Exhibit
4.2


 


RESALE REGISTRATION
RIGHTS AGREEMENT


 


among


 


NEKTAR THERAPEUTICS,


 


MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED


 


DEUTSCHE
BANK SECURITIES INC.


 


LEHMAN
BROTHERS INC.


 


FRIEDMAN,
BILLINGS, RAMSEY & CO., INC.


 


and


 


SG
COWEN SECURITIES CORPORATION


 


Dated as of June 30, 2003


 

















 


Resale Registration Rights Agreement (the
“Agreement”), dated as of June 30, 2003 among Nektar Therapeutics, a Delaware
corporation (together with any successor entity, herein referred to as the
“Issuer”), Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., Lehman Brothers
Inc., Friedman, Billings, Ramsey & Co., Inc. and SG Cowen Securities
Corporation (collectively, the “Initial Purchasers”).


 


Pursuant to the Purchase Agreement, dated June 25,
2003, between the Issuer and the Initial Purchasers (the “Purchase Agreement”),
the Initial Purchasers have agreed to purchase from the Issuer up to
$100,000,000 ($125,000,000 if the Initial Purchasers exercise the
over-allotment option in full) in aggregate principal amount of 3% Convertible
Subordinated Notes due 2010 (the “Notes”). 
The Notes will be convertible into fully paid, nonassessable common
stock, par value $0.0001 per share, of the Issuer (the “Common Stock”) on the
terms, and subject to the conditions, set forth in the Indenture (as defined
herein).  To induce the Initial
Purchasers to purchase the Notes, the Issuer has agreed to provide the
registration rights set forth in this Agreement pursuant to Section 3(l)
of the Purchase Agreement.


 


The parties hereby agree as follows:


 


1.                                       Definitions.  As used in
this Agreement, the following capitalized terms shall have the following
meanings:


 


Advice:  As defined in Section 4(c)(ii) hereof.


 


Agreement:  As defined in the preamble hereto.


 


Blue
Sky Application:  As
defined in Section 6(a)(i) hereof.


 


Broker-Dealer:  Any broker or dealer registered under the
Exchange Act.


 


Business
Day:  A day other than
a Saturday or Sunday or any federal holiday in the United States.


 


Closing
Date:  The date of this
Agreement.


 


Commission:  Securities and Exchange Commission.


 


Common
Stock:  As defined in
the preamble hereto.


 


Damages
Payment Date:  Each
Interest Payment Date.  For purposes of
this Agreement, if no Notes are outstanding, “Damages Payment Date” shall mean
each June 30 and December 30.


 


Effectiveness
Period:  As defined in
Section 2(a)(iii) hereof.


 


Effectiveness
Target Date:  As
defined in Section 2(a)(ii) hereof.


 


Exchange
Act:  Securities
Exchange Act of 1934, as amended.


 


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Holder:  A Person who owns, beneficially or
otherwise, Transfer Restricted Securities.


 


Indemnified
Holder:  As defined in
Section 6(a) hereof.


 


Indenture:  The Indenture, dated as of June 30, 2003,
between the Issuer and J.P. Morgan Trust Company, National Association, as
trustee (the “Trustee”), pursuant to which the Notes are to be issued, as such
Indenture is amended, modified or supplemented from time to time in accordance
with the terms thereof.


 


Initial
Purchasers:  As defined
in the preamble hereto.


 


Interest
Payment Date:  As
defined in the Indenture.


 


Issuer:  As defined in the preamble hereto.


 


Liquidated
Damages:  As defined
in Section 3(a) hereof.


 


Majority
of Holders:  Holders
holding over 50% of the aggregate principal amount of Notes outstanding;
provided that, for purpose of this definition, a holder of shares of Common
Stock which constitute Transfer Restricted Securities and were issued upon
conversion of the Notes shall be deemed to hold an aggregate principal amount
of Notes (in addition to the aggregate principal amount of Notes held by such
holder) equal to the aggregate principal amount of Notes converted by such
Holder into such shares of Common Stock.


 


NASD:  National Association of Securities Dealers,
Inc.


 


Notes:  As defined in the preamble hereto.


 


Person:  An individual, partnership, corporation,
unincorporated organization, trust, joint venture or a government or agency or
political subdivision thereof.


 


Prospectus:  The prospectus included in a Shelf Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.


 


Questionnaire Deadline:  As defined in Section 2(b) hereof.


 


Record
Holder:  With respect
to any Damages Payment Date, each Person who is a Holder on the record date
with respect to the Interest Payment Date on which such Damages Payment Date
shall occur.  In the case of a Holder of
shares of Common Stock issued upon conversion of the Notes, “Record Holder”
shall mean each Person who is a Holder of shares of Common Stock which
constitute Transfer Restricted Securities on the June 15 or December 15
immediately preceding the Damages Payment Date.


 


Registration
Default:  As defined
in Section 3(a) hereof.


 


Sale
Notice:  As defined in Section 4(e) hereof.


 


Securities
Act:  Securities Act
of 1933, as amended.


 


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Shelf
Filing Deadline: As defined in Section 2(a)(i) hereof.


 


Shelf
Registration Statement: 
As defined in Section 2(a)(i) hereof.


 


Suspension
Period.  As defined in
Section 4(b)(i) hereof.


 


TIA:  Trust Indenture Act of 1939, as in effect on
the date the Indenture is qualified under the TIA.


