exv10w15






Exhibit 10.15




NEKTAR THERAPEUTICS




AMENDED AND RESTATED CHANGE OF CONTROL

SEVERANCE BENEFIT PLAN



PLAN DOCUMENT AND SUMMARY PLAN DESCRIPTION








 









 








NEKTAR THERAPEUTICS

AMENDED AND RESTATED

CHANGE OF CONTROL SEVERANCE BENEFIT PLAN




PLAN DOCUMENT AND SUMMARY PLAN DESCRIPTION


Section 1. Introduction



The Nektar Therapeutics Amended and Restated Change of Control Severance Benefit Plan (the “Plan”)
is designed to provide severance benefits to eligible employees of Nektar Therapeutics (the
“Company” or “Nektar”) whose employment is involuntarily terminated by the Company following a
Change of Control (as defined below). The Plan was initially approved by the Company’s Board of
Directors (the “Board of Directors”) on December 6, 2006 and subsequently amended and restated and
approved by the Board of Directors on February 14, 2007, on October 21, 2008, on September 14, 2010
and on December 7, 2010. The Plan supersedes any prior plan, policy or practice involving the
payment of severance benefits by Nektar in the event of an involuntary termination that occurs in
connection with or following a Change of Control. While the Plan is in effect, any severance
benefits provided to an employee by the Company with respect to an employee’s involuntary
termination in connection with or following a Change of Control must be paid pursuant to the Plan
or pursuant to an express written agreement between Nektar and the individual employee.



The Plan is designed to be an “employee welfare benefit plan,” as defined in Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and, accordingly, this Plan
is governed by ERISA. This document constitutes both the official plan document and the required
summary plan description under ERISA.



Section 2. Eligibility For Participation in the Plan



Each employee of the Company is eligible to participate in the Plan; provided, however, that an
employee who has an individual agreement with the Company providing for severance benefits with
respect to termination of employment with the Company in connection with or following a Change of
Control that would otherwise be covered by this Plan shall not be eligible to participate in this
Plan (i.e. an eligible employee cannot receive severance benefits both under their individual
agreement and this Plan), and an individual who is not treated as an employee of the Company for
payroll and income tax withholding purposes or who is treated as a consultant or independent
contractor, regardless of a court or agency’s determination of employee status of such person
during any period for any purpose, shall not be eligible to participate in this Plan.



Section 3. Eligibility For Severance Benefits



3.1 Conditions for Eligibility. To be eligible to receive severance benefits under the
Plan, in addition to meeting the requirements for eligibility to participate in the Plan, the
participant must terminate employment with the Company under circumstances that the Plan
Administrator






 









 







determines constitute a Covered Termination, and the participant must meet the following
conditions:





	•	 	The participant must execute and deliver to the Company a Separation and General Release
Agreement in substantially the form attached hereto as Exhibit A and must not revoke
such agreement within any revocation period provided under applicable law.






	•	 	If the participant is notified by the Company or Successor Company that his or her
employment will be terminated following a Change of Control in advance of his or her
termination date, the participant must not voluntarily terminate his or her employment or fail
to perform his or her assigned duties prior to the termination date established by the Company
or Successor Company.






	•	 	The participant must not at any time have engaged in conduct that would be Cause for
termination, as defined in Section 3.3 below, as determined by the Plan Administrator in its
sole discretion. The Plan Administrator shall have the discretion to terminate any and all
severance benefits provided under this Plan to a participant who is discovered to have engaged
in such conduct, regardless of when such discovery occurs.




3.2 Covered Termination. For purposes of this Plan, a Covered Termination is an
involuntary termination of the participant’s employment with the Company or Successor Company in
conjunction with a Change of Control under the circumstances described below applicable to the
participant, as follows:





	•	 	Officer Participants. For a participant who is an officer holding a position of
Chief Executive Officer, President, Senior Vice President, Vice President or Principal Fellow
(an “Officer Participant”), a Covered Termination is the involuntary termination of the
participant’s employment by the Company or Successor Company without Cause, other than on
account of the participant’s death or disability, or the participant’s Good Reason
Resignation, which (i) termination occurs at the request of a third party in the context of
discussions regarding a Change of Control or (ii) termination or resignation occurs within the
period beginning with the execution of an agreement providing for a Change of Control (and
such Change of Control is consummated) and ending 12 months following the Change of Control.






	•	 	Non-Officer Participants. For any other participant (a “Non-Officer Participant”),
a Covered Termination is the involuntary termination of the participant’s employment by the
Company or Successor Company without Cause, other than on account of the participant’s death
or disability, which termination occurs within the period beginning on the date of the Change
of Control and ending 12 months following the Change of Control.






	•	 	Termination of Employment — Asset Sale. Notwithstanding anything else contained in
this Plan to the contrary, a participant shall not be entitled to benefits under this Plan as
a result of a termination of the participant’s employment with the Company or Successor
Company if such termination of employment occurs in connection with a sale of assets by the
Company or Successor Company and each of the following conditions is satisfied in connection
with such sale: (1) the participant becomes employed by the purchaser (which term shall
include




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	 	 	for these purposes a parent, subsidiary, or other affiliated entity of such purchaser) of such
assets upon or within sixty (60) days following such sale or such purchaser offers the
participant employment effective upon or within sixty (60) days following such sale (regardless
of whether the participant actually accepts or commences such employment) on substantially the
same terms; and (2) such purchaser adopts this Plan (or a substantially similar severance plan)
to provide the participant with substantially the same severance protections afforded by this
Plan had this Plan continued in effect as to the participant after such sale on its terms
(subject, without limitation, to any such entity’s right to terminate this Plan as provided
herein). Whether employment is on “substantially the same terms” for this purpose shall be
determined by comparing the relevant aspects of the terms of the participant’s employment before
giving effect to such asset sale to the relevant aspects of the terms of the participant’s
employment (or offer of employment, as the case may be) with the purchaser after giving effect
to such asset sale (in each case relative to the Company and its subsidiaries, or the purchaser
and its parent, subsidiary, and other affiliated entities, as the case may be, on a consolidated
basis, not simply with reference to the participant’s employer).




