RESIGNATION AND RELEASE AGREEMENT AND COVENANT NOT TO SUE
EXHIBIT
10.1
RESIGNATION
AND RELEASE AGREEMENT AND COVENANT NOT TO ▇▇▇
This
Resignation and Release Agreement and Covenant Not to ▇▇▇ (“Agreement”) is made
and entered into by and between Hana Biosciences, Inc. (the “Company”) and ▇▇▇▇
▇. ▇▇▇▇▇▇ (“▇▇. ▇▇▇▇▇▇”).
BACKGROUND
A. ▇▇.
▇▇▇▇▇▇ and the Company entered into an Employment Agreement in or about January,
2004 as amended December 16, 2005 (“Employment Agreement”). ▇▇. ▇▇▇▇▇▇ resigned
from employment with the Company and service as an officer of the Company
effective January 22, 2008.
B. Disputes
between the parties exist arising from ▇▇. ▇▇▇▇▇▇’▇ employment and the
termination of ▇▇. ▇▇▇▇▇▇’▇ employment.
C. ▇▇.
▇▇▇▇▇▇ and the Company now desire to fully and finally resolve their disputes
on
the terms and conditions set forth below.
NOW,
THEREFORE, the Company and ▇▇. ▇▇▇▇▇▇, desiring to amicably resolve any and
all
existing and potential disputes between them as of the date each executes this
Agreement, and in consideration of the obligations and undertakings set forth
below and intending to be legally bound, agree as follows.
1. Company’s
Obligations.
The
Company has accepted ▇▇. ▇▇▇▇▇▇’▇ resignation from employment and service as an
officer of the Company, effective January 22, 2008. In exchange for “▇▇.
▇▇▇▇▇▇’▇ Obligations” (defined in Section 2 below), and provided that ▇▇. ▇▇▇▇▇▇
signs this Agreement and does not exercise his rights to revoke his waiver
of
certain discrimination claims (as defined in Section 5 below), the Company
hereby extends to ▇▇. ▇▇▇▇▇▇ the following new consideration (all and each
of
the following are the “Company’s Obligations”):
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(a)
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Payment.
The
Company will pay ▇▇. ▇▇▇▇▇▇ separation pay in the amount of $166,667
(gross), less applicable federal and state income tax and any other
legally required withholding. Payment will be made in a lump sum
on the
first regular Company payday that occurs after eight days have passed
from
the date on which ▇▇. ▇▇▇▇▇▇ signs this
Agreement.
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(b)
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Insurance
Benefits.
▇▇.
▇▇▇▇▇▇ has the right to elect to continue his coverage in the Company’s
group health and dental insurance programs at his cost under applicable
law; however, as a further benefit of this Agreement, the Company
will pay
the full cost of the coverage through July 31, 2008, or until ▇▇.
▇▇▇▇▇▇
obtains comparable replacement coverage, whichever is earlier. After
July
31, 2008, ▇▇. ▇▇▇▇▇▇ will be responsible for the full cost of continuing
this coverage. ▇▇. ▇▇▇▇▇▇ understands that he is responsible for
completing and returning the necessary paperwork in order to elect
to
continue this coverage.
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(c)
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Release.
Except
as set forth at the end of this Section 1(c), the Company hereby
fully and
finally releases, waives, and discharges any and all legal claims
against
▇▇. ▇▇▇▇▇▇ that it has through the date on which this Agreement is
executed on its behalf. This full and final release, waiver, and
discharge
extends to legal and equitable claims of any kind or nature whatsoever
including, without limitation, the
following:
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(i)
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All
claims that the Company has now, whether or not it now knows about
the
claims;
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(ii)
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All
claims for attorneys fees;
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(iii)
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All
claims arising out of ▇▇. ▇▇▇▇▇▇’▇ employment or his separation from
employment with the Company including, but not limited to, any alleged
breach of contract, breach of implied contract, or
defamation;
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(iv)
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All
claims for reimbursement of any other compensation, including vacation
pay
and bonus pay; and
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(v)
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All
claims for any other alleged unlawful conduct arising out of or relating
to his employment or separation from employment with the
Company.
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The
Company will not commence any civil actions against ▇▇. ▇▇▇▇▇▇ except
as
necessary to enforce his obligations under this Agreement. The
consideration that the Company is receiving in this Agreement has
a value
that is greater than anything to which it is entitled.
