Exhibit
10.4


 


SECOND LEASE EXTENSION AGREEMENT


 


Building #5


1330 O’Brien Drive


Menlo Park, California 94025


 


THIS LEASE EXTENSION AGREEMENT (this “Agreement”) is made and entered
into on March 18 2008 by and between MENLO BUSINESS PARK, LLC, a
California limited liability company (“Lessor”), and DEPOMED, INC., a
California corporation (“Lessee”).


 


RECITALS


 


A.            Lessor and
Lessee entered into a Lease dated April 30, 2003 and the Lease Extension
Agreement dated July 28, 2006 (the “Lease”) of the premises referred to as
Building #5 located at 1330 O’Brien Drive, Menlo Park, California 94025, more
particularly described on Exhibit “A” attached to the Lease and
incorporated by reference herein (the “Premises”).  The Premises contain approximately 25,366
rentable square feet of space.


 


B.            The expiration
date of the extended term of the Lease is June 30, 2009.  Lessor and Lessee wish to extend the
expiration date of the term of the Lease, subject to the terms and conditions
set forth herein.


 


AGREEMENT


 


NOW
THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:


 


1.             Defined Terms.  Terms defined in the Lease and used in this
Agreement shall have the meaning ascribed to them in the Lease.


 


2.             Extension
of  Term.


 


(a)           The term of the Lease is
hereby extended for a period of thirty-one (31) calendar months commencing on July 1,
2009 and ending on January 31, 2012 (the “Second Extension Term”).  The Second Extension Term shall be upon all
of the same terms and conditions of the Lease, except that the Monthly Base
Rent payable by Lessee to Lessor during the Second Extension Term shall be as
set forth in Paragraph 3 hereof.


 

















 


(b)           The option to extend
provided for in Paragraph 3 of the Lease shall be for one (1) period of
sixty (60) calendar months immediately following the expiration of the Second
Extension Term and shall otherwise be upon the same terms and conditions as set
forth in Paragraph 3 of the Lease.


 


3.             Monthly Base
Rent.  Lessee shall pay to Lessor
Monthly Base Rent during the Extension Term, in monthly installments in advance
on a triple net basis in lawful money of the United States, as follows:


 


(a)           Under the terms
of the First Lease Extension Agreement, the next Rental Adjustment Date is
scheduled to occur on May 1, 2008, resulting in a new Monthly Base
Rent of Fifty Thousand Seven Hundred Thirty-Two Dollars ($50,732.00) per month
($2.00/square foot/NNN).


 


(b)           Commencing on May 1, 2009 (the “Rental
Adjustment Date”), on each anniversary date of the commencement the Monthly
Base Rent shall be adjusted to reflect any increases in
the cost of living.  The adjustment shall
be calculated upon the basis of the United States Department of Labor, Bureau
of Labor Statistics Consumer Price Index, all items,  for all Urban Consumers - San
Francisco-Oakland-San Jose (1982-84=100), hereafter referred to as the “Index.”  The Index for said subgroup published most
recently as of the end of the calendar month immediately preceding the month in
which the commencement date of the Extension Term occurs shall be considered
the “Base Index.”


 


(c)           The Monthly Base Rent
shall be adjusted as of the Rental Adjustment Date to an amount equal to the
product obtained by multiplying the Monthly Base Rent for the Premises
commencing on May 1, 2009 referred to in Paragraph 3(a) above),
by a fraction, the numerator of which is the Index most recently published as
of the end of the calendar  month
immediately preceding the Rental Adjustment Date and the denominator of which
is the base Index; provided that in no event shall the Monthly Base Rent be
increased on the Rental Adjustment Date to an amount less than three percent
(3%) per annum or more than six percent (6%) per annum of the Monthly Base Rent
immediately payable before the Rental Adjustment Date.  The Monthly Base Rent as so adjusted shall
continue through January 31, 2012, the expiration date of the
Extension Term.


 


(d)           When the new Monthly Base Rent is determined for the Rental Adjustment
Date, Lessor shall give Lessee written notice of the amount of the new Monthly
Base Rent and how the new Monthly Base Rent figure was computed in accordance
with subparagraphs 3(b) and 3(c) above.  Lessee shall pay to Lessor retroactively any
unpaid increase in Monthly Base Rent due from and after the Rental Adjustment
Date.  If the Index does not exist on the
Rental Adjustment Date in the same format as referred to in subparagraph 3(b) above,
Lessor shall substitute in lieu thereof an 


 


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index reasonably comparable
to the Index referred to above which is acceptable to Lessee and which is then
published by the Bureau of Labor Statistics, or successor or similar
governmental agency, or if no governmental agency then publishes an index,
Lessor shall substitute therefor any index commonly accepted which is published
by a reputable private organization.


