Exhibit 10.10
SUBLEASE AGREEMENT
This Sublease Agreement (this "Sublease"), dated as of October 6, 2005, is
entered into by and between: Light Sciences Corporation, a Washington
corporation ("LSC"), and Light Sciences Oncology, Inc., a Washington corporation
("LSO").
RECITALS
A. LSC is the subtenant under that certain Sublease Agreement dated
September 9, 2002, between Microsoft, Inc., a Washington corporation (formerly
Great Plains Software O.C., Inc.) ("Sublandlord") and LSC (the "Master
Sublease"), under which LSC leases office space located at 00000 X.X. Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (the "Premises"). The Master Sublease is
attached to this Sublease as Schedule A. The Premises are more fully identified
and legally described in the Master Sublease.
B. Sublandlord is the tenant under that certain Lease dated as of March 2,
2000, between Snoqualmie Ridge Cascade View LLC, a Washington limited liability
company ("Master Landlord") and Sublandlord ("Master Lease"), under which
Sublandlord leases the Premises. The Master Lease is attached to this Sublease
as Schedule B.
C. LSC desires to sublease office space measuring approximately 6003 square
feet, shown cross-hatched on attached Schedule C (the "Subleased Premises") to
LSO and to share the right to use all other rooms and areas not occupied as
offices by staff of LSC or others (collectively, the "Shared Areas"), and LSO
desires to sublease such Subleased Premises from LSC and share the right to use
the Shared Areas, all subject to the terms and conditions of this Sublease.
AGREEMENT
NOW, THEREFORE, LSC and LSO agree as follows:
SECTION 1. SUBLEASED PREMISES AND SHARED AREAS. Subject to the terms and
conditions of this Sublease, LSC hereby subleases the Subleased Premises to LSO,
and LSO hereby subleases the Subleased Premises from LSC. In addition, LSC
grants LSO the right to use and access the Shared Areas and any and all
furniture, fixtures and equipment in the Shared Areas and the same rights of
ingress and egress to the Subleased Premises and Shared Areas as LSC has under
the Master Sublease. The shared equipment, includes, without limitation, the
equipment listed in attached Schedule D ("Designated Shared Equipment"). Without
limiting the foregoing, LSO will have the right to use for regular ingress and
egress the stairwell that is currently used as an emergency exit from the
Subleased Premises. LSC will deliver LSO possession of the Subleased Premises on
the date of this Sublease. LSO will have access to the Subleased Premises and
Shared Areas seven (7) days a week, twenty-four (24) hours a day, every day of
the year, subject to any restrictions set forth in the Master Lease or Master
Sublease. LSO will be entitled to display reasonable signage for the Subleased
Premises, including, without limitation, signage on the door to the Subleased
Premises, to the extent permitted under the Master Lease and Master Sublease.
PAGE 1
SECTION 2. SERVICES. During the Term (as defined below), LSC will provide the
following services to LSO for the normal use of the Subleased Premises and
Shared Areas:
(a) electricity, gas and utilities;
(b) heat, ventilation and air conditioning;
(c) telephone and data;
(d) janitorial services;
(e) maintenance and repair services necessary to maintain the
Subleased Premises and Shared Areas in good working order and in a safe
condition;
(f) maintenance and repair of all equipment, fixtures and furniture
used in the Shared Areas; and
(g) a reasonable number of unreserved parking spaces.
LSC will perform or cause to be performed the foregoing services in a
professional and workmanlike manner and with at least the same quality,
timeliness and efficiency as LSC performs or causes to be performed similar
services in the operation of its own business.
SECTION 3. TERM AND TERMINATION
3.1 TERM. The term of this Sublease will commence on the date of this
Sublease and will end upon the termination or expiration of the Master Sublease,
unless sooner terminated in accordance with Section 3.2, 3.3 or 3.4 (the
"Term").
3.2 TERMINATION BY LSO. LSO may terminate the Term upon one hundred twenty
(120) days' written notice; provided, that LSO may terminate the Term upon
written notice if LSC breaches any of its obligations under this Sublease, and
such breach continues for twenty (20) days after written notice from LSO.
3.3 TERMINATION BY LSC. LSC may terminate the Term upon written notice if
LSO fails to pay any Rent or other amounts payable hereunder when due, and such
failure continues for ten (10) days after written notice from LSC, or LSO
otherwise breaches its obligations under this Sublease, and such breach
continues for twenty (20) days after written notice from LSC.
3.4 TERMINATION OF MASTER LEASE OR MASTER SUBLEASE. This Sublease will
terminate if the Master Lease or Master Sublease terminates or is terminated for
any reason.
3.5 SURRENDER OF SUBLEASED PREMISES. LSO will, on or before the last day of
the Term, remove all of its furniture, furnishings, personal property and
equipment and surrender the Subleased Premises.
