Exhibit 10.1
EMPLOYMENT AGREEMENT
This
Employment Agreement (this “
Agreement ”)
is entered into as of June 6, 2008, by and between
Hana Biosciences, Inc. ,
a Delaware corporation with an office at 7000 Shoreline Court,
Suite 370, South San Francisco, California 94080 (the
“
Company ”),
and
Steven R. Deitcher, residing
at 904 Bromfield Road, San Mateo, California 94402 (the
“
Executive ”).
RECITALS:
WHEREAS,
the Company and Executive entered into that certain Employment
Agreement dated May 6, 2007 (the “
May 2007 Agreement ”)
pursuant to which the Company employed Executive as its Executive
Vice President, Development and Chief Medical Officer;
WHEREAS,
effective August 24, 2007, the Company appointed Executive,
and Executive accepted such appointment, as its President and
Chief Executive Officer and a member of the Company’s
Board of Directors;
WHEREAS,
the parties now desire to enter into this Agreement, which is
intended to replace and supersede the May 2007 Agreement in
all respects, in order to reflect the change in
Executive’s position with the Company.
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree
as follows:
1.
Services .
(a)
The
Executive will be employed by the Company and shall serve as
President and Chief Executive Officer of the Company and shall
perform, subject to the direction of the Board of Directors of
the Company (the “
Board ”),
such services and duties as are customarily performed by a chief
executive of a similarly situated biotechnology company (the
“
Services ”).
The Executive shall also have such other powers and duties as may
be from time to time prescribed by the Board, provided that the
nature of the Executive’s powers and duties so prescribed
shall not be inconsistent with the Executive’s position and
duties hereunder. The Executive hereby accepts such employment and
agrees to render the Services.
(b)
During
the Term, the Company shall use its best efforts to cause the
Executive to be nominated for election as a director of the
Company by the Company’s stockholders at each meeting
during the Term in which Executive’s term as director
would otherwise expire. The Executive agrees to accept such
nomination and election and to serve as a director of the
Company throughout the Term without any compensation
therefore, other than as specified in this
Agreement.
2.
Term .
The
Executive's employment under this Agreement shall commence on the
date hereof (the “
Effective Date ”)
and continue for a three-year period ending on December 31, 2010
(the “
Initial Term ”),
unless sooner terminated pursuant to Section 8 of this Agreement.
Notwithstanding the foregoing and subject only to the
Company’s obligations under Section 9 hereof, Executive
understands that nothing in this Agreement is intended to modify
Executive’s at-will employment with the Company and the
Company makes no guarantee, or express or implied contract, of
definite or continued employment with the Company. Notwithstanding
anything to the contrary contained herein, the provisions of this
Agreement governing protection of the Company’s Confidential
and Proprietary Information (as defined in Section 5(a) hereof)
shall continue in effect as specified in Section 5 hereof and
survive the expiration or termination of this Agreement. This
Agreement may be renewed for one or more additional one year
periods (each, an “
Additional Term ”
and, together with the Initial Term, the “
Term ”)
if
the Company and the Executive agree in writing on the terms of such
renewal not less than 30 days prior to the end of the then current
Term. If the Company and the Executive have not agreed on the terms
of such renewal prior to such date, this Agreement shall terminate
at the end of the then current term (a “
Non-Renewal Event ”).
3.
Best Efforts; Place of Performance .
(a)
During
the Term, the Executive shall devote substantially all of his
business time, attention and energies to the business and
affairs of the Company and
shall use his best efforts to advance the best interests of
the Company and shall not during the Term be actively engaged
in any other business activity, whether or not such business
activity is pursued for gain, profit or other pecuniary
advantage. Notwithstanding the foregoing, with the prior
written consent of the Board, Executive may serve as a member
of boards of directors and/or scientific advisory boards of
other organizations not affiliated with the Company; provided,
however, that the business or activities of any organization
on which Executive proposes to serve as a director and/or
scientific advisor shall not compete with, or be likely to
compete with, the Company’s Business (as defined in
Section
6(a)
below) and such service by Executive shall not interfere, or
be likely to interfere, with the performance by Executive of
the Services to be performed hereunder.
