Hana Biosciences, Inc. 400 Oyster Point Boulevard, Suite 215 South San Francisco, CA 94080
Exhibit
10.1
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Hana
Biosciences, Inc.
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Ph.
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Fax.
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URL:
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December
16, 2005
VIA
FED-EX
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330
Alameda de las Pulgas
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▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear
▇▇▇▇▇▇▇:
As
we
have discussed, this letter agreement (the “Agreement”) sets forth the substance
of the terms of your separation from Hana Biosciences, Inc. (the
“Company”).
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1.
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Separation
from Employment.
The final date of your employment with the Company will be December
31,
2005 (the “Termination Date”). After the Termination Date, you and the
Company agree that you will provide consulting services to the Company,
as
described in Paragraph 4 below. As consideration for entering into
this
Agreement, the Company will pay you $5,000 on the Company’s first regular
pay day in January 2006, which payment shall be subject to applicable
income tax withholding and other legally required deductions.
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2.
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Post-Termination
Date Consulting.
In accordance with Section 9(d)(i) of the your Employment Agreement
dated
October 12, 2004 (the “Employment Agreement”), the Company will continue
to pay to you the annualized base salary stated in such agreement
for a
period of one (1) year following the Termination Date, which payments
will
be made in equal installments at the times of the Company’s regular
paydays. Such payments will be subject to applicable income tax
withholdings and other legally required deductions. As provided in
the
Employment Agreement, however, such payments may be offset against
any
amounts otherwise received by you from any employment during the
one (1)
year period following the termination of employment, provided, however,
that in no event shall the Company have the right to recover or offset
any
amounts paid to you pursuant to Section 9(d)(i) of the Employment
Agreement for any period prior to the commencement of new employment.
You
agree to send monthly correspondence (by email transmission to the
attention of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, or such other representative as
the
Company may hereafter indicate) attesting to the Company your then-current
employment status and all amounts earned from any such employment.
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In
addition, consistent with Section 9(d)(i) of the Employment Agreement, 100,000
shares subject to the stock options granted to you pursuant to that certain
Stock Option Agreement dated July 25, 2005 between you and the Company shall
be
deemed vested as of the Termination Date and the remaining 50,000 shares subject
to such stock option shall expire and terminate. The vested portion of such
stock options shall remain exercisable for a period of 90 days following the
Termination Date.
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3.
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Accrued
Salary and Vacation.
On
the Termination Date, the Company will pay you all accrued salary,
and all
accrued and unused vacation, earned through the Termination Date,
subject
to standard payroll deductions and withholdings. You are entitled
to these
payments by law. In addition, on the Company’s first regular pay day in
January 2006, in addition to the payment described above in Paragraph
1,
the Company will pay you $20,000, representing a bonus for 2005,
which
payment is also subject to standard payroll deductions and
withholdings.
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4.
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Consulting
Services. Following
the Termination Date, you agree to be available to the Company, on
an
as-needed basis and as mutually agreed to between the Company and
you, to
provide consulting services in the areas of corporate finance and
investor
relations. Any such services that you provide to the Company after
the
Termination Date will not be as an employee of the Company, but as
an
independent contractor.
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5.
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Health
Insurance.
After the Termination Date, to the extent provided by the state Cal-COBRA
law and by the Company’s current group health insurance policies, you will
be eligible to continue your group health insurance benefits at your
own
expense.
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6.
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Other
Compensation or Benefits.
Except as expressly provided in this Agreement, you will not receive
any
additional benefits after the Termination Date, with the sole
exception:
a)
of
any benefit to which you have a vested right under the terms of a
written,
ERISA-qualified benefit plan (e.g.,
401(k) plan)
,
b) any and all rights to indemnification pursuant to California law
and
the Company’s Certificate of Incorporation and Bylaws, and c) rights as an
insured under any Company insurance policy, including but not limited
to,
Directors and Officers liability insurance policy.
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7.
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Employment-Related
Expense Reimbursements.
