EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (this “Agreement”)
is
entered into as of June 6, 2008, by and between Hana
Biosciences, Inc.,
a
Delaware corporation with an office at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the “Company”),
and
Xxxxxx
X. Xxxxxxxx,
residing
at 000 Xxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 (the “Executive”).
RECITALS:
WHEREAS,
the Company and Executive entered into that certain Employment Agreement dated
May 6, 2007 (the “May
2007 Agreement”)
pursuant to which the Company employed Executive as its Executive Vice
President, Development and Chief Medical Officer;
WHEREAS,
effective August 24, 2007, the Company appointed Executive, and Executive
accepted such appointment, as its President and Chief Executive Officer and
a
member of the Company’s Board of Directors;
WHEREAS,
the parties now desire to enter into this Agreement, which is intended to
replace and supersede the May 2007 Agreement in all respects, in order to
reflect the change in Executive’s position with the Company.
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Services.
(a) The
Executive will be employed by the Company and shall serve as President and
Chief
Executive Officer of the Company and shall perform, subject to the direction
of
the Board of Directors of the Company (the “Board”),
such
services and duties as are customarily performed by a chief executive of a
similarly situated biotechnology company (the “Services”).
The
Executive shall also have such other powers and duties as may be from time
to
time prescribed by the Board, provided that the nature of the Executive’s powers
and duties so prescribed shall not be inconsistent with the Executive’s position
and duties hereunder. The Executive hereby accepts such employment and agrees
to
render the Services.
(b) During
the Term, the Company shall use its best efforts to cause the Executive to
be
nominated for election as a director of the Company by the Company’s
stockholders at each meeting during the Term in which Executive’s term as
director would otherwise expire. The Executive agrees to accept such nomination
and election and to serve as a director of the Company throughout the Term
without any compensation therefore, other than as specified in this
Agreement.
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2. Term.
The
Executive's employment under this Agreement shall commence on the date hereof
(the “Effective
Date”)
and
continue for a three-year period ending on December 31, 2010 (the “Initial
Term”),
unless sooner terminated pursuant to Section 8 of this Agreement.
Notwithstanding the foregoing and subject only to the Company’s obligations
under Section 9 hereof, Executive understands that nothing in this Agreement
is
intended to modify Executive’s at-will employment with the Company and the
Company makes no guarantee, or express or implied contract, of definite or
continued employment with the Company. Notwithstanding anything to the contrary
contained herein, the provisions of this Agreement governing protection of
the
Company’s Confidential and Proprietary Information (as defined in Section 5(a)
hereof) shall continue in effect as specified in Section 5 hereof and survive
the expiration or termination of this Agreement. This Agreement may be renewed
for one or more additional one year periods (each, an “Additional
Term”
and,
together with the Initial Term, the “Term”)
if
the
Company and the Executive agree in writing on the terms of such renewal not
less
than 30 days prior to the end of the then current Term. If the Company and
the
Executive have not agreed on the terms of such renewal prior to such date,
this
Agreement shall terminate at the end of the then current term (a “Non-Renewal
Event”).
3. Best
Efforts; Place of Performance.
(a) During
the Term, the Executive shall devote substantially all of his business time,
attention and energies to the business and affairs of the Company
and
shall use his best efforts to advance the best interests of the Company and
shall not during the Term be actively engaged in any other business activity,
whether or not such business activity is pursued for gain, profit or other
pecuniary advantage. Notwithstanding the foregoing, with the prior written
consent of the Board, Executive may serve as a member of boards of directors
and/or scientific advisory boards of other organizations not affiliated with
the
Company; provided, however, that the business or activities of any organization
on which Executive proposes to serve as a director and/or scientific advisor
shall not compete with, or be likely to compete with, the Company’s Business (as
defined in Section 6(a)
below) and such service by Executive shall not interfere, or be likely to
interfere, with the performance by Executive of the Services to be performed
hereunder.
(b) The
duties to be performed by the Executive hereunder shall be performed primarily
at the principal office of the Company in South San Francisco, California,
subject to reasonable travel requirements on behalf of the Company, or such
other place as the Board may reasonably designate. Notwithstanding the
foregoing, Executive acknowledges that the Company may be relocated to another
location within the San Francisco Bay Area.
