exv10w55






Exhibit 10.55




IDM PHARMA, INC.




DIRECTORS’ DEFERRED COMPENSATION PLAN




Effective as of March 17, 1995




As Amended through December 31, 2008




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 
	 	 	 	 	 	 
	1.	 	Purpose of the Plan	 	 	1	 
	2.	 	Definitions	 	 	1	 
	 	 	2.1
	 	Account	 	 	1	 
	 	 	2.2
	 	Beneficiary	 	 	1	 
	 	 	2.3
	 	Benefit	 	 	1	 
	 	 	2.4
	 	Board	 	 	1	 
	 	 	2.5
	 	Code	 	 	2	 
	 	 	2.6
	 	Company	 	 	2	 
	 	 	2.7
	 	Compensation	 	 	2	 
	 	 	2.8
	 	Compensation Reductions	 	 	2	 
	 	 	2.9
	 	Deferred Compensation Agreement	 	 	2	 
	 	 	2.10
	 	Director	 	 	2	 
	 	 	2.11
	 	Effective Date	 	 	2	 
	 	 	2.12
	 	Eligible Director	 	 	2	 
	 	 	2.13
	 	Fair Market Value	 	 	2	 
	 	 	2.14
	 	Non-Employee Director	 	 	2	 
	 	 	2.15
	 	Participant	 	 	2	 
	 	 	2.16
	 	Plan	 	 	2	 
	 	 	2.17
	 	Plan Year	 	 	3	 
	 	 	2.18
	 	Post-2004 Deferrals	 	 	3	 
	 	 	2.19
	 	Pre-2005 Deferrals	 	 	3	 
	 	 	2.20
	 	Section 409A	 	 	3	 
	 	 	2.21
	 	Share	 	 	3	 
	 	 	2.22
	 	Termination of Service	 	 	3	 
	 	 	2.23
	 	Valuation Date	 	 	3	 
	3.	 	Participation	 	 	3	 
	 	 	3.1
	 	Participation of Eligible Directors	 	 	3	 
	 	 	3.2
	 	Irrevocability of Participation During the Plan Year	 	 	4	 
	 	 	3.3
	 	Suspended Participation	 	 	4	 
	 	 	3.4
	 	Termination of Participation	 	 	5	 






1









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 
	 	 	 	 	 	 
	4.	 	Plan Accounts	 	 	5	 
	 	 	4.1
	 	Accounts	 	 	5	 
	 	 	4.2
	 	Investment of Accounts	 	 	5	 
	 	 	4.3
	 	Value of Accounts	 	 	5	 
	 	 	4.4
	 	Funds Unsecured	 	 	5	 
	5.	 	Benefits	 	 	6	 
	 	 	5.1
	 	Termination Benefits- Distribution of Deferrals	 	 	6	 
	 	 	5.2
	 	Form of Distribution	 	 	6	 
	 	 	5.3
	 	Timing of Payments	 	 	6	 
	 	 	5.4
	 	Death Benefits	 	 	7	 
	 	 	5.5
	 	Acceleration of Payments	 	 	7	 
	 	 	5.6
	 	No Discretionary Distributions	 	 	8	 
	 	 	5.7
	 	Special Delay in Distribution Rules	 	 	8	 
	6.	 	Source of Benefits	 	 	8	 
	7.	 	Administration	 	 	8	 
	 	 	7.1
	 	General	 	 	8	 
	 	 	7.2
	 	Procedures	 	 	8	 
	 	 	7.3
	 	Claims	 	 	8	 
	8.	 	Amendment and Termination	 	 	9	 
	 	 	8.1
	 	Amendment or Termination	 	 	9	 
	 	 	8.2
	 	Accrued Benefits	 	 	9	 
	9.	 	Adjustment of Shares; Sale or Merger of the Company	 	 	10	 
	 	 	9.1
	 	Adjustment of Shares	 	 	10	 
	 	 	9.2
	 	Sale or Merger of the Company	 	 	10	 
	10.	 	Miscellaneous	 	 	10	 
	 	 	10.1
	 	Benefits Fully Vested	 	 	10	 
	 	 	10.2
	 	No Right to Continue as Director	 	 	11	 
	 	 	10.3
	 	Successors and Assigns	 	 	11	 
	 	 	10.4
	 	Assignment or Alienation	 	 	11	 
	 	 	10.5
	 	Entire Agreement	 	 	11	 
	 	 	10.6
	 	Headings	 	 	11	 
	 	 	10.7
	 	Gender and Number	 	 	11	 
	 	 	10.8
	 	Governing Law	 	 	11	 






2









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 	 	 
	 	 	 	 	 	 
	 	 	10.9
	 	Compliance with Section 409A of the Code	 	 	11	 
	 	 	10.10
	 	Scrievener’s Error	 	 	11	 
	 	 	10.11
	 	Plan Restatement Effective Date	 	 	12	 






3









 






IDM PHARMA, INC.