3.3 Cause. For purposes of this Plan, Cause shall mean, as determined by the Plan
Administrator:





	•	 	An employee’s conviction of any felony or any crime involving fraud, dishonesty or moral
turpitude;






	•	 	An employee’s commission of, or participation in, a fraud or act of dishonesty against the
Company or Successor Company that materially benefits the employee;






	•	 	An employee’s intentional, material violation of any contract or agreement between the
employee and the Company or Successor Company or of any statutory or fiduciary duty owed to
the Company or Successor Company;






	•	 	An employee’s intentional unauthorized use of Company or Successor Company property that
materially benefits the employee or intentional unauthorized use or disclosure of Company or
Successor Company confidential information or trade secrets;






	•	 	An employee’s intentional gross misconduct or intentional material failure to comply with
the Company’s or Successor Company’s written policies; or






	•	 	An employee’s intentional material failure or refusal to perform his or her position
responsibilities, other than on account of a mental or physical disability.




No act or failure to act on the part of an individual shall be considered “intentional” unless
done, or omitted to be done, by that individual not in good faith and without reasonable belief
that such individual’s action or omission was in the best interest of the Company. In no event
shall mere failure to achieve desired strategic, operational, financial or other results constitute
Cause.







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3.4 Good Reason Resignation. For purposes of this Plan, an Officer Participant’s Good
Reason Resignation shall mean a voluntary resignation by the Officer Participant following the
occurrence of any of the following conditions without the Officer Participant’s express written
consent:





	•	 	Assignment of any authority, duties or responsibilities that results in a material
diminution in the participant’s authority, duties or responsibilities as in effect immediately
prior to the Change of Control.






	•	 	Assignment to a work location more than 50 miles from the participant’s immediately
previous work location, unless such reassignment of work location decreases the participant’s
commuting distance from his or her residence to his or her assigned work location.






	•	 	A material diminution in the participant’s monthly base salary as in effect on the date of
the Change of Control or as increased thereafter.






	•	 	Notice to the participant by the Company or Successor Company during the 12-month period
following the Change of Control that the participant’s employment will be terminated under
circumstances that would be a Covered Termination but for the designation of a date for
termination that is greater than 12 months following the Change of Control (provided that such
participant does in fact terminate his or her employment within the time period prescribed
below).






	•	 	In the case of the Chief Executive Officer and President, such individual does not serve in
that position in the Successor Company (as defined below) and/or is not appointed to the board
of directors of the Successor Company.




provided, however, that any such condition shall not constitute grounds for a Good Reason
Resignation unless both (x) the Officer Participant provides written notice to the Company of the
condition claimed to constitute grounds for the Good Reason Resignation within sixty (60) days of
the initial existence of such condition, and (y) the Company fails to remedy such condition within
thirty (30) days of receiving such written notice thereof; and provided, further, that in all
events the termination of the Officer Participant’s employment with the Company shall not be
treated as a Good Reason Resignation unless such termination occurs not more than six (6) months
following the initial existence of the condition claimed to constitute “Good Reason.”



3.5 Change of Control. A Change of Control with respect to the Company shall mean any of
the following events or circumstances:





	•	 	The sale, lease or other disposition of all or substantially all of the Company’s assets;






	•	 	The acquisition of securities of the Company representing more than 50% of the combined
voting power of the Company’s then outstanding securities, other than by virtue of a merger,
consolidation or similar transaction;




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	•	 	The merger, consolidation or similar transaction involving the Company, immediately after
which the stockholders of the Company immediately prior thereto do not own either (i)
outstanding voting securities representing more than 50% of the combined outstanding voting
power of the surviving entity in such merger, consolidation or similar transaction or (ii)
more than 50% of the combined outstanding voting power of the parent of the surviving entity
in such merger, consolidation or similar transaction, in each case in substantially the same
proportions as their ownership of the outstanding voting securities of the Company immediately
prior to such transaction; or






	•	 	Individuals who, on the date the Plan is adopted by the Board, are members of the Board
(the “Incumbent Board”) cease for any reason to constitute at least a majority of the members
of the Board, provided, however, that if the appointment or election of any new Board member
was approved or recommended by a majority vote of the members of the Incumbent Board then
still in office, such new member will, for purposes of the Plan, be considered as a member of
the Incumbent Board.




In the event of a Change of Control following which Nektar is not the surviving entity, the
surviving entity for purposes of this Plan is the “Successor Company.”



Section 4. Severance Benefits



A participant who is eligible to participate in this Plan in accordance with Section 2 and who
becomes eligible to receive severance benefits under this Plan as determined under Section 3 shall
be entitled to receive, subject to the terms and conditions herein, the following severance
benefits set forth in this Section 4:



4.1 Cash Severance Pay; Amount. The amount of a participant’s Cash Severance Pay benefit
under this Plan shall be determined based on position title as follows, and then reduced as
specified below:





	•	 	Chief Executive Officer and President: Cash Severance Pay shall equal 24 months of monthly
base salary plus annual target incentive pay as in effect immediately prior to the Covered
Termination or for the immediately preceding calendar year, whichever is greater.






	•	 	Senior Vice Presidents, Vice Presidents and Principal Fellows: Cash Severance Pay shall
equal 12 months of monthly base salary plus annual target incentive pay as in effect
immediately prior to the Covered Termination or for the immediately preceding calendar year,
whichever is greater.






