EXHIBIT 10.8
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "AGREEMENT"), dated as of October 21, 2004, by and
between HANA BIOSCIENCES, INC., a Delaware corporation with principal Employee
offices at 000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxx Xxxxxxxxx, XX 00000
(the "COMPANY"), and XXXXXXX X. XXXX, residing at 0000 Xxxxxxxx, Xxx Xxxxxxxxx,
XX 00000 (the "EMPLOYEE").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee as Vice President,
Chief Medical Officer of the Company, and the Employee desires to serve the
Company in that capacity, upon the terms hereof and subject to the conditions
contained in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereby agree as follows:
1. Employment.
(a) Services. The Employee will be employed by the Company as
its Vice President and Chief Medical Officer. The Employee will report to the
Chief Executive Officer and shall perform such duties as are consistent with the
position of Chief Financial Officer for a company of similar size and stage of
development (the "SERVICES"). The Employee agrees to perform such duties
faithfully, to devote all of his working time, attention and energies to the
business of the Company (except as described below and except for customary
vacation periods and reasonable periods of illness or other incapacity), and,
while he remains employed, except as set forth in Section 3 hereof, not to
engage in any other business activity that is in conflict with his duties and
obligations to the Company.
(b) Acceptance. Employee hereby accepts such employment and
agrees to render the Services.
2. Term. Employee's employment under this Agreement shall commence as
of November 1, 2004 (the "EFFECTIVE DATE") and shall continue for a term of
three (3) years, unless sooner terminated pursuant to Section 8 of this
Agreement (the "TERM"). Notwithstanding anything to the contrary contained
herein, the provisions of this Agreement governing protection of Confidential
Information shall continue in effect as specified in Section 5 hereof, and
shall, for the period specified therein, survive the expiration or termination
of this Agreement.
3. Performance of Services.
(a) Best Efforts. The Employee 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, without the permission of the Company, whether or not such business
activity is pursued for gain, profit or other pecuniary advantage, that will
interfere with the performance by the Employee of his duties hereunder or the
Employee's availability to perform such duties or that will adversely affect, or
negatively reflect upon, the Company.
(b) Permitted Activities. Notwithstanding anything to the
contrary in this Agreement, Employee may engage in other business activities
which do not directly conflict with his ability to perform the duties set forth
hereunder. Employee may participate in other businesses and/or render other
services, provided such participation or services do not materially adversely
affect his performance hereunder.
(c) Place of Performance. The duties to be performed by the
Employee hereunder shall be performed primarily at the office of the Company in
South San Francisco, California, or at such other place as the Company may
designate in the San Francisco Bay Area, except for reasonably required travel
on Company's business.
4. Compensation. As full compensation for the performance by the Employee of his
duties under this Agreement, the Company shall pay the Employee as follows:
(a) Base Salary. The Company shall pay Employee an annual
salary equal to One Hundred Fifty Thousand Dollars ($150,000) (the "BASE
SALARY"). All increases to the Base Salary shall be considered on an annual
basis by the by the CEO and Board of Directors, at the end of each year of the
Term, in a manner consistent with the Company's compensation policies then in
force. Except as otherwise provided herein, payment of the Base Salary shall be
made by Company to Employee bi-monthly, on the 15th and the last day of each
calendar month of the Term.
(b) 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 Employee under this Section
4.
(c) Expenses. The Company shall reimburse the Employee for
reasonable, business expenses incurred by Employee in the performance of his
duties, subject to the Company's policies in effect from time to time with
respect to travel, entertainment and other expenses, including without
limitation, requirements with respect to reporting and documentation of such
expenses. Reasonable business expenses shall include reimbursement of Employee
for all reasonable costs associated with Employee's fulfilling his continuing
education requirements and obtaining or maintaining requisite professional
certifications, and shall also include medical licensing fees and other
professional dues (including state and federal bar fees and dues). In all
events, as it relates to Employee's travel, and reimbursement of travel
expenses, Employee may travel at least: business class for domestic, first class
for international flights, and in a manner otherwise consistent with the
Company's practices for senior management personnel.