 


Transfer
Restricted Securities: 
Each Note and each share of Common Stock issued upon conversion of Notes
until the earlier of:


 


(i)                                     the
date on which such Note or such share of Common Stock issued upon conversion
has been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement;


 


(ii)                                  the
date on which such Note or such share of Common Stock issued upon conversion is
transferred in compliance with Rule 144 under the Securities Act or may be sold
or transferred pursuant to Rule 144 under the Securities Act (or any other
similar provision then in force); or


 


(iii)                               the
date on which such Note or such share of Common Stock issued upon conversion
ceases to be outstanding (whether as a result of redemption, repurchase and
cancellation, conversion or otherwise).


 


Underwritten
Registration or Underwritten Offering:  A registration in which securities of the
Issuer are sold to an underwriter for reoffering to the public.


 


2.                                      Shelf
Registration.


 


(a)                                  The
Issuer shall:


 


(i)                                     not
later than 90 days after the date hereof (the “Shelf Filing Deadline”), cause
to be filed a registration statement pursuant to Rule 415 under the Securities
Act (the “Shelf Registration Statement”), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities held by Holders
that have provided the information required pursuant to the terms of Section
2(b) hereof;


 


(ii)                                  use
its best efforts  to cause the Shelf Registration Statement to be declared
effective by the Commission as promptly as reasonably practicable, but in no
event later than 210 days after the date hereof (the “Effectiveness Target
Date”); and


 


(iii)                               use its best efforts to
keep the Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the extent
necessary to ensure that (A) it is available for resales by the Holders of
Transfer Restricted Securities entitled to the benefit of this Agreement and
(B) conforms with the requirements of this Agreement and the Securities Act and
the rules and


 


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regulations of the Commission promulgated thereunder
as announced from time to time for a period (the “Effectiveness Period”) of:


 


(A)                              two
years following the last date of original issuance of Notes; or


 


(B)                                such
shorter period that will terminate when (x) all of the Holders of Transfer
Restricted Securities are able to sell all Transfer Restricted Securities
immediately without restriction pursuant to Rule 144(k) under the Securities
Act or any successor rule thereto, (y) when all Transfer Restricted Securities
have ceased to be outstanding (whether as a result of redemption, repurchase
and cancellation, conversion or otherwise) or (z) all Transfer Restricted
Securities registered under the Shelf Registration Statement have been sold.


 


(b)                                 No
Holder of Transfer Restricted Securities may include any of its Transfer
Restricted Securities in the Shelf Registration Statement pursuant to this
Agreement unless such Holder furnishes to the Issuer in writing, prior to or on
the 20th Business Day after receipt of a request therefor (the “Questionnaire
Deadline”), such information as the Issuer may reasonably request for use in
connection with the Shelf Registration Statement or the Prospectus or
preliminary Prospectus included therein and in any application to be filed with
or under state securities laws.  In
connection with all such requests for information from Holders of Transfer
Restricted Securities, the Issuer shall notify such Holders of the requirements
set forth in the preceding sentence.  No
Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 3 hereof unless such Holder shall have provided all
such reasonably requested information prior to or on the Questionnaire
Deadline.  Each Holder as to which the
Shelf Registration Statement is being effected agrees to furnish promptly to
the Issuer all information required to be disclosed in order to make
information previously furnished to the Issuer by such Holder not materially
misleading.


 


3.                                       Liquidated
Damages.


 


(a)                                  If:


 


(i)                                     the
Shelf Registration Statement is not filed with the Commission prior to or on
the Shelf Filing Deadline;


 


(ii)                                  the
Shelf Registration Statement has not been declared effective by the Commission
prior to or on the Effectiveness Target Date;


 


(iii)                               subject to the
provisions of Section 4(b)(i) hereof, the Shelf Registration Statement is filed
and declared effective but, during the Effectiveness Period, shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded within five Business Days by a post-effective amendment to the
Shelf Registration Statement or a report filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that cures such failure
and, in the case of a post-effective amendment, is itself immediately declared
effective; or


 


(iv)                              prior
to or on the 45th, 60th or 90th day, as the
case may be, of any Suspension Period, such suspension has not been terminated,


 


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(each such event referred to in foregoing clauses (i)
through (iv), a “Registration Default”), the Issuer hereby agrees to pay
additional interest as liquidated damages (“Liquidated Damages”) with respect
to the Transfer Restricted Securities from and including the day following the
Registration Default to but excluding the day on which the Registration Default
has been cured:


 


(A)                              in
respect of the Notes, to each holder of Notes, (x) with respect to the first
90-day period during which a Registration Default shall have occurred and be
continuing, in an amount per year equal to an additional 0.25% of the principal
amount of the Notes, and (y) with respect to the period commencing on the 91st
day following the day the Registration Default shall have occurred and be
continuing, in an amount per year equal to an additional 0.50% of the principal
amount of the Notes; provided that in no event shall Liquidated Damages accrue
at a rate per year exceeding 0.50% of the principal amount of the Notes; and


 


(B)                                in
respect of any shares of Common Stock, to each holder of shares of Common Stock
issued upon conversion of Notes, (x) with respect to the first 90-day period
during which a Registration Default shall have occurred and be continuing, in
an amount per year equal to 0.25% of the principal amount of the converted
Notes, and (y) with respect to the period commencing the 91st day following the
day the Registration Default shall have occurred and be continuing, in an
amount per year equal to 0.50% of the principal amount of the converted Notes;
provided that in no event shall Liquidated Damages accrue at a rate per year
exceeding 0.50% of the principal amount of the converted Notes.


 


(b)                                 All
accrued Liquidated Damages shall be paid in arrears to Record Holders by the
Issuer on each Damages Payment Date by wire transfer of immediately available
funds or by federal funds check. 
Following the cure of all Registration Defaults relating to any
particular Note or share of Common Stock, the accrual of Liquidated Damages
with respect to such Note or share of Common Stock will cease.