Within thirty (30) days
after the end of the Termination Date, you shall submit your final,
documented expense reimbursement statement reflecting all business
expenses you incurred in connection with your employment through
the
Termination Date for which you seek reimbursement. The Company will
reimburse you for these expenses pursuant to its regular business
practice.
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8.
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Return
of Company Property.
You agree to return to the Company, on or before the end of the
Termination Period, all documents of the Company (and all copies
or
reproductions thereof) and all other Company property in your possession
or control, including, but not limited to, all files, notes, memoranda,
correspondence, agreements, drawings, records, plans, forecasts,
reports,
proposals, studies, analyses, financial information, operational
information, personnel information, investor information, research
and
development information, computer-recorded information, tangible
property
and equipment (including, but not limited to, computers and cellular
phones), credit cards, entry cards, identification badges and keys;
and
any materials or medium of any kind which contain or embody any
proprietary or confidential information of any Company (and all
reproductions thereof, in whole or in part); provided,
however,
you may continue to use the Company-issued IBM ThinkPad notebook
computer
and Blackberry handheld device until the
earlier of (a) the date you commencement employment with a new employer,
or (b) December 31,
2006, at which date you agree to return such devices to the Company.
You
agree and acknowledge that, following the Termination Date, you will
be
responsible for establishing, at your own expense, wireless service
plan(s) relating to such devices.
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9.
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Proprietary
Information Obligations.
You will not make any use or disclosure of Company proprietary or
confidential information (whether obtained or developed during any
employment, consulting or other professional relationship with any
Company
affiliate) without written permission. In addition, you hereby assign
to
the Company, to the fullest extent permitted by law, all right, title,
and
interest in all inventions, techniques, processes, materials, and
other
intellectual property developed by you, alone or with others, in
the
course of your employment with the Company. This
Agreement does not apply to an invention which qualifies fully as
a
nonassignable invention under Section 2870 of the California Labor
Code.
By your signature below, you acknowledge that you have reviewed the
Limited Exclusion Notification attached hereto as Exhibit A. You
further
acknowledge that all original works of authorship which are made
by you
(solely or jointly with others) within the scope of your employment
with
the Company and which are protectable by copyright are “works made for
hire,” pursuant to United States Copyright Act (17 U.S.C., Section
101).
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10.
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Confidentiality.
The provisions of this Agreement (with the exception of the fact
of your
employment) will be held in strictest confidence by you and the Company
and will not be publicized or disclosed in any manner whatsoever;
provided,
however,
that: (a) you may disclose this Agreement in confidence to your immediate
family; (b) the parties may disclose this Agreement in confidence
to their
respective attorneys, accountants, auditors, tax preparers, and financial
advisors; (c) the Company may disclose this Agreement to investors
and as
necessary to fulfill standard or legally required corporate reporting
or
disclosure requirements, including applicable provisions of the federal
securities laws; and (d) the parties may disclose this Agreement
insofar
as such disclosure may be necessary to enforce its terms or as otherwise
required by law. In particular, and without limitation, you agree
not to
disclose the terms of this Agreement to any current or former employee
of
the Company.
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11.
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Nondisparagement.
You agree not to disparage the Company and its officers, directors,
members, partners, managers, employees, shareholders, affiliates,
and
agents, in any manner likely to be harmful to them or their business,
business reputation or personal reputation. The Company agrees not
to
disparage you in any manner likely to be harmful to you or your business
reputation. Notwithstanding the foregoing, both you and the Company
may
respond accurately and fully to any question, inquiry or request
for
information when required by legal
process.
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12.
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Acts
Necessary To Effect This Agreement. You
and the Company
agree to execute any instruments or agreements (or amendments thereto),
or
perform any other acts that are or may become, necessary to effect
and
carry out the transactions contemplated by this
Agreement.
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13.
