nura,inc. 1124 Columbia Street Suite 650 Seattle, WA 98014
Exhibit 10.26
nura,inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
October 20, 2003
Alexandria Equities, LLC (“Alexandria Equities”)
000 Xxxxx Xxx Xxxxxx Xxx.
Xxxxx 000
Xxxxxxxx, XX 00000
000 Xxxxx Xxx Xxxxxx Xxx.
Xxxxx 000
Xxxxxxxx, XX 00000
| Re: | Assignment and Assumption and Modification of Lease Documents (“Agreement”) is made as of October 23, 2003 by and among ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation (“Landlord”), PRIMAL, INC., a Washington corporation (“Tenant”) and NURA, INC., a Delaware corporation (“Assignee”). |
Dear Sirs:
In connection with the execution and delivery of the captioned Agreement, the Assignee will
furnish to Alexandria Equities the following reports:
(i) As soon as practicable after the end of each fiscal year of the Assignee, and in any event
within one hundred twenty (120) days after the end of each fiscal year of the Assignee, an audited
consolidated balance sheet of the Assignee and its subsidiaries, if any, as at the end of such
fiscal year, and audited consolidated statements of income and cash flows of the Assignee and its
subsidiaries, if any, for such year, prepared in accordance with U.S. generally accepted accounting
principles consistently applied, certified by an authorized officer of the Assignee; provided that
if Assignee’s Board of Directors determines that Assignee’s financial statement shall not be
audited in any fiscal year, then Assignee shall be permitted to furnish to Landlord unaudited
financial statements for such fiscal year;
(ii) As soon as practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Assignee, and in any event within forty-five (45) days after the
end of the first, second, and third quarterly accounting periods in each fiscal year of the
Assignee, an unaudited consolidated balance sheet of the Assignee and its subsidiaries, if any, as
of the end of each such quarterly period, and unaudited consolidated statements of
Alexandria Equities, LLC (“Alexandria Equities”)
October 20, 2003
Page 2
October 20, 2003
Page 2
income and cash flows of the Assignee and its subsidiaries, if any, for such period, prepared
in accordance with U.S. generally accepted accounting principles consistently applied, subject lo
changes resulting from normal year-end audit adjustments; and
(iii) As soon as practicable after the date hereof, a written business plan of Assignee,
together with any amendments thereto as and when any such amendments become available.
Alexandria Equities acknowledges and agrees that the information received by it pursuant to
this letter may be confidential and that it will not reproduce, disclose or disseminate such
information to any other person (other than its employees or agents having a need to know the
contents of such information, and its attorneys), unless the Assignee has made such information
available to the public generally.
| Sincerely, nura, inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Its: | Chief Executive Officer | |||
Accepted and agreed this day of October, 2003
Alexandria Equities, LLC,
a Delaware limited liability company
a Delaware limited liability company
| By: | Alexandria Real Estate Equities, Inc., a Maryland corporation, its managing member |
|||
| By: | /s/ illegible signature | |||
| Its: | Chief Executive Officer | |||
This Assignment and Assumption and Modification of Lease Documents (this “Agreement”) is made as of
October 23, 2003 (the “Effective Date”), by and among ALEXANDRIA REAL ESTATE EQUITIES, INC., a
Maryland corporation (“Landlord”), PRIMAL, INC., a Washington corporation (“Tenant”), and NURA,
INC., a Delaware corporation (“Assignee”), with reference to the following Recitals.