4. Compensation.
As full
compensation for the performance by the Executive of his duties under this
Agreement, the Company shall pay the Executive as follows:
(a) Base
Salary.
During
the Term, the Company shall pay the Executive an annual base salary (the
“Base
Salary”),
which
shall initially be equal to $420,000 per year. The Base Salary shall be paid
in
accordance with the Company’s normal payroll practices. The Base Salary will be
reviewed by the Board no less frequently than annually and may be increased,
but
not decreased, from the amount set forth above in this paragraph (a).
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(b) Discretionary
Bonus.
At
the
sole discretion of the Board, the Executive may receive an additional annual
bonus (the “Discretionary
Bonus”)
in an
amount targeted at 50% of his then current Base Salary, based upon the
achievement of specified Company goals approved by the Board on an annual basis;
provided,
however,
that in
the event all such specified criteria are met or otherwise satisfied in their
entirety for a given year, then the amount of Discretionary Bonus for such
year
shall be 70% of Executive’s then current Base Salary. The entire amount of the
Discretionary Bonus (if any) shall be paid no later than 3 months after the
end
of the applicable year.
(c) Stock
Option.
Executive hereby acknowledges that on December 14, 2007, the Company granted
to
Executive, pursuant to the Company’s 2004 Stock Incentive Plan (the
“Plan”),
a
10-year option (the “December
Option”)
to
purchase 650,000 shares of the Company’s Common Stock at a price per share equal
to $1.12, representing the closing sale price of the Common Stock on such date
as reported on the Nasdaq Global Market. The December Option vests in three
equal annual installments commencing December 14, 2008 and remains exercisable
for 90 days from the date that the Employee is no longer an employee of the
Company. The parties also acknowledge that, pursuant to the terms of the May
2007 Agreement, the Company awarded to Executive, pursuant to the Plan, a
10-year stock option to purchase 400,000 shares of Common Stock (the
“May
Option”).
In
this
Agreement, the term “Options”
means
the December Option, the May Option, and all other previous and future stock
option grants awarded to Executive pursuant to any stock option or equity
incentive plan adopted by the Company.
(d) Withholding.
The
Company shall withhold all applicable federal, state and local taxes and social
security and such other amounts as may be required by law from all amounts
payable to the Executive under this Section 4.
(e) Expenses.
The
Company shall reimburse the Executive for all normal, usual and necessary
expenses incurred by the Executive in furtherance of the business and affairs
of
the Company, including reasonable travel and entertainment, upon timely receipt
by the Company of appropriate vouchers or other proof of the Executive’s
expenditures and otherwise in accordance with any expense reimbursement policy
as may from time to time be adopted by the Company.
(f) Other
Benefits.
The
Executive shall be entitled to all rights and benefits for which he shall be
eligible under any benefit or other plans (including, without limitation,
dental, medical, medical reimbursement and hospital plans, pension plans,
employee stock purchase plans, profit sharing plans, bonus plans and other
so-called “fringe” benefits) as the Company shall make available to its senior
executives from time to time.
(g) Vacation.
The
Executive shall, during the Term, be entitled to vacation of three weeks
per
annum,
in
addition to public holidays observed by the Company,
and
Executive’s vacation accrual shall be increased consistent with Company policy
and Executive’s years of service to the Company. The Executive shall be entitled
to accrue up to five weeks of vacation (the “Accrual
Cap”),
but
once the Executive reaches such an Accrual Cap, further accrual shall be
capped
until Executive reduces the amount of accrued vacation below the Accrual
Cap.
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(h) Indemnification.
The
Company will indemnify the Executive to the fullest extent permitted by its
charter and by-laws and by applicable law against all costs, charges and
expenses, including, without limitation, attorneys’ fees, incurred or sustained
by the Executive in connection with any action, suit or proceeding to which
the
Executive may be made a party by reason of being an officer, director or
employee of the Company. In connection with the foregoing, the Executive will
be
covered under any liability insurance policy that protects other officers of
the
Company.
5. Confidential
Information and Inventions.
