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EXHIBIT
10.32
FOIA CONFIDENTIAL
TREATMENT REQUESTED
TERMINATION AGREEMENT AND
MUTUAL RELEASE
This Termination and Release
Agreement (the “Termination Agreement”) is made as of
November 9, 2007 (the “Effective Date”), by and
among Nektar Therapeutics (“Nektar”) and Pfizer Inc.
(“Pfizer”) (together, Nektar and Pfizer are referred to
herein as the “Parties”).
RECITALS
WHEREAS, the Parties have
engaged in a commercial relationship related to the development,
funding, licensing, making, using, marketing and selling of
inhalable insulin (the “Relationship”);
WHEREAS, Nektar and Pfizer
are party to a Collaborative Development and Licensing Agreement
[***];
WHEREAS, Pfizer has given
notice of termination of the Agreements to Nektar by letter dated
October 18, 2007;
WHEREAS, the Parties desire
to agree upon an aggregate payment of monies owing relating to the
Agreements and the Parties’ performance of their respective
rights and obligations arising thereunder;
WHEREAS, the Parties desire
to [***];
WHEREAS, the Parties desire
to agree upon a transition plan for Exubera and the second
generation inhaled insulin product candidate (collectively referred
to as the “Product”) that were the subject of the
Agreements;
NOW, THEREFORE, in
consideration of the recitals above, which are made a part of this
Termination Agreement, and the mutual covenants and obligations
contained herein, the sufficiency of which is hereby acknowledged,
[***], the Parties hereby agree as follows:
TERMS OF
TERMINATION
Within seven (7) days of
the Effective Date, Pfizer agrees to pay Nektar the sum of
$135,000,000 (“the Termination Payment”), by wire
transfer to:
[***]
The Parties acknowledge and
agree that [***].
| [***] |
indicates that certain information contained herein has been
omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect
to the omitted portions. |
The Parties acknowledge and
agree that the Agreements are terminated and further agree that the
[***] pursuant to the provisions of Exhibit N.
The Parties each agree to the
following releases effective immediately following payment of the
Termination Payment:
(a) Release by Nektar
. [***], Nektar hereby [***] releases [***] all claims [***], which
Nektar [***], shall or may have against Pfizer, [***]. Nothing set
forth in this Termination Agreement shall [***].
(b) Release by Pfizer
. [***], Pfizer hereby [***] releases [***] all claims [***], which
Pfizer [***] shall or may have against Nektar [***]. Nothing set
forth in this Termination Agreement shall [***].
This Termination Agreement
and attached Exhibits, and all documents executed pursuant hereto,
constitutes the entire agreement between the Parties with respect
to the subject matter hereof, and supersedes any prior written or
oral agreements, representations, warranties or
statements.
This Termination Agreement
may not be altered, modified or amended except by written
instrument signed by the Parties hereto. [***].
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6. |
Governing Law; Jurisdiction; Alternative Dispute
Resolution. |
(a) This Termination
Agreement shall be governed by and construed in accordance with the
laws of the [***] applicable to agreements made and to be performed
entirely within such state, without regard to the conflicts of law
principles thereof.
(b) Each party [***] submits
to the jurisdiction and venue of the [***]: the Parties shall
submit the dispute to Alternative Dispute Resolution
[***].
(c) Each party agrees that
[***].
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indicates that certain information contained herein has been
omitted and filed separately with the Securities and Exchange
Commission. Confidential treatment has been requested with respect
to the omitted portions. |
2
All notices, requests,
demands and other communications required or permitted to be given
under the terms of this Termination Agreement shall be in writing
and shall be deemed to have been duly given when delivered by hand
or overnight courier or three Business Days after they have been
mailed by United States registered mail, return receipt requested,
postage prepaid, addressed to the other party as set forth
below:
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| If to
Nektar: |
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Nektar Therapeutics
201 Industrial Road
San Carlos, CA 94070
Attention: [***]
Telecopy: [***]
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a copy to: |
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[***] |
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| If to
Pfizer: |
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Pfizer
Inc. |
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235 East 42nd Street
New York, NY 10017
Attention: [***]
Telecopy: [***]
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a copy to: |
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[***] |
The Parties may change the address to
which notices or other communications under this Termination
Agreement shall be sent by providing written notice to the other in
the manner specified above. For purposes of this paragraph, the
term “ Business Day ” shall mean a day that is
not a Saturday, a Sunday or a day on which banking institutions are
legally permitted to be closed in the [***].
This Termination Agreement
shall [***].
This Termination Agreement
shall [***].
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10. |
Representations and Warranties. |
(a) Each of the Parties
represents and warrants that it is authorized to execute, deliver,
and perform this Termination Agreement and that this Termination
Agreement constitutes a legal, valid and binding
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