EXHIBIT 10.24
LETTERHEAD OF V.I. TECHNOLOGY, INC.
November 7, 1997
Xx. Xxxxxx X. Xxxxxxxxxxxx
00 Xxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxx:
This letter agreement (the "Letter Agreement") and the release attached as
Exhibit A hereto (the "Release") are provided to you in connection with the
decision of the Board of Directors to terminate your employment by V.I.
Technologies, Inc. ("VITEX").
The terms of your severance from VITEX are as follows:
1. Your employment with VITEX and your position as a director and officer
of VITEX will be deemed terminated by mutual agreement as of October
5, 1997.
2. VITEX will make a one-time, termination payment to you equal to
$270,000 on the date the Release becomes effective (i.e. it can no
longer be revoked by you pursuant to its terms), subject to reduction
for withholding and other taxes.
3. Subject to the Release becoming effective as above, XXXXX will
accelerate the vesting of 50% of the third tranche of the options to
acquire common stock of VITEX granted to you by VITEX under the V.I.
Technologies, Inc. 1995 Equity Incentive Plan (the "Plan") from
February 8, 1998 to October 5, 1997 in the case of the Non-Qualified
Stock Option and January 4, 1998 with respect to the Incentive Stock
Option--which would bring your total common shares of VITEX subject to
such options to 390,625 shares of common stock of VITEX. Except as
provided immediately above, no further vesting of VITEX options
granted to you will occur thereafter and all other unvested options to
acquire VITEX common stock granted to you will terminate effective
October 5, 1997. Should you exercise Incentive Stock Options granted
to you by VITEX before they terminate three months from your date of
termination of employment (January 5, 1998), VITEX will allow you to
delay payment of the exercise price until October 5, 1998. You must
execute the Amendment Agreement which is attached hereto as Exhibit B
to permit these changes and deliver such Amendment Agreement at the
time you execute this Letter Agreement. XXXXX agrees that
notwithstanding the provisions of the V.I. Technologies, Inc. Stock
Purchase and Right of Repurchase Agreement, VITEX will not exercise
its option to purchase shares of common
Xx. Xxxxxx X. Xxxxxxxxxxx
October 7, 1997
Page 2
stock of VITEX issued to you as provided in Section 1(c) of the
foregoing agreement.
4. You will be provided with normal medical, dental and insurance
benefits, as currently provided to you by VITEX, until the sooner of
the date you become employed again and October 5, 1998.
5. You will be allowed twelve months (e.g. until October 5, 1998) to
exercise the Non-Qualified stock options portion of the 390,625 share
options granted to you by VITEX which you hold after October 5, 1997.
Incentive Stock Options granted to you by XXXXX will terminate three
months from your date of termination of employment (January 5, 1998).
6. Normal outplacement assistance/support will be provided to you by
VITEX extending until the earlier of your employment and October 5,
1998 through Xxxxx Beam Xxxxx.
7. VITEX represents that it does not have knowledge of any facts or
circumstances pursuant to which it could bring any claim, demand or
cause of action against you and does not have knowledge of any facts
or circumstances that reasonably would cause VITEX to investigate
whether it could bring any claim, demand or cause of action against
you.
8. XXXXX agrees that in the event a director, officer or human resources
manager of XXXXX receives an inquiry from any individual concerning
your departure from VITEX, the following statement, or words
substantially similar to the following statement, shall be used in
response:
"Xxx worked for more than a year to complete the successful
spinoff of VITEX from the New York Blood Center, a milestone that
was achieved in early-1995. He served as President and CEO of
VITEX for the next 2-1/2 years. Over that period, XXXXX made
considerable progress operationally, financially and
organizationally in the pursuit of its long-term vision.
However, achieving this progress was an all-consuming effort that
was compounded by a 160 mile round trip commute between
Connecticut and Long Island. It was jointly decided by Xxx and
the Board that, given the significant effort still required for
the nest state of the Company's development, such a personal
situation was not sustainable and that a new CEO should be
brought on-board. Xxx assisted with the transition process to
ensure the continuity of VITEX's near-term progress."
