Exhibit 10.27
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (this "AGREEMENT") dated effective June 23,
2004, is entered into by and between NEKTAR THERAPEUTICS (FORMERLY KNOWN AS
INHALE THERAPEUTIC SYSTEMS, INC.), a Delaware corporation ("Nektar"), SCIMED
PROP III, INC., a California corporation ("GENERAL PARTNER"), 201 INDUSTRIAL
PARTNERSHIP, a California general partnership ("201 LIMITED PARTNER") and INHALE
000 XXXXXXXXXX XXXX, L.P., a California limited partnership ("PARTNERSHIP") with
reference to the following facts:
Recitals
A. Nektar, Partnership and Xxxxxxxx Property Advisors, Inc., a California
corporation, entered into an Agreement for the Contribution of 000 Xxxxxxxxxx
Xxxx Project as of September 14, 2000, which provided for, among other things,
(i) the contribution of certain real property, commonly known as 000 Xxxxxxxxxx
Xxxx, Xxx Xxxxxx, Xxxxxxxxxx (the "REAL PROPERTY"), by Nektar to the Partnership
in return for Nektar receiving a 49.0% limited partnership interest in the
Partnership, and (ii) Partnership, as "Landlord," and Nektar, as "Tenant,"
entering into a Build-to-Suit Lease Agreement for the Real Property (the
"LEASE"). General Partner is currently the sole general partner of the
Partnership and 201 Limited Partner and Nektar are the sole limited partners of
the Partnership.
B. In contemplation of and contingent upon a successful closing of the
proposed initial public offering of equity securities in BioMed Realty Trust,
Inc., a Maryland corporation (the "REIT"), the parties hereto propose to enter
into the transactions set forth in this Agreement.
C. Pursuant to separate documents and concurrently with the Closing
(defined below), General Partner, intends to assign its general partnership
interest in the Partnership to BioMed Realty, L.P., a Maryland limited
partnership (the "OPERATING PARTNERSHIP"), an operating entity which is
controlled by the REIT.
D. The parties now desire to enter into this Agreement for the redemption
of Nektar's limited partnership interest in the Partnership, the repayment of an
outstanding loan made by Nektar to the Partnership in the original principal
amount of $3,000,000 pursuant to the Agreement of Limited Partnership of the
Partnership, and the modification of the Lease, all as more particularly set
forth herein.
Agreement
NOW, THEREFORE, for valuable consideration, receipt and sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
1. Cash Consideration Payable to Nektar. In partial consideration for the
covenants and agreements contained herein, at the Closing (as defined below) the
Partnership shall pay to Nektar the sum of $19,500,000, less the amount of
Nektar's capital account balance in the Partnership to be paid to Nektar
pursuant to Section 3 below, plus any Operating Cash Flow and Extraordinary Cash
Flow (as defined in the Limited Partnership Agreement) distributable pursuant to
Sections 8(b) and 8(c) of the Limited Partnership Agreement arising from the
period
prior to the Closing and which was not distributed by the Partnership to Nektar
prior to the Closing.
2. Repayment of Loan. At the Closing, the Partnership shall repay all
principal and interest then due and owing to Nektar from the Partnership
pursuant to that certain promissory note in the original principal amount of
Three Million Dollars ($3,000,000) executed by the Partnership in favor of
Nektar pursuant to Section 6(d) of the Agreement of Limited Partnership of the
Partnership.
3. Transfer of Limited Partnership Interest; Return of Capital. At the
Closing, Nektar shall transfer its entire limited partnership interest in the
Partnership to the Partnership in complete termination of Nektar's interest in
the Partnership and the Partnership shall repay to Nektar the amount of Nektar's
capital account balance as of the date of the Closing plus the amount of any
accrued and unpaid Distributions payable to Nektar not reflected in Nektar's
capital account balance. The amounts paid by the Partnership to Nektar pursuant
to this Agreement shall be in full and complete satisfaction of all obligations
of Nektar under the Agreement of Limited Partnership of the Partnership and all
amounts due to Nektar pursuant to Nektar's position as a Limited Partner of the
Partnership or under any provisions of the Agreement of Limited Partnership of
the Partnership.