(a) The
Executive recognizes
and
acknowledges that in the course of his duties he is likely to receive
confidential or proprietary information owned by the Company, its affiliates
or
third parties with whom the Company or any such affiliates has an obligation
of
confidentiality. Accordingly, during and after the Term, the Executive agrees
to
keep confidential and not disclose or make accessible to any other Person (as
defined in Section 6(a) below) or use for any purpose other than in connection
with the fulfillment of his duties under this Agreement, any Confidential and
Proprietary Information (as defined below) owned by or received by the Company
or any of its affiliates. “Confidential
and Proprietary Information”
shall
include, but shall not be limited to, confidential or proprietary scientific
or
technical information, data, formulas and related concepts, business plans
(both
current and under development), promotion and marketing programs, trade secrets,
or any other confidential or proprietary business information relating to
development programs, costs, revenues, marketing, investments, forecasts,
projections, sales activities, promotions, credit and financial data,
manufacturing processes, financing methods, plans or the business and affairs
of
the Company or of any affiliate or client of the Company. The Executive
expressly acknowledges the trade secret status of the Confidential and
Proprietary Information and that the Confidential and Proprietary Information
constitutes a protectable business interest of the Company. The Executive agrees
(i) not to use any such Confidential and Proprietary Information for himself
or
others and (ii) not to take any Company material or reproductions (including
but
not limited to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof from the
Company’s offices at any time during his employment by the Company, except as
required in the execution of the Executive’s duties to the Company. The
Executive agrees to return immediately all Company material and reproductions
(including but not limited, to writings, correspondence, notes, drafts, records,
invoices, technical and business policies, computer programs or disks) thereof
in his possession to the Company upon request and in any event immediately
upon
termination of employment.
(b) Except
in
connection with his employment with the Company, the Executive agrees not to
disclose or publish any of the Confidential and Proprietary Information, or
any
confidential, scientific, technical or business information of any other party
to whom the Company or any of its affiliates owes an obligation of confidence,
at any time during or after his employment with the Company.
(c) The
Executive agrees that all inventions, discoveries, improvements and patentable
or copyrightable works, except for such works that are protected under
California Labor Code Sections 2870-2872 (“Inventions”),
initiated, conceived or made by him, either alone or in conjunction with others,
during the Term
shall be
the sole property of the Company to the maximum extent permitted by applicable
law and, to the extent permitted by law, shall be “works made for hire” as that
term is defined in the United States Copyright Act (17 U.S.C.A., Section 101).
The Company shall be the sole owner of all patents, copyrights, trade secret
rights, and other intellectual property or other rights in connection therewith.
The Executive hereby assigns to the Company all right, title and interest he
may
have or acquire in all such Inventions; provided, however, that the Board may
in
its sole discretion agree to waive the Company’s rights pursuant to this Section
5(c) with respect to any Invention that is not directly or indirectly related
to
the Business (as defined in Section 6(a) below). The Executive further agrees
to
assist the Company in every proper way (but at the Company’s expense) to obtain
and from time to time enforce patents, copyrights or other rights on such
Inventions in any and all countries, and to that end the Executive will execute
all documents necessary:
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(i) To
apply
for, obtain and vest in the name of the Company alone (unless the Company
otherwise directs) letters patent, copyrights or other analogous protection
in
any country throughout the world and when so obtained or vested to renew and
restore the same; and
(ii) To
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
(d) The
Executive acknowledges that while performing the services under this Agreement
the Executive may locate, identify and/or evaluate patented or patentable
inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which
may
be of potential interest to the Company or one of its affiliates (the
“Third
Party Inventions”).
The
Executive understands, acknowledges and agrees that all rights to, interests
in
or opportunities regarding all Third-Party Inventions identified by the Company,
any of its affiliates or the officers, directors, employees (including the
Executive), agents or consultants of either of the foregoing during the
Employment Term shall be and remain the sole and exclusive property of the
Company or such affiliate and the Executive shall have no rights whatsoever
to
such Third-Party Inventions and will not pursue for himself or for others any
transaction relating to the Third-Party Inventions which is not on behalf of
the
Company.
(e) Executive
agrees that he will promptly disclose to the Company, or to any designee of
the
Company, all improvements, Inventions made or conceived or reduced to practice
or learned by Executive, either alone or jointly with others, during the
Term.