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Notwithstanding
the provisions of this Section 1(c), the Company does not release,
waive,
or discharge any and all unknown legal claims against ▇▇. ▇▇▇▇▇▇
constituting fraud, embezzlement, or job-related conduct that would
be
punishable as a felony or gross misdemeanor; and the foregoing covenant
not to ▇▇▇ in this Section 1(c) does not preclude the Company from
commencing an action against ▇▇. ▇▇▇▇▇▇ arising from any or all of
such
claims against him. The Company has no knowledge that ▇▇. ▇▇▇▇▇▇
has
engaged in any of the foregoing
conduct.
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(d)
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Non-Disparagement.
The
Company’s management will not criticize or disparage in any manner or by
any means ▇▇. ▇▇▇▇▇▇ or any aspect of his services to the
Company.
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(e)
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Reference.
The
Company has no obligation to respond to reference inquiries about
▇▇.
▇▇▇▇▇▇. However, as an additional benefit of this Agreement, the
Company
will respond to any such request for a reference by stating that
▇▇.
▇▇▇▇▇▇ was an original executive officer of the Company, his most
recent
title was Vice President and Chief Business Officer, and he resigned
from
the Company effective January 22, 2008 to pursue other opportunities.
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2. ▇▇.
▇▇▇▇▇▇’▇ Obligations.
In
return
for the Company’s Obligations in Section 1 above, ▇▇. ▇▇▇▇▇▇ agrees to the
following:
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(a)
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▇▇.
▇▇▇▇▇▇ hereby fully and finally releases, waives, and discharges
any and
all legal claims against the Company that he has through the date
on which
he signs this Agreement. This full and final release, waiver, and
discharge extends to legal and equitable claims of any kind or nature
whatsoever including, without limitation, the
following:
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(i)
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All
claims that ▇▇. ▇▇▇▇▇▇ has now, whether or not he now knows about
the
claims;
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(ii)
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All
claims for attorney's fees and
costs;
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(iii)
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All
claims for alleged discrimination against him under any applicable
federal, state, and local law including, without limitation, rights
and
claims of age discrimination under the federal Age Discrimination
in
Employment Act (“ADEA”) and federal Older Workers Benefits Protection Act
(“OWBPA”); and discrimination claims under the California Fair Employment
and Housing Act (“CFEHA”), Title VII of the Civil Rights Act of 1964
(“Title VII”), and the Americans With Disabilities Act
(“ADA”);
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(iv)
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All
claims arising out of his employment and the termination of his employment
and service as an officer with the Company, including, but not limited
to,
any alleged breach of contract, wrongful termination, termination
in
violation of public policy, defamation, invasion of privacy, fraud,
negligence, infliction of emotional distress, breach of implied contract
and breach of the covenant of good faith and fair dealing;
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(v)
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All
claims for any other alleged unlawful employment practices arising
out of
or relating to his employment or separation from employment and service
as
an officer with the Company; and
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(vi)
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All
claims for any other form of pay, for example bonus pay, incentive
pay,
holiday pay, and sick pay.
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(b)
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▇▇.
▇▇▇▇▇▇ will not bring any lawsuits against the Company, except if
necessary to enforce the provisions of this Agreement. The money
and other
benefits that ▇▇. ▇▇▇▇▇▇ will receive as set forth in this Agreement
are
full and fair payment for the release of all of his claims. The
consideration extended by the Company in return for ▇▇. ▇▇▇▇▇▇’▇
Obligations is more than anything of value to which he is already
entitled. Provided,
however,
nothing herein releases ▇▇. ▇▇▇▇▇▇’▇ rights, if any, to indemnification
under any applicable directors & officers liability insurance policy,
applicable state and federal law, and the Company’s
bylaws.
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(c)
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▇▇.
▇▇▇▇▇▇ will not disparage the Company, or its employees, legal compliance,
products, services, research, development, or with respect to any
other
aspect of the Company’s business.
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(d)
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▇▇.
▇▇▇▇▇▇ hereby waives any right to reinstatement to employment with
the
Company.
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(e)
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▇▇.
▇▇▇▇▇▇ has returned to the Company any and all of its property in
his
possession or under his control including, for example, computers,
security access cards, credit cards, printers, cell phones, client
files,
reference material, documents pertaining to clients, and any and
all other
documents and materials in my possession or under my control that
pertain
to the Company’s business. These obligations apply to originals and all
copies of any such property.
