Severance Agreement
                                                                   Exhibit 10.27
 
 
[ANADYS logo]
 
February 1, 2001
 
Steve Worland, Ph.D.
727 Hoska Drive
Del Mar, CA 92014
 
Dear Steve:
 
I am very pleased to confirm the offer of employment made to you by Anadys
Pharmaceuticals, Inc. for the position of Chief Scientific Officer (CSO),
reporting to Kleanthis G. Xanthopoulos, Ph.D., President and Chief Executive
Officer. We anticipate your hire date to be on or around March 15, 2001.
However, the final date will be mutually agreed upon. As we discussed, the
details of this offer are as follows:
 
BASE SALARY:         You will receive a base salary of $8,458.33 paid
                     semi-monthly in accordance with the normal Anadys payroll
                     cycle, which if annualized, amounts to $203,000.00 per
                     year.
 
STOCK OPTIONS:       Upon commencement of your employment with Anadys, you
                     will be eligible for an initial stock option grant
                     allowing you to purchase 1,000,000 shares of Anadys
                     common stock at a price established by the Board.  These
                     stock options vest over an eight-year period and are
                     subject to the terms and conditions outlined in the
                     Anadys Stock Option Plan.  Your options will cliff vest,
                     12.5% year one, 1.04% monthly, thereafter.  In the event
                     of an acquisition (change of control), your shares will
                     vest immediately.  You will be provided full details of
                     the Stock Option Plan once you are on board.
 
SIGN-ON BONUS:       You will be given a one-time sign-on bonus of $50,000.00,
                     less applicable employment taxes. This bonus will be paid
                     shortly after your hire date. Should you leave the Company
                     within one year of your hire date, you will be required to
                     reimburse Anadys for this sign-on bonus, within thirty days
                     after your termination date.
 
PERFORMANCE
BONUS:               After one year of employment, you may be eligible for a
                     performance bonus of up to 30% of your base salary,
                     subject to the approval of the Board of Directors.
 
BENEFITS:            As a regular, full-time employee of Anadys you will be
                     eligible for group benefits for yourself and your
                     eligible dependents, effective on your date of hire.
                     Basic benefits include comprehensive health
 
 
 
<PAGE>
Steve Worland, Ph.D.
February 1, 2001
Page 2
 
 
                     insurance; dental insurance, and vision care insurance. In
                     addition, you will be eligible for term life insurance and
                     long-term disability insurance for yourself only. You will
                     also accrue fifteen days of paid vacation per year and
                     receive the benefit of a minimum of ten paid holidays, all
                     in accordance with Company policy.
 
                     Effective on the first day of the quarter following your
                     hire date, you will be eligible to participate in the
                     Anadys 401(k) Retirement Savings Plan. Also, effective on
                     your date of hire, you will be eligible to participate in
                     the Anadys Flexible Benefits Plan which allows you to defer
                     some of your earnings pre-tax, into spending accounts to be
                     used for payment of unreimbursed medical and/or child care
                     expenses. You will be asked to contribute a portion of the
                     cost of your own insurance coverage and any dependent
                     coverage you elect. The cost of coverage will vary based
                     upon the number of dependents covered and your individual
                     plan selection. However, any premiums you pay will be paid
                     pre-tax. A benefit summary is enclosed for your review.
                     Full details of these and all other employee benefits will
                     be provided once you are on board.
 
EMPLOYMENT
AT WILL:             Anadys is an at-will employer and as such your
                     employment must be entered into voluntarily and for no
                     specified period.  As a result, you are free to resign
                     or the company may terminate your employment at any
                     time, for any reason, with or without cause.  No one
                     other than the President and CEO has the authority to
                     alter this employment relationship, either verbally or
                     in writing.
 
Anadys Pharmaceuticals, Inc. expects that you will not disclose to it any
proprietary information or trade secrets of any former employer or bring onto
its premises any unpublished documents or any property belonging to any former
employer. Since this would be improper, such conduct could be a basis for
discipline up to and including termination.
 