(f) The
provisions of this Section 5 shall survive any termination of this
Agreement.
6. Non-Solicitation
and Non-Disparagement.
(a) During
the Term and for a period of 12 months thereafter, the Executive shall not,
directly or indirectly, without the prior written consent of the
Company:
(i) Solicit
or induce any employee of the Company or any of its affiliates to leave the
employ of the Company or any such affiliate; hire for any purpose any employee
of the Company; hire for any purpose any former employee of the Company or
any
affiliate of the Company who left the employment of the Company or any affiliate
within the preceding twelve month period;
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(b) The
Company and the Executive each agree that both prior to and during the Term
and
at all times thereafter, neither party shall willfully or intentionally,
directly or indirectly disparage, whether or not true, the name or reputation
of
the other party or any of the Company’s affiliates, including but not limited
to, any officer, director, employee or shareholder of the Company or any of
its
affiliates.
(c) The
Executive hereby acknowledges that any breach or threatened breach of any of
the
terms of Section 5 or 6 of hereof may result in substantial, continuing and
irreparable injury to the Company. Therefore, in addition to any other remedy
that may be available to the Company, the Company will be entitled to seek
injunctive or other equitable relief by a court of appropriate jurisdiction,
in
the event of any breach or threatened breach of the terms of Section 5 or 6
hereof.
The
Company and the Executive agree that any such action for injunctive or equitable
relief shall be heard in a state or federal court located in the State of
California and each of the parties hereto agrees to accept service of process
by
registered or certified mail and to otherwise consent to the jurisdiction of
such courts.
(d) The
rights and remedies of the Company enumerated in Section 6(d) shall be in
addition to and not in lieu of any other rights and remedies available to the
Company at law or in equity. If any of the covenants contained in this Section
6, or any part of any of them, is hereafter construed or adjudicated to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants or rights or remedies which shall be given full effect
without regard to the invalid portions. If any of the covenants contained in
this Section 6 is held to be invalid or unenforceable because of the duration
of
such provision or the area covered thereby, the parties agree that the court
making such determination shall have the power to reduce the duration and/or
area of such provision and in its reduced form such provision shall then be
enforceable. No such holding of invalidity or unenforceability in one
jurisdiction shall bar or in any way affect the Company’s right to the relief
provided in this Section 6 or otherwise in the courts of any other state or
jurisdiction within the geographical scope of such covenants as to breaches
of
such covenants in such other respective states or jurisdictions, such covenants
being, for this purpose, severable into diverse and independent
covenants.
(e) The
provisions of this Section 6 shall survive any termination of this
Agreement.
7. Representations
and Warranties.
(a) The
Executive hereby represents and warrants to the Company as follows:
(i) Neither
the execution or delivery of this Agreement nor the performance by the Executive
of his duties and other obligations hereunder violate or will violate any
statute, law, determination or award, or conflict with or constitute a default
or breach of any covenant or obligation under (whether immediately, upon the
giving of notice or lapse of time or both) any prior employment agreement,
contract, or other instrument to which the Executive is a party or by which
he
is bound;
and
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(ii) The
Executive has the full right, power and legal capacity to enter and deliver
this
Agreement and to perform his duties and other obligations hereunder. This
Agreement constitutes the legal, valid and binding obligation of the Executive
enforceable against him in accordance with its terms. No approvals or consents
of any Persons are required for the Executive to execute and deliver this
Agreement or perform his duties and other obligations hereunder.
(b) The
Company hereby represents and warrants to the Executive that this Agreement
and
the employment of the Executive hereunder have been duly authorized by and
on
behalf of the Company, including, without limitation, by all required action
by
the Board.