Xx. Xxxxxx X. Xxxxxxxxxxx
October 7, 1997
Page 3
You understand and acknowledge that XXXXX has numerous employees and agents
and that with respect to all such employees and agents other than directors,
officers or human resources managers, XXXXX's only commitments of contractual
significance contained in this paragraph 8 are to insert a memorandum in your
personnel record containing said statement and to do nothing in bad faith to
induce other employees or agents of VITEX not to use that statement in response
to any inquiry.
XXXXX may withdraw and terminate this Letter Agreement at any time prior to
your acceptance thereof which shall be evidenced only by returning a copy of
this Letter Agreement signed by you together with the Release executed by you.
If you revoke the Release or violate its terms or the terms of this Letter
Agreement, this Letter Agreement will terminate forthwith without any further
liability of VITEX, all shares of VITEX common stock acquired by you after the
date of this Letter Agreement by exercising options granted to you by VITEX will
be cancelled and returned by you to VITEX in exchange for the exercise price
paid by you pursuant to the terms of such options, the amendments to the option
agreements will be voided forthwith and only if you claim that all or any part
of the Release is unenforceable or void or you bring any claims against VITEX or
any other person released by the Release in violation of the Release all
payments of cash made to you pursuant to this Letter Agreement (net of
withholding) will be returned by you to VITEX. This Letter Agreement shall be
governed and construed in accordance with the laws of the State of New York.
The provisions of paragraph 11 of the Release are incorporated herein by
reference. This Letter Agreement replaces all prior correspondence to you from
VITEX regarding your termination of employment by XXXXX. You acknowledge that
you have relied on the advice of your own legal counsel with respect to the
matters set forth in this Letter Agreement and the Release.
Sincerely,
V.I. TECHNOLOGIES, INC.
/s/ Xxxxx X. Xxxxxx
By: ______________________________
Xxxxx Xxxxxx
Director
AGREED: November 12, 1997
/s/ Xxxxxx X. Xxxxxxxxxxxx
_______________________________
XXXXXX X. XXXXXXXXXXXX
EXHIBIT A
RELEASE
-------
THIS RELEASE ("Release") is made and entered into as of this 12th day
of November, 1997 by Xxxxxx X. Xxxxxxxxxxxx, with the address of 00 Xxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("You" or "Your") in favor of V.I.
Technologies, Inc., a Delaware corporation (the "Company").
RECITAL
-------
The parties desire to enter into this Release for the purposes of
amicably and fully resolving any and all claims, disputes and issues arising out
of Your employment and the termination thereof by the Company.
AGREEMENT
---------
The parties agree as follows:
1. For and in consideration of the letter agreement between You and
the Company of even date herewith (the "Letter Agreement"),
(a) You hereby release, acquit and forever discharge the Company, and
all its affiliated, parent and subsidiary corporations and its
past, present and future owners, officers, directors, partners,
stockholders, servants, agents, attorneys, employees, suppliers,
underwriters, dealers, distributors, principals, insurers,
successors and assigns from any and all claims, suits, demands,
losses, costs, actions, expenses or causes of action of
whatsoever kind or character, whether known or unknown by You,
arising out of Your employment by the Company and/or the
termination thereof by the Company. By way of example, the types
of claims that are covered under this Release include, but are
not limited to:
(i) all "wrongful discharge" claims, "constructive discharge"
claims, all claims relating to any contracts of employment,
express or implied, any covenants of good faith and fair
dealing, expressed or implied, and any personal wrongs or
injuries:
(ii) any claims that could be brought pursuant to Title VII of
the Civil Rights Act of 1964, the Civil Rights Act of 1991,
the Age Discrimination in Employment Act, the Americans with
Disabilities Act; or the Worker Adjustment and Retraining
Notification Act (all as may have been amended); and
(iii) any claims that could be brought under any other federal,
state, county or municipal statute or ordinance dealing with
discrimination in employment on the basis of sex, race,
national origin, religion, disability, age, marital status,
affectional or sexual orientation or other reason.
(b) You also agree that, You shall not apply for, nor be entitled to
employment with the Company, its parents, subsidiaries or
affiliates, and You acknowledge that no promises of any kind have
been made to You regarding such future employment.