	•	 	All Other Participants: Cash Severance Pay shall equal 6 months of monthly base salary
plus annual target incentive pay as in effect immediately prior to the Covered Termination or
for the immediately preceding calendar year, whichever is greater.




Cash Severance Pay shall be reduced by each of the following:







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	•	 	any severance benefits (including, without limitation, any other change-in-control
severance benefits and any other severance benefits generally) that the participant may be
entitled to under any other plan or program with the Company. For purposes of the foregoing,
any cash severance benefits payable to the participant under any other plan or program with
the Company (including, without limitation, the Company’s Severance Benefit Plan or any
similar successor plan) shall offset the Cash Severance Pay otherwise payable to the
participant under this Plan on a dollar-for-dollar basis. For purposes of the foregoing,
non-cash severance benefits to be provided to the participant under any other plan or program
with the Company shall offset any corresponding benefits otherwise to be provided to the
participant under this Plan or, if there are no corresponding benefits otherwise to be
provided to the participant under this Plan, the value of such benefits shall offset the cash
severance benefits otherwise payable to the participant under this Plan on a dollar-for-dollar
basis. If the amount of other benefits to be offset against the Cash Severance Pay otherwise
payable to the participant under this Plan in accordance with the preceding two sentences
exceeds the amount of Cash Severance Pay otherwise payable to the participant under this Plan,
then the excess may be used to offset other non-cash severance benefits otherwise to be
provided to the participant under this Plan on a dollar-for-dollar basis. For purposes of
this paragraph, the Plan Administrator shall reasonably determine the value of any non-cash
benefits;






	•	 	any wages or wage replacement benefits paid or payable to the participant with respect to
any applicable notice period (including any pay in lieu of notice) in connection with the
participant’s termination of employment, whether such notice period is required under the
Worker Adjustment and Retraining Notification Act or any state law with respect to notice, if
applicable, or any Company policy, or any written agreement between the participant and the
Company;






	•	 	the amount of any wages or other compensation the participant has received during a leave
of absence in excess of his or her accrued paid time off (other than disability plan income
replacement benefits); and






	•	 	to the extent permitted by law, by any debt that the participant owes the Company at the
time the Cash Severance Pay becomes payable;




provided that any reduction or offset under this provision does not create an impermissible
acceleration of payments under Treasury Regulation Section 1.409A-1(j) to the extent that Section
409A of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) applies.






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4.2 Cash Severance Pay: Time of Payment. The Cash Severance Pay for which a participant is
eligible under this Plan will be paid to the participant in a lump sum cash payment no later than
sixty (60) days following the date on which the participant’s Separation from Service (as defined
below) occurs, subject to the provisions of Section 3.1, but no event will any payment be made
under this Plan after the end of the short-term deferral period as defined in Treasury Regulation
section 1.409A-1(b)(4). Notwithstanding the foregoing sentence, if the participant is a
“specified employee” within the meaning of Treasury Regulation section 1.409A-1(i) as of the date
of the participant’s Separation from Service, the participant shall not be entitled to any payment
of Cash Severance Pay until the earlier of (i) the date which is six (6) months after the
participant’s Separation from Service for any reason other than death, or (ii) the date of the
participant’s death. Any amounts otherwise payable to the participant upon or in the six (6) month
period following the participant’s Separation from Service that are not so paid by reason of this
paragraph shall be paid (without interest) as soon as practicable (and in all events within thirty
(30) days) after the date that is six (6) months after the participant’s Separation from Service
(or, if earlier, as soon as practicable, and in all events within thirty (30) days, after the date
of the participant’s death). The provisions of this paragraph relating to the delay of payment
shall only apply if, and to the extent, required to avoid the imputation of any tax, penalty or
interest pursuant to Code Section 409A.



As used herein, a participant’s “Separation from Service” occurs when the participant dies,
retires, or otherwise has a termination of employment with the Company that constitutes a
“separation from service” within the meaning of Treasury Regulation Section 1.409A-1(h)(1), without
regard to the optional alternative definitions available thereunder.



4.3 COBRA Premiums. For an eligible participant who is covered by one or more of the
Company’s group health plans on the date of termination of employment and who makes a timely
election to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”), the Company will pay the portion of such participant’s COBRA premium equal to the
portion of such group health plan premium cost the Company pays for active employees for the number
of months base salary represented by the participant’s Cash Severance Pay determined under Section
4.1 for up to a maximum of eighteen (18) months; provided that such payment of a portion of the
COBRA premium by the Company shall cease earlier on the date the participant becomes eligible for
group medical, dental or vision coverage through a subsequent employer. To the extent that the
payment of any COBRA premiums pursuant to this Section 4.3 is taxable to the participant, any such
payment shall be paid to the participant on or before the last day of the participant’s taxable
year following the taxable year in which the related expense was incurred. The participant’s right
to payment of such premiums is not subject to liquidation or exchange for another benefit and the
amount of such benefits that the participant receives in one taxable year shall not affect the
amount of such benefits that the participant receives in any other taxable year.



4.4 Outplacement Program. An eligible participant shall receive reimbursement for
reasonable outplacement services up to a maximum of $5,000 for services received within 12 months
following the participant’s Separation from Service, any such reimbursement to be made in
accordance with the Company’s reimbursement policies generally and in all events not later than the
end of the calendar year following the year in which the related expense was incurred.






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The participant’s right to benefits under this Section 4.4 is not subject to liquidation or
exchange for another benefit and the amount of such benefits that the participant receives in one
taxable year shall not affect the amount of such benefits that the participant receives in any
other taxable year.



4.5 Withholding. All cash and reimbursement severance benefits provided under the Plan will
be subject to all applicable withholding deductions as required by law.