8. Termination.
Notwithstanding any provision of this Agreement to the contrary, the Executive’s
employment hereunder shall be terminated upon the Executive’s death and may also
be terminated as follows:
(a) The
Executive’s employment hereunder may be terminated by written notice to the
Executive from the Board for Cause, effective upon the date of delivery of
such
notice. Any of the following actions by the Executive shall constitute
“Cause”:
(i) The
willful and repeated failure or refusal by the Executive to perform his duties
hereunder that is not cured by the Executive within 30 days after written notice
thereof is given to the Executive by the Company;
(ii) Any
willful, intentional or grossly negligent act by the Executive having the effect
of injuring, in a material way (whether financial or otherwise), the Business
or
reputation of the Company or any of its affiliates;
(iii) Willful
and material misconduct by the Executive
in
respect of the duties or obligations of the Executive under this
Agreement,
including, without limitation, insubordination with respect to directions
received by the Executive from the
Board;
(iv) The
Executive’s conviction of any felony or a misdemeanor involving a crime of moral
turpitude (including entry of a nolo contendere plea);
(v) The
determination by the Company based upon clear and convincing evidence, after
a
reasonable and good-faith investigation by the Company following a written
allegation by another employee of the Company, that the Executive engaged
in
material harassment prohibited
by law
(including, without limitation, age, sex or race discrimination);
(vi) Any
misappropriation or embezzlement of the property of the Company or its
affiliates (whether or not a misdemeanor or felony);
(vii) A
breach
by the Executive of any of the provisions of Sections
5
or 6
hereof; or
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(viii) A
material breach by the Executive of any material provision of this Agreement
(other than those contained in Sections
5
or
6
hereof,
which are governed by clause (vii) above) that is not cured by the Executive
within 30 days after written notice thereof is given to the Executive by
the
Company.
Any
determination of Cause under this Section 8(a) will be made by the Board. With
respect to any such determination, the Board will act fairly and in utmost
good
faith and will give the Executive and his counsel an opportunity to appear
and
be heard at a meeting with the Board and present evidence on the Executive’s
behalf.
(b) The
Executive’s employment hereunder may be terminated by the Company as a result of
the Executive’s Disability. For purposes of this Agreement, a termination for
“Disability”
shall
occur (i) when the Company has provided a written termination notice to the
Executive supported by a written statement from a reputable independent
physician to the effect that the Executive has become so physically or mentally
incapacitated as to be unable to resume, within the ensuing 6 months, his
employment hereunder by reason of physical or mental illness or injury, or
(ii)
upon delivery of a written termination notice to the Executive by the Company
after the Executive has been unable to substantially perform his duties
hereunder for 60 or more consecutive days, or more than 90 days in any 12 month
period, by reason of any physical or mental illness or injury. For purposes
of
this Section 8(b), the Executive agrees to make himself available and to
cooperate in any reasonable examination by a reputable independent physician
selected by the Company and reasonably satisfactory to the
Executive.
(c) The
Executive’s employment hereunder may be terminated by the Company (or an entity
that is a successor to the Company) by written notice to the Executive upon
the
occurrence of a Change of Control. For purposes of this Agreement, “Change
of Control”
means
(i) the acquisition, directly or indirectly, following the date hereof by any
person (as such term is defined in Section 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended), in one transaction or a series of related
transactions, of securities of the Company representing in excess of fifty
percent (50%) of the combined voting power of the Company’s then outstanding
securities if such person or his or its affiliate(s) do not own in excess of
50%
of such voting power on the date of this Agreement, or (ii) the sale or transfer
by the Company (whether direct or indirect, by sale of assets or stock, merger,
consolidation or otherwise) of all or substantially all of its business and/or
assets in one transaction or series of related transactions (other than a merger
effected exclusively for the purpose of changing the domicile of the
Company).
(d) The
Executive’s employment hereunder may be terminated by the Executive by written
notice to the Company for Good Reason, effective upon the date of delivery
of
such notice. For purposes of this Agreement, “Good
Reason”
shall
mean the occurrence of any of the following:
(i) A
material breach by the Company of Section 4, Section 6(b) or Section 7(b) of
this Agreement which is not cured by the Company within 30 days after written
notice thereof is given to the Company by the Executive;
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(ii) A
change
in the lines of reporting such that the Executive no longer directly reports
to
the Board or the Chair of the Board;
(iii) A
reduction in the Executive’s compensation or other benefits except such a
reduction in connection with a general reduction in compensation or other
benefits of all senior executives of the Company;
(iv) A
material reduction in Executive’s authority, duties, responsibilities, or title;
or
(v) A
relocation of Executive’s principal place of performance by more than thirty
(30) miles from the Company’s current South San Francisco office
location.