4. Modification of the Lease. Effective at the Closing, Nektar and the
Partnership shall modify the Lease and shall execute the Amended and Restated
Lease Agreement attached hereto as Exhibit "A" (the "AMENDED AND RESTATED
LEASE").
5. Conditions Precedent.
(a) This entire Agreement and each of the covenants and agreements
of each party contained herein shall be contingent upon the closing of the
proposed initial public offering of equity securities of the REIT as described
in that Form S-11 Registration Statement filed with the U.S. Securities and
Exchange Commission (File No. 333-115204). If such initial public offering fails
to occur or does not occur prior to October 31, 2004, this Agreement shall be
null, void and of no effect. The Partnership shall provide prompt notice to
Nektar if the anticipated closing of such initial public offering on or before
October 31, 2004 reasonably appears in doubt. Partnership covenants and agrees
to give Nektar notice of any event or series of events which makes it unlikely
that such initial public offering will fail to occur by such date.
(b) Notwithstanding anything in this Agreement to the contrary,
Partnership's obligations under this Agreement shall be subject to and
contingent upon the satisfaction of the following conditions precedent on or
before the Closing, any or all of which may be waived by Partnership in its sole
discretion:
(i) Nektar shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed and
observed by Nektar as of the Closing;
(ii) No proceeding shall have been commenced against Nektar
under the federal Bankruptcy Code or any state law for relief of debtors;
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(iii) Nektar shall have executed and delivered to Partnership
an Estoppel Certificate in substantially the form set forth in Exhibit "B"
attached hereto;
(iv) Nektar shall provide written consents in form reasonably
acceptable to Partnership of the transfers of the General Partner's interest in
the Partnership (as contemplated in Recital C above);
(c) Notwithstanding anything in this Agreement to the contrary,
Nektar's obligations under this Agreement shall be subject to and contingent
upon the satisfaction of the following conditions precedent on or before the
Closing, any or all of which may be waived by Nektar in its sole discretion:
(i) Partnership, General Partner and 201 Limited Partner shall
have performed and observed, in all material respects, all covenants and
agreements of this Agreement to be performed and observed by each of them as of
the Closing;
(ii) No proceeding shall have been commenced against
Partnership, General Partner or 201 Limited Partner under the federal Bankruptcy
Code or any state law for relief of debtors;
(iii) General Partner and 201 Limited shall provide written
consents in form reasonably acceptable to Nektar the transfers contemplated
herein.
6. Covenants Warranties and Representations.
(a) Nektar's Covenants, Warranties and Representations.
(i) Nektar has good and marketable legal and beneficial title,
free and clear of any liens or encumbrances, to the entire 49.00% Limited
Partnership interest standing in Nektar's name on the books of the Partnership;
(ii) Upon consummation of the transactions contemplated herein
Nektar will transfer to Partnership all right, title and interest to the entire
49.00% Limited Partnership interest standing in Nektar's name on the books of
the Partnership;
(iii) Nektar is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware;
(iv) Nektar has the power and authority to enter into and
perform this Agreement;
(v) The execution, delivery and performance of this Agreement
shall not violate any provision of law, any order of any court or other agency
of government, the corporate charter or other governing documents of Nektar;
(vi) This Agreement has been duly executed and delivered by
Nektar and constitutes the legal, valid and binding obligation of Nektar
enforceable in accordance with its terms, subject to laws of general application
regarding bankruptcy, insolvency and the relief
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of debtors and rules of law governing specific performance, injunctive relief or
other equitable remedies.
(vii) Nektar has had a full opportunity to seek any
information regarding the current and future prospects of the Partnership, to
review such information and to ask such questions as it deems appropriate of
representatives of Partnership, and has received satisfactory answers to all
such questions.