(c) You agree that You will never sue or otherwise institute a claim
of any kind, against the Company, its parent, subsidiary or
affiliated corporations, any personnel of the Company, or its
parents, subsidiaries or affiliates, or their officers,
directors, employees, partners, agents or attorneys for anything
which has happened up to now, whether presently known or unknown
by You, (whether unknown through ignorance, oversight, error,
negligence, or otherwise, and which, if known, would materially
affect the decision to enter into this Release) in any way
related to Your employment by the Company, and/or the termination
of that employment. By entering into this Release, the Company,
does not admit, expressly or impliedly that it has engaged in any
wrongdoing whatsoever. If You breach the terms of this Release
by suing the Company, any of its respective parents, subsidiaries
or affiliates, or any personnel of the Company, any of its
parents, subsidiaries or affiliates, or any of their respective
directors, officers, employees, partners, agents or attorneys,
You agree that You will pay all costs and expenses incurred by
the Company, any of its parents, subsidiaries or affiliates, or
any personnel of the Company, any of its respective parents,
subsidiaries or affiliates, or any of their respective directors,
officers, employees, partners, agents or attorneys in defending
against the suit, including reasonable attorneys' fees.
Additionally, if You institute a claim against the Company which
is released by this Release, any of its respective parents,
subsidiaries or affiliates, or any personnel of the Company, any
of its parents, subsidiaries or affiliates, or any of their
respective directors, officers, employees, partners, agents or
attorneys, the Company shall have the right to discontinue the
providing of benefits to You under the Letter Agreement and to
obtain, by way of counterclaim or other lawful means, the moneys
paid to You under the Letter Agreement or any shares of common
stock of the Company issued to You after the date hereof upon
exercise of options to acquire common stock of the Company
granted to You by the Company.
2. You agree that to the extent you have any information regarding any
violation of law relating to Your employment with the Company and/or the
termination of that employment You have disclosed that information to the
Company.
3. You agree that You have executed this Release on Your own behalf and
also on behalf of any agents, heirs, representatives, administrators,
successors, assigns and insurers that You may have now or in the future. You
represent and warrant that no other person had, or has, or claims any interest
in the claims referred to in this Release, that You have the sole right and
exclusive authority to execute this Release and to receive the consideration
paid therefor; and that You have not sold, assigned, transferred, conveyed or
otherwise disposed of any claim or demand relating to any matter covered by this
Release.
4. This Release does not include any claims You may have (i) with respect
to any medical, prescription, dental, or flexible spending account benefits
provided by plans maintained by the Company to which You may be entitled or any
rights You may have under the applicable worker's compensation laws, (ii) for
reimbursement of ordinary and necessary business expenses incurred by You as an
officer or director of the Company prior to October 5, 1997 in accordance with
the Company's policies for reimbursement of business expenses, (iii) any rights
You may have under the Company's by-laws, certificate of incorporation or the
Delaware General Corporation Law for indemnification for actions or inactions by
You as an employee, officer or director of the Company, (iv) the Letter
Agreement between You and the Company dated the date hereof, and (v) rights
vested in You under the Melville Biologics, Inc. 1995 Equity Incentive Plan with
respect to options to acquire common stock of the Company as such rights have
been modified by the Letter Agreement.
5. You acknowledge and agree that the consideration set forth in the
Letter Agreement exceeds any amount to which You would otherwise be presently
entitled under the Company's policies, procedures and benefits programs and/or
under any applicable law, and constitutes valuable consideration for this
Release.
6. You acknowledge that the Company, has advised You and that You are
aware of the following:
(a) You have the right to and should consult with an attorney prior
to signing this Release;
(b) You have 21 days from the receipt of this Release to decide
whether to sign this Release; and
(c) If You sign this Release, You have up to 7 days to revoke it and
the Release will not become effective until this 7 day period has
expired.