4.6 Equity Acceleration. An eligible participant will become fully vested in any
outstanding stock awards held by such participant as of the date of termination, including
restricted stock and stock options unless otherwise provided for in the equity award agreement.



4.7 Limitation on Benefits Subject to Parachute Rules. Notwithstanding Section 4.1 and
4.6, in the event the severance benefits payable hereunder to a participant who is a “disqualified
individual” within the meaning of Code Section 280G, together with all other payments to which such
participant is entitled in connection with a Change of Control (collectively, the “Payments”),
would cause any portion of the Payments to be nondeductible under Code Section 280G and subject to
the excise tax imposed under Code Section 4999 (the “Excise Tax”), then:





	(i)	 	For each participant other than a New Participant (as defined below), the following rules
shall apply:






	 	(a)	 	If a reduction in the amount of the Payments by an amount up to but not in excess of
ten percent (10%) of the amount of the Payments would avoid the imputation of any Excise
Tax on the remaining Payments (after such reduction), then the Payments shall be reduced
(but not below zero) if and to the extent that such a reduction in the Payments would
result in the participant retaining a larger amount, on an after-tax basis (taking into
account federal, state and local income taxes and the Excise Tax), than if the participant
received the entire amount of the Payments. The Company shall reduce or eliminate the
Payments by first reducing or eliminating any Cash Severance Pay, then by reducing or
eliminating any accelerated vesting of equity awards, then by reducing or eliminating any
other remaining Payments.
	 
	 	(b)	 	If a reduction in the amount of the Payments by 10% of the amount of the Payments would
not avoid the imputation of any Excise Tax on the remaining Payments (after such
reduction), then the Company shall pay to the participant (or to the applicable taxing
authority on participant’s behalf) an additional cash payment (the “Gross-Up Payment”)
equal to an amount such that after payment by the participant of all taxes, interest,
penalties, additions to tax and costs imposed or incurred with respect to the Gross-Up
Payment (including, without limitation, any income and excise taxes imposed upon the
Gross-Up Payment), the participant retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon such Payment or Payments. The Gross-Up Payment, if triggered
pursuant to this Section 4.7(i)(b), is intended to put the participant in the same position
as the participant would have been had no Excise Tax been imposed upon or incurred as a
result of any Payment. Any such Gross-Up Payment shall be paid as soon




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	 	 	 	as practicable and in all events no later than the end of the calendar year following the
year in which the participant remits the related taxes.

	 
	 	(ii)	 	For each participant that either (i) commenced employment with the Company on or after
September 14, 2010; or (ii) commenced employment prior to September 14, 2010 but on or after
September 14, 2010 was promoted to a position that would entitle the participant to additional
benefits under this Plan as a result of the promotion (any participant meeting the description
of (i) or (ii) is referred to herein as a “New Participant”), the following rule shall apply:
If a New Participant’s Payments are subject to the Excise Tax, then the Payments shall be
reduced (but not below zero) if and to the extent that such a reduction in the Payments would
result in the New Participant retaining a larger amount, on an after-tax basis (taking into
account federal, state and local income taxes and the Excise Tax), than if the New Participant
received the entire amount of the Payments. If the Payments are to be reduced pursuant to the
preceding sentence, the Company shall reduce or eliminate the Payments by first reducing or
eliminating any Cash Severance Pay, then by reducing or eliminating any accelerated vesting of
equity awards, then by reducing or eliminating any other remaining Payments.




Section 5. Notices



Any notice or other communication under the Plan must be in writing and will be deemed given when
delivered personally or when sent by certified or registered mail, return receipt requested, or by
overnight courier, addressed as follows or to such other address as any party may hereafter
designate in accordance with this provision:




     If to Nektar or the Plan Administrator:


Nektar Therapuetics

455 Mission Bay Boulevard South

San Francisco, CA 94158

Attn: Vice President, Human Resources




     If to the participant: to the address appearing in the payroll records of the Company.


Section 6. Claims



6.1 Initial Claims Procedure. Any employee who does not receive a benefit under the Plan
that he or she feels he or she is entitled to receive may make a written claim to the Plan
Administrator within 90 days after his or her termination, in accordance with the Notice provisions
described above, and which explains the reasons for such claim. The claimant will be informed of
the Plan Administrator’s decision with respect to the claim within 90 days after it is filed.
Under special circumstances, the Plan Administrator may require an additional period of not more
than 90 days to review the claim. If that happens, the claimant will receive a written notice of
that fact, which will also indicate the special circumstances requiring the extension of time and
the date by which the Plan Administrator expects to make a determination with respect to the claim.
If the extension is required due to the claimant’s failure to submit information






9









 







necessary to decide the claim, the period for making the determination will be tolled from the date
on which the extension notice is sent until the date on which the claimant responds to the Plan
Administrator’s request for information.



6.2 Notice of Claim Determination. If a claim is denied in whole or in part, or any
adverse benefit determination is made with respect to the claim, the claimant will be provided with
a written notice setting forth the reason for the determination, along with specific references to
Plan provisions on which the determination is based. This notice will also provide an explanation
of what additional information is needed to evaluate the claim (and why such information is
necessary), together with an explanation of the Plan’s claims review procedure and the time limits
applicable to such procedure, as well as a statement of the claimant’s right to bring a civil
action under Section 502(a) of ERISA following an adverse benefit determination on review. If an
internal rule, guideline, protocol, or other similar criterion was relied upon in making the
determination, the notice will either provide that rule, guideline, protocol or other similar
criterion or will contain a statement that it will be provided upon request.



6.3 Claims Appeal Procedure. If the claim has been denied, and the claimant wishes to
pursue the claim further, the claimant must request that the Plan Administrator review the denial.
The request must be in writing and must be made within 60 days after written notification of
denial. In connection with this request, the claimant may review documents pertinent to the claim
(other than those that are legally privileged) and may submit to the Plan Administrator written
comments, documents, records, and other information related to the claim.



