’s energy usage with
respect to the Premises directly from the applicable utility company.



Section 17. Counterparts.  This Amendment may be executed in duplicates or
counterparts, or both, and such duplicates or counterparts, when taken together, shall constitute
but one original of the Amendment, and the signature of any party to any counterpart shall be
deemed a signature to, and may be appended to, any other counterpart. Each duplicate and
counterpart shall be equally admissible in evidence, and each original shall fully bind each party
who has executed it.



IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Effective Date.



	 	 	 
	TENANT:  	 	HERON THERAPEUTICS, INC.,
	 	 	a Delaware corporation

	 	 	By: /s/ Brian Drazba

	 	 	Print Name: Brian Drazba

	 	 	Title: Vice President, Finance & Chief Financial Officer

	LANDLORD:
	 	METROPOLITAN LIFE INSURANCE COMPANY,

	 
	 	 

	 	 	a New York corporation

	 	 	By: /s/ Leland Low

	 	 	Print Name: Leland Low

	 	 	Title: Director