This Release and the Letter Agreement and documents and agreements referred
to therein contain the entire agreement of the parties and supersedes and is in
lieu of any and all other agreements between You and the Company; provided,
however, that this Release shall not be
construed to supersede Your continuing obligations entered into with the
Company, under the Letter Agreement and documents and agreements referred to
therein. This Release cannot be amended, modified, or supplemented in any
respect except by the written agreement of the parties hereto.
7. In the event You believe that You are required by legal process to
disclose any term of this Release, or otherwise take any action in violation of
the terms of this Release, You will notify the Company of any such legal
process, as promptly as reasonably possible. Such notice shall be effective on
delivery to the party which it is addressed. Such notice shall be in writing
and received by V.I. Technologies, Inc., 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000, Attn: President with a copy to Crummy, Xxx Xxx, Dolan, Griffinger &
Xxxxxxxxx, Xxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000, Attn: Xxxxx X.
Xxxxxxxx, Xx., Esq., as promptly as reasonably possible before any allegedly
compelled action of disclosure, or if notice of such legal process requiring
disclosure is not received by You as promptly as reasonably possible before the
time of required disclosure, You shall give immediate notice, orally and in
writing to V.I. Technologies, Inc., 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000,
Attn: President with a copy to Crummy, Xxx Xxx, Dolan, Griffinger & Xxxxxxxxx,
Xxx Xxxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000, Attn: Xxxxx X. Xxxxxxxx,
Xx., Esq.
As an inducement to the Company, to enter into this Release, You hereby
agree to keep confidential indefinitely and not disclose to any person or entity
other than the Company, any and all secret, confidential and/or proprietary
information or ideas developed by You for, or learned by You from the Company,
their affiliates, consultants, or vendors. Such information or ideas shall
include, but are not limited to, business plans, reports, sales, cost or pricing
data, product data, methods of production or manufacture, formula,
intercorporate structure and dealings, and lists or identifications of suppliers
or customers. Any and all documents that may be in Your possession containing
such information or ideas must be delivered to the Company prior to the date of
this Release. The foregoing provisions of this paragraph shall not prevent You
from utilizing information which is publicly available through no fault of
Yours. The provisions of this paragraph shall expire on December 31, 1998.
You understand and agree that any breach by You of any of the covenants
contained in this Release shall entitle the Company, to bring an action for
failure to comply with the terms of this Release and, further, the Company,
shall be entitled to attorney's fees and costs as part of such action. In
addition, You agree that no adequate remedy exists at law for breach of this
Release and that the Company, shall be entitled to injunctive relief.
8. As a further inducement to the Company, to enter into this Release,
You agree not to knowingly or intentionally commit an act that is detrimental to
the reputation of the Company, its respective parents, subsidiaries, or
affiliates, or any of its past, present or future officers, directors,
employees, agents or attorneys. Similarly, the Company agrees not to knowingly
or intentionally commit an act that is detrimental to Your reputation.
9. You agree that if, in any judicial proceeding, a court finds any
portion of the Release unenforceable, the remainder of the Release shall be
enforced to the maximum extent permitted by law.
10. This Release and the Letter Agreement and documents and agreements
referred to in the Letter Agreement contain the entire agreement between You and
the Company, with regard to the matters set forth herein, and shall be binding
upon and inure to the benefit of the executors, administrators, personal
representatives, heirs, successors and assigns of each.
11. You agree that New York law shall govern the validity and
interpretation of this Release. No provision in this Release shall be construed
to be inconsistent with any applicable law. You hereby agree that any dispute
regarding the rights and obligations of You under this Release and/or the Letter
Agreement or under any law governing the relationship created by this Release
and/or the Letter Agreement, must be resolved pursuant to this Section 11.
Within seven (7) days of Your written notice of Your desire to submit any
arbitrable matter as set forth herein to arbitration, You and the Company will
meet to attempt to amicably resolve their differences and, failing such
resolution, either or both of You and the Company may submit the matter to
mandatory and binding arbitration with the Center for Public Resources ("CPR").