 


All obligations of the Issuer set forth in this
Section 3 that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.


 


The Liquidated Damages set forth above shall be the
exclusive monetary remedy available to the Holders of Transfer Restricted
Securities for such Registration Default.


 


4.                                       Registration
Procedures.


 


(a)                                  In
connection with the Shelf Registration Statement, the Issuer shall comply with
all the provisions of Section 4(b) hereof and shall use its best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto, shall as expeditiously as possible
prepare and file with the Commission a Shelf Registration Statement relating to
the registration on any appropriate form under the Securities Act.


 


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(b)                                 In
connection with the Shelf Registration Statement and any Prospectus required by
this Agreement to permit the sale or resale of Transfer Restricted Securities,
the Issuer shall:


 


(i)                                     Subject
to any notice by the Issuer in accordance with this Section 4(b) of the
existence of any fact or event of the kind described in Section 4(b)(iii)(D),
use its best efforts to keep the Shelf Registration Statement continuously
effective during the Effectiveness Period; upon the occurrence of any event
that would cause the Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not be
effective and usable for resale of Transfer Restricted Securities during the
Effectiveness Period, the Issuer shall file promptly an appropriate amendment
to the Shelf Registration Statement or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in the case
of clause (A), correcting any such misstatement or omission, and, in the case
of either clause (A) or (B), use its best efforts to cause such amendment to be
declared effective and the Shelf Registration Statement and the related
Prospectus to become usable for their intended purposes as soon as practicable
thereafter.  Notwithstanding the
foregoing, the Issuer may suspend the effectiveness of the Shelf Registration
Statement by written notice to the Holders for a period not to exceed an
aggregate of 45 days in any 90-day period (each such period, a “Suspension
Period”) if:


 


(x)                                   an
event occurs and is continuing as a result of which the Shelf Registration
Statement would, in the Issuer’s reasonable judgment, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and


 


(y)                                 the
Issuer reasonably determines that the disclosure of such event at such time
would have a material adverse effect on the business of the Issuer (and its
subsidiaries, if any, taken as a whole);


 


provided
that in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the disclosure
of which would impede the Issuer’s ability to consummate such transaction, the
Issuer may extend a Suspension Period from 45 days to 60 days; provided,
however, that Suspension Periods shall not exceed an aggregate of 90 days in
any 360-day period.


 


(ii)                                  Prepare
and file with the Commission such amendments and post-effective amendments to
the Shelf Registration Statement as may be necessary to keep the Shelf
Registration Statement effective during the Effectiveness Period; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act, and to
comply fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
Shelf Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set forth
in the Shelf Registration Statement or supplement to the Prospectus.


 


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(iii)                               Advise the
underwriter(s), if any, and selling Holders promptly (but in any event within
five Business Days) and, if requested by such Persons, to confirm such advice
in writing:


 


(A)                              when
the Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective,


 


(B)                                of
any request by the Commission for amendments to the Shelf Registration
Statement or amendments or supplements to the Prospectus or for additional
information relating thereto,


 


(C)                                of
the issuance by the Commission of any stop order suspending the effectiveness
of the Shelf Registration Statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, or


 


(D)                               of
the existence of any fact or the happening of any event, during the
Effectiveness Period, that makes any statement of a material fact made in the
Shelf Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements therein not
misleading.


 


If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Issuer shall use its reasonable
best efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.


 


(iv)                              Furnish
to counsel for the Initial Purchasers, before filing with the Commission, a
copy of the Shelf Registration Statement and copies of any Prospectus included
therein or any amendments or supplements to the Shelf Registration Statement or
Prospectus (other than documents incorporated by reference after the initial
filing of the Shelf Registration Statement), which documents will be subject to
the review of such counsel, for a period of at least five Business Days, and
the Issuer will not file any Shelf Registration Statement or Prospectus or any
amendment or supplement to the Shelf Registration Statement or Prospectus
(other than documents incorporated by reference) to which such counsel shall
reasonably object within five Business Days after the receipt thereof.  Counsel for the Initial Purchasers shall be
deemed to have reasonably objected to such filing if the Shelf Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed to
be filed, contains a material misstatement or omission.  Notwithstanding the foregoing, the Issuer
shall not be required to furnish counsel for the Initial Purchasers with any
amendment or supplement to the Shelf Registration Statement or Prospectus filed
solely to reflect changes to the amount of Notes held by any particular 


 


7

















 


Holder at the request of such Holder or immaterial
revisions to the information contained therein.


 


(v)                                 Make
available at reasonable times for inspection by one or more representatives of
the selling Holders, designated in writing by a Majority of Holders whose
Transfer Restricted Securities are included in the Shelf Registration
Statement, any underwriter participating in any distribution pursuant to the
Shelf Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Issuer as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the Issuer’s officers, directors, managers and
employees to supply all information reasonably requested by any such
representative or representatives of the selling Holders, underwriter, attorney
or accountant in connection with the Shelf Registration Statement after the filing
thereof and before its effectiveness; provided, however, that any information
designated by the Company as confidential at the time of delivery of such
information shall be kept confidential by the recipient thereof.


 


(vi)                              If
requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation: (1) information relating to
the “Plan of Distribution” of the Transfer Restricted Securities, (2)
information with respect to the principal amount of Notes or number of shares
of Common Stock being sold to such underwriter(s), (3) the purchase price being
paid therefor and (4) any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
reasonably practicable after the Issuer is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment.  Notwithstanding the foregoing, following the
effective date of the Shelf Registration Statement, the Issuer shall not be
required to file more than one such supplement or post-effective amendment to
reflect changes in the amount of Notes held by any particular Holder at the
request of such Holder in any 30-day period.


