UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
report (Date of earliest event reported): September 14, 2010
NEKTAR
THERAPEUTICS
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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0-24006
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94-3134940
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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455
Mission Bay Boulevard South
San
Francisco, California 94158
(Address
of Principal Executive Offices and Zip Code)
Registrant’s
telephone number, including area code: (650) 631-3100
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item 8.01. Other events.
On
September 14, 2010, the Board of Directors (the “Board”) of Nektar
Therapeutics, a Delaware corporation (the “Company”), amended
and restated the Company’s existing Change of Control Severance Benefit Plan
(the “Restated
Plan”) to eliminate the tax gross-up payment benefit to future plan
participants whose payments received under the Restated Plan would be subject to
the excise tax imposed under Internal Revenue Code Section 4999 (the “Excise
Tax”).
Under the
Restated Plan, “New Participants” will not be entitled to gross-up payments to
cover any Excise Tax payable by the participant as a result of payments received
under the Restated Plan. The Restated Plan defines “New Participants” to
include 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 was promoted on or after September 14, 2010 to a position such that
the participant would be eligible for additional benefits under the Restated
Plan as a result of the promotion. Participants in the Restated Plan who
are not New Participants will continue to be entitled to the Excise Tax gross-up
benefit provided in the Restated Plan if the Excise Tax would still be
imposed on the participant’s payments after application of a ten percent
(10%) reduction in the payments.
The
foregoing description of the amendments to the Restated Plan is qualified in its
entirety by reference to the text of the Restated Plan, which is filed as
Exhibit 10.1 hereto and incorporated herein by reference.
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Item 9.01
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Financial
Statements and Exhibits
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Exhibit
No.
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Description
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10.1
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Nektar
Therapeutics Amended and Restated Change of Control Severance Benefit
Plan.
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Pursuant
to the requirement of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned thereunto
duly authorized.
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By:
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/s/
Gil M. Labrucherie
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Gil
M. Labrucherie
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General
Counsel and Secretary
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Date:
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December
6, 2010
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Item 9.01
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Financial
Statements and Exhibits
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Exhibit
No.
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Description
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10.1
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Nektar
Therapeutics Amended and Restated Change of Control Severance Benefit
Plan.
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Exhibit 10.1
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 and on September 14, 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:
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·
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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.
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·
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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.
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·
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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.
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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:
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·
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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.
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·
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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.
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·
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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 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).
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2
3.3 Cause. For
purposes of this Plan, Cause shall mean, as determined by the Plan
Administrator:
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·
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An
employee’s conviction of any felony or any crime involving fraud,
dishonesty or moral turpitude;
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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;
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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;
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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;
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An
employee’s intentional gross misconduct or intentional material failure to
comply with the Company’s or Successor Company’s written policies;
or
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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.
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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.
3
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:
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·
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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.
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·
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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.
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·
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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.
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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).
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·
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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.
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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:
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The
sale, lease or other disposition of all or substantially all of the
Company’s assets;
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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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4
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·
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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
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·
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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.
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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:
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·
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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.
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·
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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.
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·
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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.
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Cash
Severance Pay shall be reduced by each of the following:
5
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·
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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;
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·
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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;
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·
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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
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·
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to
the extent permitted by law, by any debt that the participant owes the
Company at the time the Cash Severance Pay becomes
payable;
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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).
6
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. Notwithstanding the foregoing sentence or
any other provision of this Plan to the contrary, if the participant is an
Officer Participant or is otherwise 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 shall only apply if, and to
the extent, required to avoid the imputation of any tax, penalty or interest
pursuant to Section 409A of the U.S. Internal Revenue Code of 1986, as amended
(the “Code”).
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. 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.
7
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:
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(i)
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For
each participant other than a New Participant (as defined below), the
following rules shall apply:
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(a)
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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.
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(b)
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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 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.
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8
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(ii)
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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.
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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
201 Industrial Road
San Carlos, CA 94070
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 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.
9
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.
10
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.
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 you are entitled to:
Receive
Information About Your 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.
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.
11
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.
Enforce
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). The Plan is intended to comply with Section 409A of the
Code (including the Treasury regulations and other published guidance relating
thereto) so as not to subject any participant to payment of any interest or
additional tax imposed under Code Section 409A. 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
|
|
201
Industrial Road
|
|
|
San
Carlos, CA 94070
|
|
|
Plan Number:
|
503
|
|
Employer Identification
Number:
|
94-3134940
|
|
Plan Administrator:
|
Nektar
Therapeutics
|
|
201
Industrial Road
|
|
|
San
Carlos, CA 94070
|
|
|
Tel: 650-631-3100
|
|
|
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
|
|
201
Industrial Road
|
|
|
San
Carlos, CA 94070
|
|
|
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. 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:
1
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 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.
2
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 impose any condition precedent, penalties or costs for doing so, unless
specifically authorized by federal law; and
________________________
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
(g) in order
to revoke this Agreement, you must deliver to Gil Labrucherie’s attention at the
following address a written revocation before 12:00 a.m. (midnight) p.s.t. on
the seventh calendar day following the date you sign the Agreement:
Gil M.
Labrucherie
General
Counsel
Nektar
Therapeutics
201
Industrial Road
San
Carlos, CA 94070
(650)
620-5360]
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 ______________, 2008. 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