(d) Other Benefits. The Employee 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, disability and life insurance plans, pension plans, employee
stock purchase plans, profit sharing plans, and other so-called "fringe"
benefits) as the Company shall make available to its senior Employees from time
to time. In addition, the Company will provide fully paid D&O insurance coverage
for Employee.
(e) Vacation. The Employee shall, during the Term, be entitled
to a vacation of three (3) weeks per annum, in addition to holidays observed by
the Company.
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5. Confidential Information and Inventions.
(a) The Employee 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 Employee agrees to keep confidential
and not knowingly disclose or make accessible to any other person or use for any
other 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 or on behalf of, the Company or any of its affiliates.
"Confidential and Proprietary Information" shall include, but shall not be
limited to, information known to Employee or in Employee's possession, that is
confidential or proprietary, scientific or technical, which may include data,
formulas and related concepts, business plans (both current and under
development), client lists, promotion and marketing programs, trade secrets, or
any other confidential or proprietary business information relating to
development programs, costs, revenues, marketing, investments, 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, which information is deemed or otherwise clearly
designated "confidential" or "proprietary" by the Company. The Employee
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 Employee 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 Employee's duties. The Employee 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 Company's request, and in any event immediately
upon termination of employment, except as may be expressly authorized by the
Company.
(b) Except with prior written authorization by the Company,
the Employee agrees not to knowingly disclose or publish 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) Employee has set forth all (if any) inventions, original
works of authorship, developments, improvements, and trade secrets which were
made by Employee prior to Employee's employment with the Company in Schedule A
attached hereto (collectively referred to as "PRIOR INVENTIONS"), which belong
to the Employee, which relate to the Company's proposed business, products or
research and development, and which are not assigned to the Company hereunder;
or, if no such list is attached, Employee represents that there are no such
Prior Inventions. Employee agrees that during the Term, all inventions,
discoveries, improvements and patentable or copyrightable works directly related
to the Company's business ("INVENTIONS") initiated, conceived or made by
Employee in the direct performance of his duties hereunder, either alone or in
conjunction with others, 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). For the avoidance of doubt, 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
following Inventions will be the sole and exclusive property of the Company, and
Employee will and hereby does assign all Employee's right, title and interest in
such Inventions to the Company, except as provided in Section 5(d): (i)
Inventions that are developed using the equipment, supplies, facilities or
Confidential Information of the Company; or (ii) Inventions that result from or
are suggested by work performed by Employee for the Company; or (iii) Inventions
that directly relate to the business, or to the actual or demonstrably
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anticipated research or development of the Company. The Employee hereby assigns
to the Company all right, title and interest he may have or acquire in all such
Inventions; provided, however, that the Board of Directors of the Company hereby
waives any rights of the Company with respect to any Invention that is not
directly related to the Company's business or Employee's performance of his
duties hereunder. The Employee 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 Inventions in any and all
countries, and to that end the Employee will execute all documents necessary:
(A) to apply for, obtain and vest in the name of the
Company alone (unless the Company otherwise directs),
at Company's sole cost, 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
(B) to defend, at Company's sole cost, 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) Employee understands that the provisions of this Agreement
requiring assignment of Inventions to the Company do not apply to any invention
that satisfies all of the following: (i) Employee develops entirely on
Employee's own time; and (ii) Employee develops without using Company equipment,
supplies, facilities, or trade secret information; and (iii) do not result from
any work performed by Employee for the Company; and (iv) do not directly relate
at the time of conception or reduction to practice to the Company's business, or
to its actual or demonstrably anticipated research or development. Any such
invention will be owned entirely by Employee, even if developed by Employee
during the time period in which the Employee is employed by the Company.
Employee will advise the Company promptly in writing of any inventions that
Employee believes meet the criteria for exclusion set forth herein and are not
otherwise disclosed on Schedule A. Employee will not file any patent
applications relating to such Inventions without first obtaining an express
release from a duly authorized representative of Company.