 


(vii)                           Furnish to each selling
Holder and each of the underwriter(s), if any, without charge, at least one
copy of the Shelf Registration Statement, as first filed with the Commission,
and of each amendment thereto (and any documents incorporated by reference therein
or exhibits thereto (or exhibits incorporated in such exhibits by reference) as
such Person may request).


 


(viii)                        Deliver to each selling Holder
and each of the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; subject to any
notice by the Issuer in accordance with this Section 4(b) of the existence of
any fact or event of the kind described in Section 4(b)(iii)(D), the Issuer
hereby consents to the use of the Prospectus and any amendment or supplement
thereto by each of the selling Holders and each of the underwriter(s), if any,
in connection with the offering and 


 


8

















 


the sale of the Transfer Restricted Securities covered
by the Prospectus or any amendment or supplement thereto.


 


(ix)                                If  an underwriting agreement is entered into
and the registration is an Underwritten Registration, the Issuer shall:


 


(A)                              upon
request, furnish to each selling Holder and each underwriter, in such substance
and scope as they may reasonably request and as are customarily made by issuers
to underwriters in primary underwritten offerings, upon the date of closing of
any sale of Transfer Restricted Securities in an Underwritten Registration:


 


(1)                                  a
certificate, dated the date of such closing, signed by the Chief Financial
Officer of the Issuer confirming, as of the date thereof, the matters set forth
in Section 5(h) of the Purchase Agreement and such other matters as such
parties may reasonably request;


 


(2)                                  opinions,
each dated the date of such closing, of counsel to the Issuer covering such of
the matters set forth in Sections 5(c), 5(d) and 5(e) of the Purchase Agreement
as are customarily covered in legal opinions to underwriters in connection with
primary underwritten offerings of securities; and


 


(3)                                  customary
comfort letters, dated the date of such closing, from the Issuer’s independent
certified public accountants (and from any other accountants whose report is
contained or incorporated by reference in the Shelf Registration Statement), in
the customary form and covering matters of the type customarily covered in
comfort letters to underwriters in connection with primary underwritten offerings
of securities;


 


(B)                                set
forth in full in the underwriting agreement, if any, indemnification provisions
and procedures which provide rights no less protective than those set forth in
Section 6 hereof with respect to all parties to be indemnified; and


 


(C)                                deliver
such other documents and certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the selling Holders pursuant to this clause (ix).


 


(D)                               if
requested by any underwriters, make appropriate officers of the Issuer
available to such underwriters for meetings with prospective purchasers of the
Transfer Restricted Securities and prepare and present to potential investors
customary “road show” materials in a manner consistent with new issuances of
securities similar to the Transfer Restricted Securities.


 


(x)                                   Before
any public offering of Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their respective counsel in 


 


9

















 


connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may reasonably
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however, that
the Issuer shall not be required (A) to register or qualify as a foreign
corporation or a dealer of securities where it is not now so qualified or to
take any action that would subject it to the service of process in any
jurisdiction where it is not now so subject or (B) to subject themselves to
taxation in any such jurisdiction if they are not now so subject.


 


(xi)                                Cooperate
with the selling Holders and the underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends
(unless required by applicable securities laws); and enable such Transfer
Restricted Securities to be in such denominations and registered in such names
as the Holders or the underwriter(s), if any, may request at least two Business
Days before any sale of Transfer Restricted Securities made by such
underwriter(s).


 


(xii)                             Use its best efforts to
cause the Transfer Restricted Securities covered by the Shelf Registration
Statement to be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities.


 


(xiii)                          Subject to Section 4(b)(i)
hereof, if any fact or event contemplated by Section 4(b)(iii)(D) hereof shall
exist or have occurred, use its reasonable best efforts to prepare a supplement
or post-effective amendment to the Shelf Registration Statement or related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.


 


(xiv)                         Provide CUSIP numbers for all
Transfer Restricted Securities not later than the effective date of the Shelf
Registration Statement and provide the Trustee under the Indenture with
certificates for the Notes that are in a form eligible for deposit with The
Depository Trust Company.


 


(xv)                            Cooperate
and assist in any filings required to be made with the NASD and in the
performance of any due diligence investigation by any underwriter that is
required to be retained in accordance with the rules and regulations of the
NASD.


 


(xvi)                         Otherwise use its best efforts
to comply with all applicable rules and regulations of the Commission and all
reporting requirements under the rules and regulations of the Exchange Act.


 


10

















 


(xvii)                      Cause the Indenture to be
qualified under the TIA not later than the effective date of the Shelf
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the trustee and the holders of Notes to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its best
efforts to cause the trustee thereunder to execute all documents that may be
required to effect such changes and all other forms and documents required to
be filed with the Commission to enable such Indenture to be so qualified in a
timely manner.


 


(xviii)                   Cause all Transfer Restricted
Securities covered by the Shelf Registration Statement to be listed or quoted,
as the case may be, on each securities exchange or automated quotation system
on which similar securities issued by the Issuer are then listed or quoted.


 


(xix)                           Provide promptly to each
Holder upon written request each document filed with the Commission pursuant to
the requirements of Section 13 and Section 15 of the Exchange Act after the
effective date of the Shelf Registration Statement.


 


(c)                                  Each
Holder agrees by acquisition of a Transfer Restricted Security that, upon
receipt of any notice from the Issuer of the existence of any fact of the kind
described in Section 4(b)(iii)(D) hereof, such Holder will, and will use its
reasonable best efforts to cause any underwriter(s) in an Underwritten Offering
to, forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the Shelf Registration Statement until:


 


(i)                                     such
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 4(b)(xiii) hereof; or


 


(ii)                                  such
Holder is advised in writing (the “Advice”) by the Issuer that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus.