RECITALS
A. Landlord and Tenant are parties to that certain Lease Agreement, dated as of April 6, 2000, as
amended by that certain First Amendment to Lease, dated as of June 16, 2000, that certain Amended
and Restated First Amendment to Lease, dated as of August 11, 2000, that certain Second Amendment
to Lease, dated as of May 1, 2001, that certain Third Amendment to Lease, dated as of June 19,
2001, that certain Fourth Amendment to Lease, dated as of October 1, 2001, that certain Fifth
Amendment to Lease, dated as of November 1, 2002, and that certain Sixth Amendment to Lease, dated
as of September 30, 2003 (as amended from time to time, the “Suite 650 Lease”). Pursuant to the
Suite 650 Lease, Tenant leases from Landlord certain premises located at and commonly known as 0000
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx, Xxxxx 000, as more particularly described in the Suite 650
Lease. All initially capitalized terms not otherwise defined in this Agreement shall have the
meanings set forth in the Suite 650 Lease unless the context clearly indicates otherwise.
B. Landlord and Tenant are parties to that certain Lease Agreement, dated as of September 28, 2001
(as amended from time to time, the “Annex Lease”). Pursuant to the Annex Lease, Tenant leases from
Landlord certain premises located at and commonly known as 0000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, Annex Level B, as more particularly described in the Annex Lease.
C. Landlord and Tenant are parties to that certain Storage Lease, dated as of July 24, 2002 (as
amended from time to time, the “Storage Lease”), pursuant to which Tenant leases from Landlord
certain premises located at and commonly known as 0000 Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxxx
#000, as more particularly described in the Storage Lease.
D. Tenant and XCyte Therapies Inc., a Washington Corporation (“XCyte”), are parties to that certain
Sublease dated as of July 23, 2003 (as amended, the “XCyte Sublease”). Pursuant to the XCyte
Sublease, XCyte subleases from Tenant a portion of the premises demised under the Suite 650 Lease,
as more particularly described in the XCyte Sublease. Landlord consented to the foregoing sublease
to XCyte pursuant to that certain Consent to Sublease, dated as of July 24, 2003, by and among
Landlord, Tenant and XCyte (the “XCyte Consent”).
E. Tenant and R&J Lab Therapies, Inc., a Washington corporation (“R&J”), are parties to that
certain Sublease, dated as of September 5, 2003 (as amended, the “R&J Sublease”). Pursuant to the
R&J Sublease, R&J subleases from Tenant a portion of the premises demised under the Suite 650
Lease, as more particularly described in the R&J Sublease. Landlord consented to the
foregoing
sublease to R&J pursuant to that certain Consent to Sublease, dated as of September 5, 2003, by and
among Landlord, Tenant and R&J (the “R&J Consent”). The Suite 650 Lease, the Annex Lease, the
XCyte Sublease, the R&J Sublease, the XCyte Consent and the R&J Consent are hereinafter
collectively referred to as the “Assigned Lease Documents.”
F. Subject to the terms and conditions set forth herein, (i) Tenant desires to assign to Assignee,
and Assignee desires to assume, all of Tenant’s right, title and interest in and to the Assigned
Lease Documents, (ii) Landlord desires to consent to the assignment and assumption of the Assigned
Lease Documents, release Tenant from all obligations under the Assigned Lease Documents arising
from and after the Effective Date, and (iii) Landlord, Tenant and Assignee desire to amend the Suite 650
Lease and the Annex Lease effective as of the Effective Date.
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord, Tenant and Assignee hereby agree as follows:
1. Assignment. Effective as of the Effective Date, Tenant assigns, sells,
transfers, sets over and delivers to Assignee all of Tenant’s right, title and interest in and to
the Assigned Lease Documents.
2. Assumption. Effective as of the Effective Date, Assignee accepts the foregoing
assignment of the Assigned Lease Documents and assumes and agrees to perform and observe all of the
obligations, covenants, terms and conditions to be performed or observed by Tenant under the
Assigned Lease Documents arising from and after the Effective Date.