(e) The
Executive’s employment may be terminated by the Company for any reason or no
reason by delivery of written notice to the Executive effective thirty (30)
days
after the date of delivery of such notice.
(f) The
Executive’s employment may be terminated by the Executive in the absence of a
Good Reason by delivery of written notice to the Company effective thirty (30)
days after the date of delivery of such notice.
9. Compensation
Following Termination.
(a) If
the
Executive’s employment is terminated during the Term as a result of his death or
Disability, the Company shall promptly pay to the Executive or to the
Executive’s
estate, as applicable,
his then
current Base Salary, any accrued but unpaid Discretionary Bonus, the value
of
his accrued unused vacation days, and expense reimbursement amounts through
the
date of death or Disability.
(b) If
the
Executive’s employment is terminated during the Term (i) by the Company for
Cause or (ii) by the Executive in the absence of a Good Reason, the Company
shall continue paying to the Executive through the date of termination his
then
current Base Salary, the value of his accrued unused vacation days, and expense
reimbursement amounts (collectively, the “Accrued
Compensation”),
and
the Executive shall have no further entitlement to any other compensation or
benefits from the Company.
(c) If
the
Executive’s employment is terminated during the Term by the Company (or its
successor) upon the occurrence of a Change of Control, then the Company (or
its
successor, as applicable) shall (i) pay the Executive the Accrued Compensation
through the date of such termination; (ii) continue to pay to the Executive
his
then current annualized Base Salary and provide him with health insurance (on
the identical terms as then provided to all other employees of the Company)
for
a period of twelve (12) months following the date of such termination; (iii)
provide Executive with the maximum amount of his Discretionary Bonus for which
he would have been eligible for the year in which the termination occurs,
assuming full performance (including the amount of additional Discretionary
Bonus payable pursuant to the proviso in Section 4(b)
hereof); and (iv) immediately accelerate the vesting of Executive’s unvested
Options (as defined in Section 4(c)
above) to provide for vesting of all remaining unvested
Options.
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(d) If
the
Executive’s employment is terminated during the Term either (i) by the Company
other than for Cause, upon a Change of Control, or as a result of the
Executive’s death or Disability or (ii) by the Executive for a Good Reason, then
the Company shall pay the Executive or his estate, heirs, successors, or assigns
(1) the Accrued Compensation through the date of such termination; (2) continue
to pay to the Executive his then current annualized Base Salary and provide
him
with health insurance (on the identical terms as then provided to all other
employees of the Company) for a period of twelve (12) months following the
date
of such termination;(iii) provide Executive with the maximum amount of his
Discretionary Bonus for which he would have been eligible for the year in which
the termination occurs, assuming full performance (but disregarding any
additional Discretionary Bonus payable pursuant to the proviso in Section
4(b)
hereof), and pro-rated for the number of months that Executive was employed
by
the Company for such year; and (iv) immediately accelerate the vesting of
Executive’s unvested Options to provide for twelve (12) additional months of
vesting.
(e) If
the
Company elects not to renew this Agreement at the end of the Initial Term or
any
Additional Term thereafter other than for Cause or the Executive elects not
to
renew this Agreement at the end of the Initial Term or any Additional Term
for
Good Reason, then the Company shall pay the Executive (1) the Accrued
Compensation through the date of such termination; (2) continue to pay to the
Executive his then current annualized Base Salary and provide him with health
insurance (on the identical terms as then provided to all other employees of
the
Company) for a period of twelve (12) months following the date of such
termination; (iii) provide Executive with the maximum amount of his
Discretionary Bonus for which he would have been eligible for the year in which
the termination occurs, assuming full performance (but disregarding any
additional Discretionary Bonus payable pursuant to the proviso in Section
4(b)
hereof), and pro-rated for the number of months that Executive was employed
by
the Company for such year; and (iv) immediately accelerate the vesting of
Executive’s unvested Options to provide for twelve (12) additional months of
vesting.
(f) This
Section 9 sets forth the only obligations of the Company with respect to the
termination of the Executive’s employment with the Company, and the Executive
acknowledges that, upon the termination of his employment, he shall not be
entitled to any payments or benefits which are not explicitly provided for
in
this Section 9.