 


If so directed by the Issuer, each Holder will deliver to the Issuer
(at the Issuer’s expense) all copies, other than permanent file copies then in
such Holder’s possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of
suspension.


 


(d)                                 Each
Holder who intends to be named as a selling Holder in the Shelf Registration
Statement shall furnish to the Issuer in writing, within 20 Business Days after
receipt of a request therefor as set forth in a questionnaire, such information
regarding such Holder and the proposed distribution by such Holder of its
Transfer Restricted Securities as the Issuer may reasonably request for use in
connection with the Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein.  (The form
of the questionnaire is attached hereto as Exhibit A.)  Holders that do not complete the
questionnaire and deliver it to the Issuer shall not be named as selling
securityholders in the Prospectus or preliminary Prospectus included in the
Shelf Registration Statement and therefore shall not be permitted to sell any
Transfer Restricted Securities pursuant to the Shelf Registration
Statement.  Each Holder who intends to
be named as


 


11

















 


a selling Holder in the Shelf Registration Statement shall promptly
furnish to the Issuer in writing such other information as the Issuer may from
time to time reasonably request in writing.


 


(e)                                  Upon
the effectiveness of the Shelf Registration Statement, each Holder shall notify
the Issuer at least three Business Days prior to any intended distribution of
Transfer Restricted Securities pursuant to the Shelf Registration Statement (a
“Sale Notice”), which notice shall be effective for five Business Days.  Each Holder of this Security, by accepting
the same, agrees to hold any communication by the Company in response to a Sale
Notice in confidence.  Upon any transfer
of Transfer Restricted Securities pursuant to the Shelf Registration Statement,
each Holder shall comply with all such Holder’s obligations relating to delivery
of the Prospectus under applicable securities laws.  The Issuer and its representatives shall be entitled to rely on
the foregoing covenant as evidence of compliance with such obligations by such
Holder in connection with (i) any instruction requested of it in
connection with such transfer by the Trustee of the Notes or the transfer agent
of the Common Stock or (ii) any representation made by the Issuer or such
representative to any governing authority, including, the Commission or NASD.


 


5.                                       Registration
Expenses.


 


(a)                                  All
expenses incident to the Issuer’s performance of or compliance with this
Agreement shall be borne by the Issuer regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:


 


(i)                                     all
registration and filing fees and expenses (including filings made by any
Initial Purchasers or Holders with the NASD);


 


(ii)                                  all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws;


 


(iii)                               all expenses of printing
(including printing of Prospectuses and certificates for the Common Stock to be
issued upon conversion of the Notes), messenger and delivery services and
telephone charges;


 


(iv)                              all
fees and disbursements of counsel to the Issuer and, subject to Section 5(b)
below, the Holders of Transfer Restricted Securities;


 


(v)                                 all
application and filing fees in connection with listing (or authorizing for
quotation) the Common Stock on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and


 


(vi)                              all
fees and disbursements of independent certified public accountants of the
Issuer (including the expenses of any special audit and comfort letters
required by or incident to such performance).


 


The Issuer shall bear its internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal, accounting or other duties), the expenses of any
annual audit and the fees and expenses of any Person, including special
experts, retained by the Issuer.


 


12

















 


(b)                                 In
connection with the Shelf Registration Statement required by this Agreement,
the Issuer shall reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities being registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, which shall be Sidley Austin Brown & Wood llp, or such
other counsel as may be chosen by a Majority of Holders for whose benefit the
Shelf Registration Statement is being prepared.


 


6.                                       Indemnification
and Contribution.


 


(a)                                  The
Issuer shall indemnify and hold harmless each Holder, such Holder’s officers
and employees and each person, if any, who controls such Holder within the
meaning of the Securities Act (each, an “Indemnified Holder”), from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to resales of the Transfer Restricted Securities),
to which such Indemnified Holder may become subject, insofar as any such loss,
claim, damage, liability or action arises out of, or is based upon:


 


(i)                                     any
untrue statement or alleged untrue statement of a material fact contained in
(A) the Shelf Registration Statement or Prospectus or any amendment or
supplement thereto or (B) any blue sky application or other document or any
amendment or supplement thereto prepared or executed by the Issuer (or based
upon written information furnished by or on behalf of the Issuer expressly for
use in such blue sky application or other document or amendment on supplement)
filed in any jurisdiction specifically for the purpose of qualifying any or all
of the Transfer Restricted Securities under the securities law of any state or
other jurisdiction (such application or document being hereinafter called a
“Blue Sky Application”); or


 


(ii)                                  the
omission or alleged omission to state therein any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,


 


and shall reimburse each Indemnified Holder promptly upon demand for
any legal or other expenses reasonably incurred by such Indemnified Holder in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Issuer shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto or Blue Sky Application in reliance upon and in
conformity with written information furnished to the Issuer by or on behalf of
any Holder (or its related Indemnified Holder) specifically for use
therein.  The foregoing indemnity
agreement is in addition to any liability which the Issuer may otherwise have
to any Indemnified Holder.


