Unassociated Document

0001193805-10-001714.txt : 20100611 0001193805-10-001714.hdr.sgml : 20100611 20100611153918 ACCESSION NUMBER: 0001193805-10-001714 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20100611 DATE AS OF CHANGE: 20100611 GROUP MEMBERS: DEERFIELD CAPITAL, L.P. GROUP MEMBERS: DEERFIELD MANAGEMENT COMPANY, L.P. GROUP MEMBERS: DEERFIELD PRIVATE DESIGN FUND, L.P. GROUP MEMBERS: DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P. GROUP MEMBERS: DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED GROUP MEMBERS: DEERFIELD SPECIAL SITUATIONS FUND, L.P. FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Flynn James E CENTRAL INDEX KEY: 0001352546 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 780 THIRD AVENUE STREET 2: 37TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10017 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Hana Biosciences Inc CENTRAL INDEX KEY: 0001140028 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 841588441 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-79910 FILM NUMBER: 10892594 BUSINESS ADDRESS: STREET 1: 7000 SHORELINE COURT STREET 2: SUITE 370 CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: 6505886404 MAIL ADDRESS: STREET 1: 7000 SHORELINE COURT STREET 2: SUITE 370 CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 FORMER COMPANY: FORMER CONFORMED NAME: EMAIL REAL ESTATE COM INC DATE OF NAME CHANGE: 20010504 SC 13D/A 1 e607167_13da-hana.htm Unassociated Document

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

[Rule 13d-101]

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO § 24.13d-1(a) AND AMENDMENT THERETO FILED PURSUANT TO § 240.13D-2(a)

(Amendment No. 1)*

HANA BIOSCIENCES, INC.

(Name of Issuer)

Common Stock, $0.001 par value per share

(Title of Class of Securities)

40963P105

(CUSIP Number)

James E. Flynn

Deerfield Capital, L.P.

780 Third Avenue, 37th Floor

New York, New York 10017

(212) 551-1600

With a copy to:

Mark I. Fisher, Esq.

Elliot Press, Esq.

Katten Muchin Rosenman LLP

575 Madison Avenue

New York, New York 10022

(212) 940-8800

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 7, 2010

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

(Continued on following pages)

(Page 1 of 21 Pages)

SCHEDULE 13D

CUSIP No. 40963P105

Page 2 of 21 Pages

1	NAME OF REPORTING PERSONS Deerfield Capital, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 43,063,455 Shares (1)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 43,063,455 Shares (1)(2)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 43,063,455 Shares (1)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 37.82% (3)
14	TYPE OF REPORTING PERSON PN

(1) Comprised of an aggregate of 14,057,212 shares of common stock, warrants to purchase 1,298,945 shares of common stock and 27,707,298 shares of common stock issuable upon the conversion of an aggregate of 35,687 shares of Series A-1 Convertible Preferred Stock held by Deerfield Special Situations Fund, L.P., Deerfield Private Design Fund, L.P. and Deerfield Private Design International, L.P.

(2) See footnote 18 in Item 5 below.

(3) Based on 84,844,815 outstanding shares of common stock of the Company as of June 4, 2010, as set forth in the Investment Agreement (as defined in Item 4 below), a copy of which is attached as Exhibit 10.1 to the Company's Current Report on Form 8-K filed on June 11, 2010.

SCHEDULE 13D

CUSIP No. 40963P105

Page 3 of 21 Pages

1	NAME OF REPORTING PERSONS Deerfield Special Situations Fund, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 3,836,837 Shares (4)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 3,836,837 Shares (2)(4)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,836,837 Shares (4)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.42% (5)
14	TYPE OF REPORTING PERSON PN

(4) Comprised of 1,924,316 shares of common stock, warrants to purchase 85,658 shares of common stock and 1,826,863 shares of common stock issuable upon the conversion of 2,353 shares of Series A-1 Convertible Preferred Stock.

(5) See footnote 3 above.

SCHEDULE 13D

CUSIP No. 40963P105

Page 4 of 21 Pages

1	NAME OF REPORTING PERSONS Deerfield Private Design Fund, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 15,023,855 Shares (6)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 15,023,855 Shares (2)(6)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 15,023,855 Shares (6)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.78% (7)
14	TYPE OF REPORTING PERSON PN

(6) Comprised of 4,646,899 shares of common stock, warrants to purchase 464,689 shares of common stock and 9,912,267 shares of common stock issuable upon the conversion of 12,767 shares of Series A-1 Convertible Preferred Stock.

(7) See footnote 3 above.

SCHEDULE 13D

CUSIP No. 40963P105

Page 5 of 21 Pages

1	NAME OF REPORTING PERSONS Deerfield Private Design International, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 24,202,762 Shares (8)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 24,202,762 Shares (2)(8)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 24,202,762 Shares (8)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.83% (9)
14	TYPE OF REPORTING PERSON PN

(8) Comprised of 7,485,997 shares of common stock, warrants to purchase 748,598 shares of common stock and 15,968,167 shares of common stock issuable upon the conversion of 20,567 shares of Series A-1 Convertible Preferred Stock.

(9) See footnote 3 above.

SCHEDULE 13D

CUSIP No. 40963P105

Page 6 of 21 Pages

1	NAME OF REPORTING PERSONS Deerfield Management Company, L.P.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Delaware
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 6,957,400 Shares (10)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 6,957,400 Shares (2)(10)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,957,400 Shares (10)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.87% (11)
14	TYPE OF REPORTING PERSON PN

(10) Comprised of 3,451,799 shares of common stock, warrants to purchase 156,999 shares of common stock and 3,348,602 shares of common stock issuable upon the conversion of 4,313 shares of Series A-1 Convertible Preferred Stock held by Deerfield Special Situations Fund International Limited.

(11) See footnote 3 above.

SCHEDULE 13D

CUSIP No. 40963P105

Page 7 of 21 Pages

1	NAME OF REPORTING PERSONS Deerfield Special Situations Fund International Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS WC
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 6,957,400 Shares (12)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 6,957,400 Shares (2)(12)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 6,957,400 Shares (12)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.87% (13)
14	TYPE OF REPORTING PERSON CO

(12) Comprised of 3,451,799 shares of common stock, warrants to purchase 156,999 shares of common stock and 3,348,602 shares of common stock issuable upon the conversion of 4,313 shares of Series A-1 Convertible Preferred Stock.

(13) See footnote 3 above.

SCHEDULE 13D

CUSIP No. 40963P105

Page 8 of 21 Pages

1	NAME OF REPORTING PERSONS James E. Flynn
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) o (b) x
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION United States of America
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER 0
	8	SHARED VOTING POWER 50,020,854 Shares (14)
	9	SOLE DISPOSITIVE POWER 0
	10	SHARED DISPOSITIVE POWER 50,020,854 Shares (2)(14)
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 50,020,854 Shares (14)
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*		¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 42.62% (15)
14	TYPE OF REPORTING PERSON IN

(14) Comprised of an aggregate of 17,509,011 shares of common stock, warrants to purchase 1,455,944 shares of common stock and, 31,055,899 shares of common stock issuable upon the conversion of an aggregate of 40,000 shares of Series A-1 Convertible Preferred Stock held by Deerfield Special Situations Fund, L.P., Deerfield Private Design Fund, L.P., Deerfield Private Design International, L.P. and Deerfield Special Situations Fund International Limited.