DIRECTORS’ DEFERRED COMPENSATION PLAN




(As Amended through December 31, 2008)




     IDM Pharma, Inc., a Delaware corporation (the “Company”), previously adopted
effective as of March 17, 1995 the IDM Pharma, Inc. Directors’ Deferred Compensation Plan (the
“Plan”) as an amendment and restatement of the Cytel Corporation Directors’ Deferred Compensation
Plan for the nonemployee directors of the Company upon the terms and conditions set forth below.



     The Company believes that it is in its best interests to amend and restate this Plan with
respect to Post-2004 Deferrals for purposes of compliance with Section 409A of the Internal Revenue
Code of 1986, as amended, and its regulations and other guidance thereunder.



     The benefits payable under the Plan are and at all times will be mere unsecured contractual
rights against the Company payable from the Company’s general assets. It is intended that the Plan
shall constitute an unfunded deferred compensation arrangement for purposes of United States
federal income tax laws, and all documents, agreements or instruments made or given pursuant to the
Plan shall be interpreted so as to carry out this intent.


1. Purpose of the Plan




     The purpose of this Plan is to provide deferred compensation benefits to nonemployee directors
of the Company, payable by the Company. This Plan will provide benefits derived from contributions
by the Company hereunder of a nonemployee director’s compensation as to which he or she has elected
to defer payment under the Plan.


2. Definitions




     The capitalized terms defined in this Section 2 shall have the meanings set forth below:



     2.1 Account. A separate Plan account, which is a bookkeeping record, established for each
Participant to which shall be allocated Compensation Reductions in accordance with Section 4.1.



     2.2 Beneficiary. The beneficiary or beneficiaries designated by a Participant to receive any
remaining Benefits due under the Plan after his or her death. If the Participant has not
designated a Beneficiary, the Beneficiary shall be the Participant’s surviving spouse or, if none,
the Participant’s estate.



     2.3 Benefit. The benefit or benefits provided under this Plan, which for a Participant shall
be equal to the account balance of such Participant’s Account.



     2.4 Board. The Board of Directors of the Company.



1









 





     2.5 Code. The Internal Revenue Code of 1986, as it may be amended from time to time.



     2.6 Company. IDM Pharma, Inc., a Delaware corporation, or any successor corporation.



     2.7 Compensation. All the non-equity fees (paid in cash or by check) received by a
Participant from the Company for a Plan Year for his or her services as a Director, including but
not limited to, the retainer fee and meeting attendance fees.



     2.8 Compensation Reductions. The percentage of Compensation which a Participant has elected
to defer pursuant to a Deferred Compensation Agreement, and that the Company and the Participant
mutually agree shall be deferred in accordance with the Plan. Participants may elect to defer any
whole percentage of Compensation up to 100% of Compensation.



     2.9 Deferred Compensation Agreement. An agreement by which a Participant elects to reduce a
selected whole percentage of his or her Compensation for a Plan Year in order for the Company to
make contributions to the Plan on his or her behalf.



     2.10 Director. A member of the Board.



     2.11 Effective Date. March 17, 1995.



     2.12 Eligible Director. A Director who is not an employee of the Company.



     2.13 Fair Market Value. The fair market value of a share of Common Stock of the Company is
the closing sales price for such stock as quoted on a national securities exchange or the NASDAQ
National Market System of the National Association of Securities Dealers, Inc. Automated Quotation
System on the day of determination, as reported in The Wall Street Journal or such other source as
the Company deems reliable.



     2.14 Non-Employee Director. A Director who either (i) is not a current employee or officer of
the Company or its parent or subsidiary, does not receive compensation (directly or indirectly)
from the Company or its parent or subsidiary for services rendered as a consultant or in any
capacity other than as a Director (except for an amount as to which disclosure would not be
required under Item 404(a)
of Regulation S-K promulgated pursuant to the Securities Act of 1933, as amended (“Regulation
S-K”)), does not possess an interest in any other transaction as to which disclosure would be
required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship as to
which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise
considered a “non-employee director” for purposes of Rule 16b-3 promulgated under the Exchange Act
of 1934, as amended.



     2.15 Participant. Any Eligible Director who has elected to participate in the Plan by
entering into a Deferred Compensation Agreement.



     2.16 Plan. This IDM Pharma, Inc. Directors’ Deferred Compensation Plan, as amended from time
to time.



2









 





     2.17 Plan Year. The calendar year.



     2.18 Post-2004 Deferrals. The portion of the Account other than Pre-2005 Deferrals. The Plan
shall maintain separate accounting for Post-2004 Deferrals.



     2.19 Pre-2005 Deferrals. That portion of the Account determined as of December 31, 2004, to
which the Participant has a legally binding right to be paid, and the right to which is earned and
vested as of December 31, 2004, in accordance with Section 409A and its regulations and other
guidance thereunder, plus earnings and losses allocable to such amounts. The Plan shall maintain
separate accounting for Pre-2005 Deferrals.



     2.20 Section 409A or Code Section 409A. Section 409A of the Internal Revenue Code of 1986, as
it may be amended from time to time, and the regulations and other guidance thereunder.