The review by the Plan Administrator will take into account all comments, documents, records, and
other information that the claimant submits relating to the claim. The Plan Administrator will
make a final written decision on a claim review, in most cases within 60 days after receipt of a
request for a review. In some cases, the claim may take more time to review, and an additional
processing period of up to 60 days may be required. If that happens, the claimant will receive a
written notice of that fact, which will also indicate the special circumstances requiring the
extension of time and the date by which the Plan Administrator expects to make a determination with
respect to the claim. If the extension is required due to the claimant’s failure to submit
information necessary to decide the claim, the period for making the determination will be tolled
from the date on which the extension notice is sent to the claimant until the date on which the
claimant responds to the Plan’s request for information.



6.4 Notice of Appeal Determination. The Plan Administrator’s decision on the claim for
review will be communicated to the claimant in writing. If an adverse benefit determination is
made with respect to the claim, the notice will include (i) the specific reason(s) for any adverse
benefit determination, with references to the specific Plan provisions on which the determination
is based; (ii) a statement that the claimant is entitled to receive, upon request and free of
charge, reasonable access to (and copies of) all documents, records and other information relevant
to the claim (other than those that are legally privileged); and (iii) a statement of the
claimant’s right to bring a civil action under Section 502(a) of ERISA. If an internal rule,
guideline, protocol, or other similar criterion was relied upon in making the determination, the
notice will either provide that rule, guideline, protocol or other similar criterion or will
contain a statement that it will be provided upon request. The decision of Plan Administrator is
final and binding on all parties.






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6.5 Requirement to Follow Claims Procedures. If a claimant does not file his or her claim
in accordance with the Plan’s claim procedures described above, including applicable time limits,
the claimant will not be entitled to benefits under this Plan.



6.6 Limitation on Legal Action. No legal action with respect to this Plan may be brought
until a claimant has exhausted the claims procedures described above, including the claims appeal
procedure. No legal action for coverage or benefits under the Plan may be commenced or maintained
more than 2 years after the circumstances giving rise to the claim arose or, if earlier, 1 year
after the claims procedures, including the claims appeal procedure, is exhausted.



Section 7. Plan Amendment and Termination



The Company reserves the right to amend or modify the Plan at any time, and in any respect, by
action of its duly authorized officer, with or without prior notice to, and effective with respect
to, employees who may become eligible to participate in the Plan or become eligible for benefits
under the Plan in the case of a reduction in benefits payable under the Plan, or who may otherwise
have become eligible to participate in the Plan in the case of an amendment that excludes such
employees from eligibility to participate under the Plan. However, no such amendment or
termination will be effective to: (i) decrease benefits under the Plan for which an employee has
already met all of the eligibility criteria and payment conditions set forth herein or (ii)
negatively or adversely impact the rights of the Chief Executive Officer and President hereunder
without the written consent of the Chief Executive Officer and President. To the extent that Code
Section 409A applies to any payment under this Plan, the Plan shall be terminated in accordance
with Treasury Regulation section 1.409A-3(j)(4)(ix).



Section 8. Legal Rights Under ERISA



An employee covered under the Plan is entitled to certain rights and protections under the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”). ERISA provides that employees
covered under the Plan are entitled to:




Receive Information About the Plan and Benefits





Examine, without charge, at the Plan Administrator’s office and at other specified
locations, such as worksites, all documents governing the Plan, including a copy of the
latest annual report (Form 5500 Series), if any, filed by the Plan with the U.S. Department
of Labor and available at the Public Disclosure Room of the Employee Benefits Security
Administration.






	 	 	Obtain, upon written request to the Plan Administrator, copies of documents governing the
operation of the Plan, including copies of the latest annual report (Form 5500 Series), if
any, and updated summary plan description. The Plan Administrator may make a reasonable
charge for the copies.





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	 	 	Receive a summary of the Plan’s annual financial report (if any). The Plan Administrator is
required by law to furnish each participant with a copy of this summary annual report.
	 
	 	 	Prudent Actions by Plan Fiduciaries






	 	 	In addition to creating rights for Plan participants, ERISA imposes duties upon the people
who are responsible for the operation of the Plan. The people who operate the Plan, called
“fiduciaries” of the Plan, have a duty to do so prudently and in the interest of the Plan
participants and beneficiaries. No one, including the employer or any other person, may
fire an employee or otherwise discriminate against an employee in any way to prevent such
employee from obtaining a welfare benefit or exercising such employee’s rights under ERISA.
	 
	 	 	Enforcement of Rights






	 	 	If a claim for a welfare benefit is denied or ignored, in whole or in part, the claimant has
a right to know why this was done, to obtain copies of documents relating to the decision
without charge, and to appeal any denial, all within certain time schedules.






	 	 	Under ERISA, there are steps an employee can take to enforce the above rights. For
instance, if an employee makes a written request for a copy of Plan documents or the latest
annual report from the Plan Administrator and does not receive them within 30 days, the
employee may file suit in a Federal court. In such a case, the court may require the Plan
Administrator to provide materials and pay the employee up to $110 a day until the employee
receives the materials, unless the materials were not sent because of reasons beyond the
control of the Plan Administrator.






	 	 	If an employee has a claim for benefits that is denied or ignored, in whole or in part, the
employee may file suit in a state or Federal court. If it should happen that Plan
fiduciaries misuse the Plan’s money or if an employee is discriminated against for asserting
his or her rights, such employee may seek assistance from the U.S. Department of Labor, or
such employee may file suit in a Federal court. The court will decide who should pay court
costs and legal fees. If the employee is successful, the court may order the person sued to
pay these costs and fees. If the employee loses, the court may order the employee to pay
these costs and fees, for example, if it finds the employee’s claim is frivolous.




