Nektar
Therapeutics
201
Industrial Road
San
Carlos, California 94070
Sender
Contact Information
P: (650)
620-5990
F: (650)
620-5360
February
19, 2009
VIA ELECTRONIC
TRANSMISSION
Securities
and Exchange Commission
Division
of Corporation Finance
Washington,
D.C. 20549
Attention: Nandini
Acharya, Esq.
|
|
Re:
|
Nektar Therapeutics --
Form 10-K for the Year Ended December 31, 2007 (File No.
000-24006)
|
Dear Ms.
Acharya:
We are in
receipt of the letter dated February 13, 2009, including comments from the staff
(the “Staff”) of the
Securities and Exchange Commission (the “Commission”) related to the
letter from the Staff dated December 10, 2008 regarding the Form 10-K for the
year ended December 31, 2007 (File No. 000-24006) filed by Nektar Therapeutics,
a Delaware corporation (the “Registrant”), on February 29,
2008 (the “Form
10-K”). Set forth below are the Registrant’s responses to the
Staff’s comments. The numbers associated with the headings and
responses set forth below correspond to the numbered comments in the letter from
the Staff.
Item
1. Business
Patents and Proprietary
Rights, page 17
|
1.
|
We note your response to
comment 4 of our comment letter dated December 10, 2008 and your proposal
to include disclosure regarding the acquisition of Shearwater Corporation,
which led to your entry into the PEGylation business in your 2008 Form
10-K. Please advise us as to whether Shearwater Corporation was
the licensee of technology and intellectual property that was assigned to
you as a result of the acquisition or whether you acquired in-house,
proprietary technology and intellectual property directly from Shearwater
Corporation as a result of the acquisition. If the relevant
technology and intellectual property was acquired subject to a license
agreement, please include the material terms of the license in your
disclosure, including exclusivity provisions, geographic limitations and
term and termination provisions and file any such license as an exhibit to
your 2008 Form 10-K or provided as with a detailed analysis supporting
your determination that such technology and intellectual property are not
material to your business.
|
Response:
The
acquisition of Shearwater Corporation primarily involved the acquisition of
proprietary intellectual property and scientific personnel. The
section titled “Patents and Proprietary Rights” in the Registrant’s Form 10-K
for the fiscal year ended December 31, 2001, filed by the Registrant on April 1,
2002, discusses some of the intellectual property involved in the
acquisition. The only patent license agreement to Shearwater
Corporation at the time of the acquisition by the Registrant was that certain
License Agreement dated as of June 17, 1993, by and between the University of
Alabama in Huntsville (“UAH”) and Shearwater Polymers,
Inc. (the “Original UAH
License”), which agreement granted a license to the subject matter of a
UAH patent (the “UAH
Patent”). The Original UAH License was terminated in its
entirety by that certain Settlement Agreement and General Release dated as of
June 30, 2006, by and between the Board of Trustees of UAH and UAH, on the one
hand, and Nektar Therapeutics AL, Corporation, Nektar Therapeutics and J. Milton
Harris, on the other hand (the “UAH Settlement
Agreement”). The UAH Settlement Agreement granted a new
license to the subject matter of the UAH Patent. The UAH Settlement
Agreement was originally filed by the Registrant as an exhibit to a Form 8-K
dated July 7, 2006 and was filed with the Form 10-K pursuant to a determination
by the Registrant that the UAH Settlement Agreement constituted a material
agreement due to the settlement amount and not because the license granted to
the Registrant under the UAH Settlement Agreement was material to the business
of the Registrant. The Registrant will continue to file the UAH
Settlement Agreement with the Form 10-K for the fiscal year ended December 31,
2008. The Registrant does not believe that the license to the UAH
Patent granted to the Registrant under the UAH Settlement Agreement is material
to its business since the UAH Patent covered by the license is not relevant to
any of the Registrant’s proprietary drug candidates or intellectual property
licensed to third party collaborators.
* * *
As
specifically requested by the Commission, the Registrant acknowledges
that:
|
·
|
the
Registrant is responsible for the adequacy and accuracy of the disclosure
in the filing;
|
|
·
|
Staff
comments or changes to disclosure in response to Staff comments do not
foreclose the Commission from taking any action with respect to the
filing; and
|
|
·
|
the
Registrant may not assert Staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities
laws of the United States.
|
2
If you
have any questions or require any additional information with respect to any of
the matters discussed in this letter, please call the undersigned at (650)
620-5990 or Jennifer A. DePalma, Esq. at (650) 473-2670.
Sincerely,
/s/ Gil
M. Labrucherie
Gil
M. Labrucherie
Senior
Vice President, General Counsel & Secretary of Nektar
Therapeutics
|
cc:
|
Howard
W. Robin, President and Chief Executive Officer of Nektar
Therapeutics
|
|
|
Sam
Zucker, Esq., O’Melveny & Myers
LLP
|
|
|
Jennifer
A. DePalma, Esq., O’Melveny & Myers
LLP
|
3