     2.21 Share. A participating interest under the Plan, which shall be equal to the Fair Market
Value of a share of Common Stock of the Company.



     2.22 Termination of Service. A Participant’s termination of directorship for any reason that
is a “separation from service” from the Company for purposes of Section 409A of the Code. The
determination of whether a Participant has had a Termination of Service shall be made in a manner
consistent with Section 409A of the Code and Treas. Reg § 1.409A-(1)(h) or as this definition may
later be modified by other regulatory pronouncements.



     2.23 Valuation Date. The last day of each calendar quarter, or such other date as shall be
established by the Company.


3. Participation




     3.1 Participation of Eligible Directors.



          (a) Each Eligible Director may begin to participate in the Plan on the Effective Date;
provided, however, that such Eligible Director completes and signs a Deferred
Compensation Agreement and returns such Deferred Compensation Agreement to the designated
representative of the Company prior to the Effective Date or such earlier date established by the
Company and announced to the Eligible Director. Such Deferred Compensation Agreement shall be
effective for the period beginning on the Effective Date and ending on December 31, 1995.




          (b) Each Director who first becomes an Eligible Director after the Effective Date may begin to
participate in the Plan by completing and signing a Deferred Compensation Agreement and returning
such Deferred Compensation Agreement to the designated representative of the Company; provided,
however, that such completion and return of the Deferred Compensation Agreement to the Company
occurs within thirty (30) days after the date that the Director first becomes an Eligible Director.
Such Deferred Compensation Agreement shall be effective with respect to the portion of
Compensation attributable to services performed by the Director during the period beginning on the
date the Eligible Director completes and returns the Deferred Compensation Agreement to the Company
and ending on the last day of the



3









 






Plan Year within which such participation begins, which will
generally include the retainer fees and meeting attendance fees that would otherwise have been paid
to the Eligible Director during the remainder of the Plan Year following the return of the Deferred
Compensation Agreement. Once the Eligible Director completes and returns the Deferred Compensation
Agreement to the Company within the thirty (30) day period after the date that the Director first
becomes an Eligible Director, the election is irrevocable. Notwithstanding the foregoing, any
Deferred Compensation Agreement completed and returned to the Company on or after December 19, 2005
shall continue to be effective for subsequent Plan Years unless and until the Participant completes
and returns a new Deferred Compensation Agreement in accordance with Section 3.1(d) below.




          (c) An Eligible Director who did not become a Participant in accordance with the terms of
paragraph (a) or (b) may participate in the Plan effective as of the beginning of any Plan Year
following the Plan Year in which he or she becomes an Eligible Director by completing and signing a
Deferred Compensation Agreement and returning such Deferred Compensation Agreement to the
designated representative of the Company prior to the beginning of the Plan Year (or such earlier
date established by the Company and announced to the Eligible Director) for which deferral of
Compensation is intended to commence. For deferral elections made for the 2005 Plan Year and any
previous Plan Years, such Deferred Compensation Agreement shall be effective only for the Plan Year
first following the submission of the Deferred Compensation Agreement. For deferral elections made
for the 2006 Plan Year and any subsequent Plan Years, such Deferred Compensation Agreement shall
continue to be effective for subsequent Plan Years unless and until the Participant completes and
returns a new Deferred Compensation Agreement in accordance with Section 3.1(d) below.




          (d) If a Participant wishes to commence deferrals of Compensation under the terms of the Plan
or change his or her elected percentage of deferred Compensation for any Plan Year subsequent to
the first Plan Year in which the Participant began to participate in the Plan, such Participant
must complete and sign a new Deferred Compensation Agreement and return such Deferred Compensation
Agreement to the designated representative of the Company prior to the beginning of the Plan Year
(or such earlier date established by the Company and announced to the Participant) for which such
election is to be effective. For deferral elections
made for the 2005 Plan Year and any previous Plan Years, such Deferred Compensation Agreement shall
be effective only for that Plan Year. For deferral elections made for the 2006 Plan Year and any
subsequent Plan Years, such Deferred Compensation Agreement shall continue to be effective for
subsequent Plan Years unless and until the Participant completes and returns a new Deferred
Compensation Agreement.




     3.2 Irrevocability of Participation During the Plan Year. A Participant may not terminate or
modify his or her Deferred Compensation Agreement with respect to a Plan Year on or after the first
day of such Plan Year.



     3.3 Suspended Participation. If a Participant ceases to be an Eligible Director, but
continues to be a Director, he or she shall not be eligible to make future elections to defer
Compensation under the Plan for subsequent Plan Years. Distributions shall be made to such
Participant as would otherwise be permitted in accordance with the distribution provisions under
this Plan. If such Participant again becomes an Eligible Director in a Plan Year following the



4









 







last Plan Year for which a Deferred Compensation Agreement was in effect, such Participant may
elect to participate in the Plan by following the procedures specified in Section 3.1(c).



     3.4 Termination of Participation. A Participant shall cease to be a Participant as of the
date he or she ceases serving as a Director.