The above is subject to your signing non-disclosure, invention assignment and
non-compete agreements with the Company, and the Company's review of any
agreement you may have with former employers to ensure that they do not conflict
with your employment with the Company. In addition, upon your date of hire, you
will be required to submit proof of identity and eligibility to work in the
United States, in compliance with federal immigration laws.
 
This offer has been extended to you on behalf of Anadys Pharmaceuticals, Inc.
and is valid through February 7, 2001, after which time it will expire.
 
Steve, we believe you will be able to make an immediate contribution to Anadys'
effort, and think you will enjoy the rewards of working for an innovative,
fast-paced, energetic company. One of the keys to our accomplishments is our
outstanding people. We hope you accept our
 
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Steve Worland, Ph.D.
February 1, 2001
Page 3
 
 
offer to be one of those people. Please acknowledge your agreement of these
terms by signing this letter and returning it to my attention in the enclosed
envelope. I truly look forward to having you on board.
 
Sincerely yours,
 
ANADYS PHARMACEUTICALS, INC.
 
 
/s/ Kleanthis G. Xanthopoulos
 
Kleanthis G. Xanthopoulos, Ph.D.
President & CEO
 
 
I hereby accept this offer of employment and accept the terms as stated above. I
understand that as an employee of Anadys, I will be expected to comply with all
Company policies:
 
/s/ Steve Worland                   Feb. 7, 2001
------------------------------------------------------
Steve Worland, Ph.D.                Date
 
 
March 15, 2001
------------------------------------------------------
Projected Hire Date
 
</TEXT>
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Top of the Document

 

 

Exhibit 10.16

AMENDED AND RESTATED
SEVERANCE AND CHANGE IN CONTROL AGREEMENT

     This Amended and Restated Severance and Change in Control Agreement (the “Agreement”) is made and entered into effective as of March 3, 2008, (the “Effective Date”), by and between Anadys Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and Stephen T. Worland, Ph.D. (the “Executive”). The Company and the Executive are hereinafter collectively referred to as the “Parties”, and individually referred to as a “Party”. This Agreement shall replace and supersede that certain Severance Agreement between Executive and the Company entered into as of November 14, 2003 (the “Original Agreement”).

Recitals

     Whereas, Executive and the Company are currently parties to the Original Agreement that is superseded and replaced in its entirety by this Agreement; and

     Whereas, the Company desires to continue to employ Executive to provide personal services to the Company in that capacity, and wishes to provide Executive with certain severance benefits in return for his services, and Executive wishes to be so employed and to receive such benefits; and

     Whereas, the Company and Executive wish to enter into this Agreement to define their mutual rights and duties with respect to Executive’s severance benefits;

     Now, Therefore, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the Parties, intending to be legally bound, agree as follows:

Agreement

     1. Employment.

          1.1 Loyalty; At Will Employment. During the Executive’s employment by the Company, the Executive shall devote Executive’s full business energies, interest, abilities and productive time to the proper and efficient performance of Executive’s duties as an officer of the Company unless otherwise approved in writing by the Board of Directors or a committee of the Board of Directors. Executive’s employment with the Company is at will and not for any specified period and may be terminated at any time, with or without cause, by either Executive or Company, subject to the provisions of Sections 3 and 4 below.

          1.2 Termination of Obligations. In the event of the termination of the Executive’s employment with the Company, the Company shall have no obligation to pay Executive any base salary, bonus or other compensation or benefits, except as earned prior to the date of termination or as provided in Section 3 or for benefits due to the Executive (and/or the Executive’s dependents) under the terms of the Company’s benefit plans. To the extent permitted by applicable laws, the Company may offset any amounts Executive owes it or its subsidiaries against any amount it owes Executive pursuant to Section 3.

