**Exhibit10.1**

 

**FIRST AMENDMENT OF STANDARD OFFICELEASE**

 

This First Amendment of Standard Office Lease (the“First Amendment”) is entered into as of this 30th day of April,2004, by and between ALECTAPENSIONSFÖRSÄKRING, ÖMSESIDIGT,a Swedish company (“Landlord”), and MAXIM PHARMACEUTICALS, a Delawarecorporation (“Tenant”) who agree as follows:

 

# 1.               **Recitals**.  This First Amendment is executed incontemplation of the following facts and circumstances:

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## 1.1           Landlordand Tenant executed that certain Standard Office Lease dated for referencepurposes July 31, 2003, and effective as of September 13, 2003(“Lease”), with respect to certain premises in the office building projectlocated at University Pacific Centre,8899 University Center Lane, San Diego, California (the “ExistingPremises”).

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## 1.2           Itis the intent of Landlord and Tenant, by this First Amendment, to amend andotherwise modify certain provisions and conditions of the Lease, and, except asexpressly amended or modified by the provisions and conditions of this FirstAmendment, it is intended by Landlord and Tenant that the Lease shall remainunchanged and otherwise in full force and effect.

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## 1.3           Tenantis hereby exercising its Right of First Offer provided for in the Lease withrespect to Suite 385 of University Pacific Centre.

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## 1.4           Capitalizedterms used herein as defined terms and not otherwise defined herein shall havethe meanings given to them in the Lease.

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# 2.               **Amendments**.  The Lease shall be amended and modified asfollows:

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## 2.1                                 **ExpansionPremises**.  The Premisesare hereby expanded, subject to the terms and conditions set forth herein, toinclude the approximately 1,642 rentable square feet (1,425 usable squarefeet), commonly known as suite 385 of the Building (the “First ExpansionPremises”).  Accordingly, effective asof May 1, 2004 (the “Expansion Premises Commencement Date”), paragraph 2 of theBasic Lease Provisions of the Lease shall automatically be amended to read, inits entirety, as follows:

 

“2.                                 PREMISES:  Approximately 39,293 rentable squarefeet.  The premises is comprised of37,651 rentable square feet of Existing Premises and approximately 1,642rentable square feet of First Expansion Premises.  The total Premises consists of 39,293 rentable square feet.”

 

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Further, effective as of the Expansion PremisesCommencement Date, paragraph 6 of the Basic Lease Provisions of the Lease shallautomatically be amended to read, in its entirety, as follows:

 

“6.**                                **TENANT’SPRORATA SHARE; BASE YEAR**: **40.72%; such share is a fraction ofthe numerator of which is the total rentable area of the Premises (39,293 sq.ft.) and the denominator of which is the total rentable area of the Building(96,490 sq. ft.); Base Year: 2004.”

 

Further, effective as of the Expansion PremisesCommencement Date, Exhibit “A” attached hereto shall automatically besubstituted for the Exhibit “A” originally attached to the Lease.

 

## 2.2                                 **Adjustmentof Basic Monthly Rent**. Effective on the Expansion Premises Commencement Date, the Basic MonthlyRent payable by Tenant shall be adjusted to include Basic Monthly Rent for theFirst Expansion Premises.  Accordingly,Exhibit “D” attached hereto is substituted for the Exhibit “D” originallyattached to the Lease.

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## 2.3                                 **Rent Abatement.**

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### 2.3.1                        Notwithstanding the provisions ofArticle 2 of the Lease and commencing on the Expansion PremisesCommencement Date, Tenant shall not be obligated to pay Basic Monthly Rent forthe First Expansion Premises for the months of May, June, July and August of2004 (the “Abated Rent”) until the expiration of the Term.  If upon the expiration of the Term, Landlordhas not terminated the Lease for a Tenant default, then Landlord shall forgiveTenant’s obligation to pay the Abated Rent.

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### 2.3.2                        Tenant agrees that Landlord’sagreement to forgive Basic Monthly Rent as provided in Paragraph 2.3.1 above isconditioned until the natural expiration of the Term of the Lease or earlytermination through no fault of Tenant. If a default shall occur during the Term of the Lease and the Leaseshall terminate as a result thereof, then the aggregate amount of the AbatedRent provided to Tenant prior to such default shall become immediately due andpayable as additional rent under the Lease.

