001- 37897
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20-1828101
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(Commission
File Number)
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(IRS Employer
Identification No.)
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5421 Avenida Encinas, Suite F
Carlsbad, California
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92008
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(Address of principal executive offices)
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(Zip Code)
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¨
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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OBALON THERAPEUTICS, INC.
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Date: June 5, 2018
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By:
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/s/ William Plovanic
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William Plovanic
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Chief Financial Officer
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Description
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10.1
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Fourth Amendment to Lease dated May 31, 2018 between Gildred Development Company, DBA Ocean Point and Obalon Therapeutics Inc.
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1.
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PREMISES
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Effective from and after June 15, 2018, Lessee agrees to continue to lease the Existing Premises consisting of an area of 17,500 rentable square feet, and Lessee also agrees to lease an additional 2,700 rentable square feet of premises located at and commonly known as 5411 Avenida Encinas, Suite 120, Carlsbad, California 92008 (“Expansion Premises”). The Expansion Premises and the Existing Premises, together consisting of an area totaling approximately 20,200 rentable square feet, are hereinafter collectively referred to as the “Premises” (see attached “Revised Site Plan – Exhibit A”, incorporated herein by this reference).
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2.
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TERM (Paragraph 1.3)
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The Expiration Date for the Collective Lease shall hereby be changed to March 31, 2022. Notwithstanding any prior agreement to the contrary, the Parties agree that Lessee has no existing right or option to extend the Term of the Lease beyond said Expiration Date (March 31, 2022).
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3.
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COMMENCEMENT:
Lessor and Lessee acknowledge and agree that Lessee is currently in possession of the Existing Premises and will continue to have the use and possession of the Existing Premises until the Expiration Date (or earlier termination of the Lease). The commencement date for the Expansion Premises shall occur on June 15, 2018 (“Expansion Premises Commencement Date”). At least five (5) business days prior to the Expansion Premises Commencement Date, Lessor shall provide Lessee with access to the Expansion Premises to, among other things, install Lessee’s furniture, trade fixtures, equipment, telephone networks and computer networks, and to perform general set-up for Lessee’s business operations. Lessor warrants that, on the Expansion Premises Commencement Date, the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems serving the Expansion Premises shall be in good working condition and repair. Except as expressly provided to the contrary in this Fourth Amendment, Lessee accepts the Premises without any express or implied warranties, in their “as is/where is” condition.
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/s/GH
Initials
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4.
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RENTAL SCHEDULE (Paragraph 50A)
: The following schedule for Base Rent and Common Area Operating Expenses (also referred to within the Lease as “CAM” or “CAM charges”) shall be in effect during this extended Term of the Lease:
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EXISTING PREMISES
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SQUARE FEET
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RATE/SQUARE FEET/MONTH
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MONTHLY BASE RENT
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MONTHLY CAM
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TOTAL MONTHLY
RENT
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04/01/2019 – 03/31/2020
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17,500
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$1.800
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$31,500.00
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$2,625.00
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$34,125.00
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04/01/2020 – 03/31/2021
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17,500
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$1.854
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$32,445.00
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$2,625.00
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$35,070.00
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04/01/2021 – 03/31/2022
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17,500
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$1.910
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$33,418.00
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$2,625.00
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$36,043.00
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EXPANSION PREMISES
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SQUARE FEET
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RATE/SQUARE FEET/MONTH
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MONTHLY BASE RENT
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MONTHLY CAM
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TOTAL MONTHLY
RENT
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Month 1 – Month 12
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2,700
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$1.900
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$5,130.00
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$405.00
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$5,535.00
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Month 13 – Month 24
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2,700
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$1.957
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$5,284.00
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$405.00
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$5,689.00
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Month 25 – Month 36
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2,700
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$2.016
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$5,442.00
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$405.00
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$5,847.00
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Month 37 – 03/31/2022
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2,700
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$2.076
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$5,606.00
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$405.00
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$6,011.00
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5.
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CAM CHARGES
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CAM Charges shall continue to be estimated for this extended Term of the Lease. CAM Charges are estimated as of the date of this Fourth Amendment to be $0.15 per rentable square feet per month and shall be reconciled quarterly.
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6.
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BASE YEAR:
The Base Year applicable to the Expansion Premises shall be calendar year 2018. The Base Year applicable to the Existing Premises shall remain unchanged until March 31, 2019; and, effective from and after April 1, 2019, Base Year applicable to the Existing Premises shall be changed to calendar year 2019
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7.
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TENANT IMPROVEMENT ALLOWANCE
:
Lessor shall provide a Tenant Improvement Allowance not to exceed
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A.
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Lessee shall assume direct responsibility for negotiating and executing the contract(s) for tenant improvements, for supervising Lessee’s contractor(s) to ensure that the work is done satisfactorily, timely and in accordance with the plans and permits, if any, and for making payments to the Lessee’s contractor(s) when satisfied with progress and with the labor and material releases received.
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/s/GH
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B.