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          1.3 The term of this Agreement shall begin on the Effective Date and shall continue until Executive’s employment with the Company is terminated for any reason.

     2. Definitions.

          For purposes of this Agreement, the following terms shall have the following meanings:

          2.1 Cause. “Causefor the Company to terminate Executive’s employment hereunder shall mean the occurrence of any of the following events:

               (ithe Executive’s willful or negligent failure, as determined in good faith by the Company’s Board of Directors, to satisfactorily perform the Executive’s assigned duties with the Company, or any successor thereof, in the best interests of the Company and as directed by the Company’s Board of Directors (except for the failure resulting from Executive’s incapacity due to Complete Disability, or any such actual or anticipated failure resulting from a Good Reason termination), which is not corrected within thirty (30) days of Executive receiving notice of such failure from the Company specifying in reasonable detail the nature of such failure;

               (ii) the Executive’s commission of a willful act that materially injures the business of the Company;

               (iii) the Executive’s conviction of a felony involving moral turpitude; and

               (iv) the Executive’s engaging or in any manner participating in any activity that is directly competitive with or injurious to the Company or any of its affiliates or which violates any material provisions of the Executive’s Agreement for Employees dated March 22, 2001 (“Proprietary Information and Inventions Agreement”) with the Company.

          2.2 Change in Control. For purposes of this Agreement, “Change in Control” means:

               (ian acquisition by any person, entity or group within the meaning of Section 13(d) or 14(d) of the Exchange Act, or any comparable successor provisions (excluding any employee benefit plan, or related trust, sponsored or maintained by the Company or subsidiary of the Company or other entity controlled by the Company) of the beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act, or comparable successor rule) of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because the level of ownership held by a person, entity or group exceeds the designated percentage threshold of the outstanding voting securities as a result of a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition, a person, entity or group becomes the owner of any additional voting securities that, assuming the repurchase or other acquisition had not occurred,

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increases the percentage of the then outstanding voting securities owned by such person, entity or group over the designated percentage threshold, then a Change in Control shall be deemed to occur;

               (ii) there is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto do not own, directly or indirectly, outstanding voting securities representing more than fifty percent (50%) of the combined outstanding voting power of the surviving entity in such merger, consolidation or similar transaction or more than fifty percent (50%) of the combined outstanding voting power of the parent of the surviving entity in such merger, consolidation or similar transaction; or

               (iii) there is consummated a sale or other disposition of all or substantially all of the consolidated assets of the Company and its subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company and its subsidiaries to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of which are owned by stockholders of the Company in substantially the same proportions as their ownership of the Company immediately prior to such sale, lease, license or other disposition.

          2.3 Complete Disability. “Complete Disabilityshall mean the inability of the Executive to perform the Executive’s duties under this Agreement because the Executive has become permanently disabled within the meaning of any policy of disability income insurance covering employees of the Company then in force. In the event the Company has no policy of disability income insurance covering employees of the Company in force when the Executive becomes disabled, the term Complete Disabilityshall mean the inability of the Executive to perform the Executive’s duties under this Agreement by reason of any incapacity, physical or mental, which the Board, based upon medical advice or an opinion provided by a licensed physician acceptable to the Board, determines to have incapacitated the Executive from satisfactorily performing all of the Executive’s usual services for the Company for a period of at least one hundred twenty (120) days during any twelve (12) month period (whether or not consecutive). Based upon such medical advice or opinion, the determination of the Board shall be final and binding and the date such determination is made shall be the date of such Complete Disability for purposes of this Agreement.