PAGE 2
SECTION 4. COMPENSATION
4.1 RENT. LSO will pay to LSC rent on a monthly basis ("Rent") calculated
as follows:
(a) for the Subleased Premises, LSO will pay an amount equal to
(i) the rent payable by LSC under Section 3.1 and 3.2 of the
Master Sublease multiplied by
(ii) the ratio of the rentable square footage of the Subleased
Premises to the rentable square footage of the Premises; and
(b) for the Shared Areas, LSO will pay an amount equal to
(i) the rent payable by LSC under Section 3.1 and 3.2 of the
Master Sublease multiplied by the ratio of the rentable square footage of the
Shared Areas to the rentable square footage of the Premises multiplied by
(ii) the ratio of the rentable square footage of the (x)
Subleased Premises to the (y) rentable square footage of the Subleased Premises
and the portion of the Premises used exclusively by any person or entity other
than LSO.
Rent will be paid in advance on the first day of each calendar month at such
place as LSC may designate, without prior demand therefor. Those portions of
Rent paid under this Section 4.1 attributable to "Additional Rent" payable by
LSC under the Master Sublease will be reconciled in accordance with Section 3.2
of the Master Sublease. If this Sublease does not commence or terminate on the
first or last day of a calendar month, Rent for the month of commencement or
termination will be prorated.
4.2 ADDITIONAL RENT. In the event LSC incurs costs to provide services
described in Section 2 that are not provided by the Master Landlord or
Sublandlord, then LSO will pay to LSC the actual costs incurred by LSC to
provide such services to LSO allocated to LSO in the same manner that rent under
the Master Sublease is allocated to LSO under Section 4.1 ("Additional Rent").
For avoidance of doubt, no additional rent or fees will be payable under this
Section 4.2 for services that are included in the operating expenses charged to
LSC under Section 3.2 of the Master Sublease. On or about the first day of every
calendar month, LSC will submit to LSO a reasonably detailed written invoice for
any Additional Rent for services properly performed during the prior calendar
month. LSO will pay LSC the amounts properly payable under each invoice within
thirty (30) days after receipt.
4.3 RECORDS. Upon reasonable request, LSC will furnish such information as
LSO may reasonably request to verify any amounts payable hereunder. Further, LSO
will have the right to review and audit LSC's books and records upon reasonable
advance notice to verify the calculation of the amounts payable under this
Section 4.
SECTION 5. USE. The Subleased Premises and Shared Areas will be used and
occupied by LSO only for general purpose use, including, without limitation, dry
and wet laboratory, and research and development. LSC represents that the
Subleased Premises and Shared Areas can be used for such purposes under the
Master Lease and Master Sublease. LSO will observe at all times (a) any and all
rules and regulations promulgated by the Master Landlord that are applicable to
the Subleased Premises and Shared Areas or any occupant thereof; and (b)
commercially reasonable safety and security
PAGE 3
regulations established by LSC in consultation with LSO for the use or occupancy
of the Subleased Premises and Shared Areas.
SECTION 6. LOCKS. LSC will furnish LSO with keys and security cards needed for
access to the Subleased Premises and Shared Areas. Upon termination of the Term,
LSO will surrender all keys and security cards to the Subleased Premises and
Shared Areas. LSO will not change the locks to the Subleased Premises without
the prior written consent of LSC and the Sublandlord. LSC will not unreasonably
withhold its consent to any such change.
SECTION 7. INSURANCE. Unless otherwise agreed upon by the parties, during any
period of occupancy, LSC will keep in full force and effect insurance as
required of LSC under Section 14 of the Master Sublease. During the period of
LSO's occupancy, (a) such insurance will name LSO as an additional insured, (b)
LSC will not cancel such insurance without the prior written consent of LSO, and
(c) upon request, LSC will provide certificates to LSO evidencing such
insurance. The premiums and related costs for such insurance will be allocated
to LSO in the same manner that rent is allocated to LSO under Section 4.
SECTION 8. MASTER LEASE AND MASTER SUBLEASE
8.1 ADHERENCE TO MASTER LEASE AND MASTER SUBLEASE. This Sublease is subject
to the terms and conditions of and subordinate to the Master Lease and Master
Sublease. LSO will be bound by all obligations and responsibilities of LSC as
tenant under the Master Sublease and hereby assumes the obligations of LSC
thereunder with respect to the Subleased Premises, except to the extent such
obligations are inconsistent with LSO's obligations under this Sublease or are
addressed by the terms and conditions of this Sublease. LSO will not knowingly
take any actions that will cause LSC to be in default under the Master Sublease
or Sublandlord to be in default under the Master Lease.