4. Plan Accounts




     4.1 Accounts. The Company shall maintain or cause to be maintained for each Participant an
Account with respect to which the Company shall allocate amounts equal to the Participant’s
Compensation Reductions for each Plan Year, effective as of the date such Compensation Reductions
would have been paid to the Participant as Compensation in the absence of a Deferred Compensation
Agreement.



     4.2 Investment of Accounts.



          (a) Each Compensation Reduction allocated to a Participant’s Account shall be converted into
that number of Shares that equal the amount of such Compensation Reduction divided by the Fair
Market Value of the Common Stock of the Company as of the date such Compensation Reduction would
have been paid to the Participant as Compensation in the absence of a Deferred Compensation
Agreement. The calculation of the number of Shares need not be rounded to the nearest whole Share,
so that a fraction of a Share (calculated to the nearest one-hundredth of a Share) may be allocated
to a Participant’s Account.




          (b) In the event any dividends or distributions are made with respect to the Common Stock of
the Company, the Company shall allocate an amount to the Participant’s Account that is equal to the
amount of such dividends or distributions that would have been made with respect to the Shares
allocated to a Participant’s Account if they were shares of the Common Stock of the Company. Such
dividend/distribution allocations shall be converted into
that number of whole and/or fractional Shares that equal the amount of such allocation divided by
the Fair Market Value of the Common Stock of the Company as of the date such dividends or
distributions are made with respect to the Common Stock of the Company to the Company’s
stockholders of record.




     4.3 Value of Accounts. The value of a Participant’s Account as of any Valuation Date shall be
equal to the number of Shares allocated to a Participant’s Account multiplied by the Fair Market
Value of one share of the Common Stock of the Company.



     4.4 Funds Unsecured. Notwithstanding any other provisions of this Plan, all Benefits payable
under the Plan are subject to the claims of the general creditors of the Company. No trust shall
be established to hold any assets which may be set aside by the Company to pay the Benefits under
the Plan and the Company shall be under no obligation to set aside any amounts to pay Benefits.
The maintenance of separate Accounts by the Company as provided herein shall neither require nor be
considered a segregation of any funds or property from the Company’s general assets. Participants
shall have no preferred claim on or beneficial ownership interest in any assets of the Company
prior to the time actual payments of Benefits are received, and all rights of the Participants to
Benefits are mere unsecured contractual rights against the Company.



5









 




5. Benefits




     5.1 Termination Benefits—Distribution of Deferrals.



          (a) For Pre-2005 Deferrals, when a Participant ceases serving as a Director, the Participant
shall be entitled to receive the value of his or her Account determined as of the Valuation Date
coinciding with or next preceding the date of the distribution.




          (b) For Post-2004 Deferrals, when a Participant has a Termination of Service, the Participant
shall be entitled to receive the value of his or her Account determined as of the Valuation Date
coinciding with or next preceding the date of the distribution.




     5.2 Form of Distribution.



          (a) If at the time the Participant is entitled to a distribution pursuant to Section 5.1, the
total distributable amount is less than $50,000, the distribution shall be paid out by the Company
in cash (or by check) in a single lump sum payment in accordance with Section 5.3.




          (b) If at the time the Participant is entitled to a distribution pursuant to Section 5.1, the
total distributable amount is at least $50,000, the distribution shall be paid out by the Company
in cash (or by check) in equal annual installments (by reference to the number of Shares allocated
to a Participant’s Account) as follows. The number of installment payments shall be the lesser of
(i) ten (10) or (ii) two (2) times the number of Plan Years the Participant elected to defer
Compensation under the Plan.




          (c) Notwithstanding the foregoing, to the extent permitted by Section 409A of the Code and the
regulations and other guidance thereunder, the Administrator may, in it sole discretion, override
or modify the timing of payment of a Participant’s Benefits under this Plan at any time and for any
reason to either accelerate or delay the timing of payment of such Benefits in whole or in part.
Such modifications may apply to some or all one or more Participant Accounts, as determined in the
Administrator’s discretion, even as to future installments payable to a Participant under a
distribution that has already commenced pursuant to Section 5.2(b).




     5.3 Timing of Payments. If a Participant ceases serving as a Director on or before June 30 of
any Plan Year, the lump sum payment or the first installment payment shall be paid by the Company
no later than the last day of such Plan Year. If the Participant ceases serving as a Director on
or after July 1 of any Plan Year, the lump sum payment or the first installment payment shall be
paid by the Company no later than January 31 of the following Plan Year. If the payment of a
Participant’s Account is made in installment payments, the second installment payment shall be paid
during January of the Plan Year following the Plan Year in which the first installment payment was
paid and all remaining installment payments shall be paid annually in the month of January. The
value of an installment shall be determined by multiplying the number of Shares to be paid out in
such installment by the Fair Market Value of one share of the Company’s Common Stock on the last
trading day immediately preceding such installment payment.