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Release
of Claims. Except
as otherwise set forth in this Agreement, in exchange for the
consideration under this Agreement to which you would not otherwise
be
entitled, you hereby generally and completely release the Company
and its
directors, officers, employees, shareholders, attorneys, insurers,
affiliates and assigns, from
any and all claims, liabilities and obligations, both known and unknown,
that arise out of or are in any way related to events, acts, conduct,
or
omissions occurring at any time prior to or contemporaneous with
your
execution of this Agreement. This general release includes, but is
not
limited to: (a) all claims arising out of or in any way related to
your
employment or other professional relationship with the Company or
the
termination of that employment or relationship; (b) all claims related
to
your compensation or benefits, including salary, bonuses, commissions,
vacation pay, expense reimbursements, severance pay, fringe benefits,
stock, or stock options; (c) all claims for breach of contract, wrongful
termination, and breach of the implied covenant of good faith and
fair
dealing; (d) all tort claims, including claims for fraud, defamation,
emotional distress, and discharge in violation of public policy;
and (e)
all federal, state, and local statutory claims, including claims
for
discrimination, harassment, retaliation, attorneys’ fees, or other claims
arising under the federal Civil Rights Act of 1964 (as amended),
the
federal Americans with Disabilities Act of 1990 (as amended), the
federal
Age Discrimination in Employment Act (“ADEA”) (as amended), and the
California Fair Employment and Housing Act (as amended). Nothing
in this
release shall apply to any claims by you against the Company relating
to
your vested rights to Company stock options, 401(k) benefits or any
benefits set forth in Paragraph 6.
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14.
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ADEA
Waiver. You
acknowledge that you are knowingly and voluntarily waiving and releasing
any rights you may have under the ADEA, and that the consideration
given
for the waiver and release in the preceding paragraph hereof is in
addition to anything of value to which you were already entitled.
You
further acknowledge that you have been advised that: (a) your waiver
and
release do not apply to any rights or claims that may arise after
the date
you sign this Agreement; (b) you should consult with an attorney
prior to
signing this Agreement (although you may choose not to do so); (c)
you
have twenty-one (21) days to consider this Agreement (although you
may
choose voluntarily to sign this Agreement earlier); (d) you have
seven (7)
days following the date you sign this Agreement to revoke your consent
to
the Agreement by providing written notice of your revocation to me;
and
(e) this Agreement will not be effective until the date upon which
the
revocation period has expired, which will be the eighth day after
the date
you sign this Agreement (the “Effective Date”).
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15.
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Section
1542 Waiver.
In
giving the release set forth in this Agreement, which includes claims
which may be unknown to you at present, you acknowledge that you
have read
and understand Section 1542 of the California Civil Code which reads
as
follows:
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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 executing the release, which if
known by him must have materially affected his settlement with the
debtor.
You
hereby expressly waive and relinquish all rights and benefits under that section
and any law or legal principle of similar effect in any jurisdiction with
respect to your release of claims herein, including but not limited to the
release of unknown and unsuspected claims.
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16.
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Section
1541 Notice.
This Agreement is in full accord, satisfaction, and discharge of
doubtful
and disputed claims and this Agreement has been executed with the
express
intention of effectuating the legal consequences provided for in
Section
1541 of the California Civil Code, i.e., the extinguishment of all
obligations as described herein. I have had the opportunity to have
this
section explained to me by legal counsel and I fully understand it.
Section 1541 provides as follows:
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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.
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17.
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No
Admissions. You
understand and agree that the promises and payments in consideration
of
this Agreement shall not be construed to be an admission of any liability
or obligation by any Company Affiliate to you or to any other person,
and
that the Company make no such admission.
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18.
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Arbitration.
To
ensure the timely and economical resolution of any disputes which
may
arise under this Agreement, you and the Company agree that any and
all
claims, disputes or controversies of any nature whatsoever arising
from or
regarding the interpretation, performance, negotiation, execution,
enforcement or breach of this Agreement shall be resolved, to the
fullest
extent allowed by law, by confidential, final and binding arbitration
conducted before a single arbitrator with Judicial Arbitration and
Mediation Services, Inc. (“JAMS”) in San Francisco, California, under the
then-applicable JAMS rules. The
parties acknowledge
that by agreeing to this arbitration procedure, they waive the right
to
resolve any such dispute through a trial by jury, judge or administrative
proceeding.