8.2 GOOD STANDING. LSC represents and warrants that (a) the Master Sublease
is in good standing, and, to its knowledge, the Master Lease is in good
standing; (b) there are no agreements other than the Master Sublease and Master
Landlord's Consent to Sublease between LSC and the Sublandlord concerning the
use of the Subleased Premises or Shared Areas; and (c) LSC is not in breach or
default, and has not received notice of any breach or default, under the Master
Sublease, and, to its knowledge, Sublandlord is not in breach or default under
the Master Lease. LSC will immediately notify LSO if LSC receives oral or
written notice from Sublandlord of a breach or default under the Master
Sublease.
8.3 PERFORMANCE. LSC will perform all of its obligations under the Master
Sublease. LSC will use diligent good faith efforts to cause the Sublandlord to
perform its obligations under the Master Sublease.
8.4 AMENDMENT; TERMINATION; RENEWAL. LSC will not amend or voluntarily
terminate the Master Sublease, or surrender all or any portion of the Subleased
Premises or Shared Areas, without LSO's prior written consent. At least thirty
(30) days before the first day that LSC has to exercise its option to extend the
term of the Master Sublease, LSC will notify LSO whether LSC will exercise its
option to extend the term of the Master Sublease. If LSC notifies LSO that LSC
will not exercise its option to extend the term of the Master Sublease, then LSC
will cooperate and assist LSO to assume and extend the Master Sublease to enable
LSO to sublease the Subleased Premises and Shared Areas from the Sublandlord. If
LSC notifies LSO that LSC will exercise its option to extend the Master
Sublease, then LSC will timely and properly exercise its option to extend the
term of the Master Sublease.
PAGE 4
SECTION 9. ASSIGNMENT AND SUBLETTING. LSO will not sublet the Subleased Premises
or assign this Sublease or any part thereof for any period of time without the
prior consent of Master Landlord, Sublandlord and LSC. LSC will not assign this
Sublease or any part thereof without the prior consent of LSO. Neither party
will unreasonably delay, withhold or condition its consent.
SECTION 10. INDEMNIFICATION. LSO will indemnify, defend and hold harmless LSC,
Sublandlord and Master Landlord from any claim, liability or suit, including
reasonable attorneys' fees, for any injury or damage occurring in or about the
Subleased Premises or Shared Areas where such damage or injury was caused by any
act, omission, negligence or intentional act of LSO or by LSO's agents,
employees, servants, customers, clients, contractors or invitees. LSC will
indemnify, defend and hold harmless LSO from any claim, liability or suit,
including reasonable attorneys' fees, for any injury or damage occurring in or
about the Subleased Premises or Shared Areas where such damage or injury was
caused by any act, omission, negligence or intentional act of LSC or by LSC's
agents, employees, servants, customers, clients, contractors or invitees. The
indemnification obligations contained in this Section will not be limited by any
worker's compensation, benefit or disability laws, and each indemnifying party
hereby waives (solely for the benefit of the indemnified party) any immunity
that said indemnifying party may have under the Industrial Insurance Act, Title
51 RCW and similar worker's compensation, benefit or disability laws. LSO AND
LSC ACKNOWLEDGE BY THEIR EXECUTION OF THIS SUBLEASE THAT EACH OF THE
INDEMNIFICATION PROVISIONS OF THIS SUBLEASE (SPECIFICALLY INCLUDING BUT NOT
LIMITED TO THOSE RELATING TO WORKER'S COMPENSATION BENEFITS AND LAWS) WERE
SPECIFICALLY NEGOTIATED AND AGREED TO BY LSO AND LSC.
SECTION 11. QUIET ENJOYMENT. Provided LSO has satisfied its obligations under
Section 4, LSO will peaceably and quietly hold and enjoy the Subleased Premises
for the Term.
SECTION 12. CONFIDENTIALITY. Neither party will use the Confidential Information
of the other party or disclose, disseminate, display, publish or distribute any
Confidential Information of the other party to any person or entity without the
prior written consent of the disclosing party. Each party will exercise due care
(i.e., at least as much care as it affords its own confidential information) to
prevent unauthorized disclosure or use of Confidential Information of the
disclosing party. Without limiting the foregoing, the receiving party will make
the Confidential Information of the disclosing party available only to those of
its employees, agents and other representatives who have a need to know the same
for a purpose authorized by the disclosing party, who have been informed that
the Confidential Information belongs to the disclosing party, and who have
agreed or are otherwise obligated to comply with this Section 12. "Confidential
Information" means any trade secrets or other information of a party disclosed
to or learned or acquired by the other party and not generally available to the
public, whether of a technical, business or other nature (including, without
limitation, information relating to a party's research, studies, drugs, clinical
data, products, developments, designs, methods, manufacturing processes,
business plans, finances, personnel, marketing plans, customers, suppliers,
prospects or other affairs). However, Confidential Information does not include
any information that: (a) was known by the receiving party prior to
communication by the disclosing party; (b) is a matter of public knowledge at
the time of such disclosure by the disclosing party; (c) becomes a matter of
public knowledge, without fault on the part of the receiving party, subsequent
to disclosure by the disclosing party to the receiving party; or (d) has been
disclosed to the receiving party from a third party lawfully having possession
of such Confidential Information without an obligation of confidentiality to the
disclosing party. Subparagraph (a) will not apply to Confidential Information
transferred from LSC to LSO under the Asset Transfer Agreement entered into in
connection with this Sublease. Notwithstanding the foregoing restrictions, the
receiving
PAGE 5
party may disclose or produce any Confidential Information of the disclosing
party if and to the extent required by any discovery request, subpoena, court
order, governmental action, or to the extent the receiving party believes in
good faith on the basis of an opinion of counsel that such disclosure is
required by applicable law or regulation; provided, that the receiving party
gives the disclosing party reasonable advance notice of the same (e.g., so as to
afford the disclosing party a reasonable opportunity to appear, object and
obtain a protective order or other appropriate relief regarding such
disclosure).