          2.4 Good Reason. “Good Reasonmeans that Executive voluntarily terminates employment with the Company (A) after (1) any of the following are undertaken without Cause and without Executive’s express written consent; (2) Executive notifies the Company in writing, within thirty (30) days after the occurrence of one of the following events, which notice specifies the condition giving rise to a right to resign for Good Reason and that Executive intends to terminate his employment no earlier than thirty (30) days after the Company’s receipt of such notice; and (3) the Company does not cure such condition within thirty (30) days following its receipt of such notice or states unequivocally in writing that it does not intend to attempt to cure such condition; and (B) such voluntary termination occurs within ten (10) days following the end of the period within which the Company was entitled to remedy the condition giving rise to a right to resign for Good Reason but failed to do so:

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               (ia material adverse change in the nature or scope of Executive’s job responsibilities;

               (ii) the relocation (or demand for relocation) of Executive’s place of employment to a point more than thirty (30) miles from Executive’s then current place of employment;

               (iii) a material reduction in the annual base compensation paid to Executive; or

               (iv) in the case of a Change of Control, the failure to be offered comparable employment with the successor entity, provided that “comparable employment” shall mean employment with job responsibilities not violative of Section 2.4(i), base salary in an amount not violative of Section 2.4(iii), and at a business office the location of which is not violative of Section 2.4(ii).

          2.5 Integration. The parties acknowledge that the definition of “for Cause” contained within this Agreement may differ from the definitions of “for Cause” contained within Executive’s stock option agreement or agreements. The Parties agree that unless it is determined that Executive shall be terminated for “Cause” as defined in this Agreement, there shall be no termination for “Cause” under any of Executive’s stock option agreements or other equity award agreements. Therefore, unless otherwise expressly provided such equity award agreement, the definition of “Cause” in this Agreement shall supersede and replace in its entirety any definition of “Cause” that may be included in Executive’s equity award agreements.

     3. Compensation Upon Termination.

          3.1 Death Or Complete Disability. If the Executive’s employment with the Company is terminated as a result of death or Complete Disability, the Company shall pay to Executive, and/or Executive’s heirs, the Executive’s base salary and accrued and unused vacation benefits earned through the date of termination at the rate in effect at the time of termination, less standard deductions and withholdings, and the Company shall thereafter have no further obligations to the Executive and/or Executive’s heirs under this Agreement.

          3.2 With Cause or Without Good Reason. If the Executive’s employment with the Company is terminated by the Company for Cause or if the Executive terminates employment with the Company without Good Reason, the Company shall pay the Executive’s base salary and accrued and unused vacation benefits earned through the date of termination at the rate in effect at the time of termination, less standard deductions and withholdings, and the Company shall thereafter have no further obligations to the Executive under this Agreement.

          3.3 Without Cause or for Good Reason. In the event Executive’s employment with the Company is terminated by the Company without Cause, or Executive resigns for Good Reason, and Executive signs the Release and Waiver of Claims as set forth as Exhibit A or such other form of release as the Company may require in order to comply with applicable laws (the “Release”) on or within the time period set forth therein, but in no event later than forty-five (45) days after Executive’s termination date, and allows such Release to

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become effective in accordance with its terms, then Executive will receive the following benefits:

               (ithe equivalent of twelve (12) months of the Executive’s annual Base Salary (as defined herein), less standard deductions and withholdings, which shall be paid in a single lump sum within five (5) days after the effective date of the Release. “Base Salary” shall mean Executive’s base pay (excluding incentive pay, premium pay, commissions, overtime, bonuses and other forms of variable compensation), at the rate in effect during the last regularly scheduled payroll period immediately preceding the date of the termination, and prior to any reduction in base salary that would permit the Executive to voluntarily terminate employment pursuant to Section 2.4(iii).

               (ii) If Executive is eligible for and timely elects continued group health plan coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) following Executive’s termination, the Company will pay the Executive’s COBRA group health insurance premiums for the Executive and his eligible dependents for a period of twelve (12) months following the effective date of the Release; provided, however, that any such payments will cease if Executive voluntarily enrolls in a health insurance plan offered by another employer or entity during the period in which the Company is paying such premiums. Executive is required to immediately notify the Company in writing of any such enrollment. For purposes of this Section 3.3(ii), references to COBRA premiums shall not include any amounts payable by Executive under an Internal Revenue Code Section 125 health care reimbursement plan.