 


(b)                                 Each
Holder, severally and not jointly, shall indemnify and hold harmless the
Issuer, its officers and employees and each person, if any, who controls the
Issuer within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Issuer or any such officer, employee or 


 


13

















 


controlling person may become subject, insofar as any such loss, claim,
damage or liability or action arises out of, or is based upon:


 


(i)                                     any
untrue statement or alleged untrue statement of any material fact contained in
the Shelf Registration Statement or Prospectus or any amendment or supplement
thereto or any Blue Sky Application; or


 


(ii)                                  the
omission or the alleged omission to state therein any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,


 


but in each case only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Issuer by or
on behalf of such Holder (or its related Indemnified Holder) specifically for
use therein, and shall reimburse the Issuer and any such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Issuer or any such officer, employee or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred.  The foregoing indemnity
agreement is in addition to any liability which any Holder may otherwise have
to the Issuer and any such officer, employee or controlling person.


 


(c)                                  Promptly
after receipt by an indemnified party under this Section 6 of notice of any
claim or the commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have
under this Section 6 except to the extent it has been materially prejudiced by
such failure and, provided, further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 6.  If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party.  After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that a
Majority of Holders shall have the right to employ a single counsel to
represent jointly a Majority of Holders and their respective officers,
employees and controlling persons who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by a Majority of
Holders against the Issuer under this Section 6, if a Majority of Holders shall
have reasonably concluded that there may be one or more legal defenses
available to them and their respective officers, employees and controlling
persons that are different from or additional to those available to the Issuer
and its officers, employees and controlling persons, the fees and expenses of a
single separate counsel shall be paid by the Issuer.  No indemnifying party shall:


 


14

















 


(i)                                     without
the prior written consent of the indemnified parties (which consent shall not
be unreasonably withheld) settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(1) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and
(2) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party, or


 


(ii)                                  be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss of liability by reason of such
settlement or judgment.


 


(d)                                 If
the indemnification provided for in this Section 6 shall for any reason be
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b) in respect of any loss, claim, damage or liability (or action in
respect thereof) referred to therein, each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable
by such indemnified party as a result of such loss, claim, damage or liability
(or action in respect thereof):


 


(i)                                     in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer from the offering and sale of the Transfer Restricted Securities on
the one hand and a Holder with respect to the sale by such Holder of the
Transfer Restricted Securities on the other, or


 


(ii)                                  if
the allocation provided by clause (6)(d)(i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 6(d)(i) but also the relative fault of the Issuer on the
one hand and the Holders on the other in connection with the statements or
omissions or alleged statements or alleged omissions that resulted in such
loss, claim, damage or liability (or action in respect thereof), as well as any
other relevant equitable considerations.


 


The relative benefits received by the Issuer on the
one hand and a Holder on the other with respect to such offering and such sale
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Notes purchased under the Purchase Agreement (before deducting
expenses) received by the Issuer as set forth in the table appearing in the
section entitled “Plan of Distribution” in the Offering Memorandum, dated June
25, 2003, on the one hand, bear to the total proceeds received by such Holder
with respect to its sale if Transfer Restricted Securities on the other.


 


The relative fault of the parties shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuer on the one hand or the Holders on the other,
the


 


15

















 


intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.


 


The Issuer and each Holder agree that it would not be
just and equitable if the amount of contribution pursuant to this Section 6(d)
were determined by pro rata allocation or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this paragraph (d). 
The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 6 shall be deemed to include, for purposes of this
Section 6, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, or defending or preparing to defend any
such litigation, investigation or proceeding by any governmental agency or
body, or commenced or threatened action or claim.  Notwithstanding the provisions of this Section 6, no Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission.


 


No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.  The Holders’
obligations to contribute as provided in this Section 6(d) are several and not
joint.


 


7.                                       Rule
144A.  In
the event the Issuer is not subject to Section 13 or 15(d) of the Exchange Act,
the Issuer hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.


 


8.                                       Participation
in Underwritten Registrations.  No Holder may participate in any Underwritten
Registration hereunder unless such Holder:


 


(i)                                     agrees
to sell such Holder’s Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and


 


(ii)                                  completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.


 


16

















 


9.                                       Selection
of Underwriters.  The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. 
In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by a Majority of Holders whose Transfer Restricted Securities are
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Issuer.


 


10.                                 Miscellaneous.


 


(a)                                  Remedies.  The Issuer acknowledges and agrees that any
failure by the Issuer to comply with its obligations under Section 2 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuer’s obligations under Section 2
hereof.  The Issuer further agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.


 


(b)                                 Adjustments
Affecting Transfer Restricted Securities.  The Issuer shall not, directly or indirectly, take any action
with respect to the Transfer Restricted Securities as a class that would adversely
affect the ability of the Holders of Transfer Restricted Securities to include
such Transfer Restricted Securities in a registration undertaken pursuant to
this Agreement.


 


(c)                                  No
Inconsistent Agreements. The Issuer will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.  In addition, the Issuer shall not grant to any of its security
holders (other than the holders of Transfer Restricted Securities in such
capacity) the right to include any of its securities in the Shelf Registration
Statement provided for in this Agreement other than the Transfer Restricted
Securities.  Other than the Registration
Rights Agreement and the Stock Purchase Agreement, dated January 18, 1995,
between the Issuer and Pfizer, Inc., the Stock Purchase Agreement, dated March
1, 1996, as amended, between the Issuer and Baxter Healthcare Corporation, the
Stock Issuance Agreement, dated November 4, 1999, between the Issuer and
Alliance Pharmaceutical Corp., the Restated Investor Rights Agreement, dated
April 29, 1993, as amended October 29, 1993, among the Company and
certain stockholders of the Company, the Resale Registration Rights Agreements,
dated October 13, 1999, February 8, 2000 and October 17, 2000,
each between the Company and the initial purchasers named therein, the
Registration Rights Agreement between the Company and Alliance Pharmaceutical
Corp., dated January 24, 2000, the Rights Agreement, dated June 1, 2001,
between the Company and Mellon Investor Services LLC., the Preferred Stock
Purchase Agreement, dated January 7, 2002, between the Company and Enzon
Pharmaceuticals, Inc. and the Registration Rights Agreements, dated June 7,
2002, July 9, 2002 and December 6, 2002, respectively, each between the Company
and AFAC Equity L.P.,  the Issuer has not previously entered into
any agreement (which has not expired or been terminated) granting any registration
rights with respect to its securities to any Person which rights conflict with
the provisions hereof.


