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Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement (this "
Agreement ") is entered into as of
December 18, 2006, by and between HANA BIOSCIENCES, INC., a
Delaware corporation with an office at 7000 Shoreline Court, Suite
370, South San Francisco, California 94080 (the "
Company "), and John
P. Iparraguirre, residing at 1547 9th Ave,
San Francisco, CA 94122 (the " Executive
").
RECITALS:
WHEREAS, Executive is currently employed by the
Company as its Chief Financial Officer; and
WHEREAS, the Company desires to continue to
employ the Executive as Chief Financial Officer of the Company and
the Executive desires to continue serving the Company in that
capacity, all upon the terms and subject to the conditions
contained in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained, the parties hereto
hereby agree as follows:
1. Employment .
(a) Services . The Executive will be employed by the Company
and shall serve as Chief Financial Officer of the Company and shall
perform, subject to the direction of the Chief Executive Officer of
the Company, such services and duties as are customarily performed
by the Chief Financial Officer (the " Services
"). The Executive shall also have such other powers
and duties as may be from time to time prescribed by the Chief
Executive Officer or the Board of Directors of the Company (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.
(b) Acceptance . The Executive hereby accepts such
employment and agrees to render the Services.
2. Term . The Executive's employment under this Agreement
shall commence January 1, 2007 (the " Effective
Date ") and continue for a period ending on
November 1, 2008 (the " Initial Term
"), unless sooner terminated pursuant to Section 8
of this Agreement. 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 Company, Executive may serve as a member of boards
of directors 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
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 $175,000 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).
(b) Discretionary Bonus . At the sole discretion of the
Board, the Executive may receive an additional annual bonus (the
" Discretionary Bonus ") in an
targeted at 30% of his then current Base Salary, based upon his
performance on behalf of the Company during the prior year. The
Discretionary Bonus shall be payable either as a lump-sum payment
or installments as determined by the Board in its sole discretion.
In addition, the Board shall annually review the Discretionary
Bonus to determine whether an increase in the amount thereof is
warranted.
(c) 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.
(d) 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.
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(e) 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.
(f) Vacation . The Executive shall, during the Term, be
entitled to vacation of three non-consecutive weeks per annum, in
addition to public holidays observed by the Company. The Executive
shall not be entitled to carry any vacation forward to the next
year of employment.
(g) Indemnification . The Company will indemnify the
Executive to the 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), 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. 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.
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(b) Except
with prior written authorization by 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 ("
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 Chief Executive Officer may
in his or her 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:
(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.
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(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-Competition, Non-Solicitation and
Non-Disparagement.
(a) The
Executive understands and recognizes that his services to the
Company are special and unique and that in the course of performing
such services the Executive will have access to and knowledge of
Confidential and Proprietary Information (as defined in Section 5)
and the Executive agrees that, during the Term and for a period of
12 months thereafter, he shall not in any manner, directly or
indirectly, on behalf of himself or any person, firm, partnership,
joint venture, corporation or other business entity ("
Person "), enter into or engage in
any business which is engaged in any activities directly or
indirectly competitive with the Company in the Business (as defined
below) (each, a " Restricted Activity
") within the geographic area of the Company’s
Business, which is deemed by the parties hereto to be worldwide.
The Executive acknowledges that, due to the unique nature of the
Business, the loss of any of the Company’s clients or
business flow or the improper use of its Confidential and
Proprietary Information may create significant instability and
cause substantial damage to the Company
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