 


(e)           Monthly Base Rent for any partial month shall be prorated on the basis of
the number of calendar days in such month.


 


4.             Additional
Rent; Operating Expenses and Taxes.  In addition to the Monthly Base Rent payable
by Lessee pursuant to Paragraph 3 above, Lessee shall pay to Lessor during the
Extension Term, as Additional Rent, Operating Expenses and Taxes pursuant to
Paragraph 5 of the Lease.


 


5.             Condition of
the Premises.  Lessee is
currently in possession of the Premises and is conducting business thereon
pursuant to the Lease.  Lessee agrees to
accept the Premises in its “as is” condition at the commencement of the
Extension Term, subject to the performance by Lessor of Lessor’s obligations
under Paragraph 14(a) of the Lease. Lessee acknowledges that Lessor has
not inspected the Premises as a condition to entering into this Agreement.
Accordingly, Lessee agrees that the execution and delivery of this Agreement by
Lessor shall not constitute the approval by Lessor of any alterations to the
Premises of which Lessor lacks actual knowledge, or the waiver by Lessor of any
provisions of the Lease relating to alterations.


 


6.             Security
Deposit.  Lessor acknowledges that Lessor
has received from Lessee and is currently holding the sum
of Thirty-four Thousand Two Hundred Fifty-nine and Fifty-eight Hundredths Dollars ($34,259.58) in cash (the “Security Deposit”), as security for Lessee’s faithful
performance of Lessee’s obligations under the Lease.  Lessor shall continue to hold the Security
Deposit during the remainder of the initial term and during the Extension Term
pursuant to Paragraph 7 of the Lease.


 


7.             Real Estate
Brokers.  Lessor
shall pay a leasing commission to Tarlton Properties, Inc., who has acted
as exclusive leasing agent for Lessor in connection with this Agreement,
pursuant to a separate agreement between Lessor and said broker.  Lessor shall also pay leasing commissions to
GVA Kidder Mathews, who have acted as leasing agents for Lessee in connection
with this Agreement, pursuant to an agreement between Lessor and said
brokers.  Each party represents and
warrants to the other party that it has not had any dealings with any real
estate broker, finder, or other person with respect to this Agreement other
than the above named brokers.  Each party
shall hold harmless the other party from all damages, expenses, and liabilities
resulting from any claims that may be asserted against the other party by any
broker, finder, or other person with whom the other party has or purportedly
has dealt, other than the above named brokers.


 


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8.             Notices.  Paragraph 24, Notices, of the Lease is
amended to read as follows:


 


“24.         Notices.  All notices, statements, demands, requests,
or consents given hereunder by either party to the other shall be in writing
and shall be personally delivered or sent by United States mail, registered or
certified, return receipt requested, postage prepaid, and addressed to the
parties as follows:


 


	
  Lessor:

  	
  Menlo Business Park, LLC

  
	
   

  	
  c/o Tarlton Properties, Inc.

  
	
   

  	
  955 Alma Street

  
	
   

  	
  Palo Alto, California 94301

  
	
   

  	
   

  
	
   

  	
  Attention:  John C. Tarlton

  
	
   

  	
  Telephone:  (650) 330-3600

  
	
   

  	
   

  
	
  Lessee:

  	
  Depomed, Inc.

  
	
   

  	
  1330 O’Brien Drive

  
	
   

  	
  Menlo Park, California 94025

  
	
   

  	
   

  
	
   

  	
  Attention:

  	
  Carl
  Pelzel

  
	
   

  	
  Telephone:

  	
  650-462-5900

  



 


All such notices or other communications
given hereunder shall be addressed to the parties to such other address as
either party may have furnished to the other as a place for the service of
notice.  Notices shall be deemed given
upon receipt or attempted delivery where delivery is not accepted.”


 


9.             Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


10.           Continuing
Effect.  The parties acknowledge that
the Lease remains in full force and effect as amended hereby, and with the
initial term extended as provided herein.


 


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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.


 


	
   

  	
  “Lessor”

  
	
   

  	
   

  
	
   

  	
  MENLO BUSINESS PARK, LLC

  
	
   

  	
  a California limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J.O. Oltmans, II

  
	
   

  	
   

  	
  J. O. Oltmans, II, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ James R. Swartz

  
	
   

  	
   

  	
  James R. Swartz, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  “Lessee”

  
	
   

  	
   

  
	
   

  	
  DEPOMED, INC.,

  
	
   

  	
  a California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carl A. Pelzel

  
	
   

  	
   

  	
    Carl Pelzel,
  President and CEO

  



 


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