(15) See footnote 3 above.

CUSIP No. 40963P105

Page 9 of 21

The Schedule 13D filed on October 19, 2009 by (i) Deerfield Capital, L.P. (“Deerfield Capital”), (ii) Deerfield Special Situations Fund, L.P. (“Deerfield Special Situations Fund”), (iii) Deerfield Private Design Fund, L.P. (“Deerfield Private Design Fund”), (iv) Deerfield Private Design International, L.P. (“Deerfield Private Design International”), (v) Deerfield Management Company, L.P. (“Deerfield Management”), (vi) Deerfield Special Situations Fund Intern ational Limited (“Deerfield Special Situations International”) and (vii) James E. Flynn, a natural person (“Flynn” and collectively with Deerfield Capital, Deerfield Special Situations Fund, Deerfield Private Design Fund, Deerfield Private Design International, Deerfield Management and Deerfield Special Situations International, the “Reporting Persons”), with respect to the securities of Hana Biosciences, Inc. is hereby amended by this Amendment No. 1. Only those items hereby reported in this Amendment No. 1 are amended and all other items remain unchanged.

Items 2(a), 2(b) and 2(f) of the Schedule 13D are amended and restated as follows:

Item 2.

Identity and Background

(a)	This Statement is filed as a joint statement pursuant to Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934 (the “Exchange Act”) by the Reporting Persons.

The Reporting Persons and Warburg Pincus Private Equity X, L.P. and certain affiliated persons of Warburg Pincus Private Equity X, L.P. (“Warburg”) may be deemed to be a “group” pursuant to Rule 13d-5(b)(1) of the Exchange Act as a result of certain provisions of the Voting Agreement described in Item 4 of this Statement. The Reporting Persons do not expressly affirm membership in a group with Warburg. The Reporting Persons disclaim beneficial ownership of the securities of the Company held by Warburg. Neither the filing of this Statement nor any of its contents shall be deemed to constitute an admission that the Reporting Persons or any of their respective affiliates are the beneficial owners of any shares of securities of the Company beneficially owned by the Warburg Purchasers for purposes of Section 13(d) of the Exchange Act, the rules promulgated thereunder or for any other purpose.

The shares of Common Stock beneficially owned by the Reporting Persons when added to the shares of Common Stock underlying the Series A-1 Preferred Stock acquired pursuant to the Investment Agreement (as defined in Item 4 below) by the Warburg Purchaser representing an aggregate beneficial ownership of approximately 83% of the outstanding shares of Common Stock, subject to the limitations on conversion of the Series A-1 Preferred Stock as described in footnote 18 of Item 5. It is the understanding of the Reporting Persons that the Warburg Purchasers have or will make a separate filing pursuant to the Exchange Act to report their beneficial ownership.

(b)

The address of the principal business and/or principal office of Deerfield Capital, Deerfield Special Situations Fund, Deerfield Private Design Fund, Deerfield Private Design International, Deerfield Management and Flynn is 780 Third Avenue, 37th Floor, New York, New York 10017. The address of the principal business and/or principal office of Deerfield Special Situations International is c/o Citi Hedge Fund Services (B.V.I.) Ltd., Bison Court, P.O. Box 3460, Road Town, Tortola, D8, British Virgin Islands.

CUSIP No. 40963P105

Page 10 of 21

(f)

Deerfield Capital, Deerfield Management, Deerfield Special Situations Fund and Deerfield Private Design Fund are each organized under the laws of Delaware. Deerfield Special Situations International and Deerfield Private Design International are organized under the laws of the British Virgin Islands. Flynn is a citizen of the United States of America.

Item 3 of the Schedule 13D is amended as follows:

Item 3.

Source and Amount of Funds or Other Consideration.

Deerfield Special Situations Fund utilized available cash assets in the amount of approximately $235,300 to acquire 2,353 shares of Series A-1 Convertible Preferred Stock of the Company (the "Series A-1 Preferred Stock") which is convertible into 1,826,863 shares of Common Stock as of June 7, 2010 reported herein as being held by it. Deerfield Private Design Fund utilized available cash assets in the amount of approximately $1,276,700 to acquire 12,767 shares of Series A-1 Preferred Stock which is convertible into 9,912,267 shares of Common Stock reported herein as being held by it. Deerfield Private Design International utilized available cash assets in the amount of approximately $2,056,700 to acquire the 20,567 shares of Series A-1 Preferred Stock which is convertible into 15,968,167 shares of Common Stock repo rted herein as being held by it. Deerfield Special Situations International utilized available cash assets in the amount of approximately $431,300 to acquire the 4,313 shares of Series A-1 Preferred Stock which is convertible into 3,348,602 shares of Common Stock reported herein as being held by it. Cash funds for the purchase of the Series A-1 Preferred Stock were derived from general working capital, and includes funds provided by investors in Deerfield Special Situations Fund, Deerfield Private Design Fund, Deerfield Private Design International and Deerfield Special Situations International, respectively.

Item 4 of the Schedule 13D is amended and restated as follows:

Item 4.

Purpose of Transaction.

The Reporting Persons purchased the shares of Common Stock, the warrants to purchase shares of Common Stock and the Series A-1 Preferred Stock solely for investment purposes.

Investment Agreement

On June 7, 2010, the Company entered into an Investment Agreement (the “Investment Agreement”) with Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (together, the “Warburg Purchasers”), and Deerfield Private Design Fund, L.P., Deerfield Private Design International, L.P., Deerfield Special Situation Fund, L.P., and Deerfield Special Situations Fund International Limited (collectively, the “Deerfield Purchasers,” and together with the Warburg Purchasers, the “Purchasers”). Pursuant to the terms of the Investment Agreement, on June 7, 2010, the Company issued and sold to the Purchasers an aggregate of 400,000 shares of the Company’s newly-designated Series A-1 Convertible Preferred Stock, stated value $100 per share (the “Series A-1 Preferred Stock”), at a per share purchase price of $100 for an aggregate purchase price of $40,000,000. Collectively, the Warburg Purchasers purchased 360,000 shares of Series A-1 Preferred Stock at an aggregate purchase price of $36,000,000, and the Deerfield Purchasers purchased 40,000 shares at an aggregate purchase price of $4,000,000.

