Exhibit 10.1
THIRD AMENDMENT TO
SUBLEASE
THIS THIRD AMENDMENT TO SUBLEASE
(“ Amendment ”) is made as of the 17th day of
April, 2009 (the “Effective Date”), by and between
INFINITY DISCOVERY, INC., a Delaware corporation formerly
known as Infinity Pharmaceuticals, Inc. (“ Sublandlord
”), and HYDRA BIOSCIENCES, INC. , a Delaware
corporation (“ Subtenant ”).
WITNESSETH:
WHEREAS, Sublandlord
and Subtenant are parties to that certain Sublease dated
August 24, 2004, as amended by that certain First Amendment to
Sublease dated as of October 17, 2005, as further amended by
that certain Second Amendment to Sublease dated as of
January 9, 2006, and as affected by those certain letter
agreements dated as of April 19, 2007, February 12,
2008 and March 13, 2009 (as amended and affected, the “
Sublease ”) pursuant to which Subtenant subleases from
Sublandlord certain premises containing approximately 16,167
rentable square feet of space (the “ Subleased
Premises ”) located on the third (3
rd
) floor of the
building located at 790 Memorial Drive, Cambridge, Massachusetts,
all as more particularly described in the Sublease; and
WHEREAS, Sublandlord and Subtenant
have agreed to reduce the Subleased Premises on the terms and
conditions set forth herein, subject to the condition precedent of
Sublandlord’s obtaining Prime Landlord’s written
consent hereto.
NOW THEREFORE, for good and valuable
consideration, and in consideration of the covenants and agreements
herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms .
Capitalized terms not defined herein shall have the meanings
ascribed to them in the Sublease.
2. Reduction of Subleased
Premises . Effective as of the Effective Date, the Subleased
Premises is hereby reduced by 3,008 rentable square feet by the
elimination of that area shaded and identified as the
“Infinity Space” on the floor plan attached hereto as
Exhibit A (the “ Surrendered Premises ”)
and the Sublease hereby terminates as to the Surrendered Premises
with the same force and effect as if the term of the Sublease for
the Surrendered Premises were scheduled to expire on the Effective
Date. Except as otherwise set forth herein, the Sublease shall
continue on all of the terms and conditions of the Sublease for the
remainder of the Subleased Premises. Effective as of the Effective
Date, the rentable square feet of the Subleased Premises is deemed
to be 13,159 rentable square feet. For the avoidance of doubt, the
parties hereby confirm that Subtenant’s parking rights as set
forth in Section 10 of the Sublease shall not be
affected by such reduction in the Subleased Premises.
With respect to the period following
the Effective Date, all rights and obligations of Sublandlord and
Subtenant under the Sublease with respect to the Surrendered
Premises shall terminate as though such date were the Expiration
Date, except (i) as set forth in this Amendment, (ii) the
obligations under the Sublease that arise during or are otherwise
attributable to the period ending on such Effective Date, and
(iii) the obligations that are specified in the Sublease to
survive the Expiration Date.
3. Reservation of Rights
.
(a) Reserved Spaces . In
connection with the elimination of the Surrendered Premises from
the Subleased Premises, Sublandlord hereby reserves the right to
use in common with Subtenant those certain areas within the
Subleased Premises described on, and for the purposes set forth in,
Exhibit B attached hereto (the “ Reserved
Spaces ”), together with such other reserved rights as
are reasonably necessary for Sublandlord’s access, occupancy,
use and enjoyment of the Surrendered Premises (provided that all
such rights do not materially and adversely interfere with the use
of the Subleased Premises by Subtenant for the purposes permitted
under the Sublease). Maintenance and repair of the Reserved Spaces
shall be performed by Subtenant to the extent required by the
Sublease, except to the extent the necessity for such maintenance
and repair is the result of a negligent or willful act of
Sublandlord, in which event Sublandlord shall be responsible,
subject to the waiver of claims set forth in Section 17 of the
Prime Lease (as incorporated into the Sublease), for the cost of
such maintenance and repair.
(b) Good Faith . The parties,
having agreed to this Section 3, recognize that it is not
dispositive of all matters and issues that may arise during the
term of the Sublease with respect to the Reserved Spaces. As and
when matters and issues not definitively controlled by the
Sublease, as affected by this Section 3, arise during the term
of the Sublease with respect to the Reserved Spaces, Sublandlord
and Subtenant shall act reasonably and endeavor in good faith to
resolve such matters and issues.