The Company shall bear JAMS’ arbitration fees in excess of the amount of
court fees that would be required if the dispute were decided in
a court
of law. The arbitrator shall: (a) have the authority to compel adequate
discovery for the resolution of the dispute and to award such relief
as
would otherwise be permitted by law; and (b) issue a written arbitration
decision including the arbitrator’s essential findings and conclusions and
a statement of the award. The arbitrator, and not a court, shall
also be
authorized to determine whether the provisions of this paragraph
apply to
a dispute, controversy or claim sought to be resolved in accordance
with
these arbitration procedures. Nothing in this Agreement is intended
to
prevent either you or the Company from obtaining injunctive relief
in
court to prevent irreparable harm pending the conclusion of any such
arbitration.
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19.
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Miscellaneous.
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| (a) |
Severability.
Whenever possible, each provision of this Agreement will be interpreted
in
such manner as to be effective and valid under applicable law,
but if any
provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect, in whole or in part, such invalidity,
illegality or unenforceability will not affect any other provision,
and
such invalid, illegal or unenforceable provision will be reformed,
construed and enforced so as to render it valid, legal, and enforceable
consistent with the intent of the parties insofar as possible
under
applicable law.
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Waiver.
Any waiver of any breach of any provision of this Agreement shall
be in
writing, and the waiving party shall not thereby be deemed to
have waived
any preceding or succeeding breach of the same or any other provision
of
this Agreement.
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Entire
Agreement.
This Agreement, including its exhibits, constitutes the final,
complete,
and exclusive embodiment of the entire agreement between you
and the
Company regarding the subject matter hereof and it supersedes
any prior
agreement, promise, or representation, written or otherwise,
between you
and any of the Company with regard to this subject matter. To
the extent
that the provisions of this Agreement are inconsistent with the
provisions
of the other agreements specified herein, this Agreement shall
govern;
provided,
however, that
to the extent not inconsistent with this Agreement, the other
agreements
shall continue in full force and effect. This Agreement is entered
into
without reliance on any agreement, promise, or representation,
written or
oral, other than those expressly contained or incorporated herein,
and it
cannot be modified or amended except in a written agreement signed
by you
and me.
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Counterparts.
This Agreement may be executed in separate counterparts, any
one of which
need not contain signatures of more than one party, but all of
which taken
together shall constitute one and the same Agreement. Signatures
transmitted via facsimile shall be deemed the equivalent of
originals.
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| (e) |
Headings
and Construction.
The headings of the paragraphs hereof are inserted for convenience
only
and shall not be deemed to constitute a part hereof or to affect
the
meaning thereof. For purposes of construction of this Agreement,
any
ambiguities shall not be construed against either party as the
drafter.
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| (f) |
Successors
and Assigns.
This Agreement is intended to bind and inure to the benefit of
and be
enforceable by you, the Company and your and its respective successors,
assigns, heirs, executors and administrators, except that you
may not
assign any of your duties or rights hereunder without the written
consent
of the Company, which shall not be unreasonably
withheld.
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| (g) |
Governing
Law.
All questions concerning the construction, validity and interpretation
of
this Agreement shall be governed by the law of the State of California
as
applied to contracts made and to be performed entirely within
the State of
California.
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If
this
Agreement is acceptable to you, please sign this Agreement and return the
originals to me on or before December
31,
2005
days after the date you receive this Agreement. The offer contained in
this
Agreement will automatically expire if the Company does not receive the
executed
Agreement and Amendment from you by that date.
I
wish
you the best in your future endeavors.
Sincerely,
Hana
Biosciences
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇ | |||
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▇▇▇▇ ▇. ▇▇▇, Ph.D.
President & Chief Executive Officer
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Exhibit
A - Limited Exclusion Notification
Accepted
And Agreed:
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/s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ |
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December
28, 2005
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Date
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