CUSIP No. 40963P105

Page 11 of 21

The Investment Agreement provides that the Warburg Purchasers have the right, but not the obligation, to make additional investments in the Company in the event the Company obtains Stockholder Approval (as defined below) of certain amendments to its certificate of incorporation by December 7, 2010 (the “Stockholder Approval Outside Date”), as follows:

At any time prior to the date the Company receives marketing approval from the U.S. Food and Drug Administration for any of its product candidates (the “Marketing Approval Date”), the Warburg Purchasers may purchase up to an additional 200,000 shares of Series A-1 Preferred Stock at a purchase price of $100 per share for an aggregate purchase price of $20,000,000 (the “Additional Series A-1 Investment”), which purchases shall be in tranches of at least 100,000 shares; and

At any time beginning 15 days and within 120 days following the date of the Marketing Approval Date, the Warburg Purchasers may purchase up to an aggregate of 400,000 shares of the Company’s newly-designated Series A-2 Convertible Preferred Stock, stated value $100 per share (the “Series A-2 Preferred Stock” and together with the Series A-1 Preferred Stock, the “Series A Preferred Stock”)), at a per share purchase price of $100 and an aggregate purchase price of $40,000,000 (the “Series A-2 Investment”), which purchases shall be in tranches of at least 100,000 shares.

If the Company does not receive Stockholder Approval by the Stockholder Approval Outside Date, then the Investment Agreement provides that the Warburg Purchasers have the right, but not the obligation, to purchase up to an additional 200,000 shares of Series A Preferred Stock at any time prior to Marketing Approval, and up to 400,000 shares of Series A-1 Preferred Stock at any time beginning 15 days and within 120 days following the Marketing Approval Date, in each case at a per share price of $100 (each a “Subsequent Series A-1 Investment”).

To the extent that the Warburg Purchasers elect to make an Additional Series A-1 Investment, a Series A-2 Investment or a Subsequent Series A-1 Investment, the Deerfield Purchasers have the right, but not the obligation, to purchase 10% (the “Participation Rights”) of such additional Series A-1 Preferred Stock and Series A-2 Preferred Stock that would have been purchased by the Warburg Purchasers in the Additional Series A-1 Investment, the Series A-2 Investment and the Subsequent Series A-1 Investment. If the Deerfield Purchasers exercise their Participation Rights, those rights must be exercised in full. If the Deerfield Purchasers fail to exercise any of its Participation Rights, then those Participation Rights will terminate.

Pursuant to the Investment Agreement, the Warburg Purchasers have agreed not to take any action to remove the Deerfield Purchasers’ Board designee as a member of the Board prior to December 9, 2010.

The Deerfield Purchasers have agreed, subject to certain exceptions, not to transfer the Series A Preferred Stock and Series A-2 Preferred Stock and underlying shares of Common Stock purchased under the Investment Agreement for a period of one year from the applicable closing date on which such shares were acquired, provided that such restriction will lapse if Stockholder Approval is not obtained by the Stockholder Approval Outside Date. The Deerfield Purchasers also agreed not to acquire other securities of the Company (other than pursuant to the Investment Agreement) for a period ending December 7, 2011, provided that such restriction shall terminate on the date the Company materially breaches the Investment Agreement, fails to obtain Stockholder Approval by the Stockholder Approval Outside Date or the Board of Directors p ursues a buyout transaction or a change of control of the Company. The Deerfield Purchasers will also have the right to participate in future offerings by the Company for a period of five years, but such right terminates in the event that the Deerfield Purchasers fail to exercise any of their Participation Rights.

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The foregoing summary of the Investment Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of the Investment Agreement, a copy of which is attached as Exhibit 10.1 to the Company's Current Report on Form 8-K filed on June 11, 2010, and which is incorporated herein by reference.

Terms of Series A-1 Preferred Stock

The terms, conditions, privileges, rights and preferences of the Series A-1 Preferred Stock are described in a Certificate of Designation filed with the Secretary of State of Delaware on June 7, 2010 (the “Series A-1 Certificate”). The Series A-1 Preferred Stock will, with respect to both dividend rights and rights upon a liquidation or change of control, rank senior to all junior stock, including the Common Stock, and on parity with all parity stock, including the Series A-2 Preferred Stock.

Until such time as the Company obtains the requisite approval of its stockholders to amend its certificate of incorporation to (i) increase the authorized number of shares of Common Stock, (ii) effect a reverse split of its Common Stock at a ratio to be agreed upon with the Warburg Purchasers, and (iii) provide that the number of authorized shares of Common Stock may be increased or decreased by the affirmative vote of the holders of a majority of the issued and outstanding Common Stock and preferred stock, voting together as one class, notwithstanding the provisions of Section 242(b)(2) of the Delaware General Corporation Law (the “Stockholder Approval”), the Series A-1 Preferred Stock shall have the terms described in Annex I of the Series A-1 Certificate (the “Series A-1 Initial Terms”), including the 400,000 shares of Series A-1 Preferred Stock sold to the Purchasers on June 7, 2010. If Stockholder Approval is not obtained by the Stockholder Approval Outside Date, then the Initial Terms shall continue to apply to all outstanding shares of Series A-1 Preferred Stock and any shares of Series A-1 Preferred Stock thereafter issued in connection with any Subsequent Series A-1 Investment. However, if Stockholder Approval is obtained on or before the Stockholder Approval Outside Date, then any outstanding shares of Series A-1 Preferred Stock shall thereafter be subject to the terms described on Annex II of the Series A-1 Certificate (the “Series A-1 Revised Terms”), and any shares of Series A-1 Preferred Stock issued in connection with an Additional Series A-1 Investment shall be subject to the R evised Terms.

The Revised Series A-1 Terms, which will govern the Series A-1 Preferred Stock from and after the time Stockholder Approval is obtained, provide that the Series A-1 Preferred Stock would be convertible into shares of Common Stock at a conversion price of $0.184 per share (subject to adjustment in certain circumstances) (the “Revised Series A-1 Conversion Price”). The stated value of each share of Series A-1 Preferred Stock would accrete at a rate of 9% per annum, compounded quarterly, for a five-year term; thereafter cash dividends would become payable at a rate of 9% of the accreted stated value per annum, payable quarterly. Upon the occurrence and during the continuance of a “special triggering event,” the accretion rate and th e dividend rate on the Series A-1 Preferred Stock would increase to 12% per annum, compounded quarterly. Upon any liquidation of the Company, holders of the Series A-1 Preferred Stock would be entitled to receive a liquidation preference per share equal to the greater of (i) 100% of the then-accreted value of the Series A-1 Preferred Stock and (ii) the amount which the holder would have received if the Series A-1 Preferred Stock had been converted into Common Stock at the Revised Series A-1 Conversion Price immediately prior to the liquidation. Similar rights would apply upon any change of control in the Company (although the liquidation preference would be calculated assuming the liquidation occurred on the fifth anniversary of the date of issuance). Unlike under the Initial Series A-1 Terms, the Series A-1 Preferred Stock would not be redeemable under the Revised Series A-1 Terms.