(e) The Employee acknowledges that during the Term, while
performing Services, Employee 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 are
directly related to Company's business or the business of one of its affiliates
(the "THIRD-PARTY INVENTIONS"). The Employee 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
either of the foregoing persons' officers, directors, employees (including the
Employee), agents or consultants during the Employment Term shall be and remain
the sole and exclusive property of the Company or such affiliate and the
Employee 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.
(f) The provisions of this Section 5 shall, for the periods
specified herein, survive any termination of this Agreement.
6. Restrictions on Solicitation and Competition.
(a) During the Term, and for a period of one (1) year
following the termination or expiration of this Agreement, Employee shall not,
directly or indirectly, without the prior written consent of the Company:
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(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;
or
(ii) solicit the business of any agent, client or
customer of the Company or any of its affiliates with respect to products,
services or investments similar to those provided or supplied by the Company or
any of its affiliates; or
(iii) solicit a license of technology, including but
not limited to, patents or patent applications relating to such technology,
relating to a pharmaceutical product candidate from any party (A) from which the
Company or its affiliates license such technology or (B) any party with which
the Company or any of its affiliates has within the six months prior to the end
of the Term been negotiating to obtain a license of such technology (each such
party, a "COMPANY LICENSOR"); provided, however, that this provision shall not
be construed to prohibit Employee from soliciting a Company Licensor to license
to the Employee (or a future employer or affiliate of Employee) a technology
unrelated to any that are the subject of an existing or contemplated license to
the Company.
(b) The Company and the Employee each agree that both during
the Term and at all times thereafter, neither party shall disparage, whether or
not true, the name or reputation of the other party or any of its affiliates,
including but not limited to, any officer, director, employee or shareholder of
the Company or any of its affiliates.
(c) In the event that the Employee breaches any provisions of
Section 5 or this Section 6 or there is a threatened breach, then, in addition
to any other rights which the Company may have, the Company shall (i) be
entitled, without the posting of a bond or other security, to injunctive relief
to enforce the restrictions contained in such Sections and (ii) have the right
to require the Employee to account for and pay over to the Company all
compensation, profits, monies, accruals, increments and other benefits
(collectively "BENEFITS") derived or received by the Employee as a result of any
transaction constituting a breach of any of the provisions of Sections 5 or 6
and the Employee hereby agrees to account for and pay over such Benefits to the
Company.
(d) Each of the rights and remedies enumerated in this Section
6 shall be independent of the others, and 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) In the event that an actual proceeding is brought in
equity to enforce the provisions of Section 5 or this Section 6, the Employee
shall not urge as a defense that there is an adequate remedy at law nor shall
the Company be prevented from seeking any other remedies which may be available.
The Employee agrees that he shall not raise in any proceeding brought to enforce
the provisions of Section 5 or this Section 6 that the covenants contained in
such Sections limit his ability to earn a living.
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(f) The provisions of this Section 6 shall survive any
termination of this Agreement.
7. Representations and Warranties by the Employee. The Employee hereby
represents and warrants to the Company as follows:
(a) Neither the execution or delivery of this Agreement nor
the performance by the Employee 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 Employee
is a party or by which he is bound.
(b) The Employee 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 Employee enforceable against him in accordance with its terms.
No approvals or consents of any persons or entities are required for the
Employee to execute and deliver this Agreement or perform his duties and other
obligations hereunder.
8. Termination. Subject to the terms of Section 9 hereof, Employee's
employment hereunder may be terminated as follows:
(a) Death or Disability. Company may terminate this Agreement
upon Employee's death or Disability. For purposes of this Agreement, a
termination for "DISABILITY" shall occur (i) when the Board of Directors of the
Company has provided a written termination notice to the Employee supported by a
written statement from a reputable independent physician to the effect that the
Employee shall have become so physically or mentally incapacitated as to be
unable to resume, within the ensuing twelve (12) months, his employment
hereunder by reason of physical or mental illness or injury, or (ii) upon
rendering of a written termination notice by the Board of Directors of the
Company after the Employee has been unable to substantially perform his duties
hereunder for 90 or more consecutive days, or more than 120 days in any
consecutive twelve month period, by reason of any physical or mental illness or
injury. For purposes of this Section 8(a), the Employee agrees to make himself
available and to cooperate in any reasonable examination by a reputable
independent physician retained by the Company. Company shall bear the cost of
such examination, and the determination of any such physician shall be
determinative.