               (iii) The Company will make available to Executive, upon Executive’s request, executive outplacement services provided by a reputable outplacement firm for a period of six (6) months following the effective date of the Release. The Company will assume the cost of all such outplacement services.

               (iv) As of the effective date of the Release, all of the outstanding equity awards that Executive holds and which were granted to Executive within one year prior to Executive’s termination date shall accelerate and vest in accordance with the vesting schedule applicable to such equity award as if Executive had provided 12 months of vesting service as of Executive termination date and, together with all other vested equity awards which Executive holds, if applicable, will remain exercisable until the earlier of: (i) fifteen (15) months following Executive’s termination date, (ii) ten (10) years from the original grant date, (iii) the original maximum term of such equity award, or (iv) the effective date of a Change in Control in which such awards will terminate and not be assumed by the successor or acquiring entity. In addition, all of Executive’s outstanding restricted stock and other equity awards which Executive holds as of the termination date and which were granted to Executive within one year prior to Executive’s termination date shall accelerate and vest as of the effective date of the Release, in accordance with the vesting schedule applicable to such equity awards as if Executive had provided 12 months of vesting service as of Executive’s termination date.

          3.4 Additional Change in Control Related Severance Benefits. In the event that Executive’s employment with the Company is terminated without Cause or Executive resigns for Good Reason within the six (6) month period immediately preceding or the twenty-

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four (24) month period immediately following a Change in Control of the Company, then subject to the Executive’s delivery to the Company of an effective Release as required pursuant to Section 3.3, in addition to the severance benefits provided to Executive under Section 3.3(i), 3.3(ii) and 3.3(iii) above, the Executive shall also be entitled to the following benefits:

               (iA pro-rata portion of Executive’s 100% Bonus Opportunity Amount (as defined herein), which pro-rata portion shall be calculated by multiplying Executive’s 100% Bonus Opportunity Amount by the quotient of the number of days in the calendar year that have elapsed as of the date of Executive’s termination divided by 365 (the “Bonus Payment”). Executive’s “100% Bonus Opportunity Amount” shall be determined by reference to the then-current provisions of the Anadys Pharmaceuticals, Inc. Executive Officer Bonus Plan as applicable to the calendar year in which the Executive’s employment has terminated. The Bonus Payment shall be subject to all standard deductions and withholdings and shall be paid in a single lump sum within five (5) days after the later of (A) the effective date of the Release, or (B) the effective date of the Change in Control (if Executive’s termination occurs prior to the Change in Control); and

               (ii) Full accelerated vesting of all unvested shares subject to any outstanding stock options, restricted stock or other equity awards then held by Executive, such that all shares shall be vested and fully exercisable as of the effective date of the Release, or if later, the effective date of the Change in Control (if Executive’s termination occurs prior to the Change in Control). In order to give effect to the foregoing provision, notwithstanding anything to the contrary set forth in Executive’s equity award agreements, following any termination of Executive’s employment that is without Cause or for Good Reason, none of Executive’s equity awards shall terminate with respect to any vested or unvested portion subject to such award before the later of (A) six (6) months following such termination, or (B) the effective date of the Release.

     4. Change in Control Related Benefit

          4.1 Pursuant to the Executive’s stock option grant dated April 12, 2001 (the “Hire Grant”), upon a Change in Control of the Company all shares under the Hire Grant shall be vested and fully exercisable in accordance with the terms thereof.

     5. Tax Compliance

          5.1 Application of Internal Revenue Code Section 409A. The severance benefits payable under this Agreement are intended to be payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations.