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Prior to the time Stockholder Approval is obtained, the Series A-1 Preferred Stock (including the initial 400,000 shares sold to the Purchasers on June 7, 2010) will be governed by the Initial Series A-1 Terms. Under the Initial Series A-1 Terms, the Series A-1 Preferred Stock is convertible into shares of the Common Stock at a conversion price of $0.1288 per share (subject to adjustment in certain circumstances) (the “Initial Series A-1 Conversion Price”), subject to limitations on the number of shares of Common Stock available for issuance, which shall not be less than 90,000,000 shares. The stated value of each share of Series A-1 Preferred Stock, which is initially $100 per share, accretes at a rate of 12% per annum (increasing by 0.5% a nnually) for a seven-year term, compounded quarterly. Following such seven year term, the holders are thereafter entitled to cash dividends at a rate of 15.5% of the accreted stated value per annum, payable quarterly. Upon the occurrence and during the continuance of a “special triggering event”, the accretion rate and the dividend rate on the Series A-1 Preferred Stock would increase by 3% per annum, compounded quarterly. Upon any liquidation of the Company, holders of the Series A-1 Preferred Stock would be entitled to receive a liquidation preference per share equal to the greater of (i) 250% of the then-accreted value of the Series A-1 Preferred Stock and (ii) the amount which the holder would have received if the Series A-1 Preferred Stock had been converted immediately prior to the liquidation (at a conversion price equal to $0.1288, subject to adjustment). Similar rights would apply upon any “change of control” of the Company (althoug h the liquidation preference would be calculated assuming the liquidation occurred on the seventh anniversary of the date of issuance). In addition, if Stockholder Approval is not obtained by the Stockholder Approval Outside Date, then the holders of the Series A-1 Preferred Stock would thereafter have the right to require the Company to redeem the Series A-1 Preferred Stock at a redemption price equal to the greater of (i) 250% of the then-accreted value of the Series A-1 Preferred Stock plus any unpaid dividends accrued thereon or (ii) the product obtained by multiplying the then-current market value of the underlying Common Stock by the number of shares of Common Stock then issuable upon conversion of each Series A-1 Preferred Stock.

The foregoing summary of the Series A-1 Certificate is not intended to be complete and is qualified in its entirety by reference to the full text of the Series A-1 Certificate, a copy of which is attached as Exhibit 3.1 to the Company's Current Report on Form 8-K filed on June 11, 2010, and which is incorporated herein by reference.

Terms of Series A-2 Preferred Stock

The terms, conditions, privileges, rights and preferences of the Series A-2 Preferred Stock are described in a Certificate of Designation filed with the Secretary of State of Delaware on June 7, 2010 (the “Series A-2 Certificate”). The terms of the Series A-2 Preferred Stock, which is only issuable to the extent Stockholder Approval is obtained by the Stockholder Approval Outside Date, are identical to the Revised Series A-1 Terms, except that the Series A-2 Preferred Stock would be convertible into Common Stock at a conversion price equal to $0.276 per share.

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The foregoing summary of the Series A-2 Certificate is not intended to be complete and is qualified in its entirety by reference to the full text of the Series A-2 Certificate, a copy of which is attached as Exhibit 3.2 to the Company's Current Report on Form 8-K filed on June 11, 2010, and which is incorporated herein by reference.

Voting Agreement

The Deerfield Purchasers and the Warburg Purchasers entered into a Voting Agreement (the "Voting Agreement") dated as of June 7, 2010 whereby, until the earlier of Stockholder Approval or December 7, 2010, the Deerfield Purchasers agreed to vote at meetings of stockholders of the Company in favor of certain proposals and transactions contemplated by the Investment Agreement and against any action or agreement that would impair the Company ability to obtain a vote in favor of certain proposals and transactions or that would otherwise impair, impede or delay transactions contemplated by the Investment Agreement.

The foregoing summary of the Voting Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of the Voting Agreement, a copy of which is attached hereto as Exhibit 99.13.

Registration Rights Agreement

Pursuant to the terms of a Registration Rights Agreement (the "Registration Rights Agreement") dated June 7, 2010, among the Company and the Purchasers, the Company agreed to file and cause to become and remain effective at all times following the first anniversary of the date of the Investment Agreement a registration statement covering the Series A Preferred Stock and the Common Stock issuable upon conversion of the Series A Preferred Stock. The expenses of the filing of such registration statement (including any expenses of the Purchasers) will be borne by the Company.

The foregoing summary of the Registration Rights Agreement is not intended to be complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, a copy of which is attached as Exhibit 10.3 to the Company's Current Report on Form 8-K filed on June 11, 2010, and which is incorporated herein by reference.

Amendment to Facility Agreement

The Company and the Deerfield Purchasers had previously entered into a Facility Agreement dated October 30, 2007 (the “Facility Agreement”) that provided for the Company to borrow from the Deerfield Purchasers up to an aggregate of $30,000,000, secured by a senior security interest in all of the Company assets. In connection with the entry into the Investment Agreement, on June 7, 2010, the Company and the Deerfield Purchasers entered into that First Amendment to Facility Agreement (the “Facility Amendment”). Among other items, pursuant to the Facility Agreement, the maturity date of the outstanding principal outstanding pursuant to the loan under the Facility Ag reement was extended from October 30, 2012 to June 30, 2015.

The foregoing summaries of the Facility Agreement and Facility Amendment are not intended to be complete and are qualified in their entirety by reference to the full text of the Facility Agreement and Facility Amendment, copies of which are attached as Exhibit 10.24 to the Company's Annual Report on Form 10-K for the year ended December 31, 2007 and Exhibit 10.4 to the Company's Current Report on Form 8-K filed on June 11, 2010, respectively, and which are incorporated herein by reference.

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Except as set forth herein, the Reporting Persons have no present plans or proposals that would result in or relate to any of the transactions or changes listed in Items 4(a) through 4(j) of Schedule 13D.

Item 5 of the Schedule 13D is amended and restated as follows:

Item 5.

Interest in Securities of the Issuer.

(a)

(1)

Reporting Persons

Number of shares: 50,020,854 (16)

Percentage of shares: 42.62% (17)

(2)

Deerfield Capital

Number of shares: 43,063,455 (1)

Percentage of shares: 37.82% (17)

(3)

Deerfield Special Situations Fund

Number of shares: 3,836,837 (4)

Percentage of shares: 4.42% (17)

(4)

Deerfield Private Design Fund

Number of shares: 15,023,855(6)

Percentage of shares: 15.78% (17)

(5)

Deerfield Private Design International

Number of shares: 24,202,762(8)

Percentage of shares: 23.83% (17)

(6)

Deerfield Management

Number of shares: 6,957,400 (10)

Percentage of shares: 7.87% (17)

(7)

Deerfield Special Situations International

Number of shares: 6,957,400 (12)

Percentage of shares: 7.87% (17)

(8)

Flynn

Number of shares: 50,020,854 (14)

Percentage of shares: 42.62% (17)

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(b)

(1)

Deerfield Capital

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 43,063,455 shares (1)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 43,063,455 shares (1)(18)

(2)

Deerfield Special Situations Fund

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 3,836,837 shares (4)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 3,836,837 shares (4)(18)

(3)

Deerfield Private Design Fund

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 15,023,855 shares (6)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 15,023,855 shares (6)(18)

(4)

Deerfield Private Design International

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 24,202,762 shares (8)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 24,202,762 shares (8)(18)

(5)

Deerfield Management

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 6,957,400 shares (10)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 6,957,400 shares (10)(18)

(6)

Deerfield Special Situations International

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 6,957,400 shares (12)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 6,957,400 shares (12)(18)

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(7)

Flynn

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 50,020,854 shares (14)

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or direct the disposition: 50,020,854 shares (14)(18)

Flynn is the managing member of the general partner of each of Deerfield Capital and Deerfield Management. Deerfield Capital is the general partner of Deerfield Special Situations Fund, Deerfield Private Design Fund and Deerfield Private Design International. Deerfield Management is the investment manager of Deerfield Special Situations International.

