AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
Exhibit
10.11
AMENDMENT
NO. 1 TO
THIS
AMENDMENT NO. 1 (the “Amendment”) to the EMPLOYMENT AGREEMENT (the “Agreement”),
is made as of October 21, 2004 by and between Hana Biosciences, Inc. (formerly
Xxxxxx Health Sciences, Inc.), a Delaware corporation (the “Company”), and Xxxx
X. Xxx (“Executive”).
WHEREAS,
the parties hereto entered into that certain Employment Agreement dated November
1, 2003 (the “Agreement”); and
WHEREAS,
the parties desire to amend Section 5(f)(ii) of the Agreement in order to
clarify the agreement of the parties with respect to the terms of certain
additional Stock Options to be granted to Executive.
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants and agreements hereinafter
set forth, the Company and Executive agree as follows:
1. As of the
date hereof, subparagraph (f)(ii) of Section 5 shall be amended and restated in
its entirety as follows:
“(ii) Anti-dilution
Protection. Until
such time as the Company has raised gross proceeds equal to $10,000,000 through
the sale of its equity securities, the Company shall issue to the Executive a
number of additional Stock Options sufficient to maintain Executive’s ownership
percentage at eight percent (8%). Thereafter, and until the Company has raised
gross proceeds equal to $50,000,000 through the sale of equity securities, the
Company shall issue to the Executive a number of additional Stock Options
sufficient to maintain Executive’s ownership percentage at or greater than five
percent (5%). Once the Company has raised $50,000,000 through the sale of its
equity securities, Executive shall be diluted pro rata along with all other
holders of securities of the Company. With respect to any additional Stock
Options granted pursuant to this subparagraph (ii), such options shall (A) vest
in three equal annual installments commencing on the date the Company’s
obligation to issue such additional Stock Options is triggered, and (B) have an
exercise price equal to the greater of (x) the exercise price applicable to the
Stock Options granted to Executive in accordance with subparagraph (i), as
adjusted for stock splits, combinations, recapitalizations, mergers and the
like, and (y) twenty percent (20%) of the closing sale price of the Company’s
common stock on the day the Company’s obligation to issue such additional Stock
Options is triggered. The Company’s obligation to issue such additional Stock
Options shall be deemed triggered on the last day of any fiscal quarter in which
the Company issued additional shares of its common stock that resulted in
Executive’s ownership percentage decreasing below 8 or 5 percent (as
applicable); provided,
however, that if
the Company completes a financing transaction involving the sale of the
Company’s equity securities, then the obligation shall be deemed triggered as of
the date of closing of such financing.”
2. The
parties hereby acknowledge and agree that Executive is entitled to and has been
granted the additional Stock Options described on Schedule
A attached
hereto and that such options fully satisfy the Company’s obligation under
Section 5(f)(ii) as of the date of this Amendment. The parties further
acknowledge and agree that, as of the date of this Amendment, the Company has
raised $12,721,134.25 through the sale of its equity securities.
3. All
capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Agreement.
4. Except as
amended or modified by this Amendment, the parties hereby confirm all other
terms and provisions of the Agreement.
5. This
Amendment may be executed in any number of counterparts, each of which shall
constitute an original, but all of which together shall constitute one and the
same instrument.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.
COMPANY: | EXECUTIVE: | ||
Hana Biosciences, Inc. | |||
|
|||
By: /s/ Xxxx Xxxxxx | |||
Its: Vice President | /s/ Xxxx X. Xxx | ||
Xxxx X. Xxx |