          5.2 Parachute Payment. If any payment or benefit Executive would receive pursuant a Change in Control or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be reduced to the Reduced Amount. The “Reduced Amount” shall be either (x) the largest portion of the Payment that would result in no portion of the Payment being subject to the Excise Tax or (y) the largest portion, up to and including the total, of the Payment, whichever

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amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in Executive’s receipt, on an after-tax basis, of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order unless Executive elects in writing a different order (provided, however, that such election shall be subject to Company approval if made on or after the effective date of the event that triggers the Payment): reduction of cash payments; cancellation of accelerated vesting of stock awards; reduction of employee benefits. In the event that acceleration of vesting of stock award compensation is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of Executive’s stock awards unless Executive elects in writing a different order for cancellation.

     The Company shall engage a nationally recognized accounting or consulting firm to perform the foregoing calculations. If the firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, then the Company shall appoint another nationally recognized accounting or consulting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such firm required to be made hereunder.

     The firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to Executive and the Company within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by Executive or the Company) or such other time as requested by Executive or the Company. If the firm determines that no Excise Tax is payable with respect to a Payment, either before or after the application of the Reduced Amount, it shall furnish Executive and the Company with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such Payment. Any good faith determinations of the firm made hereunder shall be final, binding and conclusive upon Executive and the Company.

     6. Company Property. All documents, records, apparatus, equipment and other physical property that is furnished to or obtained by Executive in the course of his employment with the Company shall be and remain the sole property of the Company. Executive agrees that, upon the termination of his employment, as a condition of receiving benefits under this Agreement, he shall return all such property (whether or not it pertains to “Proprietary Information” as defined in the Proprietary Information and Inventions Agreement), and agrees not to make or retain copies, reproductions or summaries of any such property.

     7. Other Terminations. Notwithstanding anything to the contrary set forth herein, the Executive is not eligible for severance benefits under this Agreement if (i) the Executive is terminated within thirty (30) days following the Executive’s refusal to accept an offer of comparable employment by any successor to the Company or an affiliate thereof (provided that “comparable employment” shall mean employment with job responsibilities not violative of Section 2.4(i), base salary in an amount not violative of Section 2.4(iii), and at a business office the location of which is not violative of Section 2.4(ii)); (ii) the Executive terminates employment in order to accept employment with another entity that is wholly or

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partly owned (directly or indirectly) by the Company or an affiliate, (iii) the Executive does not satisfy the conditions for receipt of benefits as set forth in Sections 3.3 and 6 of this Agreement; or (iv) the Executive’s employment terminates due to death, Complete Disability or any other reason other than a termination without Cause or for Good Reason.

     8. Acknowledgement. Executive hereby acknowledges that Executive has consulted with or has had the opportunity to consult with independent counsel of Executive’s own choice concerning this Agreement, and has been advised to do so by the Company, and Executive has read and understands this Agreement, is fully aware of its legal effect, and has entered into it freely based on Executive’s own judgment.

     9. General. This Agreement is made in San Diego, California. This Agreement shall be construed and interpreted in accordance with the internal laws of the State of California. This Agreement supersedes and replaces any other agreement between Executive and the Company regarding severance benefits and/or compensation upon termination of employment, including but not limited to the Original Agreement, and cannot be amended or modified except by written agreement between Executive and the Company. This Agreement may be executed in two counterparts, each of which shall be deemed an original, all of which together shall contribute one and the same instrument.

     In Witness Whereof, the Parties have executed this Agreement as of the date first above written.

 

 

 

 

 

Anadys Pharmaceuticals, Inc.
 

 

 

 

By:  

Douglas E. Williams, Ph.D.  

 

 

 

Chairman, Compensation Committee 

 

Dated: March 3, 2008

 

 

 

 

 

Executive:
 

 

 

/s/ Stephen Worland  

 

 

Stephen T. Worland 

 

 

 

 

 

Dated: March 3, 2008

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EXHIBIT A
RELEASE AND WAIVER OF CLAIMS

     In consideration of the payments and other benefits set forth in the Change in Control Agreement dated March 3, 2008 to which this form is attached, I, Stephen T. Worland, Ph.D., hereby furnish Anadys Pharmaceuticals, Inc. (the “Company”), with the following release and waiver (“Release and Waiver”).