(16) Comprised of an aggregate of 17,509,011 shares of common stock, warrants to purchase 1,455,944 shares of common stock and, as of June 7, 2010, 31,055,899 shares of common stock issuable upon the conversion of an aggregate of 40,000 shares of Series A-1 Convertible Preferred Stock held by Deerfield Special Situations Fund, L.P., Deerfield Private Design Fund, L.P., Deerfield Private Design International, L.P. and Deerfield Special Situations Fund International Limited.

(17) See footnote 3 above.

(18) Until such time as the approval of shareholders is obtained, there are limitations on the number of shares of common stock issuable upon the conversion of Series A-1 Convertible Preferred Stock. These provisions limit the number of shares of common stock issuable to the filing persons upon conversion of Series A-1 Convertible Preferred Stock to the following amounts: Deerfield Capital, L.P. – 8,323,866 shares; Deerfield Special Situations Fund, L.P. – 548,829 shares; Deerfield Private Design Fund, L.P. – 2,977,857 shares; Deerfield Private Design International, L.P. – 4,797,180 shares; Deerfield Management Company, L.P. – 1,005,992 shares; Deerfield Special Situations International Limited– 1,005,992 shares; James E. Flynn – 9,329,858 shares. Giv ing effect to the foregoing limitations, the number of shares of common stock as to which each of the filing persons has shared dispositive power is as follows: Deerfield Capital, L.P. – 23,680,023 shares; Deerfield Special Situations Fund, L.P. – 2,558,803 shares; Deerfield Private Design Fund, L.P. – 8,089,445 shares; Deerfield Private Design International L.P. – 13,031,775 shares; Deerfield Management Company, L.P. – 4,614,790 shares; Deerfield Special Situations International Limited – 4,614,790 shares; and James E. Flynn – 28,294,813 shares.

(c) The following table sets forth the transactions effected by the Reporting Persons in the shares of Common Stock of the Company during the 60 days prior to the date of filing of this Schedule 13D. All such transactions were purchases of shares of Series A-1 Preferred Stock pursuant to the Investment Agreement (as defined in Item 4 of this Schedule 13D).

Date	Buyer	Number of Shares of Common Stock Purchased (18)	Price
June 7, 2010	Deerfield Special Situations Fund	2,353 shares of Series A-1 Preferred Stock which is convertible into 1,826,863 shares of Common Stock	$100 per share of Series A-1 Preferred Stock
June 7, 2010	Deerfield Private Design Fund	12,767 shares of Series A-1 Preferred Stock which is convertible into 9,912,267 shares of Common Stock	$100 per share of Series A-1 Preferred Stock
June 7, 2010	Deerfield Private Design International	20,567 shares of Series A-1 Preferred Stock which is convertible into 15,968,167 shares of Common Stock	$100 per share of Series A-1 Preferred Stock
June 7, 2010	Deerfield Special Situations International	4,313 shares of Series A-1 Preferred Stock which is convertible into 3,348,602 shares of Common Stock	$100 per share of Series A-1 Preferred Stock

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(d) No other person has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the shares of Common Stock, warrants to purchase Common Stock and the Series A-1 Preferred Stock held by the Reporting Persons.

Item 6 of the Schedule 13D is amended as follows:

Item 6.

Contracts, Arrangements, Understandings or Relationships with respect to Securities of the Issuer.

As described more fully in Item 4 above:

The Purchasers entered into an Investment Agreement with the Company, a copy of which is attached as Exhibit 10.1 to Company's Current Report on Form 8-K filed on June 11, 2010.

The Company issued Series A-1 Preferred Stock to the Purchasers with designations, preferences and rights as set forth in the Series A-1 Designations, a copy of which is attached as Exhibit 3.1 to Company's Current Report on Form 8-K filed on June 11, 2010.

The Company issued Series A-2 Preferred Stock to the Purchasers with designations, preferences and rights as set forth in the Series A-2 Designations, a copy of which is attached as Exhibit 3.2 to Company's Current Report on Form 8-K filed on June 11, 2010.

The Deerfield Purchasers and the Warburg Purchasers entered into a Voting Agreement dated as of June 7, 2010, a copy of which is attached hereto as Exhibit 99.13.

The Purchasers and the Company entered into a Registration Rights Agreement dated as of June 7, 2010, a copy of which is attached as Exhibit 10.3 to Company's Current Report on Form 8-K filed on June 11, 2010.

The Deerfield Purchasers and the Company entered into a First Amendment to the Facility Agreement dated as of June 7, 2010, a copy of which is attached as Exhibit 10.4 to Company's Current Report on Form 8-K filed on June 11, 2010.

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Item 7 of the Schedule 13D is amended as follows:

Item 7.

Material to be Filed as Exhibits.

Exhibit 99.1

Joint Filing Agreement*

Exhibit 99.2

Power of Attorney*

Exhibit 99.10

Investment Agreement (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed on June 11, 2010).

Exhibit 99.11

Certificate of Designations of Series A-1 Preferred Stock (incorporated by reference to Exhibit 3.1 to Company's Current Report on Form 8-K filed on June 11, 2010).

Exhibit 99.12

Certificate of Designations of Series A-2 Preferred Stock (incorporated by reference to Exhibit 3.2 to Company's Current Report on Form 8-K filed on June 11, 2010).

Exhibit 99.13

Voting Agreement*

Exhibit 99.14

Registration Rights Agreement (incorporated by reference to Exhibit 10.3 to Company's Current Report on Form 8-K filed on June 11, 2010).

Exhibit 99.15

First Amendment to Facility Agreement (incorporated by reference to Exhibit 10.4 to Company's Current Report on Form 8-K filed on June 11, 2010).

____________

* Filed herewith

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SIGNATURE

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.

Dated: June 11, 2010

	DEERFIELD CAPITAL, L.P.

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD SPECIAL SITUATIONS FUND, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD PRIVATE DESIGN FUND, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

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	DEERFIELD MANAGEMENT COMPANY, L.P.

	By:	Flynn Management LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	JAMES E. FLYNN

	/s/ Darren Levine
	Darren Levine, Attorney-in-Fact

EX-99.1 2 e607167_ex99-1.htm Unassociated Document

Exhibit 99.1

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Common Stock of Hana Biosciences, Inc. and that this Agreement be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts all of which taken together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the undersigned hereby execute this Agreement this 11th day of June 2010.