(g) Unless
otherwise expressly agreed to in writing by the Company and Executive, upon
termination of the Executive’s employment with the Company for any reason, the
Executive shall be deemed to have resigned as an officer and director of the
Company and, if applicable, as a director and officer of any subsidiary of
the
Company, effective as of the date of such termination.
(h) Notwithstanding
anything to the contrary contained in this Section 9, other than the Accrued
Compensation, the Company shall have no obligation to pay, and Executive shall
have no obligation to receive, any compensation or other consideration upon
termination of Executive’s employment unless Executive executes a separate
agreement releasing the Company from any and all liability relating to or in
connection with Executive’s employment, including the termination of Executive’s
employment.
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(i) The
provisions of this Section 9 shall survive any termination of this
Agreement.
10. Miscellaneous.
(a) This
Agreement shall be governed by, and construed and interpreted in accordance
with, the laws of the State of California, without giving effect to its
principles of conflicts of laws.
(b) Any
dispute arising out of, or relating to, this Agreement or the breach thereof
(other than Sections 5 or 6 hereof), or regarding the interpretation thereof,
shall be finally settled by arbitration conducted in California in accordance
with the commercial arbitration rules of the American Arbitration Association
then in effect before a single arbitrator appointed in accordance with such
rules. Judgment upon any award rendered therein may be entered and enforcement
obtained thereon in any court having jurisdiction. The arbitrator shall have
authority to grant any form of appropriate relief, whether legal or equitable
in
nature, including specific performance. For the purpose of any judicial
proceeding to enforce such award or incidental to such arbitration or to compel
arbitration and for purposes of Sections 5 and 6 hereof, the parties hereby
submit to the exclusive jurisdiction of the courts of the State of California,
San Mateo County or the United States District Court for the appropriate
district of California and agree that service of process in such arbitration
or
court proceedings shall be satisfactorily made upon either party if sent by
registered mail addressed to such party at the address referred to in paragraph
(g) below. The costs of such arbitration shall be borne consistent with the
requirements for enforceability of arbitration agreements under California
law.
Judgment on the arbitration award may be entered by any court of competent
jurisdiction.
(c) This
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and their respective heirs, legal representatives, successors and permitted
assigns.
(d) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. The Company may assign its rights, together with
its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets.
(e) This
Agreement cannot be amended orally, or by any course of conduct or dealing,
but
only by a written agreement signed by the parties hereto.
(f) The
failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as
a
waiver or relinquishment of future compliance therewith, and such terms,
conditions and provisions shall remain in full force and effect. No waiver
of
any term or condition of this Agreement on the part of either party shall be
effective for any purpose whatsoever unless such waiver is in writing and signed
by such party.
(g) All
notices, requests, consents and other communications, required or permitted
to
be given hereunder, shall be in writing and shall be delivered personally or
by
an overnight courier service or sent by registered or certified mail, postage
prepaid, return receipt requested, to the parties at the addresses set forth
on
the first page of this Agreement, and shall be deemed given when so delivered
personally or by overnight courier, or, if mailed, five days after the date
of
deposit in the United States mail. Either party may designate another address,
for receipt of notices hereunder, by giving notice to the other party in
accordance with this paragraph (g).
11
(h) This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof, and supersedes all prior agreements,
arrangements and understandings, written or oral, relating to the subject matter
hereof. No representation, promise or inducement has been made by either party
that is not embodied in this Agreement, and neither party shall be bound by
or
liable for any alleged representation, promise or inducement not so set
forth.
(i) As
used
in this Agreement, “affiliate” of a specified Person shall mean and include any
Person controlling, controlled by or under common control with the specified
Person.
(j) The
section headings contained herein are for reference purposes only and shall
not
in any way affect the meaning or interpretation of this Agreement.
(k) This
Agreement may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and
the
same instrument.
Remainder
of page left intentionally blank
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IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as
an instrument under seal as of the date first above written.
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HANA
BIOSCIENCES, INC.
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By:
/s/ Xxxx X.
Xxxxxxxxx
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Its:
Chairman of the Board
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|
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EXECUTIVE
|
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/s/
Xxxxxx X.
Xxxxxxxx
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|
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Xxxxxx
X. Xxxxxxxx
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