3. Consent to Assignment and Assumption; Conditions Precedent. Subject to the terms
of this Section 3, effective as of the Effective Date, (i) Landlord consents to the
foregoing assignment and assumption of the Assigned Lease Documents, and (ii) Landlord releases
Tenant from, and relieves Tenant of, all of Tenant’s obligations under the Assigned Lease Documents
arising from and after the Effective Date. Notwithstanding anything to the contrary set forth
herein, Landlord’s consent set forth in this Section 3, and the modifications to the Suite
650 Lease and Annex Lease set forth in Section 5, are each subject to the following
conditions precedent: (x) Landlord’s receipt of the Assignment Consideration (as hereinafter
defined) on or before the Effective Date and otherwise strictly in accordance with the terms and
conditions set forth in Section 4 below; and (y) the occurrence of the closing of the
transaction contemplated under the Asset Acquisition Agreement (as hereinafter defined) on or
before October 30, 2003. The failure of either of the foregoing conditions precedent shall render
this Agreement null and void without further action by any person, and of no further force and
effect.
4. Assignment Consideration. As consideration for granting its consent to the
assignment of the Assigned Lease Documents and the modification of the Assigned Lease Documents
described in Section 5 below, on or before the Effective Date, Landlord shall be paid or
issued each of the following “Assignment Consideration” strictly in accordance with the following
terms and conditions:
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(a) Two Hundred Thousand Dollars ($200.000.00), which shall be deducted from the security
deposit currently held by Landlord for the Suite 650 Lease and the Annex Lease, and retained by
Landlord on the Effective Date as a fee for granting the consent set forth herein. The remainder
of such security deposit shall be returned to Tenant in accordance with the terms and provisions of
Section 6 below.
(b) 81,967 shares of non-voting common stock of Assignee issued pursuant to that certain Asset
Acquisition Agreement, dated September 25, 2003, by and between Assignee and Tenant (the “Asset
Acquisition Agreement”). Such securities shall be issued by Assignee directly to Alexandria
Equities, LLC, a Delaware limited liability company (“Alexandria Equities”), an affiliate of
Landlord, on or prior to the Effective Date, and shall not be subject to any indemnification
obligations of Tenant pursuant to the Asset Acquisition Agreement. In addition, in connection with
the issuance of such securities to Alexandria Equities, all representations and warranties made by
Assignee in Article 7 of the Asset Acquisition Agreement are hereby incorporated by reference
herein as though fully set forth in this Agreement. Assignee hereby acknowledges that Landlord and
Alexandria Equities are relying upon such representations and warranties in accepting the
securities issued by Assignee pursuant to this Agreement. In addition, Assignee agrees to grant
and make available to Alexandria Equities comparable rights and privileges relating to such
securities as are granted by Assignee to Tenant with respect to the securities issued to Tenant
pursuant to the Asset Acquisition Agreement. Tenant and Assignee agree that if any modification to
the Asset Acquisition Agreement or the transaction contemplated thereunder results in an adjustment
in the proportion of securities to non-securities consideration that Tenant is to receive under the
Asset Acquisition Agreement, an equitable proportionate adjustment shall be made to the amount of
securities which Alexandria Equities is entitled to receive hereunder.
5. Lease Modifications. Effective as of the Effective Date, subject to the
satisfaction of the condition precedent set forth in Section 4 above, Landlord and Assignee
agree that the Suite 650 Lease and Annex Lease are each amended as follows:
(a) Suite 650 Lease Modifications.
(i) The definition of “Security Deposit” set forth on Page 1 of the Suite 650 Lease is deleted
in its entirety and the following definition is substituted in lieu thereof:
“Security Deposit: $93,058.29”
(ii) The expiration date of the Base Term of the Suite 650 Lease is extended to September 30,
2008.
(iii) Tenant’s Notice Address set forth in Page 1 of the Suite 650 Lease is amended to delete
Tenant’s address for notices and to replace it with the following:
“nura, inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000.”
(iv) The following is added to Section 3(b) of the Suite 650 Lease:
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“Notwithstanding anything to the contrary contained herein, Tenant shall not be
obligated to pay (i) Base Rent for the months of September of 2003, January of 2004
and January of 2005, or (ii) Tenant’s Share of Net Building Expenses attributable to
the month of September of 2003.’’