An employee who has any questions about the Plan should contact the Plan Administrator. An
employee who has any questions about this statement or his or her rights under ERISA should contact
the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor,
listed in the telephone directory, or the Division of Technical Assistance and Inquiries, Employee
Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W.,
Washington, D.C. 20210.







12









 







Section 9. Other Important Information



9.1 No Additional Rights Created. Neither the establishment of this Plan, nor any
modification thereof, nor the payment of any benefits hereunder, shall be construed as giving to
any individual (or any beneficiary of either), or other person any legal or equitable right against
the Company, or any of its affiliates, or any officer, director or employee thereof; and in no
event shall the terms and conditions of employment by the Company (or any affiliate) of any
individual be modified or in any way affected by this Plan.



9.2 Records. The records of the Company with respect to the determination of Eligible
Years of Service, employment history, Base Pay, absences, and all other relevant matters shall be
conclusive for all purposes of this Plan.



9.3 Construction. The Plan is intended to be governed by ERISA. The respective terms and
provisions of the Plan shall be construed, whenever possible and for all purposes, to be in
conformity with the requirements of ERISA, or any subsequent laws or amendments thereto. To the
extent not in conflict with ERISA or the terms of the Plan, the construction and administration of
the Plan shall be in accordance with applicable federal law and the laws of the State of California
applicable to contracts made and to be performed within the State of California (without
application of California conflict of laws provisions). Payments under the Plan are intended to be
exempt from Code Section 409A (including the Treasury regulations and other published guidance
relating thereto); however, to the extent that Code Section 409A is deemed to apply the provisions
of the Plan shall be construed and interpreted to avoid the imputation of any such additional tax,
penalty or interest under Code Section 409A yet preserve (to the nearest extent reasonably
possible) the intended benefit payable to the participant.



9.4 Nontransferability of Benefits Rights. In no event shall the Company make any payment
under this Plan to any assignee or creditor of an employee, except as otherwise required by law.
Prior to the time of a payment hereunder, an employee shall have no rights by way of anticipation
or otherwise to assign or otherwise dispose of any interest under this Plan, nor shall rights be
assigned or transferred by operation of law.



9.5 Plan Interpretation and Benefit Determination. The Plan is administered and operated
by the Plan Administrator, which has complete authority, in such person or entity’s sole and
absolute discretion, to construe and interpret the terms of the Plan (and any related or underlying
documents or policies), and to determine the eligibility for, and amount of, benefits due under the
Plan. All such interpretations and determinations of the Plan Administrator shall be final and
binding upon all parties and persons affected thereby. The Plan Administrator may appoint one or
more individuals and delegate such of its powers and duties with respect to this Plan as it deems
desirable to any such individual(s), in which case every reference herein made to the Plan
Administrator shall be deemed to mean or include the appointed individual(s) as to matters within
their jurisdiction as delegated by the Plan Administrator. The discretion and authority of the
Plan Administrator under this Section 9.5 is subject to the notice, claims and appeals procedures
set forth in Section 6.







13









 








Section 10. Important Plan Information




	 	 	 

	Sponsor’s Name and Address:

	 	Nektar Therapeutics
	 

	 	455 Mission Bay Boulevard South
	 

	 	San Francisco, CA 94158
	 
	 	 
	Plan Number:

	 	503 
	 
	 	 
	Employer Identification Number:

	 	94-3134940 
	 
	 	 
	Plan Administrator:

	 	Nektar Therapeutics
	 

	 	455 Mission Bay Boulevard South
	 

	 	San Francisco, CA 94158
	 

	 	Tel: (415) 482-5300 
	 
	 	 
	 

	 	The Plan Administrator has delegated day-to-day
	 

	 	administration of the Plan to the following person:
	 

	 	Vice President, Human Resources
	 
	 	 
	Agent to Receive Process:

	 	Nektar Therapeutics
	 

	 	455 Mission Bay Boulevard South
	 

	 	San Francisco, CA 94158
	 

	 	Attn: General Counsel
	 
	 	 
	Type of Plan:

	 	The Plan is an unfunded employee
welfare benefit plan. Benefits under the Plan are paid from the
general assets of Nektar Therapeutics. Benefits under the Plan are
not insured by the Pension Benefit Guaranty Corporation.
	 
	 	 
	Effective Date:

	 	January 1, 2007
	 
	 	 
	Plan Year:

	 	The calendar year, from January 1 to December 31.










14









 








EXHIBIT A




FORM OF SEPARATION AND GENERAL RELEASE AGREEMENT



     This Separation and General Release Agreement (this “Agreement”) is entered into this
___ day of _________ 20_, by and between _____________________, an individual (“Employee”),
and Nektar Therapeutics, a Delaware corporation (the “Company”).



     WHEREAS, Employee has been employed by the Company or one of its subsidiaries; and



     WHEREAS, Employee’s employment by the Company or one of its subsidiaries has terminated and,
in connection with the Company’s Amended and Restated Change in Control Severance Plan (the
“Plan”), the Company and Employee desire to enter into this Agreement upon the terms set
forth herein;



     NOW, THEREFORE, in consideration of the covenants undertaken and the releases contained in
this Agreement, and in consideration of the Company’s (or one of its subsidiaries’) obligation to
pay severance benefits (conditioned upon this release) under and pursuant to the Plan, Employee and
the Company agree as follows:



     1. Separation Date. Your last day of work is [__________, 20__] (the “Separation Date”).



     2. Accrued Salary and Paid Time Off.



          (a) Accrued Salary. The Company will pay you on the Separation Date all accrued and unpaid
salary through the Separation Date subject to applicable payroll deduction and withholding.