(b)
The
duties to be performed by the Executive hereunder shall be
performed primarily at the principal office of the Company in
South San Francisco, California, subject to reasonable travel
requirements on behalf of the Company, or such other place as
the Board may reasonably designate. Notwithstanding the
foregoing, Executive acknowledges that the Company may be
relocated to another location within the San Francisco Bay
Area.
4.
Compensation . As
full compensation for the performance by the Executive of his
duties under this Agreement, the Company shall pay the Executive as
follows:
(a)
Base Salary .
During
the Term, the Company shall pay the Executive an annual base salary
(the “
Base Salary ”),
which shall initially be equal to $420,000 per year. The Base
Salary shall be paid in accordance with the Company’s normal
payroll practices. The Base Salary will be reviewed by the Board no
less frequently than annually and may be increased, but not
decreased, from the amount set forth above in this paragraph
(a).
(b)
Discretionary Bonus .
At
the sole discretion of the Board, the Executive may receive an
additional annual bonus (the “
Discretionary Bonus ”)
in an amount targeted at 50% of his then current Base Salary, based
upon the achievement of specified Company goals approved by the
Board on an annual basis;
provided, however ,
that in the event all such specified criteria are met or otherwise
satisfied in their entirety for a given year, then the amount of
Discretionary Bonus for such year shall be 70% of Executive’s
then current Base Salary. The entire amount of the Discretionary
Bonus (if any) shall be paid no later than 3 months after the end
of the applicable year.
(c)
Stock Option .
Executive hereby acknowledges that on December 14, 2007, the
Company granted to Executive, pursuant to the Company’s 2004
Stock Incentive Plan (the “
Plan ”),
a 10-year option (the “
December Option ”)
to purchase 650,000 shares of the Company’s Common Stock at a
price per share equal to $1.12, representing the closing sale price
of the Common Stock on such date as reported on the Nasdaq Global
Market. The December Option vests in three equal annual
installments commencing December 14, 2008 and remains exercisable
for 90 days from the date that the Employee is no longer an
employee of the Company. The parties also acknowledge that,
pursuant to the terms of the May 2007 Agreement, the Company
awarded to Executive, pursuant to the Plan, a 10-year stock option
to purchase 400,000 shares of Common Stock (the “
May Option ”).
In
this Agreement, the term “
Options ”
means the December Option, the May Option, and all other previous
and future stock option grants awarded to Executive pursuant to any
stock option or equity incentive plan adopted by the
Company.
(d)
Withholding .
The Company shall withhold all applicable federal, state and local
taxes and social security and such other amounts as may be required
by law from all amounts payable to the Executive under this Section
4.
(e)
Expenses .
The Company shall reimburse the Executive for all normal, usual and
necessary expenses incurred by the Executive in furtherance of the
business and affairs of the Company, including reasonable travel
and entertainment, upon timely receipt by the Company of
appropriate vouchers or other proof of the Executive’s
expenditures and otherwise in accordance with any expense
reimbursement policy as may from time to time be adopted by the
Company.
(f)
Other Benefits .
The Executive shall be entitled to all rights and benefits for
which he shall be eligible under any benefit or other plans
(including, without limitation, dental, medical, medical
reimbursement and hospital plans, pension plans, employee stock
purchase plans, profit sharing plans, bonus plans and other
so-called “fringe” benefits) as the Company shall make
available to its senior executives from time to time.
(g)
Vacation .
The Executive shall, during the Term, be entitled to vacation of
three weeks per annum ,
in addition to public holidays observed by the Company
,
and Executive’s vacation accrual shall be increased
consistent with Company policy and Executive’s years of
service to the Company. The Executive shall be entitled to accrue
up to five weeks of vacation (the “
Accrual Cap ”),
but once the Executive reaches such an Accrual Cap, further accrual
shall be capped until Executive reduces the amount of accrued
vacation below the Accrual Cap.