(b) For Cause. The Company shall have the right at any time to
terminate Employee's employment immediately for Cause (as hereinafter defined).
For purposes of this Agreement, the term "Cause" is limited to the following:
(i) If Employee shall breach or violate any of the
provisions of Sections 5 and 6 of this Agreement, or shall fail to comply with
any other material term or condition of this Agreement, after Company provides
Employee with notice of any alleged breach and a reasonable period (but no less
than thirty (30) days) and opportunity to cure same; provided, however, that no
such notice and opportunity to cure shall be required if such breach, violation
or failure to comply is incapable of being cured.
(ii) If Employee engages in willful misconduct,
materially neglects the Company's business after Company provides Employee with
notice of any alleged material neglect and a reasonable period (but no less than
thirty (30) days) and opportunity to cure same, is convicted of a felony, or
misappropriates funds or other property.
(iii) If Employee shall have failed or refused to
carry out the reasonable and lawful instructions of the CEO or his designee
(other than as a result of illness or disability) concerning duties or actions
consistent with Employee's position; provided, however, that Company has
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provided Employee with notice of any alleged failure or refusal and a reasonable
period (but no less than thirty (30) days) and opportunity to cure same;
provided further, however, that no such notice and opportunity to cure shall be
required if such failure or refusal is incapable of being cured.
(iv) In the event Employee's employment hereunder is
terminated for Cause, Employee's obligations under Sections 5 and 6 hereof shall
survive such termination of employment pursuant to their terms.
(c) Change of Control. The Employee's employment hereunder may
be terminated by the Board of Directors of the Company (or its successor) 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 fifty percent (50%) of such voting power on the date of this
Agreement, or (ii) the disposition 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) Good Reason. The Employee's employment hereunder may be
terminated by the Employee for Good Reason. For purposes of this Agreement,
"GOOD REASON" shall mean any of the following: (i) the assignment to the
Employee of duties inconsistent with the Employee's position, duties,
responsibilities, titles or offices as described herein; (ii) any material
reduction by the Corporation of the Employee's duties and responsibilities; or
(iii) any reduction by the Corporation of the Employee's compensation or
benefits payable hereunder.
(e) At-Will Employment. Notwithstanding anything to the
contrary contained in this Agreement, Employee understands and acknowledges that
his employment by the Company is on an at-will basis. Accordingly, subject to
the provisions Section 9 hereof, the Company may terminate Employee's employment
with the Company for any reason or no reason, with or without Cause.
9. Compensation upon Termination.
(a) Death or Disability. If the Employee's employment is
terminated as a result of his death or Disability, the Company shall pay to the
Employee or to the Employee's estate, as applicable, Employee's Base Salary and
shall immediately pay to Employee any accrued and any unpaid compensation and
expense reimbursement amounts through the date of death or Disability. Any stock
options that are scheduled to vest by the end of the calendar year in which such
termination occurs shall be accelerated and deemed to have vested as of the
termination date. Any stock options that have not vested (or been deemed
pursuant to the immediately preceding sentence to have vested) as of the date of
termination shall be deemed to have expired as of such date. Any stock options
that have vested as of the date of the Employee's death or Disability (including
any options deemed to have vested pursuant to this section 9(a)) shall remain
exercisable for a period of ninety (90) days.