          (b) Accrued Paid Time Off. The Company will pay you any accrued and unused paid time off
earned by you through the Separation Date, subject to applicable payroll deduction and withholding.
In the event you have negative paid time off balance, such amount will be deducted from your
Severance (as defined below) as provided in Section 6(a).




     3. Incentive Compensation. You will be eligible for payments under the Company’s
Discretionary Performance-Based Incentive Compensation Policy (“Bonus Plan”) if the Company
meets its corporate objectives and goals under the Bonus Plan for the six-month performance period
that ended on [___________, 20__]. Your bonus payment (if any) will be based on the Company’s
corporate performance percentage rating such six-month performance period and your manager’s rating
of your individual performance, and will be paid to you at approximately the same time payments are
made to the Company’s employees under the Bonus Plan for such period. The foregoing payments (if
any) are subject to standard payroll deductions and withholdings.



     4. Payment in Full. You acknowledge and agree that you have received all salary, wages,
accrued vacation, bonuses, commissions, expense reimbursements, or other such sums due to you other
than the severance benefits to be paid or provided to you pursuant to the Plan.



1









 




In light of the payment by Company of all wages due, you and the Company further acknowledge
and agree that California Labor Code § 206.5 is not applicable. That section provides in pertinent
part as follows:





	 	 	 	No employer shall require the execution of any release of any claim or
right on account of wages due, or to become due, or made as an event
on wages to be earned, unless payment of such wages has been made.





     5. Non-Disparagement. Both you and the Company (through its officers and directors) agree not
to disparage the other party, and the other party’s officers, directors, employees, shareholders
and agents, in any manner likely to be harmful to them or their business, business reputation or
personal reputation; provided that both you and the Company shall respond accurately and fully to
any question, inquiry or request for information when required by legal process.



     6. Confidentiality. The provisions of this Agreement shall be held in strictest confidence by
you and the Company and shall not be publicized or disclosed in any manner whatsoever; provided,
however, that: (a) you may disclose this Agreement to your immediate family; (b) the parties may
disclose this Agreement in confidence to their respective attorneys, accountants, auditors, tax
preparers, and financial advisors; (c) the Company may disclose this Agreement as necessary to
fulfill standard or legally required corporate reporting or disclosure requirements; and (d) the
parties may disclose this Agreement insofar as such disclosure may be necessary to enforce its
terms or as otherwise required by law.



     7. Expense Reimbursements. You agree that, within ten (10) business days following the
Separation Date, you will submit your final documented expense reimbursement statement reflecting
all business expenses you incurred through the Separation Date, if any, for which you seek
reimbursement. The Company will reimburse you for these expenses pursuant to its regular business
practice.



     8. Return of Company Property. You agree that, on the Separation Date, you shall return to
the Company all Company documents (and all copies thereof) and other Company property in your
possession or control, including, but not limited to: Company files, email, notes, memoranda,
correspondence, agreements, draft documents, notebooks, logs, drawings, records, plans, proposals,
reports, forecasts, financial information, sales and marketing information, research and
development information, personnel information, specifications, computer-recorded information,
tangible property and equipment, cell phones, pagers, PDAs (e.g., Blackberrys), credit cards, entry
cards, identification badges and keys; and any materials of any kind that contain or embody any
proprietary or confidential information of the Company (and all reproductions thereof in whole or
in part). If you have used any personal computer, server, or e-mail system to receive, store,
review, prepare or transmit any Company confidential or proprietary data, materials or information,
you agree to provide the Company with a computer-useable copy of such information and then
permanently delete and expunge such Company confidential or proprietary information from those
systems; and you agree to provide the Company access to your system as requested to verify that the
necessary copying and/or deletion is done. YOU AGREE NOT TO RETAIN ANY PAPER OR ELECTRONIC COPIES



2









 




OF ANY COMPANY DOCUMENTS OR DATA (INCLUDING BUT NOT LIMITED TO EMAIL) OTHER THAN THIS
AGREEMENT AND OTHER DOCUMENTS EVIDENCING YOUR EMPLOYMENT RELATIONSHIP WITH THE COMPANY. YOU WILL
NOT BE ENTITLED TO ANY SEVERANCE BENEFITS UNLESS AND UNTIL YOU COMPLY FULLY WITH THE TERMS SET
FORTH IN THIS PARAGRAPH.




     9. Employment Agreement Continues. Following the Separation Date, you have continuing
obligations under your Employee Agreement with the Company which include, among other obligations,
not to use or disclose any confidential or proprietary information of the Company.



     10. Non-Solicitation. You agree that, for twelve (12) months following the Separation Date,
you shall not, directly or indirectly (e.g. through directing a recruiting firm to target Company
employees), without prior written consent of the Company, solicit or induce any employee of the
Company to leave the employ of the Company.



     11. General Release. Except as otherwise stated in this Agreement, and in exchange for the
consideration given under the Plan, you hereby generally and completely release the Company and its
subsidiaries, successors, predecessors and affiliates, and its and their respective partners,
members, directors, officers, employees, stockholders, shareholders, agents, attorneys,
predecessors, insurers, affiliates and assigns, from any and all claims, liabilities and
obligations, both known and unknown, that arise out of or are in any way related to events, acts,
conduct, or omissions occurring at any time prior to and including the date you sign this
Agreement. This general release includes, but is not limited to:



          (a) all claims arising out of or in any way related to your employment with the Company or the
termination of that employment;




          (b) all claims related to your compensation or benefits, including salary, bonuses,
commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock
options, restricted stock units, or any other ownership interests in the Company;




          (c) all claims for breach of contract, wrongful termination, and breach of the implied
covenant of good faith and fair dealing;




          (d) all tort claims, including claims for fraud, defamation, emotional distress, and discharge
in violation of public policy; and




          (e) all federal, state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the federal Civil Rights
Act of 1964 (as amended), the federal Americans with Disabilities Act of 1990 (as amended), the
federal Age Discrimination in Employment Act (as amended) (“ADEA”), the federal Employee
Retirement Income Security Act of 1974 (as amended), and the California Fair Employment and Housing
Act (as amended).