	DEERFIELD CAPITAL, L.P.

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD SPECIAL SITUATIONS FUND, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD PRIVATE DESIGN FUND, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P.

	By:	Deerfield Capital, L.P., General Partner

	By:	J.E. Flynn Capital LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD MANAGEMENT COMPANY, L.P.

	By:	Flynn Management LLC, General Partner

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED

	By:	/s/ Darren Levine
	Name:	Darren Levine
	Title:	Authorized Signatory

	JAMES E. FLYNN

	/s/ Darren Levine
	Darren Levine, Attorney-in-Fact

EX-99.2 3 e607167_ex99-2.htm Unassociated Document

Exhibit 99.2

POWER OF ATTORNEY

Know all by these presents, each of the undersigned hereby constitutes and appoints Darren Levine, signing singly, the undersigned’s true and lawful attorney-in-fact to:

(1) execute for and on behalf of the undersigned (i) Forms 3, 4 and 5 (and all amendments thereto) in accordance with Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules thereunder and (ii) reports on Schedule 13G and Schedule 13D (and all amendments thereto) in accordance with Section 13 of the Exchange Act and the rules thereunder, in each case with respect to the beneficial ownership of securities by the undersigned;

(2) do and perform any and all acts for and on behalf of the undersigned which may be necessary or desirable to complete and execute any such Form 3, 4 or 5 or Schedule 13G or Schedule 13D, complete and execute any amendment or amendments thereto, and file such form with the United States Securities and Exchange Commission and any stock exchange or similar authority; and

(3) take any other action of any type whatsoever in connection with the foregoing which, in the opinion of such attorney-in-fact, may be of benefit to, in the best interest of, or legally required by, the undersigned, it being understood that the documents executed by such attorney-in-fact on behalf of the undersigned pursuant to this Power of Attorney shall be in such form and shall contain such terms and conditions as such attorney-in-fact may approve in such attorney-in-fact's discretion.

The undersigned hereby grants to each such attorney-in-fact full power and authority to do and perform any and every act and thing whatsoever requisite, necessary, or proper to be done in the exercise of any of the rights and powers herein granted, as fully to all intents and purposes as the undersigned might or could do if personally present, with full power of substitution or revocation, hereby ratifying and confirming all that such attorney-in-fact, or such attorney-in-fact’s substitute or substitutes, shall lawfully do or cause to be done by virtue of this power of attorney and the rights and powers herein granted. The undersigned acknowledges that the foregoing attorneys-in-fact, in serving in such capacity at the request of the undersigned, are not assuming any of the undersigned’s responsibilities to comply with Section 13 or Section 16 of the Exchange Act.

This Power of Attorney shall remain in full force and effect until revoked by the undersigned in a signed writing delivered to the foregoing attorneys-in-fact.

IN WITNESS WHEREOF, each the undersigned has caused this Power of Attorney to be executed as of this 9th day of June, 2010.

DEERFIELD CAPITAL, L.P.

By:	J.E. Flynn Capital LLC, General Partner

By:	/s/ James E. Flynn
	James E. Flynn, President

DEERFIELD SPECIAL SITUATIONS FUND, L.P.

By:	Deerfield Capital, L.P., General Partner

By:	J.E. Flynn Capital LLC, General Partner

By:	/s/ James E. Flynn
	James E. Flynn, President

DEERFIELD MANAGEMENT COMPANY, L.P.

By:	Flynn Management LLC, General Partner

By:	/s/ James E. Flynn
	James E. Flynn, President

DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED

By:	/s/ James E. Flynn
	James E. Flynn, Director

DEERFIELD PRIVATE DESIGN FUND, L.P.

By:	Deerfield Capital, L.P., General Partner

By:	J.E. Flynn Capital LLC, General Partner

By:	/s/ James E. Flynn
	James E. Flynn, President

DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P.

By:	Deerfield Capital, L.P., General Partner

By:	J.E. Flynn Capital LLC, General Partner

By:	/s/ James E. Flynn
	James E. Flynn, Director

JAMES E. FLYNN

/s/ James E. Flynn

EX-99.13 4 e607167_ex99-13.htm Unassociated Document

Exhibit 99.13

VOTING AGREEMENT

This Voting Agreement (this “Agreement”) is dated as of June 7, 2010, among Warburg Pincus Private Equity X, L.P., a Delaware limited partnership (“Warburg Pincus”), Deerfield Private Design Fund, L.P., a Delaware limited partnership (“Deerfield Private Design”), Deerfield Private Design International, L.P., a British Virgin Islands limited partnership (“Deerfield Private Design International”), Deerfield Special Situation Fund, L.P., a Delaware limited partnership (“De erfield Special Situation”), and Deerfield Special Situations Fund International Limited, a British Virgin Islands exempt company (“Deerfield Special Situations International”, and together with Deerfield Private Design, Deerfield Private Design International and Deerfield Special Situation, each a “Stockholder” and collectively the “Stockholders”).

W I T N E S S E T H:

WHEREAS, concurrently with the execution of this Agreement, Hana Biosciences, Inc., a Delaware corporation (the “Company”) has entered into an Investment Agreement, dated as of the date hereof (the “Investment Agreement”), with the Purchasers which provides, among other things, for the issuance of Securities to the Purchasers, upon the terms and subject to the conditions set forth therein (capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Investment Agreement); and

WHEREAS, as of the date hereof, each Stockholder is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the number of shares of Company Common Stock and warrants to purchase shares of Company Common Stock (the “Company Warrants”) set forth, and in the manner reflected, on Attachment A hereto (together with such additional shares as become beneficially owned by the Stockholders, whether upon the exercise of options, warrants, conversion of convertible securities or otherwise, and any other voting securities of the Company (whether acquired heretofore or hereafter), the “Owned Shares”); an d

WHEREAS, as a condition to Warburg Pincus’ willingness to enter into the Investment Agreement, Warburg Pincus has required that each Stockholder agree, and each Stockholder has agreed, (i) to vote all of such Stockholder’s Owned Shares in favor of (a) the Stockholder Proposals and the transactions contemplated by the Investment Agreement and (b) any other matters submitted to the stockholders of the Company in furtherance of the transactions contemplated by the Investment Agreement and (ii) to take the other actions described herein; and

WHEREAS, each Stockholder desires to express its support for the Stockholder Proposals and the transactions contemplated by the Investment Agreement.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration given to each party hereto, the receipt of which is hereby acknowledged, the parties agree as follows:

1. Agreement to Vote; Irrevocable Proxy.

1.1 Agreement to Vote. Each Stockholder hereby agrees that, during the time this Agreement is in effect, at any meeting of the stockholders of the Company, however called, or any adjournment or postponement thereof, such Stockholder shall be present (in person or by proxy) and vote (or cause to be voted) all of its Owned Shares (a) in favor of approval of (1) the Stockholder Proposals and the transactions contemplated by the Investment Agreement, and (2) any other matter that is required to facilitate the transactions contemplated by the Investment Agreement; and (b) against any action or agreement that would impair the ability of the Company to obtain the Stockholder Approval or otherwise issue the Securities pursuant to the Investment Agreement, or that would otherwise be inconsistent with, prevent, impede or delay the consummation of the transactions contemplated by the Investment Agreement. In addition, to the extent that any such actions are taken by the written consent of stockholders, the Stockholder shall provide consent or withhold consent, as the case may be, in a manner consistent with this Section 1.1.