(b) For Cause. If the Employee's employment is terminated by
the Board of Directors of the Company for Cause, then the Company shall pay to
the Employee the Base Salary and shall immediately pay to Employee any accrued
and any unpaid compensation and expense reimbursement amounts through the date
of termination. Employee shall have no further entitlement to any other
compensation or benefits from the Company. Any stock options that have not
vested as of the date of termination shall be deemed to have expired as of such
date. Any stock options that have vested as of the date of the Employee's
termination shall remain exercisable for a period of ninety (90) days.
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(c) Change of Control. If the Employee's employment is
terminated by the Company (or its successor) upon the occurrence of a Change of
Control, the Company (or its successor, as applicable) shall immediately pay to
Employee any accrued and any unpaid compensation and expense reimbursement
amounts through the date of termination, and Company shall continue to pay to
the Employee his Base Salary pursuant to the terms of Section 4, until the
earlier of (a) the remainder of the Term, and (b) six (6) months six (6) months
following the date of such termination. Any stock options that have not vested
as of the date of such termination shall be accelerated and shall be deemed to
have vested as of the date of such termination.
(d) Other Termination. If the Employee's employment is
terminated by the Company other than as a result of the Employee's death or
Disability and other than for reasons specified in Sections 8 (a), (b) or (c),
then the Company shall (i) continue to pay to the Employee his Base Salary,
pursuant to the terms of Section 4, for a period of one (1) year following such
termination, and (ii) immediately pay to Employee any accrued and any unpaid
compensation and expense reimbursement amounts through the date of termination.
The Company's obligation under clause (i) of the preceding sentence shall be
subject to offset by any amounts otherwise received by the Employee from any
employment during the one year period following such termination. Any stock
options that are scheduled to vest by the end of the contract year in which such
termination occurs shall be accelerated and shall be deemed to have vested as of
the termination date. Any stock options that have not vested (or been deemed
pursuant to the immediately preceding sentence to have vested) as of the date of
termination shall be deemed to have expired as of such date.
(e) Continuation of Benefits. Unless Employee's employment is
terminated for Cause pursuant to Section 8(b), Company shall continue to provide
to Employee group health plan benefits to the extent authorized by and
consistent with 29 U.S.C. ss. 1161 et seq. (commonly known as "COBRA"), with the
cost of the regular premium for such benefits shared in the same relative
proportion by the Company and Employee as in effect on the date of termination
for the same periods as any payments made pursuant to Sections (a)-(d) above.
(f) Section 9 sets forth the only obligations of the Company
with respect to the termination of the Employee's employment with the Company,
and the Employee acknowledges that, upon the termination of his employment, he
shall not be entitled to any payments or benefits which are not explicitly
provided in Section 9. 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 San
Francisco, California in accordance with the 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 non-exclusive jurisdiction of the Supreme Court of the
State of California, San Francisco County, or the United States District Court
for the Northern District of California, and agree that service of process in
such arbitration or court proceedings shall be satisfactorily made upon it if
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sent by registered mail addressed to it at the address referred to in paragraph
(g) below. The costs of such arbitration shall be borne proportionate to the
finding of fault as determined by the arbitrator. 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 assigns.
(d) This Agreement, or Employee's obligations hereunder, may
not be assigned by either party, except that Company may assign its rights,
together with its obligations, hereunder in connection with any Change of
Control.
(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 Section (g).
(h) This Agreement constitutes the entire agreement between
the Parties and set out all the covenants, promises, warranties,
representations, conditions, understandings and agreements between the Parties
pertaining to the subject matter of this Agreement and supersedes all prior
employment agreements, understandings, negotiations and discussions, whether
oral or written. There are no covenants, promises, warranties, representations,
conditions, understandings or other agreements, oral or written, express,
implied or collateral between the Parties in connection with the subject matter
of this Agreement except as specifically set forth in this Agreement, or as may
be otherwise set forth in writing by the parties in the future.
(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.
Signature page follows.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
HANA BIOSCIENCES, INC.
By: /s/ Xxxx X. Xxx
--------------------------
Name: Xxxx Xxx, Ph.D.
Title:President and CEO
EMPLOYEE:
By: Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx, M.D.
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