 


17

















 


(d)                                 Amendments
and Waivers. This Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given, unless the Issuer has obtained the written consent of
a Majority of Holders.


 


(e)                                  Notices.
All notices and other communications provided for or permitted hereunder shall be
made in writing by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:


 


(i)                                     if
to a Holder, at the address set forth on the records of the registrar under the
Indenture or the transfer agent of the Common Stock, as the case may be; and


 


(ii)                                  if
to the Issuer:


 


	
   

  	
  Nektar Therapeutics

  
	
   

  	
  150 Industrial Road

  
	
   

  	
  San Carlos, California 94070

  
	
   

  	
  Attention: Secretary

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  Cooley Godward LLP

  
	
   

  	
  Five Palo Alto Square

  
	
   

  	
  3000 El Camino Real

  
	
   

  	
  Palo Alto, CA 94306

  
	
   

  	
  Attention: 
  John Geschke, Esq.

  



 


All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.


 


(f)                                    Successors
and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that (i) this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder and (ii) nothing contained
herein shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms of the Purchase
Agreement or the Indenture.  If any
transferee of any Holder shall acquire Transfer Restricted Securities, in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement.


 


(g)                                 Counterparts.
This Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, each of which when so executed shall be


 


18

















 


deemed to be an original and all of which taken together shall
constitute one and the same agreement.


 


(h)                                 Securities
Held by the Issuer or Their Affiliates.  Whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Issuer or its “affiliates” (as such term is
defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.


 


(i)                                     Headings.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.


 


(j)                                     Governing
Law.  This Agreement shall be
governed by, and construed in accordance with, the law of the State of New
York, without regard to conflict of laws principles thereof.


 


(k)                                  Severability.
If  any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.


 


(l)                                     Entire
Agreement.  This Agreement is
intended by the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.  There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Issuer with respect to the
Transfer Restricted Securities.  This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.


 


19

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.


 


	
   

  	
  NEKTAR THERAPEUTICS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MERRILL LYNCH, PIERCE,
  FENNER & SMITH

  INCORPORATED

  
	
   

  	
  DEUTSCHE BANK SECURITIES INC.

  
	
   

  	
  LEHMAN BROTHERS INC.

  
	
   

  	
  FRIEDMAN, BILLINGS, RAMSEY
  & CO., INC.

  
	
   

  	
  SG COWEN SECURITIES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By: Merrill Lynch,
  Pierce, Fenner & Smith

  Incorporated

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  
				



 


20

















 


Exhibit A


 


NEKTAR THERAPEUTICS


 


FORM OF SELLING
SECURITYHOLDER NOTICE AND QUESTIONNAIRE


 


The undersigned beneficial holder of 3% Convertible
Subordinated Notes due 2010 (the “Notes”) of Nektar Therapeutics (the
“Issuer”), or common stock, par value $0.0001 per share (the “Shares” and
together with the Notes, the “Transfer Restricted Securities”) of the Issuer
understands that the Issuer has filed, or intends to file, with the Securities
and Exchange Commission (the “Commission”) a registration statement (the “Shelf
Registration Statement”), for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the “Securities Act”), of the Transfer
Restricted Securities in accordance with the terms of the Registration Rights
Agreement, dated as of June 30, 2003 (the “Registration Rights Agreement”)
between the Issuer and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank Securities Inc., Lehman Brothers
Inc., Friedman, Billings, Ramsey & Co., Inc. and SG Cowen Securities
Corporation.  A copy of the
Registration Rights Agreement is available from the Issuer upon request at the
address set forth below.  All
capitalized terms not otherwise defined herein have the meaning ascribed
thereto in the Registration Rights Agreement.


 


Each beneficial owner of Transfer Restricted
Securities is entitled to the benefits of the Registration Rights
Agreement.  In order to sell or
otherwise dispose of any Transfer Restricted Securities pursuant to the Shelf
Registration Statement, a beneficial owner of Transfer Restricted Securities
generally will be required to be named as a selling securityholder in the
related Prospectus, deliver a Prospectus to purchasers of Transfer Restricted
Securities and be bound by those provisions of the Registration Rights
Agreement applicable to such beneficial owner (including certain
indemnification provisions, as described below).  Beneficial owners that do not complete this Notice and Questionnaire
within 20 Business Days of receipt hereof and deliver it to the Issuer as
provided below will not be named as selling securityholders in the Prospectus
and therefore will not be permitted to sell any Transfer Restricted Securities
pursuant to the Shelf Registration Statement.


 


Certain legal consequences arise from being named as a
selling securityholder in the Shelf Registration Statement and the related
Prospectus.  Accordingly, holders and
beneficial owners of Transfer Restricted Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and the related Prospectus.


 


NOTICE


 


The undersigned beneficial owner (the “Selling
Securityholder”) of Transfer Restricted Securities hereby gives notice to the
Issuer of its intention to sell or otherwise dispose of Transfer Restricted
Securities beneficially owned by it and listed below in Item 3 (unless
otherwise specified under Item 3) pursuant to the Shelf Registration
Statement.  The undersigned, by signing
and returning this Notice and Questionnaire, understands that it will be 


 


1

















 


bound by the terms and conditions of this Notice and Questionnaire and
the Registration Rights Agreement.