SECTION 13. MISCELLANEOUS
13.1 NOTICES. All notices and other communications hereunder will be in
writing and will be deemed given if delivered personally, by fax (receipt
confirmed), or by registered or certified mail, return receipt requested and
postage prepaid or sent by express courier service (receipt verified), to the
parties at the following addresses (or at such other addresses for a party as
will be specified by the like notice; provided, that notices of a change of
address will be effective only upon receipt thereof):
To LSO: Light Sciences Oncology, Inc.
00000 XX Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn.: Xxx Xxxxxxx, M.D.
Fax: ____________________________
To LSC: Light Sciences Corporation
00000 XX Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn.: __________________________
Fax: ____________________________
All such notices and communications will be deemed effective when received.
13.2. DISPUTE RESOLUTION. Any dispute or claim arising out of or relating
to this Sublease ("Dispute") that cannot be resolved by the parties within ten
(10) days after a party notifies the other party of a Dispute will be referred
to the chief executive officer of LSO and the chief executive officer of LSC. If
the parties' respective chief executive officers do not resolve the Dispute
within ten (10) days after they first discuss the Dispute, then the Dispute will
be settled by binding arbitration in accordance with this Section 13.2. The
arbitration will be conducted by a single arbitrator in accordance with the
rules of the American Arbitration Association. The parties will use their best
efforts to agree upon a mutually acceptable arbitrator within twenty (20) days
after written demand for arbitration under this Section 13.2. The arbitrator's
decision will be in writing, will specify the factual and legal bases of such
decision, will be final and binding on the parties, and a judgment consistent
therewith may be entered by any court of competent jurisdiction. The cost of
arbitration will be borne equally by the parties unless the arbitrator makes a
final determination, which determination will be binding upon the parties, that
one of the parties should be regarded as the prevailing party as to the matters
submitted to the arbitration. Notwithstanding the foregoing, a party may seek
preliminary injunctive or other equitable relief in a court of law if in its
judgment such action is necessary to avoid irreparable damage. The parties will
continue to participate in good faith in the procedures specified in this
Section 13.2 despite such action.
PAGE 6
13.3 NONWAIVER. The failure of either party to insist on or enforce strict
performance of any provision of this Sublease or to exercise any right or remedy
under this Sublease or applicable law will not be construed as a waiver or
relinquishment to any extent of the right to assert or rely upon any such
provision, right or remedy in that or any other instance; rather, the same will
be and remain in full force and effect.
13.4 SEVERABILITY. If any provision of this Sublease will be held by any
court of competent jurisdiction to be invalid, illegal or unenforceable under
applicable law, then such provision will be deemed reformed or omitted to the
extent determined by such court (i.e., with the objective of preserving the
intent of such provision to the extent permitted by applicable law). In any
event, the remainder of this Sublease will remain valid and enforceable.
13.5 GOVERNING LAW. This Sublease will be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Washington,
without reference to its principles relating to conflicts of law.
13.6 ENTIRE AGREEMENT. This Sublease sets forth the entire agreement and
supersedes any and all prior agreements of the parties with respect to the
subject matter hereof. No amendment of this Sublease will be valid unless set
forth in a written instrument signed by the party to be bound thereby.
13.7 CONSENT. This Sublease is expressly conditioned upon consent by
Sublandlord and Master Landlord. This Sublease will be of no force or effect
unless consented to by Sublandlord and Master Landlord.
PAGE 7
IN WITNESS WHEREOF, LSC and LSO have executed this Sublease on the day
first set forth above.
LSO: LSC:
LIGHT SCIENCES ONCOLOGY, INC. LIGHT SCIENCES CORPORATION
By: /s/ Xxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
--------------------------------- ------------------------------------
Print: Xxx Xxxxxxx Print: Xxxxxx Xxxxxxx
Its: COO Its: CEO
PAGE 8