(b) Partnership's Covenants, Warranties, and Representations.
(i) Partnership is a California limited partnership duly
organized, validly existing and in good standing under the laws of the State of
California;
(ii) Partnership has the power and authority to enter into and
perform this Agreement;
(iii) The execution, delivery and performance of this
Agreement shall not violate any provision of law, any order of any court or
other agency of government, the corporate charter or other governing documents
of General Partner;
(iv) This Agreement has been duly executed and delivered by
the Partnership and constitutes the legal, valid and binding obligation of the
Partnership enforceable in accordance with its terms, subject to laws of general
application regarding bankruptcy, insolvency and the relief of debtors and rules
of law governing specific performance, injunctive relief or other equitable
remedies.
(c) General Partner's Covenants, Warranties, and Representations.
(i) General Partner is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;
(ii) General Partner has the power and authority to enter into
and perform this Agreement;
(iii) The execution, delivery and performance of this
Agreement shall not violate any provision of law, any order of any court or
other agency of government, the Agreement of Limited Partnership or Certificate
of Limited Partnership of the Partnership;
(iv) This Agreement has been duly executed and delivered by
General Partner and constitutes the legal, valid and binding obligation of
General Partner enforceable in accordance with its terms, subject to laws of
general application regarding bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
(d) 201 Limited Partner's Covenants, Warranties, and
Representations.
(i) 201 Limited Partner is a California limited partnership
duly organized, validly existing and in good standing under the laws of the
State of California;
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(ii) 201 Limited Partner has the power and authority to enter
into and perform this Agreement;
(iii) The execution, delivery and performance of this
Agreement shall not violate any provision of law, any order of any court or
other agency of government, the Agreement of Limited Partnership or Certificate
of Limited Partnership of 201 Limited Partner;
(iv) This Agreement has been duly executed and delivered by
201 Limited Partner and constitutes the legal, valid and binding obligation of
201 Limited Partner enforceable in accordance with its terms, subject to laws of
general application regarding bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies.
7. Pre-Closing Covenants
(a) Partnership's Actions Prior to the Closing. During the period
from the date of this Agreement to the Closing, the Partnership will conduct its
business and operations according to its ordinary course of business consistent
with past practice and not take any action in violation of the Lease.
(b) Nektar's Actions Prior to the Closing. During the period from
the date of this Agreement to the Closing, Nektar will not encumber or transfer
any interest in the Partnership, nor take any action in violation of the Lease.
8. The Closing.
(a) Time of Closing. The closing of the transactions contemplated in
this Agreement (the "CLOSING") shall occur at the offices of the Partnership or
such other place as reasonably determined by the Partnership. The Closing shall
occur concurrently with the closing of the initial public offering of the REIT,
as specified in Section 5(a) above, and after the occurrence of the conditions
precedent set forth in Section 5.
(b) Deliveries at the Closing.
(i) Deliveries by Nektar. At the Closing, Nektar shall deliver
to Partnership the following:
(A) An executed Amended and Restated Lease, as
contemplated in Section 4 above;
(B) An executed Estoppel Certificate, as contemplated
in Section 5(b)(iii) above; and
(C) Nektar's consents to the assignments of the
General Partnership interest as contemplated in
Section 5(b)(iv) above.
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(ii) Deliveries by Partnership. At the Closing, the
Partnership shall deliver to Nektar the following:
(A) An executed Amended and Restated Lease, as
contemplated in Section 4 above;
(B) All sums due to Nektar as specified under this
Agreement; and
(C) General Partner's and 201 Limited Partnership's
consents to the assignments contemplated in this
Agreement.
(c) Further Documentation. At or following the Closing, Partnership
and Nektar each shall execute any certificate or other instruments required by
law or local custom or otherwise reasonably requested by the other party to
effect the transaction contemplated by this Agreement.