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(f)
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▇▇.
▇▇▇▇▇▇ will cooperate with the Company on any matters in which he
was
involved where information or knowledge that he has will be needed,
including but not limited to, matters such as actual or threatened
legal
claims by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. The Company will provide him with as much
notice as possible if it, or its attorneys, need to speak with him
about
such matters. The Company will also reimburse him for any out-of-pocket
expenses that he incurs in order to cooperate, and compensate him
in the
amount of $150 per hour for time spent. If a party adverse to the
Company
serves a subpoena or other legal process on ▇▇. ▇▇▇▇▇▇, he will promptly
notify the Company’s Chief Financial Officer and not respond until
receiving further instruction from the
Company.
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(g)
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▇▇.
▇▇▇▇▇▇ and the Company will represent, if asked, that their relationship
ended mutually and amicably, and they wish each other the best in
the
future.
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3. Certain
Definitions.
For
purposes of Section 2, “▇▇. ▇▇▇▇▇▇” means ▇▇▇▇ ▇. ▇▇▇▇▇▇, and anyone who has or
obtains any legal rights or claims through ▇▇. ▇▇▇▇▇▇. Further, the “Company”
means Hana Biosciences, Inc., and its past and present parent, subsidiary,
and
affiliated entities, and each of them; and past and present agents, officers,
directors, employees, committees, insurers, indemnitors, attorneys, successors
or assigns of any or all of the foregoing entities.
4. Additional
Agreements and Understandings.
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(a)
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The
Company does not admit that it is responsible or legally obligated
to ▇▇.
▇▇▇▇▇▇, and in fact the Company denies that it is responsible or
legally
obligated to him even though the Company has provided him with valuable
benefits in this Agreement to release his legal claims as outlined
above.
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(b)
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▇▇.
▇▇▇▇▇▇ has been paid his final salary and for any accrued but unused
vacation and other earnings through his last day of
employment.
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(c)
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If
▇▇. ▇▇▇▇▇▇ becomes eligible for unemployment compensation benefits,
the
Company will not challenge a claim that he files, but the Company
will
report to state authorities the payment that he received under this
Agreement and reserves the right to respond if it disagrees with
anything
that he says in support of that
claim.
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(d)
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Nothing
in this Agreement affects ▇▇. ▇▇▇▇▇▇’▇ rights in any benefit plan or
program in which he was a participant while employed by the Company.
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(e)
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▇▇.
▇▇▇▇▇▇ understands that the Company has granted to him four separate
stock
option awards, which are evidenced by separate stock option agreements
dated February 1, 2004 (as amended on June 30, 2006), April 11, 2005,
November 10, 2005 and December 12, 2006, respectively. In this Agreement,
these stock option agreements are collectively referred to as the
“Option
Agreements.” Pursuant to the terms of the Employment Agreement, ▇▇. ▇▇▇▇▇▇
understands that the vesting schedule relating to his right to purchase
the shares of Company common stock under each Option Agreement will
be
accelerated such that any unvested installment of the stock options
scheduled to vest on or before November 1, 2008 will be deemed vested
as
of the last day of his employment with the Company. Accordingly,
as of ▇▇.
▇▇▇▇▇▇’▇ last day of employment, his right to purchase shares pursuant
each Option Agreements will be vested as
follows:
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Date
of Option Agreement
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Shares
Vested
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February
1, 2004
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141,007
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April
11, 2005
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85,000
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November
10, 2005
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100,000
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December
12, 2006
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41,666
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Except
to the extent vested as described in the table above, ▇▇. ▇▇▇▇▇▇
understands that all of his rights to purchase shares of the Company’s
common stock under the Option Agreements will terminate on his last
day of
employment with the Company. Further, following his last day of employment
with the Company, ▇▇. ▇▇▇▇▇▇ understands that his right to purchase
shares
pursuant to any of the Option Agreements, including the length of
time he
has to purchase such shares following the end of his employment,
shall be
governed by the terms of the respective Option Agreement, which shall
survive the execution of this
Agreement.
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(f)
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▇▇.
▇▇▇▇▇▇ hereby represents that he has no knowledge of engaging in
acts or
omissions that caused the Company a legal
injury.
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(g)
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Upon
presentation of the necessary documentation, the Company will reimburse
▇▇. ▇▇▇▇▇▇ for the valid business expenses he incurred in connection
with
his employment with the Company according to established corporate
policy.