6









 





     5.4 Death Benefits. In the event the Participant dies prior to receiving all of his or her
Benefits, his or her remaining Benefits shall be paid by the Company in cash (or by check) to the
Participant’s Beneficiary in a lump sum payment as soon as administratively feasible after the
Participant’s death, but in no event later than ninety (90) days after the Participant’s death.



     5.5 Acceleration of Payments. Except as provided in Section 5.2(c), payments under the Plan
may be accelerated only upon the occurrence of an event specified in this Section 5.3.



          (a) Domestic Relations Order. A payment may be accelerated if such payment is made to an
alternate payee pursuant to and following the receipt and qualification of a domestic relations
order as defined in Section 414(p) of the Code.




          (b) Compliance with Ethics Agreements and Legal Requirements. A payment may be accelerated as
may be necessary to comply with ethics agreements with the Federal government or as may be
reasonably necessary to avoid the violation of Federal, state, local or foreign ethics law or
conflicts of interest law, in accordance with the requirements of Section 409A.




          (c) Divestiture. payment may be accelerated as may be necessary to comply with a certificate
of divestiture as defined in Section 1043(b)(2) of the Code.




          (d) Section 409A Additional Tax. A payment may be accelerated to the extent required to pay
any income tax imposed under Section 409A of the Code (the “Section
409A Amount”) if at any time the Participant’s deferred compensation arrangement fails to meet
the requirements of Section 409A of the Code. The total payment under this Section 5.5 may not
exceed the Section 409A Amount.




          (e) A payment may be accelerated in the Administrator’s discretion in connection with any of
the following events, in accordance with the requirements of Section 409A of the Code and the
regulations and other guidance thereunder:





          (1) a corporate dissolution taxed under Section 331 of the Code,




          (2) with the approval of a bankruptcy court pursuant to 11 U.S.C. Section 503(b)(1)(A);




          (3) a change in control event for purposes of Section 409A of the Code, as defined in
Treas. Reg. § 1.409A-3(i)(5), or as these definitions may later be modified by other
regulatory pronouncements;




          (4) the termination of the Plan and all other plans that would be aggregated with the
Plan for purposes of Section 409A of the Code; and




          (5) such other events and conditions as permitted by Section 409A of the Code and the
regulations and other guidance thereunder.



7









 





          (f) Offset. A payment may be accelerated in the Administrator’s’s discretion as satisfaction
of a debt of the Participant to the Company, where such debt is incurred in the ordinary course of
the service relationship between the Participant and the Company, the entire amount of the
reduction in any of the Company’s taxable years does not exceed $5,000, and the reduction is made
at the same time and in the same amount as the debt otherwise would have been due and collected
from the Participant.




     5.6 No Discretionary Distributions. Except as expressly provided herein, the Administrator
shall not exercise discretion with respect to the timing or form of distribution of Benefits from
the Plan, but shall make distributions at the time and in the manner elected by the Participant on
the Deferred Compensation Agreement or as otherwise specified in the Plan.



     5.7 Special Delay in Distribution Rules. Notwithstanding anything to the contrary set forth
herein, the Administrator retains the right, in its sole discretion, to delay distributions under
the Plan to the extent permitted by Section 409A of the Code and its regulations and other guidance
thereunder.


6. Source of Benefits 




     Benefits payable under this Plan shall be paid out of the Company’s general assets and
allocated as payments out of the appropriate Participant’s Account under the Plan.


7. Administration 




     7.1 General. This Plan shall be administered by the Board of Directors of the Company, unless
and until the Board delegates administration to a committee composed of not fewer than two members
of the Board. All members of such committee shall be Non-Employee Directors, unless the Board
expressly declares otherwise. The Board or, if applicable, such committee (the “Administrator”)
shall exercise all administrative powers and duties under the Plan in accordance with the terms and
purposes of the Plan. The Administrator shall determine the amount of the Benefits due to each
Participant or Beneficiary from this Plan and shall cause them to be paid accordingly in accordance
with the Plan.



     7.2 Procedures. The Administrator may adopt such rules and regulations not inconsistent with
the provisions of the Plan as deemed necessary or appropriate for the proper administration of the
Plan and shall have the authority, in the Administrator’s sole discretion, to interpret and
construe any provision of the Plan. To the extent permitted by law, (i) all such rules,
regulations, interpretations and constructions shall be final and binding on the Company and all
Participants and their legal representatives, beneficiaries, successors, and assigns, subject to
review as provided in Section 7.3, (ii) the Administrator shall not be subject to any individual
liability with respect to the Plan and (iii) the Administrator shall be indemnified by the Company
for any action or omission made with respect to the Plan which does not demonstrate bad faith,
willful misconduct, criminal act, or gross negligence.



     7.3 Claims. Any denial by the Administrator of a claim for benefits under the Plan by a
Participant or Beneficiary shall be stated in writing by the Administrator and delivered or mailed
to the Participant or Beneficiary. Such notice shall set forth the specific reasons for the
denial, written to the best of the Administrator’s ability in a manner that may be understood



8









 







without legal counsel. In addition, the Administrator shall afford a reasonable opportunity to any
Participant or Beneficiary whose claim for benefits has been denied for a review of the decision
denying the claim. In the event of further disagreement following any further decision of the
Administrator after such a review, either the Participant or the Administrator may appeal to the
full Board, which decision shall be final.


