CHANGE IN CONTROL AGREEMENT
Exhibit 10.41
This Change in Control Agreement (the “Agreement”) is made and entered into effective
as of April 17, 2006 (the “Effective Date”), by and between Anadys Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), and Xxxxxxxx X. Xxxxxxxxxx (the “Executive”). The
Company and the Executive are hereinafter collectively referred to as the “Parties”, and
individually referred to as a “Party”.
Agreement
In consideration of the mutual promises and covenants herein contained, and for other good and
valuable consideration, the Parties, intending to be legally bound, agree as follows:
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.
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 Section 3 below. Notwithstanding any provisions in this Agreement to the contrary,
including any provisions contained in this Section 1, the Company’s obligations, and the
Executive’s rights, pursuant to Section 3 shall cease and be rendered a nullity immediately should
the Executive violate any provision of Section 1 herein, or should the Executive violate the terms
and conditions of the Executive’s Agreement for Employees dated January 26, 2005 (proprietary
information and inventions agreement) with the Company, attached hereto as Exhibit B.
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 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. The
Company may offset any amounts Executive owes it or its subsidiaries against any amount it owes
Executive pursuant to Section 3.
1.3 The term of this Agreement (the “Term”) 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:
1.
2.1 Good Reason. “Good Reason” for the Executive to terminate the Executive’s employment
hereunder shall mean the occurrence of any of the following events without the Executive’s consent:
(i) a material adverse change in the nature or scope of Executive’s job responsibilities, or
in the case of a Change of Control, the failure to be offered a substantially equivalent position
with the successor entity; provided, however, that in no event shall a requirement that Executive
report to a Chief Financial Officer of the Company or any successor entity be deemed an adverse
change in the nature or scope of Executive’s job responsibilities or the failure to be offered a
substantially equivalent position with a successor entity;
(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; and
(iii) a reduction in the annual base compensation paid to Executive, without Executive’s
consent; provided, however, that a reduction in Executive’s compensation occurring as part of a
Company-wide similar reduction of salary for similarly-situated executives shall not constitute
Good Reason.
2.2 For Cause. “Cause” for the Company to terminate Executive’s employment hereunder shall
mean the occurrence of any of the following events:
(i) the Executive’s failure, as determined in good faith by the Board of Directors or the
Chief Executive Officer to satisfactorily perform Executive’s assigned duties with the Company, or
any successor thereof, in the best interest of the Company and as directed by the Company’s Board
of Directors or the Chief Executive Officer (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);
(ii) the Executive’s commission of an 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 which 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 January 26, 2005 (proprietary
information and inventions agreement) with the Company.
2.3 Change in Control. For purposes of this Agreement, “Change of Control” means:
(i) an 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
2.
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, 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.
2.4 Integration. The Parties agree that unless it is determined that Executive shall
be terminated for Cause under this Agreement, there shall be no termination for Cause under
Executive’s Stock Option Agreements dated February 22, 2005 and December 16, 2005.
3. Change in Control.
3.1 Benefits.
3.1.1 In the event that Executive’s employment with the Company is terminated without Cause or
for Good Reason within the sixty (60) day period immediately preceding or the thirteen (13) month
period immediately following a Change in Control of the Company, then upon the Executive’s delivery
to the Company of an effective Release and
Waiver of Claims, attached hereto as Exhibit A, the Executive shall be entitled to:
3.
(i) The equivalent of six (6) months of the Executive’s annual base salary in effect at the
time of termination, less standard deductions and withholdings; and
(ii) Accelerated vesting of all unvested shares subject to any outstanding stock options then
held by Executive, such that all shares shall be vested and fully exercisable as of the date of
Executive’s termination.
3.2 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 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 accounting firm engaged by the Company for general audit purposes as of the day prior to
the effective date of the Change in Control shall perform the foregoing calculations. If the
accounting 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 a nationally
recognized accounting firm to make the determinations required hereunder. The Company shall bear
all expenses with respect to the determinations by such accounting firm required to be made
hereunder.
The accounting 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 accounting 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 accounting firm made
hereunder shall be final, binding and conclusive upon Executive and the Company.
4.
4. 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 supercedes and replaces any other agreement between Executive and the
Company regarding change in control benefits 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.
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By:
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/s/ Xxxxxxxxx X. Xxxxxxxxxxxx, Ph.D. | |||
Name:
Its:
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Xxxxxxxxx X. Xxxxxxxxxxxx, Ph.D. President and Chief Executive Officer |
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Dated: 04/17/06 |
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Executive: |
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/s/ Xxxxxxxx X. Xxxxxxxxxx |
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Dated: 04/17/06 |
5.
EXHIBIT A
RELEASE AND WAIVER OF CLAIMS
In consideration of the payments and other benefits set forth in Section 3 of the Change in
Control Agreement dated April 17, 2006, to which this form is attached, I, Xxxxxxxx X. Xxxxxxxxxx,
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, 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; and (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.
I acknowledge that, among other rights, I am waiving and releasing any rights I may have under
ADEA, that this Release and Waiver is knowing and voluntary, and that the consideration given for
this Release and Waiver is in addition to anything of value to which I was already entitled as an
executive 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, as required by the Older Workers Benefit
Protection Act, that: (a) the release and waiver granted herein does not relate to claims under
the ADEA which may arise after this Release and Waiver is executed; (b) 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 (c) I have twenty-one (21) days from the date of termination of my employment with
the Company in which to consider this Release and Waiver (although I
1.
may choose voluntarily to execute this Release and Waiver earlier); (d) I have seven (7) days
following the execution of this Release and Waiver to revoke my consent to this Release and Waiver;
and (e) this Release and Waiver shall not be effective until the seven (7) day revocation period
has expired.
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 (c) 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 January 26,
2005 (proprietary information and inventions agreement), attached hereto as Exhibit B. Pursuant to
the Agreement for Employees 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 change in control
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 Agreement for Employees.
This Release and Waiver, including Exhibit B 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:
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By: | |
2.