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(h)
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The
Company will permit ▇▇. ▇▇▇▇▇▇ to review in advance its press release
announcing his departure to pursue other opportunities. The form
and
content of such a press release is within the sole discretion of
the
Company. Nothing herein restricts the Company from making any disclosures
that it reasonably believes are necessary to comply with stock exchange
regulations and applicable laws and government rules.
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5. Rights
to Counsel, Consider, and Revoke and Rescind.
The
Company hereby advises ▇▇. ▇▇▇▇▇▇ to consult with an attorney prior to signing
this Agreement.
▇▇.
▇▇▇▇▇▇ understands that he has the right to take up to 21 days to consider
his
waiver of age discrimination rights and claims under the ADEA and OWBPA,
beginning the date on which he received this Agreement. He further understands
that, if he signs this Agreement, he may revoke his waiver of age discrimination
rights and claims under the ADEA and OWBPA within seven days thereafter, and
his
waiver will not be effective or enforceable until this seven-day period has
expired.
6. Charges.
This
Agreement does not prohibit ▇▇. ▇▇▇▇▇▇ from filing an administrative charge
of
discrimination with, or cooperating or participating in an investigation or
proceeding conducted by, the Equal Employment Opportunity Commission or other
federal or state regulatory or law enforcement agency.
7. Notice
of Section 1542 Rights.
The
Company and ▇▇. ▇▇▇▇▇▇ expressly agree that this Agreement extends to all claims
of every nature and kind, known or unknown, suspected or unsuspected, vested
or
contingent, past, present, or future, whether arising from or attributable
to
me, or to the Company’s officers, directors, employees, and agents, acting
within or beyond the scope of their employment; whether relating to his
employment by the Company or performance of services for the Company occurring
before the execution of this Agreement. They also expressly agree that any
and
all rights granted under § 1542 of the California Civil Code or any analogous
state law or federal law or regulation are hereby expressly waived. Section
1542
of the California Civil Code reads as follows:
§1542.
A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his favor at the time of the executing the release, which
if
known to him must have materially affected his settlement with the
debtor.
8. Notice
of Section 1541 Rights.
This
Agreement is in full accord, satisfaction and discharge of doubtful and disputed
claims that the Company and ▇▇. ▇▇▇▇▇▇ have against each other, and they have
signed this Agreement with the express intention of releasing and extinguishing
all claims they may have against each other, in accordance with Section 1541
of
the California Civil Code, which section reads as follows:
§1541.
An
obligation is extinguished by a release therefrom given to the debtor by the
creditor, upon a new consideration, or in writing, with or without new
consideration.
9. Binding
Effect.
The
Company and ▇▇. ▇▇▇▇▇▇ understand and expressly agree that this Agreement will
bind and benefit each of them, and anyone who has or claims any legal rights
through them.
10. No
Oral Modification.
This
Agreement may not be changed orally.
11. No
Oral Waiver.
No
breach of any provision hereof can be waived by either party unless in writing.
Waiver of any one breach by a party will not be deemed to be a waiver of any
other breach of the same or any other provision hereof.
12. Counterparts.
This
Agreement may be executed in any number of counterparts, and each such
counterpart will be deemed to be an original instrument, and all such
counterparts together will constitute but one agreement.
13. Severability.
Should
any one or more parts of this Agreement be declared invalid through arbitration
or by any court of competent jurisdiction for any reasons, such decision will
not affect the validity of any remaining portions which will remain in full
force and effect as if this Agreement had been executed with the invalid parts
thereof eliminated.
14. Agreement
Freely Entered Into.
Each
party represents that this Agreement, and the release contained in this
Agreement, have been given voluntarily and free from duress or undue influence
on the part of any person or entity released by this Agreement, or by any third
party.
The
Company and ▇▇. ▇▇▇▇▇▇ have read this Agreement carefully and understand all
of
its terms. Each has had the opportunity to discuss this Agreement with their
own
attorneys prior to signing it, and to make certain that each understands the
meaning of the terms and conditions contained in this Agreement and fully
understands the content and effect of this Agreement. In agreeing to sign this
Agreement, neither party has relied on any statements or explanations made
by
the other, including their respective agents or its attorneys, except as set
forth in this Agreement. Each party agrees to abide by this
Agreement.
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| Date: January 23, 2008 | By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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| ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Hana Biosciences, Inc. | ||
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| Date: | By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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| Its President & CEO | ||