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EXHIBIT
10.1
RESIGNATION
AND RELEASE AGREEMENT AND COVENANT NOT TO SUE
This
Resignation and Release Agreement and Covenant Not to Sue
(“Agreement”) is made and entered into by and
between Hana Biosciences, Inc. (the “Company”) and
Fred L. Vitale (“Mr. Vitale”).
BACKGROUND
A.
Mr.
Vitale and the Company entered into an Employment Agreement in
or about January, 2004 as amended December 16, 2005
(“Employment Agreement”). Mr. Vitale 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 Mr. Vitale’s
employment and the termination of Mr. Vitale’s
employment.
C.
Mr.
Vitale 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 Mr. Vitale, 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 Mr. Vitale’s resignation from employment
and service as an officer of the Company, effective January 22,
2008. In exchange for “Mr. Vitale’s Obligations”
(defined in Section 2 below), and provided that Mr. Vitale 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 Mr. Vitale 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 Mr. Vitale 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 Mr. Vitale signs this
Agreement.
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(b)
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Insurance Benefits
. Mr.
Vitale 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 Mr. Vitale obtains comparable
replacement coverage, whichever is earlier. After July 31, 2008,
Mr. Vitale will be responsible for the full cost of continuing this
coverage. Mr. Vitale 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 Mr. Vitale 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 Mr. Vitale’s 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 Mr. Vitale
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 Mr.
Vitale constituting fraud, embezzlement, or job-related conduct
that would be punishable as a felony or gross misdemeanor; and the
foregoing covenant not to sue in this Section 1(c) does not
preclude the Company from commencing an action against Mr. Vitale
arising from any or all of such claims against him. The Company has
no knowledge that Mr. Vitale 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 Mr. Vitale 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
Mr. Vitale. However, as an additional benefit of this Agreement,
the Company will respond to any such request for a reference by
stating that Mr. Vitale 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.
Mr. Vitale’s Obligations
. In
return for the Company’s Obligations in Section 1 above, Mr.
Vitale agrees to the following:
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(a)
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Mr.
Vitale 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 Mr. Vitale 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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Mr.
Vitale will not bring any lawsuits against the Company, except if
necessary to enforce the provisions of this Agreement. The money
and other benefits that Mr. Vitale will receive as set forth in
this Agreement are full and fair payment for the release of all of
his claims. The consideration extende
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