 


Pursuant to the Registration Rights Agreement, the
undersigned has agreed to indemnify and hold harmless the Issuer, the Issuer’s
directors, the Issuer’s officers who sign the Shelf Registration Statement and
each person, if any, who controls the Issuer within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against certain losses arising in connection with statements concerning the
undersigned made in the Shelf Registration Statement or the related Prospectus
in reliance upon the information provided in this Notice and Questionnaire.


 


The undersigned hereby provides the following
information to the Issuer and represents and warrants that such information is
accurate and complete:


 


QUESTIONNAIRE


 


1.                                      (a)                                   Full
legal name of Selling Securityholder:


 


(b)                                 Full
legal name of registered holder (if not the same as (a) above) through which
Transfer Restricted Securities listed in (3) below are held:


 


(c)                                  Full
legal name of DTC participant (if applicable and if not the same as (b) above)
through which Transfer Restricted Securities listed in (3) are held:


 


2.                                       Address
for notices to Selling Securityholders:


 


Telephone:


 


Fax:


 


Contact Person:


 


3.                                       Beneficial
ownership of Transfer Restricted Securities:


 


(a)                                  Type
of Transfer Restricted Securities beneficially owned, and principal amount of
Notes or number of shares of Common Stock, as the case may be, beneficially
owned:


 


(b)                                 CUSIP
No(s). of such Transfer Restricted Securities beneficially owned:


 


4.                                       Beneficial
ownership of the Issuer’s securities owned by the Selling Securityholder:


 


Except
as set forth below in this Item (4), the undersigned is not the beneficial or
registered owner of any securities of the Issuer other than the Transfer
Restricted Securities listed above in Item (3) (“Other Securities”).


 


(a)                                  Type
and amount of Other Securities beneficially owned by the Selling Securityholder:


 


2

















 


(b)                                 CUSIP
No(s). of such Other Securities beneficially owned:


 


5.                                       Relationship
with the Issuer


 


Except as set forth below, neither the undersigned nor
any of its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Issuer (or their predecessors or affiliates) during the
past three years.


 


State any exceptions here:


 


6.                                       Plan
of Distribution


 


Except as set forth below, the undersigned (including
its donees or pledgees) intends to distribute the Transfer Restricted
Securities listed above in Item (3) pursuant to the Shelf Registration
Statement only as follows (if at all). 
Such Transfer Restricted Securities may be sold from time to time
directly by the undersigned or, alternatively, through underwriters,
broker-dealers or agents.  If the
Transfer Restricted Securities are sold through underwriters or broker-dealers,
the Selling Securityholder will be responsible for underwriting discounts or
commissions or agent’s commissions. 
Such Transfer Restricted Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale, or at negotiated prices.  Such sales may be effected in transactions
(which may involve crosses or block transactions):


 


(i)                                     on
any national securities exchange or quotation service on which the Transfer
Restricted Securities may be listed or quoted at the time of sale;


 


(ii)                                  in
the over-the-counter market;


 


(iii)                               in transactions
otherwise than on such exchanges or services or in the over-the-counter market;
or


 


(iv)                              through
the writing of options.


 


In connection with sales of the Transfer Restricted Securities or
otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Transfer
Restricted Securities and deliver Transfer Restricted Securities to close out
such short positions, or loan or pledge Transfer Restricted Securities to
broker-dealers that in turn may sell such securities.


 


State any exceptions here:


 


Note: In no event will such method(s) of distribution take the form of
an underwritten offering of the Transfer Restricted Securities without the
prior agreement of the Issuer.


 


The undersigned
acknowledges that it understands its obligation to comply with the provisions
of the Exchange Act and the rules and regulations promulgated thereunder
relating to 


 


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stock manipulation, particularly Regulation M thereunder (or any
successor rules or regulations), in connection with any offering of Transfer
Restricted Securities pursuant to the Shelf Registration Statement.  The undersigned agrees that neither it nor
any person acting on its behalf will engage in any transaction in violation of
such provisions.


 


The Selling
Securityholder hereby acknowledges its obligations under the Registration
Rights Agreement to indemnify and hold harmless certain persons as set forth
therein and to deliver the Prospectus as required under applicable securities
laws.


 


Pursuant to the
Registration Rights Agreement, the Issuer has agreed under certain
circumstances to indemnify the Selling Securityholders against certain
liabilities.


 


In accordance with the
undersigned’s obligation under the Registration Rights Agreement to provide
such information as may be required by law for inclusion in the Shelf
Registration Statement, the undersigned agrees to promptly notify the Issuer of
any inaccuracies or changes in the information provided herein that may occur
subsequent to the date hereof at any time while the Shelf Registration
Statement remains effective.  All
notices hereunder and pursuant to the Registration Rights Agreement shall be
made in writing at the address set forth below.


 


By signing below, the
undersigned consents to the disclosure of the information contained herein in
its answers to items (1) through (6) above and the inclusion of such
information in the Shelf Registration Statement and the related Prospectus. The
undersigned understands that such information will be relied upon by the Issuer
in connection with the preparation or amendment of the Shelf Registration
Statement and the related Prospectus.


 


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IN WITNESS WHEREOF, the undersigned, by authority duly
given, has caused this Notice and Questionnaire to be executed and delivered
either in person or by its duly authorized agent.


 


	
  Dated:

  
	
   

  
	
  Beneficial Owner

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


Please return the completed and executed Notice and Questionnaire to
Nektar Therapeutics at:


 


Nektar Therapeutics

150 Industrial Road

San Carlos, California 94070

Attention: Secretary


 


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