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### 2.3.3                        Only Basic Monthly Rent for theFirst Expansion Premises shall be postponed. No other obligations owed by Tenant to Landlord shall be postponed orforgiven.  The purpose of this provisionis to ensure that Landlord’s effective rent for the Term is not reduced as aresult of an early termination of the Lease.

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## 2.4                                 **Adjustmentof Security Deposit**.

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## (a)                                  Paragraph7 of the Basic Lease Provisions of the Lease is hereby amended to read, in itsentirety, as follows:

 

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7.                                       “SECURITYDEPOSIT:  $74,526.20.”

 

(b)                                 Whenthe First Amendment is executed, Tenant shall pay $4,794.64 to Landlord for thepurpose of increasing the Security Deposit held by Landlord from $69,731.56 to$74,526.20.

 

## 2.5                                 **Tenant Improvement Allowance**.  Tenant shall occupy the First ExpansionPremises in its as-is condition and Landlord shall have no obligation tocontribute any funds to any refurbishment of the Premises.

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## 2.6                                 **Possessionof First Expansion Premises**. Landlord shall tender possession, and Tenant shall take possession, of theFirst Expansion Premises on the Expansion Premises Commencement Date.

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## 2.7                                 **ParkingSpaces**.  Effective on theExpansion Premises Commencement Date, paragraph 11 of the Basic LeaseProvisions of the Lease shall automatically be amended to read, in its entirety,as follows:

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“11.                           PARKING:

 

For the ExistingPremises:

 

Tenant shall be entitled to four (4) parking permitsper 1,000 usable square feet of the Existing Premises, all within thedesignated parking area, surface and structure.  Up to eighteen (18) of these parking permits shall be covered anddesignated reserved for Tenant’s executives at Tenant’s option.  In addition, Landlord shall provide,pursuant to Tenant’s request, three (3) reserved spaces in front of theBuilding designated specifically for Tenant’s visitors and vendors.  Monthly parking charges shall be at $25.00per non reserved space and $75.00 per reserved space. All non-reserved parkingcharges shall be waived during the first three (3) years of the Term.  Landlord reserves the right to separatelycharge Tenant’s guests and visitors for any additional parking.

 

For the First ExpansionPremises:

 

Tenant shall be entitledto six (6) unreserved parking spaces during the Term at the prevailing marketrate for such parking spaces which is currently $50.00 per unreserved space,per month.  Tenant may elect todesignate up to two (2) of said six parking spaces as reserved parkingspaces.  If Tenant so elects, Tenant agreesto pay the prevailing market rate for such parking spaces which is currently$100 for each reserved space, per month. Landlord reserves the right to separately charge Tenant’s guests andvisitors for parking.”

 

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## 2.8                                 **Brokers**:  As of the Expansion Premises Commencement Date, paragraph 8 ofthe Basic Lease Provisions of the Lease shall automatically be amended to read,in its entirety, as follows:

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“12.                           Brokers:

 

For the ExistingPremises:  Burnham Real Estate Services(previously known as Burnham Office Consulting Partners).

 

For the First ExpansionPremises:  Burnham Real Estate Servicesand The Staubach Company.

 

## 2.9                                 **Landlord’sAddress for Notices**: Landlord’s address for notices, as setforth in Section 9 of the Basic Lease Provisions of the Lease, is amendedto the following:

 

 
| Landlord:                                              | Tenant:                                |
|--------------------------------------------------------|----------------------------------------|
|                                                   |                                   |
| ALECTA PENSIONSFÖRSÄKRING,  ÖMSESIDIGT, | MAXIM PHARMACEUTICALS                  |
| a Swedish company                                      | 8899 University Center Lane, Suite 385 |
| Alecta Real Estate (USA), Inc.                         | San Diego, CA 92122                    |
| 10 Glenville Street                                    | Attn: Dale Sander                      |
| Greenwich, CT 06831                                    |                                   |
| Attn: Martin Van Ardenne                               |                                   |
|                                                   |                                   |
|                                                   |                                   |
| with a copy to:                                        |                                   |
|                                                   |                                   |
| STEPSTONE REAL ESTATE SERVICES                         |                                   |
| 1660 Union Street, 4th  Floor                          |                                   |
| San Diego, CA 92101                                    |                                   |
| Attn: Cindy Tracey                                     |                                   |

 

## 2.10                           **Defined Terms**:  Capitalized terms that are defined hereinbut not in the Lease shall have the meanings specified herein.