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Lessor shall make Tenant Improvement Allowance payments directly to Lessee no more frequently than once every thirty (30) days pursuant to request for disbursement which shall include Lessee approved invoices and appropriate lien releases. Disbursements (excluding the final disbursement) shall be for a minimum amount of $10,000.00
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8.
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COMMISSIONS:
Lessor shall pay a leasing Commission to Hughes Marino of five percent (5%) of the aggregate Base Rent for months 1-60 of paid Rent, and two percent (2%) for any additional fixed term thereafter. Such Commission shall be paid by the 100% upon mutual Lease execution. Lessor shall fund such commission directly to Hughes Marino.
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9.
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CONFIDENTIALITY
: Lessee, subject to SEC rules and regulations, and Lessor agrees that the terms of this Lease will be kept strictly confidential and not disclosed to any other person without written consent from Lessor. Disclosure to persons or tenants other than the Lessee will constitute a material uncurable Breach of the Lease.
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10.
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CASP INSPECTION:
The Premises have not undergone an inspection by a Certified Access Specialist (CASp), and a disability access inspection certificate, as described in subdivision (e) of Section 55.53 of the California Civil Code, has not been issued for the Premises. In accordance with Section 1938 of the California Civil Code, Lessee is advised of the following: “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
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11.
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REPRESENTATION
: Gildred Development Company represents Lessor exclusively and Hughes Marino represents the Lessee in this transaction (please see Exhibit A to this Fourth Amendment, attached hereto and incorporated by this reference). Lessee and Lessor each represent and warrant to the other that no person, firm, broker or finder is entitled to any commission or finder’s fee in connection herewith. Each of the Parties represents, acknowledges and agrees that it has been represented by such independent counsel and/or brokers, and has consulted with such consultants and other professionals, as each such Party has deemed necessary or appropriate and as it has voluntarily chosen throughout all negotiations which preceded the execution of this Lease; and that this Lease has been executed on the advice of such independent counsel, broker(s), consultant(s) and other professional(s). The Parties further agree that each has cooperated and participated in the drafting of this Lease and, therefore, any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Lease.
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12.
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GENERAL PROVISIONS:
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A.
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Lessee and Lessor each represent and warrant to the other to such party’s actual knowledge, the other Party has fully performed or satisfied all obligations of such Party under or in connection with the Lease, and such Party is not in breach of any term or condition of the Lease. Lessee represents that, to the Lessee’s actual knowledge, there are no defenses, offsets, counterclaims, or deductions against rents or other sums due to Lessor respecting the Premises, or which Lessee has against Lessor’s enforcement of the Lease.
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B.
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Except as otherwise provided herein, the provisions of this Fourth Amendment shall be deemed to obligate, extend to, and inure to the benefit of the successors, assigns, agents, principals, transferees, grantees, trustors, representatives, beneficiaries, insurers and indemnitees of each of the parties.
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C.
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In the event that any provision of this Fourth Amendment is in conflict with any provision of the Lease, the conflicting provision of this Fourth Amendment shall take precedence and govern. Except as otherwise specified herein, the Lease remains in full force and effect.
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D.
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If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Fourth Amendment on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Fourth Amendment on its behalf.
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E.
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The Article, Section and other headings of this Fourth Amendment are for convenience of reference only and shall not be construed to affect the meaning of any provision contained herein.
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LESSOR:
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LESSEE:
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GILDRED DEVELOPMENT COMPANY;
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OBALON THERAPEUTICS, INC.,
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A CALIFORNIA CORPORATION
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A DELAWARE CORPORATION
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DBA: OCEAN POINT
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By:
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/s/ Gregg Haggart
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By:
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/s/ Andy Rasdal
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Gregg Haggart, Chief Executive Officer
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Andy Rasdal, Chief Executive Officer
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Date:
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6/1/2018
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Date:
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5/31/2018
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(b)
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A duty of honest and fair dealing and good faith
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(b)
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A duty of honest and fair dealing and good faith
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(a)
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A fiduciary duty of utmost care
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integrity
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honesty and loyalty in the dealings with either the Seller or the Buyer
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(b)
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Other duties to the Seller and the Buyer as stated above in their respective sections
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By:
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/s/ Andy Rasdal
Date:
5/31/2018
Andy Rasdal, Chief Executive Officer
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By:
Scot Ginsburg
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BRE Lic. #
01300321
Date:
05/22/2018
(Salesperson or Broker-Associate)
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By:
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/s/ Gregg Haggart
Date:
6/1/2018
Gregg Haggart, Chief Executive Officer
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Agent:
Gildred Development Company /Gregg Haggart
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BRE Lic. #
01071252 / 00941329
Real Estate Broker (Firm)
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By:
Dana Sterle
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BRE Lic. #
01950942
Date:
05/22/2018
(Salesperson or Broker-Associate)
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(c)
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The confirmation required by subdivisions (a) and (b) shall be in the following form
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(d)
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The disclosures and confirmation required by this section shall be in addition to the disclosure required by Section 2079.14.
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