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Exhibit
10.15
NEKTAR
THERAPEUTICS
SEVERANCE BENEFIT
PLAN
Section 1.
INTRODUCTION.
The Nektar Therapeutics
Severance Benefit Plan (the “ Plan ”) was
originally established effective December 6, 2002, and amended
and restated effective November 4, 2003, amended and restated
again April 30, 2004, amended and restated again effective
May 23, 2007, amended and restated effective February 5,
2008, and further amended and restated effective February 21,
2008. The purpose of the Plan is to provide for the payment of
severance benefits to certain eligible employees of Nektar
Therapeutics (the “ Company ”) or an affiliate
of the Company identified in Appendix B whose employment with the
Company or an affiliate of the Company is involuntarily terminated.
This Plan shall supersede any severance benefit plan, policy or
practice previously maintained by the Company or any affiliate of
the Company. This Plan document also is the Summary Plan
Description for the Plan.
Section 2. ELIGIBILITY FOR
BENEFITS.
(a) General Rules .
Subject to the requirements set forth in this Section, the Company
will grant severance benefits under the Plan to Eligible
Employees.
(1) Definition of
“ Eligible Employee .” For
purposes of this Plan, an Eligible Employee is a full-time or a
part-time regular hire employee of the Company or any affiliate of
the Company resident in the United States (i) whose employment
is involuntarily terminated by the Company or an affiliate of the
Company; (ii) whose Company Position Level is at or below
Level 16 (Vice President) on the date of termination; and
(iii) who is notified by the Company in writing that he or she
is eligible for participation in the Plan. The determination of
whether an employee is an Eligible Employee shall be made by the
Company, in its sole discretion, and such determination shall be
binding and conclusive on all persons. For purposes of this Plan,
part-time employees are those regular hire employees who are
regularly scheduled to work more than twenty (20) hours per
week but less than a full-time work schedule. Regular hire
employees working twenty (20) hours per week or less,
temporary employees and employees whose Company Position Level is
at or above Level 18 (Senior Vice President) are not eligible for
severance benefits under the Plan.
(2) In order to be
eligible to receive benefits under the Plan, an Eligible Employee
must remain on the job until his or her date of termination as
scheduled by the Company (the “ Separation Date
”); provided, however , that the Company, in its sole
discretion, may waive this requirement in the case of any Eligible
Employee on a leave of absence, or otherwise. The Company’s
decision to waive such requirement for one Eligible Employee shall
in no way obligate the Company to waive this requirement for any
other Eligible Employee, even if similarly situated.
(3) In order to be
eligible to receive benefits under the Plan, an Eligible Employee
also must execute a general waiver and release in a form
satisfactory to the Company and such release must become effective
in accordance with its terms. The Company, in its discretion, may
modify the form of the required release to comply with applicable
law and shall determine the form of the required release, which may
be incorporated into a termination agreement or other agreement
with the Eligible Employee.
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(b) Exceptions to Benefit
Entitlement . An employee, including an employee who otherwise
is an Eligible Employee, will not receive benefits under the Plan
(or will receive reduced benefits under the Plan) in the following
circumstances, as determined by the Company in its sole
discretion:
(1) The employee has
executed an individually negotiated employment contract or
agreement with the Company or an affiliate of the Company relating
to severance benefits that is in effect on his or her Separation
Date, in which case such employee’s severance benefit, if
any, shall be governed by the terms of such individually negotiated
employment contract or agreement and shall be governed by this Plan
only to the extent that the reduction pursuant to Section 3(c)
below does not entirely eliminate benefits under this
Plan.
(2) The employee
voluntarily terminates employment with the Company or an affiliate
of the Company. Voluntary terminations include, but are not limited
to, resignation, retirement or failure to return from a leave of
absence on the scheduled date.
(3) The employee
voluntarily terminates employment with the Company or an affiliate
of the Company in order to accept employment with another entity
that is wholly or partly owned (directly or indirectly) by the
Company or an affiliate of the Company.
(4) The employee is
offered an identical or substantially equivalent or comparable
position with the Company or an affiliate of the Company. For
purposes of the foregoing, a “substantially equivalent or
comparable position” is one that offers the employee
substantially the same level of responsibility and
compensation.