(v) The first sentence of Section 4 of the Suite 650 Lease is deleted in its entirety, and the
following sentence is substituted in lieu thereof:
“Base Rent shall be increased on October 1, 2004, and on each annual anniversary
thereafter during the Term of this Lease by multiplying the Base Rent payable
immediately before such adjustment by the Rent Adjustment Percentage and adding the
resulting amount to the Base Rent payable immediately before such adjustment.”
(vi) The first sentence of Section 6 of the Suite 650 Lease is deleted in its entirety, and
the following is substituted in lieu thereof:
“Tenant shall deposit with Landlord security (the “Security Deposit”) for the
performance of all of its obligations in the amount set forth in the Basic Lease
Provisions set forth on Page 1 of this Lease, which security shall be in the form of
an unconditional and irrevocable letter of credit (the “Letter of Credit”) (i) in
form and substance satisfactory to Landlord, (ii) naming Landlord as beneficiary,
(iii) expressly allowing Landlord to draw upon it at any time from time to time by
delivering to the issuer notice that Landlord is entitled to draw thereunder, (iv)
drawable on an FDIC-insured financial institution satisfactory to Landlord, and (v)
redeemable in the state of Landlord’s choice. If Tenant does not provide Landlord
with a substitute Letter of Credit complying with all of the requirements hereof at
least 10 days before the stated expiration date of the then current Letter of Credit,
Landlord shall have the right to draw upon the current Letter of Credit and hold the funds drawn as the Security
Deposit.”
(b) Annex Lease Modifications
(i) The definition of “Security Deposit set forth on Page 1 of the Annex Lease is deleted in
its entirety and the following definition is substituted in lieu thereof:
“Security Deposit: $100,314.78.”
(ii) The definition of “Rent Adjustment Percentage” set forth on Page 1 of the Annex Lease is
deleted in its entirety and the following definition is substituted in lieu thereof:
“Rent Adjustment Percentage: 3.5%”
(iii) The expiration date of the Base Term of the Annex Lease is modified to September 30,
2008.
(iv) Tenant’s Notice Address set forth in Page 1 of the Annex Lease is amended to delete
Tenant’s address for notices and to replace it with the following:
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“nura, inc., 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000.”
(v) The following is added to Section 3(b) of the Annex Lease:
“Notwithstanding anything to the contrary contained herein, Tenant shall not be
obligated to pay (i) Base Rent for the months of September of 2003, January of 2004
and January of 2005, or (ii) Tenant’s Share of Operating expenses attributable to the
month of September of 2003.”
(vi) Section 4 of the Annex Lease is deleted in its entirety, and the following is substituted
in lieu thereof:
“Base Rent shall be increased on October 1, 2004, and on each annual anniversary
thereafter during the Term of this Lease by multiplying the Base Rent payable
immediately before such adjustment by the Rent Adjustment Percentage and adding the
resulting amount to the Base Rent payable immediately before such adjustment. Base Rent, as so adjusted, shall thereafter be due as provided herein. Base Rent
adjustments for any fractional calendar month shall be prorated.”
(vii) Section 6 of the Annex Lease is amended to delete the phrase “either cash or” from the
first sentence thereof.
6. Security Deposits. Landlord and Tenant acknowledge that Landlord currently holds
a security deposit from Tenant in the amount of $111,911.00 with respect to the Suite 650 Lease,
and a security deposit in the amount of $96,922.50 with respect to the Annex Lease. On the
Effective Date, Landlord shall deduct $200,000 from the foregoing security deposits and retain the
same as a portion of the Assignment Consideration pursuant to Section 4 above. The balance
of the security deposits (i.e., $8,833.50) shall be returned by Landlord to Tenant within thirty
(30) days following the Effective Date, less any amounts which Landlord is entitled to deduct
pursuant to Section 6 of the Annex Lease or Section 6 of the Suite 650 Lease. On or before January
1, 2004, Assignee shall deposit with Landlord a new security deposit in the amount of $93,058.29,
in the form of a letter of credit, and otherwise in accordance with Section 6 of the Suite 650
Lease, for the performance of Assignee’s obligations under the Suite 650 Lease. Such deposit shall
constitute the “Security Deposit” required and governed by Section 6 of the Suite 650 Lease (as
amended herein). On or before January 1, 2004, Assignee shall deposit with Landlord a new security
deposit in the amount of $100,314.78, in the form of a letter of credit, and otherwise in
accordance with Section 6 of the Annex Lease, for the performance of Assignee’s obligations under
the Annex Lease. Such deposit shall constitute the “Security Deposit” required and governed by
Section 6 of the Annex Lease (as amended herein).