You represent that you have no lawsuits, claims or actions pending in your name, or on behalf of
any other person or entity, against the Company or any other person or entity subject to the
release granted in this paragraph.







3









 







Notwithstanding the release of claims otherwise provided for in this Section of the Agreement, it
is expressly understood that nothing in this Agreement will prevent you from filing a charge of
discrimination with the Equal Employment Opportunity Commission or any of its state or local
deferral agencies, or participating in any investigation by the Equal Employment Opportunity
Commission or any of its state or local deferral agencies, although you understand that by signing
this Agreement, you waive the right to recover any damages or to receive other relief in any claim
or suit brought by or through the Equal Employment Opportunity Commission or any other state or
local deferral agency on your behalf. Further, it is expressly understood that nothing in this
Agreement shall be construed to be a waiver by you of any benefit that vested in any benefit plan
prior to his termination date or as a waiver of his right to continue any benefit in accordance
with the terms of a benefit plan. Likewise nothing in this Agreement shall be construed to waive
any right that is not subject to waiver by private agreement, including any right that you may have
under California Labor Code Section 2802 to indemnification of any expenses or losses incurred in
discharging your duties. It is also expressly understood that nothing in this Agreement shall in
any way prohibit you from bringing any complaint, claim or action seeking to challenge the validity
of this Agreement and/or bringing any complaint claim or action alleging a breach of this Agreement
by the Company.




     12. [ADEA Waiver.1 You acknowledge that your waiver and release of any rights you
may have under ADEA is knowing and voluntary, and that the consideration given under the Plan
(severance, COBRA payments, outplacement), in exchange for your general waiver and release, is in
addition to anything of value to which you were already entitled. You are hereby advised that:



          (a) your waiver and release do not apply to any rights or claims that may arise after the date
you sign this Agreement;




          (b) prior to signing this Agreement you should consult with an attorney (although you may
choose voluntarily not to do so);




          (c) you have [twenty-one (21)/forty-five (45)] days to consider this Agreement (although you
may choose voluntarily to sign it earlier);




          (d) you have seven (7) days following the date you sign this Agreement to revoke it by
providing written notice to the Company’s General Counsel;




          (e) this Agreement shall not be effective until the revocation period expires which will be
the eighth day after you sign this Agreement;




          (f) nothing in this Agreement prevents or precludes you from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor does it






 




			
	1	 	Section 12 will be included if the Employee
is age 40 or older as of the date that the Employee’s employment with the
Company terminates or in such other circumstances (if any) as the Employee may
have claims under the ADEA. In the event Section 12 is included, whether the
Employee has 21 days, 45 days, or some other period in which to consider the
Release Agreement will be determined with reference to the requirements of the
ADEA in order for such waiver to be valid in the circumstances. The
determinations referred to in the preceding two sentences shall be made by the
Company in its sole discretion.




4









 









impose any condition precedent, penalties or costs for doing so, unless specifically
authorized by federal law; and




          (g) in order to revoke this Agreement, you must deliver to Gil M. Labrucherie’s attention at
the following address a written revocation before 12:00 a.m. (midnight) Pacific Time on the seventh
calendar day following the date you sign the Agreement:



Gil M. Labrucherie

General Counsel

Nektar Therapeutics

455 Mission Bay Boulevard South

San Francisco, CA 94158

(415) 482-5300




     13. Waiver of Unknown Claims. You further agree and acknowledge that the release provided for
in this Agreement shall apply to all unknown and unanticipated injuries and/or damages. You
acknowledge and understand that Section 1542 of the Civil Code of the State of California provides
as follows:




	 	 	 	A general release does not extend to claims which the creditor does
not know or suspect to exist in his/her favor at the time of
executing the release, which if known by him/her must have
materially affected his/her settlement with the debtor.





     Being aware of Section 1542 of the California Civil Code, you by signing this Agreement
expressly waive the provision of Section 1542 of the California Civil Code and any similar
provisions of law that may be applicable.



     14. Entire Agreement; Modification. This Agreement, together with the Plan and your Employee
Agreement, constitute the complete and only agreement between you and the Company on these
subjects. You are agreeing to it without reliance on any promise or representation, written or
oral, other than those expressly contained in this Agreement, and it supersedes any other such
promises, warranties or representations. This Agreement may not be modified except in a writing
signed by both you and the Company’s Vice President, Human Resources. This Agreement shall bind
the heirs, personal representatives, successors and assigns of both you and the Company, and inure
to the benefit of both you and the Company, their heirs, successors and assigns. Any determination
that a provision of this Agreement is invalid or unenforceable, in whole or in part, will not
affect any other provision of this Agreement, and the provision in question shall be modified by
the court so as to be rendered enforceable in accordance with the intent of the parties to the
extent possible.



5









 





     If this Agreement is acceptable to you, please sign below and return the original to Human
Resources on or before ______________, 201  . You will not be entitled to any severance benefits
under the Plan if we do not receive the fully executed Agreement from you by the aforementioned
date and you do not revoke this Agreement within any revocation period provided under applicable
law.



Nektar Therapeutics




	 	 	 	 	 	 	 	 	 

	By:

	 	 	 	Dated:	 	 	 	 
	 

	 	 

Dorian Rinella
	 	 	 	 

	 	 
	 

	 	SVP, Human Resources	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	[Employee Name]	 	 	 	 	 	 
	 

	 	 	 	Dated:	 	 	 	 
	 


	 
	 

	 	 	 	 

	 	 







6