8. Amendment and Termination




     8.1 Amendment or Termination. While the Company intends and expects the Plan to continue to
fulfill its purposes and serve the best interests of the Company in its present form, the Company
reserves the right to amend or terminate the Plan at any time and for any reason, subject to the
provisions in this Section 8.1, Section 8.2, and Section 9.



          (a) The Administrator may determine that a Participant who has not had a Termination of
Service shall no longer be eligible to participate in the Plan. If the Administrator terminates a
Participant’s eligibility to participate in the Plan prior to the Participant’s Termination of
Service, then the Participant’s Account balance, if any, shall remain in the Plan and will be paid
out in accordance with the terms of this Plan and the applicable deferral election.




          (b) Notwithstanding any provision of the Plan to the contrary, in the event that the Company
determines that any provision of the Plan may cause amounts deferred under the Plan to become
immediately taxable to any Participant under Section 409A of the Code, the Company may (i) adopt
such amendments to the Plan and appropriate policies and procedures, including amendments and
policies with retroactive effect, that the Company determines necessary or appropriate to preserve
the intended tax treatment of the Plan benefits provided by the Plan and/or (ii) take such other
actions as the Company determines necessary or appropriate to comply with the requirements of
Section 409A of the Code.




     8.2 Accrued Benefits.



          (a) No termination of the Plan or any amendments thereto which affect Benefits under the Plan
shall, without the written consent of a Participant, eliminate or reduce any Benefit of the
Participant under the Plan to which, as of the date of such termination or amendment, such
Participant would be entitled under the provisions of Section 5 had he or she ceased serving as a
Director immediately prior to such date.




          (b) In the event of any amendment of the Plan which affects the amount of Benefits payable
under the Plan, Participants shall be entitled to receive the greater of (i) the Benefit provided
under the Plan as amended, or (ii) the Benefit described above in Section 8.2(a).




          (c) For Pre-2005 Deferrals, upon termination of the Plan, all Deferred Compensation Agreements
shall terminate immediately and all Participants’ full Compensation on a non-deferred basis will be
restored. Each and every Participant shall receive payment of the value of his or her Account in
accordance with the provisions of Section 5 as if such Participant had ceased serving as a Director
on the date of the Plan’s termination.




9









 








          (d) For Post-2004 Deferrals, upon termination of the Plan, all Deferred Compensation
Agreements shall terminate immediately and all Participants’ full Compensation on a non-deferred
basis will be restored. Additionally, with respect to Post-2004 Deferrals, the Plan may be
terminated and liquidated at any time by the Company and payment of distributions
may be accelerated, provided that, to the extent required by Section 409A (i) the termination
and liquidation does not occur proximate to a downturn in the financial health of the Company; (ii)
all other plans are terminated with respect to all Participants, (iii) no Participant Account
balances are paid, other than those otherwise payable under the terms of the Plan absent a
termination of the Plan, within 12 months of the termination of the Plan, (iv) all Participant
Account balances are paid within 24 months of the termination of the Plan, and (v) the Company does
not adopt another Account Balance Plan with respect to the Plan’s Participants at any time for a
period of three years following the date of termination of the Plan.



9. Adjustment of Shares; Sale or Merger of the Company




     9.1 Adjustment of Shares. If any change is made in the Common Stock of the Company pursuant
to which the value of a Share is determined, without the receipt of consideration by the Company
(through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend,
dividend in property other than cash, stock split, liquidating dividend, combination of shares,
exchange of shares, change in corporate structure or other transaction not involving the receipt of
consideration by the Company), the number of Shares held in a Participant’s Account will be
appropriately adjusted. The Board shall make such adjustments, and its determination shall be
final, binding and conclusive. For this purpose, the conversion of any convertible securities of
the Company shall not be treated as a transaction “without receipt of consideration” by the
Company.



     9.2 Sale or Merger of the Company. In the event of a sale, merger, reorganization,
consolidation or other similar transaction (a “Change of Ownership Transaction”) involving the
Company, no Participant in the Plan will be considered to have ceased serving as a Director for
purposes of the Plan, nor will any such Participant be entitled to receive Benefits pursuant to
Section 5, until such Participant actually ceases serving as Director of the Company or any
acquiring or successor company or entity. Notwithstanding the foregoing, to the extent permitted
by Section 409A of the Code and the regulations and other guidance thereunder, in connection with a
Change of Ownership Transaction, immediate payment of Benefits may be directed by the Administrator
of the Plan. In any event, no Change of Ownership Transaction involving the Company shall, without
the written consent of a Participant, eliminate or reduce any Benefit of the Participant under the
Plan to which, as of the date of such Change of Ownership Transaction, such Participant would be
entitled under the provisions of Section 5 had he or she ceased serving as a Director immediately
prior to such date.