1.2 Irrevocable Proxy. Solely with respect to the matters described in Section 1.1, for so long as this Agreement has not terminated in accordance with Section 6.1, each Stockholder hereby irrevocably appoints Warburg Pincus as its attorney and proxy with full power of substitution and resubstitution, to the full extent of such Stockholders’ voting rights with respect to such Stockholders’ Owned Shares (which proxy is irrevocable and which appointment is coupled with an interest, including for purposes of Section 212 of the Delaware General Corporation Law) to vote all such Stockholders’ Owned Shares solely on the matters described in Section 1.1, and in accordance therewith. 60; Each Stockholder agrees to execute any further agreement or form reasonably necessary or appropriate to confirm and effectuate the grant of the proxy contained herein. Such proxy shall remain valid until the valid termination of this Agreement in accordance with Section 6.1.

1.3 No Exercise of Company Warrants. Notwithstanding the foregoing, nothing in this Agreement shall require a Stockholder to exercise any Company Warrant or authorize Warburg Pincus to exercise any Company Warrant beneficially owned by a Stockholder.

2. Representations and Warranties of Stockholders. Each Stockholder hereby represents and warrants to Warburg Pincus as follows:

2.1 Due Organization. Such Stockholder, if a corporation or other entity, has been duly organized, is validly existing and is in good standing under the laws of the state of its formation or organization.

2.2 Power; Due Authorization; Binding Agreement. Such Stockholder has full legal capacity, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by such Stockholder of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of such Stockholder, and no other proceedings on the part of such Stockholder are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and d elivered by such Stockholder and constitutes a valid and binding agreement of such Stockholder, enforceable against Stockholder in accordance with its terms.

-2-

2.3 Ownership of Shares. On the date hereof, the Owned Shares set forth opposite such Stockholder’s name on Attachment A hereto are owned beneficially by such Stockholder in the manner reflected thereon and include all of the shares of capital stock of the Company owned beneficially by such Stockholder, free and clear of any claims, liens, encumbrances and security interests. As of the date hereof such Stockholder has, and at any stockholder meeting of the Company in connection with the Stockholder Proposals, such Stockholder will have (except as otherwise permitted by this Agreement), sole voting power (to the exte nt such securities have voting power) and sole dispositive power with respect to all of the Owned Shares.

2.4 No Conflicts. The execution and delivery of this Agreement by such Stockholder does not, and the performance of the terms of this Agreement by such Stockholder will not, (a) require Stockholder to obtain the consent or approval of, or make any filing with or notification to, any governmental or regulatory authority, domestic or foreign (other than filings required under Sections 13(d) and 16 of the Exchange Act), (b) require the consent or approval of any other person pursuant to any agreement, obligation or instrument binding on Stockholder or its properties and assets, (c) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable to Stockholder or pursuant to which any of its properties or assets are bound or (d) violate any other agreement to which Stockholder is a party including, without limitation, any voting agreement, stockholders agreement, irrevocable proxy or voting trust. The Owned Shares are not, with respect to the voting or transfer thereof, subject to any other agreement, including any voting agreement, stockholders agreement, irrevocable proxy or voting trust.

2.5 Acknowledgment. Such Stockholder understands and acknowledges that Warburg Pincus is entering into the Investment Agreement in reliance upon such Stockholder’s execution, delivery and performance of this Agreement.

3. Representations and Warranties of Warburg Pincus. Warburg Pincus hereby represents and warrants to the Stockholders as follows:

3.1 Due Organization. Warburg Pincus is a limited partnership, duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

3.2 Power; Due Authorization; Binding Agreement. Warburg Pincus has full power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation by Warburg Pincus of the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of Warburg Pincus, and no other proceedings on the part of Warburg Pincus are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Warburg Pincus and con stitutes a valid and binding agreement of Warburg Pincus.

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3.3 No Conflicts. The execution and delivery of this Agreement by Warburg Pincus does not, and the performance of the terms of this Agreement by Warburg Pincus will not, (a) require Warburg Pincus to obtain the consent or approval of, or make any filing with or notification to, any governmental or regulatory authority, domestic or foreign (other than filings required under Sections 13(d) and 16 of the Exchange Act), (b) require the consent or approval of any other person pursuant to any agreement, obligation or instrument binding on Warburg Pincus or its properties and assets, (c) conflict with or violate any organizational document or law, rule, regulation, order, judgment or decree applicable t o Warburg Pincus or pursuant to which any of its assets are bound or (d) violate any other material agreement to which Warburg Pincus is a party.

4. Certain Covenants of the Stockholders. Each Stockholder hereby covenants and agrees with Warburg Pincus as follows:

4.1 Restriction on Transfer, Proxies and Non-Interference. Each Stockholder hereby agrees, while this Agreement is in effect, at any time prior to the date of termination of this Agreement, not to (a) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, pledge, encumbrance, assignment or other disposition of, or limitation on the voting rights of, any of the Owned Shares (any such action, a “Transfer”), (b) grant any proxies or powers of attorney, deposit any Owned Shares into a voting trust or enter into a voting agreement with respect to any Owned Shares, (c) take any action that would cause any representation or warranty of such Stockholder contained herein to become untrue or incorrect or have the effect of preventing or disabling Stockholder from performing its obligations under this Agreement, or (d) commit or agree to take any of the foregoing actions. Any action taken in violation of the foregoing sentence shall be null and void and each Stockholder agrees that any such prohibited action may and should be enjoined. If any involuntary Transfer of any of the Owned Shares shall occur (including, but not limited to, a sale by a Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Owned Shares subject to all of the restrictions, liabilities and rights under this A greement, which shall continue in full force and effect until valid termination of this Agreement.

4.2 Additional Shares. Each Stockholder hereby agrees, while this Agreement is in effect, to promptly notify Warburg Pincus of any new shares of capital stock or voting securities of the Company acquired by Stockholder, if any, after the date hereof. Any such shares and voting securities shall be subject to the terms of this Agreement as though owned by such Stockholder on the date hereof.

4.3 No Limitations on Actions. Each Stockholder signs this Agreement solely in its capacity as the beneficial owner of the Owned Shares and this Agreement shall not limit or otherwise affect the actions of the Stockholder or any affiliate, employee or designee of the Stockholder or any of its affiliates in its capacity, if applicable, as an officer or director of the Company.

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4.5 Further Assurances. From time to time, at the request of Warburg Pincus and without further consideration, each Stockholder shall execute and deliver such additional documents and take all such further action as may be necessary or desirable to consummate and make effective the transactions contemplated by this Agreement.