9. Withdrawal. Upon the consummation of the transactions contemplated
herein at the Closing, Nektar shall withdraw as a limited partner of the
Partnership and shall no longer be a partner of the Partnership.
10. Indemnification.
(a) As a material inducement for Nektar entering into this
Agreement, the Partnership agrees to indemnify and hold harmless Nektar from and
against any and all claims, judgments, causes of action, liabilities,
obligations, damages, losses, deficiencies, costs, penalties, interest and
expenses (including, without limitation, reasonable fees and expenses of
counsel) (collectively, "LOSSES") out of, based upon, attributable to, or
resulting from:
(i) the ownership of limited partnership interests in the
Partnership or having taken or failed to take any action in the capacity of a
limited partner of the Partnership on behalf of the Partnership or in connection
with the Partnership or its business;
(ii) the failure of any of the representations and warranties
of the Partnership, the General Partner or 201 Limited Partner contained herein
to be true and correct in all material respects; and
(iii) all claims, actions, suits, proceedings, investigations,
demands and assessments incident to any of the foregoing.
(b) As a material inducement for the Partnership entering into this
Agreement, Nektar agrees to indemnify and hold the Partnership harmless from and
against any and all Losses arising out of, based upon, attributable to, or
resulting from:
(i) the failure of any of the representations and warranties
of Nektar contained herein to be true and correct in all material respects; and
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(ii) all claims, actions, suits, proceedings, investigations,
demands and assessments incident to any of the foregoing.
(c) Notwithstanding the foregoing, this Section 10 shall not modify
Nektar's or 201 Limited Partnership's obligations under the original Lease or
the Amended and Restated Lease.
11. Miscellaneous
(a) Brokerage Commissions and Finder's Fees. Each party to this
Agreement warrants to the other that no person or entity can properly claim a
right to a commission, finder's fee, acquisition fee or other commission-type
compensation (collectively, "COMMISSIONS") based upon the acts of that party
with respect to the transaction contemplated by this Agreement. Each party
hereby agrees to indemnify and defend the other against and to hold the other
harmless from any and all loss, cost, liability or expense (including but not
limited to attorneys' fees and returned commissions) resulting from any claim
for Commissions by any person or entity based upon such acts.
(b) This Agreement shall not be altered, changed, modified, or
amended in any respect except by a writing executed by the parties hereto.
(c) This Agreement is made and entered into in the County of San
Mateo, State of California (California), and shall, in all respects, be
interpreted, enforced, and governed by and under the laws of California. Nektar
and Partnership hereby irrevocably: (a) elect to avail themselves of the
privilege of doing business in California with respect to the subject
transactions; (b) acknowledge that their contacts with California are sufficient
to justify the assumption of jurisdiction over them by the courts of California;
(c) submit to the jurisdiction of all California courts (both Federal and State)
in any action concerning the subject transactions; and (d) acknowledge that,
with respect to the subject transactions, they are doing business within the
judicial district of the United States District Court for the Northern District
of California.
(d) Paragraph captions have been inserted in this Agreement as a
matter of convenience for reference only, and shall not be used in the
interpretation of this Agreement.
(e) This Agreement may be executed in one or more counterparts, all
of which together shall constitute one original document.
(f) This Agreement memorializes and constitutes the final expression
and the complete and exclusive statement of agreement and understanding between
the parties. It supersedes and replaces all prior negotiations, proposed
agreements, and agreements, whether written or unwritten. Each of the parties to
this Agreement acknowledges that it has not executed this Agreement in reliance
upon any promise, representation, statement, or warranty whatsoever, express or
implied, which is not expressly contained in this Agreement nor in reliance upon
any belief as to any fact not expressly recited herein.