 

# 3.               **Estoppel**.

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## 3.1                                 **Tenant**:  As of the date hereof, Tenant acknowledges and agrees that to thebest of Tenant’s knowledge and belief, Landlord has performed all obligationsrequired of Landlord under the Lease and that there are no offsets,counterclaims or defenses of Tenant under the Lease existing againstLandlord.  Tenant further acknowledgesand agrees that no events have occurred that, with the passage of time or thegiving of notice, or both, would constitute a basis for an offset, counterclaimor defense against Landlord, and that the Lease, as amended, is in full forceand effect.

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## 3.2                                 **Landlord**:  As of the date hereof, Landlord acknowledges and agrees that tothe best of Landlord’s knowledge and belief, Tenant has performed allobligations required of

 

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## Tenantunder the Lease and that there are no offsets, counterclaims or defenses ofLandlord under the Lease existing against Tenant.  Landlord further acknowledges and agrees that no events haveoccurred that, with the passage of time or the giving of notice, or both, wouldconstitute a basis for an offset, counterclaim or defense against Tenant, andthat the Lease, as amended, is in full force and effect.

 

# 4.               **ContinuingEffect**.  As used hereinthe term “Lease” shall refer to the Lease as amended.  It is the intent of Landlord and Tenant by this First Amendmentto amend and modify certain provisions and conditions of the Lease aspreviously amended; therefore, except as expressly amended or modified by theprovisions and conditions of this First Amendment, the Lease shall remainunchanged and otherwise in full force and effect.

 
| “LANDLORD”                 |               | “TENANT”     |
|--------------------------------------|--------------------|------------------------|
|                                 |               |                   |   |   |
|                                 |               |                   |   |   |
| ALECTA PENSIONSFÖRSÄKRING, |               | MAXIM PHARMACEUTICALS, |
| ÖMSESIDIGT, a  Swedish company  |               | a Delaware corporation |
|                                 |               |                   |   |   |
|                                 |               |                   |   |   |
| By:                                  |               | /s/ Martin Van Ardenne |   | By: |   | /s/ Anthony E. Altig |
|                                 | Martin Van Ardenne |                   |   |   |
| Its:                                 | Asset Manager      |                   | Its: |   | Chief Financial Officer |
|                                      |                    |                        |  |  |  |  |

 

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**EXHIBIT “D”**

 

**BASIC MONTHLY RENT SCHEDULE**

 

1.                                       BASICMONTHLY RENT

 

(a)                                  Asof the date hereof, the Basic Monthly Rent to be paid by the Tenant to theLandlord shall be as follows.

 
| For the Existing  Premises:                   |                                             |
|-----------------------------------------------|--------------------------------------------------|
|                                          |                                             |
| Months   0  through 12 - $90,362.40 | ($2.40 per BOMA rentable square foot) per month  |
| Months 13 through 24 - $90,362.40             | ($2.40 per BOMA rentable square foot) per month  |
| Months 25 through 36 - $90,362.40             | ($2.40 per BOMA rentable square foot) per month  |
| Months 37 through 48 - $100,904.68            | ($2.68 per BOMA rentable square foot) per month  |
| Months 49 through 60 - $103,916.76            | ($2.76 per BOMA rentable square foot) per month  |
| Months 61 through 72 - $106,928.84            | ($2.84 per BOMA rentable square foot) per month  |
| Months 73 through 84 - $109,940.92            | ($2.92 per BOMA rentable square foot) per month  |
|                                          |                                             |
| For the First Expansion Premises:             |                                             |
|                                          |                                             |
| Months   8  through 12 - $3,940.80  | ($2.40 per BOMA rentable square foot) per month* |
| Months 13 through 24 - $3,940.80              | ($2.40 per BOMA rentable square foot) per month  |
| Months 25 through 36 - $3,940.80              | ($2.40 per BOMA rentable square foot) per month  |
| Months 37 through 48 - $4,400.56              | ($2.68 per BOMA rentable square foot) per month  |
| Months 49 through 60 - $4,531.92              | ($2.76 per BOMA rentable square foot) per month  |
| Months 61 through 72 - $4,663.28              | ($2.84 per BOMA rentable square foot) per month  |
| Months 73 through 84 - $4,794.64              | ($2.92 per BOMA rentable square foot) per month  |

 

(b)                                 Tenantagrees to pay to Landlord the monthly rental (Basic Monthly Rent) according tothe terms and conditions as specified in Article 2 of the Lease.

 

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*                                         Rentsfor May, June, July and August of 2004 are subject toSection 2.3 of the First Amendment to Lease.

 

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