     In exchange for the consideration provided to me by the Change in Control Agreement that I am not otherwise entitled to receive, I hereby generally and completely release the Company and its directors, officers, employees, shareholders, partners, agents, attorneys, predecessors, successors, parent and subsidiary entities, insurers, Affiliates, and assigns from any and all claims, liabilities and obligations (excluding indemnification obligations and rights under the Company’s directors and officers insurance policies) both known and unknown, that arise out of or are in any way related to events, acts, conduct, or omissions occurring prior to my signing this Release and Waiver. This general release includes, but is not limited to: (1) all claims arising out of or in any way related to my employment with the Company or the termination of that employment; (2) all claims related to my compensation or benefits from the Company, including, but not limited to, salary, bonuses, commissions, vacation pay, expense reimbursements, severance pay, fringe benefits, stock, stock options, or any other ownership interests in the Company; (3) all claims for breach of contract, wrongful termination, and breach of the implied covenant of good faith and fair dealing; (4) all tort claims, including, but not limited to, claims for fraud, defamation, emotional distress, and discharge in violation of public policy; (5) all federal, state, and local statutory claims, including, but not limited to, 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, the federal Age Discrimination in Employment Act of 1967 (as amended) (“ADEA”), and the California Fair Employment and Housing Act (as amended).

     I also acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to any claims I may have against the Company.

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     I acknowledge that, among other rights, I am knowingly and voluntarily waiving and releasing any rights I may have under ADEA. I also acknowledge that the consideration given for this Release and Waiver is in addition to anything of value to which I was already entitled as an Employee of the Company. If I am 40 years of age or older upon execution of this Release and Waiver, I further acknowledge that I have been advised by this writing, as required by the Older Workers Benefit Protection Act, that: (A) my release and waiver granted herein does not relate to claims under the ADEA that may arise after the date I execute this Release and Waiver; (B) I should consult with an attorney prior to executing this Release and Waiver (although I may choose voluntarily not to do so), (C) I have twenty-one (21) days to consider this Release and Waiver (although I may choose to voluntarily execute this Release and Waiver earlier); (D) I have seven (7) days following the execution of this Release and Waiver to revoke the Release and Waiver; and (E) this Release and Waiver shall not be effective until the seven (7) day revocation period has expired unexercised.

     If I am less than 40 years of age upon execution of this Release and Waiver, I acknowledge that I have the right to consult with an attorney prior to executing this Release and Waiver (although I may choose voluntarily not to do so); and I have five (5) days from the date of termination of my employment with the Company in which to consider this Release and Waiver (although I may choose voluntarily to execute this Release and Waiver earlier).

     I acknowledge my continuing obligations under my Agreement for Employees dated March 22, 2001 (“Proprietary Information and Inventions Agreement”), which is attached hereto. Pursuant to my Proprietary Information and Inventions Agreement I understand that among other things, I must not use or disclose any confidential or proprietary information of the Company and I must immediately return all Company property and documents (including all embodiments of proprietary information) and all copies thereof in my possession or control. I understand and agree that my right to the severance benefits I am receiving in exchange for my agreement to the terms of this Release and Waiver is contingent upon my continued compliance with my Proprietary Information and Inventions Agreement.

     This Release and Waiver, including the Proprietary Information and Inventions Agreement attached hereto, constitutes the complete, final and exclusive embodiment of the entire agreement between the Company and me with regard to the subject matter hereof. I am not relying on any promise or representation by the Company that is not expressly stated herein. This Release and Waiver may only be modified by a writing signed by both me and a duly authorized officer of the Company.

 

 

 

 

 

 

 

 

Date: __________________  

By:  

 

 

 

 

 

 

 

 

 

 

 

10.

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