10. Miscellaneous




     10.1 Benefits Fully Vested. All Benefits under the Plan, to the extent accrued, shall be
fully vested at all times hereunder.



10









 





     10.2 No Right to Continue as Director. Nothing contained in this Plan or in any agreement or
instrument executed
pursuant to the Plan shall be construed as conferring upon any Participant the right to continue
serving as a Director.



     10.3 Successors and Assigns. This Plan shall be binding upon the Company and its successors
and assigns as well as each Participant and his or her representatives, successors, heirs, assigns,
and Beneficiary.



     10.4 Assignment or Alienation. To the extent permitted by law, benefits of Participants under
this Plan may not be anticipated, assigned (either by law or in equity), transferred, alienated or
subject to attachment, garnishment, levy, execution or other legal or equitable process.



     10.5 Entire Agreement. The Plan and a Participant’s Deferred Compensation Agreement, and any
subsequently adopted amendment to either of these documents, shall constitute the total agreement
or contract between the Company and such Participant regarding the Plan. No oral statement
regarding the Plan may be relied upon by the Participant. If there are any conflicts between the
terms of the Plan and a Participant’s Deferred Compensation Agreement, the terms of the Plan shall
control.



     10.6 Headings. The headings herein are for reference only. In the event of a conflict
between a heading and content of a Section of this Plan, the content of the Section shall control.



     10.7 Gender and Number. Whenever used herein, the masculine shall be interpreted to include
the feminine and neuter, the neuter to include the masculine and feminine, the singular to include
the plural and the plural to include the singular, unless the context requires otherwise.



     10.8 Governing Law. The place of administration of this Plan shall conclusively be deemed to
be within the State of California, and the Plan shall be governed by and in all respects
construed in accordance with the substantive laws of the State of California, except where such
laws are superseded by federal laws.



     10.9 Compliance with Section 409A of the Code. This Plan is intended to comply with the
requirements of Section 409A of the Code and regulations and other guidance thereunder. The
Administrator shall interpret the Plan provisions with respect to Post-2004 Deferrals in a manner
consistent with the requirements of Section 409A of the Code and regulations and other guidance
thereunder. To the extent one or more provisions of this Plan do not comply with Section 409A of
the Code, such provision shall be automatically and immediately voided, and shall be amended as
soon as administratively feasible and shall be administered to so comply.



     10.10 Scrivener’s Error. Notwithstanding any other provision of this Plan to the contrary, if
there is a scrivener’s error in properly transcribing this Plan document, it shall not be a
violation of the Plan terms to operate the Plan in accordance with its proper provisions, rather
than in accordance with the terms of the Plan document, pending correction of the Plan document
through an amendment. In addition, any provisions of the Plan document improperly
added as a result of scrivener’s error shall be considered null and void as of the date such
error occurred.



11









 





     10.11 Plan Restatement Effective Date. This Restatement of the Plan shall be effective with
respect to all Participants, Beneficiaries and any person claiming benefits under the Plan on or
following January 1, 2005, except as otherwise expressly indicated to the contrary.



     In Witness Whereof, the Company has executed this Restatement of the Plan as of this
31st day of December, 2008.



	 	 	 	 	 
	 	IDM Pharma, Inc.

 	 
	 	By:  	/s/ Robert J. De Vaere
 	 
	 	 	Title: Senior Vice President, Finance and 	 
	 	 	         	Administration and Chief Financial Officer 	 
	 




12











 





DEFERRED COMPENSATION AGREEMENT AND

2009 PLAN YEAR ELECTION FORM

UNDER THE IDM PHARMA, INC.

DIRECTORS’ DEFERRED COMPENSATION PLAN




     This Deferred Compensation Agreement is entered into by IDM Pharma, Inc., a
Delaware corporation (the “Company”), and                     (the “Participant”) to be effective
commencing with the Plan Year that begins on January 1, 2009.



     Whereas, the Company has established the IDM Pharma, Inc. Directors’ Deferred
Compensation Plan (the “Plan”) to provide benefits payable by the Company to nonemployee directors
of the Company, which benefits to Participants under the Plan are based on compensation that the
Participant has elected to defer payment until the time that he or she is no longer providing
services to the Company.



     Whereas, pursuant to Section 3 of the Plan, the Participant is eligible to
participate in the Plan;



     Whereas, under the Plan the Participant must enter into an agreement in order to
elect to defer his or her receipt of a selected percentage of his or her director’s retainer and
meeting fees; and



     Whereas, under the Plan, the Participant must enter into such agreement either (i)
within 30 days of the Participant first becoming an Eligible Director, or (ii) prior to the first
day of the first Plan Year for which this Agreement is to commence to be effective, whichever is
applicable.



     Now, Therefore, in consideration of the terms and conditions set forth herein, the
Company and the Participant agree as follows:



     1. All
of the various terms and conditions of the Plan, including any amendments made to the Plan from time to time, shall be incorporated into and be considered a part of this
Agreement and shall be binding upon the parties. Capitalized terms used, but not defined, in this
Agreement shall have the meaning set forth in the Plan.