(c) Confidentiality . By
reason of this Amendment, (i) Sublandlord may be exposed to
confidential and proprietary information owned by Subtenant, and
(ii) Subtenant may be exposed to confidential and proprietary
information owned by Sublandlord. Such confidential and proprietary
information may include, but not be limited to, any procedure,
discovery, invention, formula, data, result, idea or technique; any
trade secret, trade dress, copyright, patent or other intellectual
property right, or any registration or application therefor, or
materials relating thereto; and any information relating to any of
the foregoing or to any research, development, manufacturing,
engineering, marketing, servicing, sales, financing, legal or other
business activities or to any present or future products, prices,
plans, strategies, forecasts, suppliers, clients, customers,
employees, consultants or investors; whether in oral, written,
graphic or electronic form (collectively referred to as “
Information ”). “Information,” however,
shall not include information which becomes generally available to
the public (except as a result of a disclosure in violation of this
Section). Sublandlord acknowledges the confidential and secret
nature of Subtenant’s Information and agrees, with respect to
any such Subtenant Information obtained by Sublandlord in
connection with Sublandlord’s use of the Reserved Spaces,
(A) not to reproduce any of Subtenant’s Information in
any format, (B) not to use Subtenant’s Information, and
(C) not to disclose all or any part of Subtenant’s
Information in any form to any third party. Subtenant acknowledges
the confidential and secret nature of Sublandlord’s
Information and agrees, with respect to any such Sublandlord
Information obtained by Subtenant in connection with
Sublandlord’s use of the Reserved Spaces, (x) not to
reproduce any of Sublandlord’s Information in any format,
(y) not to use Sublandlord’s Information, and
(z) not to disclose all or any part of Sublandlord’s
Information in any form to any third party. Such obligations shall
survive the termination of the Sublease. Notwithstanding the
foregoing, Subtenant’s or Sublandlord’s Information may
be disclosed to the extent required by law or in connection with
legal proceedings. The parties acknowledge that monetary damages
will not adequately compensate a breach of the provisions of this
Section, and Subtenant and/or Sublandlord shall be entitled to
equitable relief, including an injunction, in the event of a breach
or threatened breach of this Section.
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(d) Indemnification .
Sublandlord shall indemnify Subtenant and hold Subtenant harmless
from and against any and all claims, demands, suits, judgments,
liabilities, costs and expenses, including reasonable attorneys
fees, arising out of or in connection with Sublandlord’s use
of the Reserved Spaces, to the extent caused by the willful
misconduct or negligence of Sublandlord.
4. Condition of Surrendered
Premises . Sublandlord agrees to separately demise the
Surrendered Premises from the remaining Subleased Premises at its
sole cost and expense by constructing the interior walls and
doorways depicted on the floor plan attached hereto as Exhibit
A to the extent not currently in existence (the “
Demising Work ”). The parties shall cooperate as
reasonably required in order to allow Sublandlord to complete the
Demising Work. In connection with performing the Demising Work,
Sublandlord shall use commercially reasonable efforts to not
materially and adversely interfere with the use of the Subleased
Premises by Subtenant.
5. Equipment .
Notwithstanding anything in this Amendment to the contrary,
Sublandlord and Subtenant agree (i) that Subtenant’s
furniture, equipment and moveable personal property now located in
the Surrendered Premises (the “ Remaining Equipment
”) may remain in the Surrendered Premises after the Effective
Date, (ii) that all Remaining Equipment remaining in the
Surrendered Premises after the Effective Date shall be at
Subtenant’s sole risk, (iii) that all such Remaining
Equipment shall be kept insured by Subtenant, at Subtenant’s
expense and in accordance with the insurance requirements of the
Sublease and the Prime Lease, until removed from the Surrendered
Premises, and (iv) to cooperate on a mutually-agreeable
schedule to remove the Remaining Equipment from the Surrendered
Premises to another location in the Subleased Premises at
Subtenant’s sole cost and expense (except as provided in the
immediately following sentence), provided, however, that no such
Remaining Equipment shall remain in the Surrendered Premises on or
after May 4, 2009. In connection with such relocation,
Sublandlord shall, at its sole cost and expense, relocate, to the
extent necessary, internet connections, electrical plugs and air
lines currently serving the Remaining Equipment to locations within
the Subleased Premises mutually agreed upon by the parties for the
purpose of operating the relocated Remaining Equipment.
6. Rent; Additional Rent .
From and after the Effective Date, (i) annual base rent and
(ii) Subtenant’s proportionate share of any and all
additional rent payable by Sublandlord under the Prime Lease, as
set forth in Section 5 and 6 of the Sublease,
respectively, shall be calculated based on 13,159 rentable square
feet. Nothing in this Amendment shall be deemed to affect annual
base rent or Subtenant’s proportionate share of additional
rent applicable to the Surrendered Premises and attributable to the
portion of the term ending on the Effective Date. Notwithstanding
the foregoing, Sublandlord hereby agrees to provide Subtenant with
a retroactive credit against annual base rent in the amount of
$17,435.54, such credit to be applied against the next payments of
annual base rent due under the Sublease after the date
hereof.
7. Brokerage Representations
. Sublandlord and Subtenant each represent that said party has not
been represented by, retained or employed any broker in connection
with this Amendment. Each party hereby agrees to defend, indemnify
and hold harmless the other party from and against any loss, cost
or expense (including reasonable attorneys fees) incurred as a
result of its breach of the foregoing representation.
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8. Notices .
From and after the date hereof, Section 23 of the
Sublease is hereby amended by (i) deleting “Wilmer
Cutler Pickering Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109, Attention: Melvin R. Shuman, Esq.” and
substituting therefor the following: “DLA Piper LLP (US), 33
Arch Street, 26 th Floor, Boston, MA 02110,
Attention: Geoffrey A. Howell, Esq.” and (ii) deleting
“MBV Law, 855 Front Street, San Francisco, CA 94111,
Attention J. Michael Whisman” and substituting therefor the
following: “Wilmer Cutler Pickering Hale and Dorr LLP, 60
State Street, Boston, Massachusetts 02109, Attention: Paul
Jakubowski, Esq.”.
9. Authority . Each of
Subtenant and Sublandlord represents and warrants to the other
that: it (i) is duly organized, validly existing and in good
standing under the laws of its state of organization o