(5) The employee is
offered immediate reemployment by a successor to the Company or an
affiliate of the Company or by a purchaser of its assets, as the
case may be, following a change in ownership of the Company or an
affiliate of the Company or a sale of substantially all of the
assets of a division or business unit of the Company or an
affiliate of the Company. For purposes of the foregoing,
“immediate reemployment” means that the
employee’s employment with the successor to the Company or an
affiliate of the Company or the purchaser of its assets, as the
case may be, results in uninterrupted employment such that the
employee does not incur a lapse in pay as a result of the change in
ownership of the Company or an affiliate of the Company or the sale
of its assets.
(6) The employee is
rehired by the Company or an affiliate of the Company prior to the
date benefits under the Plan are scheduled to commence.
Section 3. AMOUNT OF
BENEFIT.
(a) Severance Benefits
. Severance benefits under the Plan, if any, shall be provided to
Eligible Employees described in Section 2 in the amount
provided in Appendix A, as such Appendix A may be revised by the
Company, in its sole discretion, from time to time.
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(b) Additional
Benefits . Notwithstanding the foregoing, the Company may, in
its sole discretion, provide benefits in addition to those pursuant
to Section 3(a) to Eligible Employees chosen by the Company,
in its sole discretion, and the provision of any such benefits to
an Eligible Employee shall in no way obligate the Company to
provide such benefits to any other Eligible Employee, even if
similarly situated. Such additional benefits, to the extent they
are or would be “nonqualified deferred compensation”
within the meaning of Section 409A of the Internal Revenue
Code of 1986, as amended (the “ Code ”), shall
be provided for in writing in a manner that complies with Code
Section 409A and the regulations and other Treasury guidance
promulgated thereunder.
(c) Certain Reductions
. The Company, in its sole discretion, shall have the authority to
reduce an Eligible Employee’s severance benefits, in whole or
in part (but only to the extent such severance benefits are not
deemed “nonqualified deferred compensation” that is
subject to Code Section 409A), by any other severance
benefits, pay in lieu of notice, or other similar benefits payable
to the Eligible Employee by the Company that become payable in
connection with the Eligible Employee’s termination of
employment pursuant to (i) any applicable legal requirement,
including, without limitation, the Worker Adjustment and Retraining
Notification Act (the “ WARN Act ”), (ii) a
written employment or severance agreement with the Company, or
(iii) any Company policy or practice providing for the
Eligible Employee to remain on the payroll for a limited period of
time after being given notice of the termination of the Eligible
Employee’s employment. The benefits provided under this Plan
are intended to satisfy, in whole or in part, any and all statutory
obligations that may arise out of an Eligible Employee’s
termination of employment, and the Plan Administrator shall so
construe and implement the terms of the Plan. The Company’s
decision to apply such reductions to the severance benefits of one
Eligible Employee and the amount of such reductions shall in no way
obligate the Company to apply the same reductions in the same
amounts to the severance benefits of any other Eligible Employee,
even if similarly situated. In the Company’s sole discretion,
such reductions may be applied on a retroactive basis, with
severance benefits previously paid being recharacterized as
payments pursuant to the Company’s statutory
obligation.
Section 4. TIME OF PAYMENT AND
FORM OF BENEFIT.