     2. This Agreement shall be binding upon the parties, any successor to the Company, any
representative, successor, assign or heir of the Participant, and any surviving spouse or
Beneficiary of the Participant. In accordance with the terms of the Plan, no interest under this
Agreement may be assigned, alienated or disposed of in any manner by the Participant or any
surviving spouse, representative, successor, assign, heir, or Beneficiary of the Participant.



     3. This Agreement is intended to be a Deferred Compensation Agreement as defined in the Plan.



     4. Subject to the provisions of Section 5 of this Agreement, the Participant agrees to
irrevocably defer receipt of the percentage of his or her Compensation specified below in order



 









 







to have such amounts contributed by the Company to his or her Account under the Plan as
Compensation Reductions, or hereby elects to cease deferrals of his or her Compensation, as
applicable. The Participant agrees that the following election will remain effective for all
subsequent Plan Years unless and until the Participant makes a new election for such subsequent
Plan Years. The Company agrees to reduce the Participant’s Compensation by the percentage specified
below (if any) and to contribute such amounts to the Participant’s Account established under the
terms of the Plan.




(               %) The Participant hereby elects to defer the foregoing percentage of his
or her Compensation to the Plan. (Select any whole percentage of your Compensation between
1% and 100%.




OR




                    (initial) The Participant hereby elects to cease deferrals of Compensation to the
Plan.



     5. This Agreement shall apply only to Compensation payable with respect to the Participant’s
services as a Director on or after the Participant signs and returns this Agreement to the Company.



     6. This Agreement may not be revoked. This Agreement may be amended by the Company and the
Participant in writing; provided, however, that no amendment may be made which would alter the
terms of the Participant’s election to defer Compensation in force at the time of such amendment.



     7. The benefits to which the Participant is entitled under this Agreement are based on the
value of the Participant’s Account under the Plan. The amounts deferred under this Agreement and
credited to the Participant’s Account under the Plan shall be converted to Shares and valued in
accordance with the terms of the Plan.



     8. The Participant understands and hereby acknowledges that amounts contributed to the Plan
hereunder will not be available until he or she ceases providing services to the Company. The
Company shall pay to the Participant, after the Participant ceases providing services to the
Company, the value of his or her Account under the Plan in a single lump sum if the total
distributable amount is less than $50,000. If the total distributable amount is $50,000 or more,
it will be distributed in annual installments, with the number of installments to be the lesser of
(i) 10, or (ii) two times the number of years that the Participant elected to defer his or her
Compensation under the Plan.



     9. The Participant shall have the right to designate, on the form provided by the Company, a
Beneficiary to receive any Benefits due under the Plan which may remain unpaid at the Participant’s
death and shall have the right at any time to revoke such designation and to substitute another
such Beneficiary. In the event of the Participant’s death prior to receiving the value of his or
her Account, the entire value of the Participant’s Account shall be paid to the Participant’s
Beneficiary (or if the Participant has not designated a Beneficiary, to the Participant’s surviving
spouse, or if none, the Participant’s estate) in a single lump sum payment.



 









 





     10. The distribution to the Participant of some or all of the value of the Participant’s
Account under the Plan shall discharge the Company of all obligations to the Participant under this
Agreement to the extent of the amount of such distribution.



     11. The Participant understands that all payments under this Agreement shall be subject to all
applicable withholding for foreign, state, federal and local income or employment taxes.



     12. The Participant understands that except as otherwise provided by the Plan, the entire
value of the Participant’s Account under the Plan shall be subject to the claims of creditors of
the Company and neither the Participant nor any Beneficiary shall have any legal or equitable
interest in any of the Plan’s assets, or any other asset of the Company. The Participant is a
general unsecured creditor of the Company with respect to the promises of the Company made herein,
except as otherwise expressly provided by the Plan.



     13. Nothing contained in this Agreement or the Plan shall be construed as conferring upon the
Participant the right to continue serving as a Director of the Company.



     14. This Agreement constitutes the entire understanding and agreement between the Company and
the Participant with respect to the subject matter contained herein, and there are no agreements,
understandings, restrictions, representations or warranties among the Participant and the Company
other than those as set forth or provided for in this Agreement and the Plan. The terms of this
Agreement and the Plan shall control and take precedence over the terms of any other materials
which describe the Plan and this Agreement and which might be argued to be inconsistent with the
terms of the Plan or this Agreement. In the event of a conflict between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall control.



     15. This Agreement shall be governed by the substantive laws of the State of California.



     In Witness Whereof, the Company has caused this Agreement to be executed by a duly
authorized representative and Participant has executed this Agreement effective as of the date
written above.



	 	 	 	 	 	 	 
	 

	 	 	 	IDM Pharma, Inc.:	 	 
	 
	 	 	 	 	 	 
	 

Date

	 	 
	 	 

By: Robert J. De Vaere
	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Vice President & CFO	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Participant:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Date