5. Stop Transfer Order. In furtherance of this Agreement, and concurrently herewith, each Stockholder shall and hereby does authorize the Company or the Company’s counsel to notify the Company’s transfer agent that there is a stop transfer order with respect to all of the Owned Shares. At the request of Warburg Pincus, each Stockholder shall cause to be provided to Warburg Pincus evidence of such stop transfer order.

6. Miscellaneous.

6.1 Termination of this Agreement. This Agreement shall terminate upon the earlier to occur of (i) receipt by the Company of the Stockholder Approval or (ii) the Stockholder Approval Outside Date.

6.2 Effect of Termination. In the event of termination of this Agreement pursuant to Section 6.1, this Agreement shall become void and of no effect with no liability on the part of any party hereto; provided, however, no such termination shall relieve any party hereto from any liability for any breach of this Agreement occurring prior to such termination.

6.3 Non-Survival. The representations and warranties made herein shall not survive the termination of this Agreement.

6.4 Entire Agreement; Assignment. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement shall not be assigned by operation of law or otherwise and shall be binding upon and inure solely to the benefit of each party hereto.

6.5 Amendments. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the parties hereto.

6.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered (i) four Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) on the date of confirmation of receipt (or, the first Business Day following such receipt if the date of such receipt is not a Business Day) of transmission by facsimile, in each case to the intended recipient as set forth below:

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If to the Stockholders:

Deerfield Management Company, L.P. Series C

780 Third Avenue, 37th Floor

New York, NY 10017

Attn.: James E. Flynn

Facsimile: (212) 599-3075

with a copy to (which shall not constitute notice):

Katten Muchin Rosenman LLP

575 Madison Avenue

New York, New York 10022-2585

Attn.: Robert I. Fisher

Facsimile: (212) 894-5827

If to Warburg Pincus:

c/o Warburg Pincus LLC

450 Lexington Avenue

New York, New York 10017

Attn.: Jonathan Leff

Facsimile: (212) 878-9361

with a copy to (which shall not constitute notice):

Willkie Farr & Gallagher LLP

787 Seventh Avenue

New York, New York 10019

Attn.: Steven J. Gartner, Esq./Robert T. Langdon, Esq.

Facsimile: (212) 728-8111

Any party to this Agreement may give any notice or other communication hereunder using any other means (including personal delivery, messenger service, telex, ordinary mail or electronic mail), but no such notice or other communication shall be deemed to have been duly given unless and until it actually is received by the party for whom it is intended. Any party to this Agreement may change the address to which notices and other communications hereunder are to be delivered by giving the other parties to this Agreement notice in the manner herein set forth.

6.7 Governing Law; Venue.

(a) This Agreement shall be governed by and construed in accordance with the internal Laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdictions other than those of the State of Delaware.

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(b) Each of the parties to this Agreement (a) consents to submit itself to the personal jurisdiction of any state or federal court sitting in Wilmington, Delaware in any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement, (b) agrees that all claims in respect of such action or proceeding may be heard and determined in any such court, (c) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and (d) agrees not to bring any action or proceeding arising out of or relating to this Agreement or any of the transactions contemplated by this Agreement in any other court. 60;Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Any party hereto may make service on another party by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in Section 6.6.

(c) EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE ACTIONS OF ANY PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.

6.8 Specific Performance. Each Stockholder acknowledges and agrees that irreparable damage would occur to Warburg Pincus in the event that any of the provisions of this Agreement were not performed in accordance with its specific terms or were otherwise breached by such Stockholder, for which money damages would not provide an adequate remedy. Therefore, each Stockholder agrees that, in the event of any breach or threatened breach by such Stockholder of any covenant or obligation contained in this Agreement, Warburg Pincus shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek and obtain (a) a decree or order of specific perf ormance to enforce the observance and performance of such covenant or obligation, (b) an injunction restraining such breach or threatened breach, and (c) other equitable relief to enforce each and every provision hereof. Each Stockholder further agrees that neither Warburg Pincus nor any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 6.8, and each Stockholder irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

6.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that all parties need not sign the same counterpart. This Agreement may be executed and delivered by facsimile transmission.

6.10 Descriptive Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

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6.11 Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision wi th a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term.

6.12 Disclosure. Each Stockholder hereby authorizes (A) the Company to publish and disclose in the Proxy Statement (including all documents and schedules filed with the SEC) and in any press release, its identity and ownership of the Owned Shares and the nature of its commitments, arrangements and understandings under this Agreement and (B) Warburg Pincus to publish and disclose in its filings required under Sections 13(d) and 16 of the Exchange Act, its identity and ownership of the Owned Shares and the nature of its commitments, arrangements and understandings under this Agreement.

6.13 Effectiveness of Agreement. The obligations of the Stockholders in this Agreement shall not be effective or binding upon the Stockholders until after such time as the Investment Agreement is executed and delivered by Warburg Pincus.

[REMAINDER OF PAGE INTENTIONALLY BLANK]

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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be duly executed as of the day and year first above written.

WARBURG PINCUS PRIVATE EQUITY X, L.P.

By: Warburg Pincus X L.P., its General Partner By: Warburg Pincus X LLC, its General Partner By: Warburg Pincus Partners LLC, its Sole Member By: Warburg Pincus & Co., its Managing Member


By:	/s/ Jonathan Leff
	Name:	Jonathan Leff
	Title:	Partner

[Signature Page to Voting Agreement]

	STOCKHOLDERS

	DEERFIELD PRIVATE DESIGN FUND, L.P. By: Deerfield Capital, L.P., its General Partner By: J.E. Flynn Capital, LLC, its General Partner


	By:	/s/ James E. Flynn
	Name:	James E. Flynn
	Title:	President

	DEERFIELD PRIVATE DESIGN INTERNATIONAL, L.P. By: Deerfield Capital, L.P., its General Partner By: J.E. Flynn Capital, LLC, its General Partner


	By:	/s/ James E. Flynn
	Name:	James E. Flynn
	Title:	Director

	DEERFIELD SPECIAL SITUATION FUND, L.P. By: Deerfield Capital, L.P., its General Partner By: J.E. Flynn Capital, LLC, its General Partner


	By:	/s/ James E. Flynn
	Name:	James E. Flynn
	Title:	President

	DEERFIELD SPECIAL SITUATIONS FUND INTERNATIONAL LIMITED


	By:	/s/ James E. Flynn
	Name:	James E. Flynn
	Title:	Director

[Signature Page to Voting Agreement]

ATTACHMENT A

Details of Ownership

Stockholder	Number of Shares of Company Common Stock	Numbers of Shares of Company Common Stock Subject to Company Warrants
Deerfield Private Design Fund, L.P.	4,646,899	464,689
Deerfield Private Design International, L.P.	7,485,997	748,598
Deerfield Special Situation Fund, L.P.	1,924,316	85,658
Deerfield Special Situations Fund International Limited	3,451,799	156,999