7. Brokers. Assignee shall pay any broker commissions or fees that may be payable as
a result of the assignment contemplated herein, and Assignee hereby indemnifies and agrees to hold
Landlord harmless from and against any loss or liability arising therefrom or from any other
commissions or fees payable in connection with the assignment contemplated herein.
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8. No Other Modifications of Lease. Except as expressly provided for herein,
nothing contained herein shall be construed to modify, waive, impair, or affect any of the terms,
covenants or conditions contained in any of the Assigned Lease Documents (including Assignee’s
obligation to obtain any required consents for any other or future assignments or sublettings), or
to waive any breach thereof, or any rights or remedies of Landlord thereunder, or to enlarge or
increase Landlord’s obligations or liabilities thereunder, and all terms, covenants and conditions
of the Suite 650 Lease (as modified herein) and Annex Lease (as modified herein) are hereby declared by each of
Landlord, Tenant and Assignee to be in full force and effect.
9. Oral Modifications. This Agreement may not be changed orally, but only by an
agreement in writing signed by Landlord and the party(ies) against whom enforcement of any change
is sought.
10. Integration. This Agreement supersedes all prior or contemporaneous, written
or oral, memoranda, arrangements, agreements, or understandings between the parties hereto related
to the subject matters addressed herein. Any representations, promises, warranties, or statements
made by any party which differ in any way from the terms of this Agreement shall be given no force
or effect.
11. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which when taken together shall constitute
but one and the same instrument. The parties agree that this Agreement may be signed by facsimile,
with originals to follow.
12. Governing Law. This Agreement and the legal relations between the parties hereto
shall be governed by and construed and enforced in accordance with the internal laws of the State
of Washington.
13. Successors and Assigns. This Agreement shall be binding upon Landlord, Tenant,
and Assignee and their respective successors, successors-in-interests, transferees and assigns.
14. Time of Essence. Time is of the essence with respect to each provision of this
Agreement.
15. Authority. Each person executing this Agreement on behalf of a party hereto
represents and warrants that he or she is authorized and empowered to do so and to thereby bind the
party on whose behalf he or she is signing.
16. Attorneys’ Fees. If any party hereto commences an action against the other
party(ies) arising out of or in connection with this Agreement, the prevailing party shall be
entitled to recover from the losing party(ies) reasonable attorneys’ fees and costs of suit.
17. Further Assurances. The parties hereto shall promptly perform, execute and
deliver or cause to be performed, executed and/or delivered any and all acts, deeds and assurances
as the other party(ies) may reasonably require in order to carry out the intent and purpose of this
Agreement.
[Signatures appear on the next page.]
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IN WITNESS WHEREOF, Landlord, Tenant, and Assignee have caused their duly authorized
representatives to execute this Agreement as of the date first above written.
| LANDLORD: | ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation |
|||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Its: | Senior Vice President & Chief Financial Officer | |||
| TENANT: | PRIMAL, INC., a Washington corporation |
|||
| By: | /s/ Xxx X. Xxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxx | |||
| Its: | Chief Financial Officer | |||
| ASSIGNEE: | NURA, INC., a Delaware corporation |
|||
| By: | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Its: | Chief Executive Officer | |||