(h)
Indemnification .
The Company will indemnify the Executive to the fullest extent
permitted by its charter and by-laws and by applicable law against
all costs, charges and expenses, including, without limitation,
attorneys’ fees, incurred or sustained by the Executive in
connection with any action, suit or proceeding to which the
Executive may be made a party by reason of being an officer,
director or employee of the Company. In connection with the
foregoing, the Executive will be covered under any liability
insurance policy that protects other officers of the
Company.
5.
Confidential Information and Inventions .
(a)
The
Executive recognizes
and
acknowledges that in the course of his duties he is likely to
receive confidential or proprietary information owned by the
Company, its affiliates or third parties with whom the Company
or any such affiliates has an obligation of confidentiality.
Accordingly, during and after the Term, the Executive agrees
to keep confidential and not disclose or make accessible to
any other Person (as defined in Section 6(a) below) or use for
any purpose other than in connection with the fulfillment of
his duties under this Agreement, any Confidential and
Proprietary Information (as defined below) owned by or
received by the Company or any of its affiliates.
“
Confidential and Proprietary Information
”
shall include, but shall not be limited to, confidential or
proprietary scientific or technical information, data, formulas and
related concepts, business plans (both current and under
development), promotion and marketing programs, trade secrets, or
any other confidential or proprietary business information relating
to development programs, costs, revenues, marketing, investments,
forecasts, projections, sales activities, promotions, credit and
financial data, manufacturing processes, financing methods, plans
or the business and affairs of the Company or of any affiliate or
client of the Company. The Executive expressly acknowledges the
trade secret status of the Confidential and Proprietary Information
and that the Confidential and Proprietary Information constitutes a
protectable business interest of the Company. The Executive agrees
(i) not to use any such Confidential and Proprietary Information
for himself or others and (ii) not to take any Company material or
reproductions (including but not limited to writings,
correspondence, notes, drafts, records, invoices, technical and
business policies, computer programs or disks) thereof from the
Company’s offices at any time during his employment by the
Company, except as required in the execution of the
Executive’s duties to the Company. The Executive agrees to
return immediately all Company material and reproductions
(including but not limited, to writings, correspondence, notes,
drafts, records, invoices, technical and business policies,
computer programs or disks) thereof in his possession to the
Company upon request and in any event immediately upon termination
of employment.
(b)
Except
in connection with his employment with the Company, the
Executive agrees not to disclose or publish any of the
Confidential and Proprietary Information, or any confidential,
scientific, technical or business information of any other
party to whom the Company or any of its affiliates owes an
obligation of confidence, at any time during or after his
employment with the Company.
(c)
The
Executive agrees that all inventions, discoveries,
improvements and patentable or copyrightable works, except for
such works that are protected under California Labor Code
Sections 2870-2872 (“
Inventions ”),
initiated, conceived or made by him, either alone or in conjunction
with others, during the Term shall
be the sole property of the Company to the maximum extent permitted
by applicable law and, to the extent permitted by law, shall be
“works made for hire” as that term is defined in the
United States Copyright Act (17 U.S.C.A., Section 101). The Company
shall be the sole owner of all patents, copyrights, trade secret
rights, and other intellectual property or other rights in
connection therewith. The Executive hereby assigns to the Company
all right, title and interest he may have or acquire in all such
Inventions; provided, however, that the Board may in its sole
discretion agree to waive the Company’s rights pursuant to
this Section 5(c) with respect to any Invention that is not
directly or indirectly related to the Business (as defined in
Section 6(a) below). The Executive further agrees to assist the
Company in every proper way (but at the Company’s expense) to
obtain and from time to time enforce patents, copyrights or other
rights on such Inventions in any and all countries, and to that end
the Executive will execute all documents necessary:
(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
wh
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