The Company reserves the
right to determine whether severance benefits under the Plan, if
any, shall be paid in a single sum, in installments, or in any
other form and to choose the timing of such payments; provided,
however , that to the extent the aggregate amount payable to
any Eligible Employee does not exceed two times the lesser of
(i) the Eligible Employee’s annualized compensation
based on his or her annual rate of pay for the calendar year
preceding the year in which the Eligible Employee’s
Separation Date occurs, or (ii) the maximum amount that may be
taken into account under a qualified plan pursuant to
Section 401(a)(17) of the Code for the year in which the
Eligible Employee’s Separation Date occurs, such severance
benefits shall be paid no later than the last day of the second
calendar year following the year in which the Eligible
Employee’s Separation Date occurs. To the extent severance
benefits payable to any Eligible Employee exceed the limitation in
the preceding sentence (the “ 409A Exemption Limit
”), such severance benefits (“ 409A Benefits
”) shall be paid pursuant to the schedule provided for 409A
Benefits in Appendix A, as such Appendix A may be revised by the
Company, in its sole discretion, from time to time; provided
that such schedule shall comply with the payment
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schedule and delay-in-payment
requirements of Treasury Regulation Section 1.409A-3(i)(1) and
(i)(2). All payments under the Plan will be subject to applicable
withholding for federal, state and local taxes. If an Eligible
Employee is indebted to the Company at his or her Separation Date,
the Company reserves the right to offset any severance payments
under the Plan by the amount of such indebtedness; provided
that to the extent such severance benefits are 409A Benefits, such
offset shall be limited to debt incurred in the ordinary course of
the employment relationship not exceeding $5,000, and that would be
otherwise due and collected at the same time and amount as the
offset. In no event shall payment of any Plan benefit be made prior
to the Eligible Employee’s Separation Date or prior to the
effective date of the release described in
Section 2(a)(3).
Section 5.
REEMPLOYMENT.
In the event of an Eligible
Employee’s reemployment by the Company or an affiliate of the
Company during the period of time in respect of which severance
benefits pursuant to Sections 3(a) and 3(b) have been paid, the
Company, in its sole and absolute discretion, may require such
Eligible Employee to repay to the Company all or a portion of such
severance benefits as a condition of reemployment.
Section 6. RIGHT TO INTERPRET
PLAN; AMENDMENT AND TERMINATION.
(a) Exclusive
Discretion . The Plan Administrator shall have the exclusive
discretion and authority to establish rules, forms, and procedures
for the administration of the Plan and to construe and interpret
the Plan and to decide any and all questions of fact,
interpretation, definition, computation or administration arising
in connection with the operation of the Plan, including, but not
limited to, the eligibility to participate in the Plan and amount
of benefits paid under the Plan. The rules, interpretations,
computations and other actions of the Plan Administrator shall be
binding and conclusive on all persons.
(b) Amendment or
Termination . The Company reserves the right to amend or
terminate this Plan (including Appendix A) or the benefits provided
hereunder at any time; provided, however , that no such
amendment or termination shall affect the right to any unpaid
benefit of any Eligible Employee whose Separation Date has occurred
prior to amendment or termination of the Plan, nor shall any
amendment result in a change to the time or form of payment of 409A
Benefits to any such Eligible Employee. Any action amending or
terminating the Plan shall be in writing and executed by the Chief
Executive Officer, Chief Financial Officer, Senior Vice President
of Human Resources, or General Counsel of the Company.
Section 7. NO IMPLIED EMPLOYMENT
CONTRACT.
The Plan shall not be deemed
(i) to give any employee or other person any right to be
retained in the employ of the Company or an affiliate of the
Company or (ii) to interfere with the right of the Company or
an affiliate of the Company to discharge any employee or other
person at any time, with or without cause, which right is hereby
reserved.
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Section 8. LEGAL
CONSTRUCTION.
This Plan is intended to be
governed by and shall be construed in accordance with the Employee
Retirement Income Security Act of 1974 (“ ERISA
”) and, to the extent not preempted by ERISA, the laws of the
State of California.
Section 9. CLAIMS, INQUIRIES AND
APPEALS.
(a) Applications for
Benefits and Inquiries . Any application for benefits,
inquiries about the Plan or inquiries about present or future
rights under the Plan must be submitted to the Plan Administrator
in writing by an applicant (or his or her authorized
representative). The Plan Administrator is:
Nektar
Therapeutics
201 Industrial
Road
San Carlos, CA
94070
(b) Denial of Claims .
In the event that any application for benefits is denied in whole
or in part, the Plan Administrator must provide the applicant with
written or electronic notice of the denial of the application, and
of the applicant’s right to review the denial. Any electronic
notice will comply with the regulations of the U.S. Department of
Labor. The notice of denial will be set forth in a manner designed
to be understood by the applicant and will include the
following:
(1) the specific
reason or reasons for the denial;
(2) references to the
specific Plan provisions upon which the denial is based;
(3) a description of
any additional information or material t
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