(g) Any notice required or permitted to be given under this
Agreement shall be in writing and (i) personally delivered, (ii) sent by United
States mail, registered or certified mail, postage prepaid, return receipt
requested, (iii) sent by Federal Express or other reputable
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overnight courier service, or (iv) transmitted by facsimile with a hard copy
sent within one (1) business day by any of the foregoing means, and in all cases
addressed as follows:
TO PARTNERSHIP: INHALE 000 XXXXXXXXXX XXXX, L.P.
c/o Bernardo Property Advisors
00000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxx X. Gold
Fax No. (000) 000-0000
Phone No. (858) 000- 0000
with copies to: Xxxxx X. Xxxxx, Esq.
XXXXXXX XXXXXX XxXXXXX XXXXX
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax No. (000) 000-0000
Phone No. (000) 000-0000
TO NEKTAR: NEKTAR THERAPEUTICS
000 Xxxxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attn: X. Xxxxxx
Chief Financial Officer
Fax No. (000) 000-0000
Phone No. (000) 000-0000
NEKTAR THERAPEUTICS
000 Xxxxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Associate General Counsel
Fax No. (000) 000-0000
Phone No. (000) 000-0000
with copies to: XXXXXXXXX TRAURIG, LLP
Attn: Xxxx Xxxx, Esq.
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxxxxxxxx 00000
Fax No. (000) 000-0000
Phone No. (000) 000-0000
Any such notice shall be deemed delivered as follows: (a) if personally
delivered, the date of delivery to the address of the person to receive such
notice; (b) if sent by "next business day" Federal Express or other reputable
overnight courier service, the next business day after being sent; or (c) if
sent by facsimile transmission, the date transmitted to the person to receive
such notice if sent by 5:00 p.m. Pacific Time and the next business day if sent
after 5:00 p.m. Pacific Time, provided in either case that there is evidence of
such transmission printed by the sending
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machine. Any notice sent by facsimile transmission must be confirmed by
personally delivering or mailing a copy of the notice sent by facsimile
transmission. Any party may change its address for notice by written notice
given to the other at least three (3) business days before the effective date of
such change in the manner provided in this Section.
(h) Nothing expressed or implied in this Agreement is intended, or
shall be construed, to confer upon or give any person, firm, corporation,
partnership, association or other entity, other than the parties hereto and
their respective successors and permitted assigns, any rights or remedies under
or by reason of this Agreement.
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(i) Time is of the essence of every provision contained in this
Agreement.
In witness whereof, the Parties have executed this Agreement as of the
date first above written.
NEKTAR: NEKTAR THERAPEUTICS (formerly known as
Inhale Therapeutic Systems, Inc.), a
Delaware corporation
By: /s/ XXXX XXXX
-------------------------------
Name: Xxxx Xxxx
-------------------------------
Title: CEO
-------------------------------
By: /s/ XXXX XXXXXX
-------------------------------
Name: Xxxx Xxxxxx
-------------------------------
Title: CFO
-------------------------------
PARTNERSHIP: INHALE 000 XXXXXXXXXX XXXX, L.P.,
a California limited partnership
By: SciMed Prop III, Inc.,
a California corporation
By: /s/ XXXX X. GOLD
-------------------------
Name: Xxxx X. Gold
-------------------------
Title: President
-------------------------
By: /s/ XXXX X. XXXXXXXX
-------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------
Title: Executive Vice President
-------------------------
[CONTINUED ON NEXT PAGE]
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GENERAL PARTNER: SCIMED PROP III, Inc.,
a California corporation
By: /s/ XXXX X. GOLD
-------------------------
Name: Xxxx X. Gold
-------------------------
Title: President
-------------------------
By: /s/ XXXX X. XXXXXXXX
-------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------
Title: Executive Vice President
-------------------------
201 LIMITED PARTNER 201 INDUSTRIAL PARTNERSHIP,
a California general partnership
By: /s/ XXXX X. GOLD
-------------------------------
Name: Xxxx X. Gold
-------------------------------
Title: Partner
-------------------------------
By: /s/ XXXX X. XXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------
Title: Partner
-------------------------------
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