The issue(s) in dispute shall be settled by arbitration in accordance with the
Center for Public Resources Rules for Non-Administered Arbitration of Business
Disputes, by a panel of three arbitrators (the "Panel"). The only issue(s) to
be determined by the Panel will be those issues specifically submitted to the
Panel. The Panel will not extend, modify or suspend any of the terms of this
Release. The arbitration shall be governed by the United States Arbitration
Act, 9 U.S.C. (S)1-16, and judgment upon the award rendered by the Panel may be
entered by any court having jurisdiction thereof. A determination of the Panel
shall be by majority vote. Promptly following receipt of the request for
arbitration, CPR shall convene You and the Company in person or by telephone to
attempt to select the arbitrators by agreement of You and the Company. If
agreement is not reached, the Company shall select one arbitrator and You shall
select one other arbitrator. These two arbitrators shall select a third
arbitrator. If these two arbitrators are unable to select the third arbitrator
by mutual agreement, CPR shall submit to You and the Company a list of not less
than eleven (11) candidates. Such list shall include a brief statement of each
candidate's qualifications. You and the Company shall each number the
candidates in order of preference, shall note any objection they may have to any
candidate, and shall deliver the list so marked back to CPR. If You or the
Company fail without good cause to return the candidate list so marked within
ten (10) days after receipt the nonresponding person shall be deemed to have
assented to all candidates listed xxxxxxx. CPR shall designate the arbitrator
willing to serve for whom You and the Company collectively have indicated the
highest preference and who does not appear to have a conflict of interest. If a
tie should result between two candidates, CPR may designate either candidate.
This agreement to arbitrate is specifically enforceable. Judgment upon any
award rendered by the Panel may be entered in any court having jurisdiction.
The decision of the Panel within the scope of the submission is final and
binding on You and the Company, and any right to judicial action on any matter
subject to arbitration hereunder hereby is waived (unless otherwise provided by
applicable law), except suit to enforce this arbitration award or in the event
arbitration is not available for any reason. If the rules of the CPR differ
from those of this Section 11, the provisions of this Section 11 will control.
The Company and
You shall each pay one-half of all the costs of arbitration including the fees
of the arbitrators. Notwithstanding the foregoing, You agree that the Company
may seek preliminary injunctive relief for breach of this Release by You and
equitable relief for the enforcement of its rights hereunder and You submit to
the jurisdiction of all federal and state courts sitting in Connecticut or New
York for such purpose and You agree that any order, process, pleading, notice of
motion or other application to or by any such court or a judge thereof may be
served within or without such court's jurisdiction by registered mail (with
return receipt requested) or by personal service, provided that a reasonable
time for appearance is allowed. You hereby irrevocably waive any objection that
You may hereafter have to laying of venue of any suit, action or proceeding
brought in any federal or state court sitting in New York or Connecticut as
provided herein and irrevocably waive any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
12. You agree that You are fully aware of Your rights, that You have
carefully read and fully understand all of the provisions set forth in this
Release, that You have had the opportunity to consult with Your attorney, and
that You are voluntarily and knowingly entering into this Release. You further
acknowledged that You have not relied on any representations, promises, or
agreements of any kind made to You in connection with your decision to accept
this Release except for the terms set forth above and as contained in the Letter
Agreement.
This Release is not effective or enforceable for 7 days after you sign it
and You may revoke it during that time. To revoke, a written notice of
revocation in the form attached hereto must be mailed to V.I. Technologies,
Inc., 000 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, Attn: President with a copy to
Crummy, Xxx Xxx, Dolan, Griffinger & Xxxxxxxxx, Xxx Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxx Xxxxxx 00000-0000, Attn: Xxxxx X. Xxxxxxxx, Xx., Esq., within 7 days after
You sign this Release. The revocation must be:
(a) postmarked within the 7 day period and be identical to the
Revocation Form attached hereto; and
(b) properly addressed to Xxxxx X. Xxxxxxxx, Xx. and President at the
respective addresses above; and
(c) be accompanied by payment in full of cash and certificates
representing common stock of the Company delivered to You
pursuant to the exercise of options granted to You by the Company
which are exercised after the date hereof endorsed in blank.
By such revocation You acknowledge the termination of the payment
obligations of the Company and obligations of the Company to provide any
benefits to You, in each case as set forth in the Letter Agreement, You must
return endorsed in blank shares of common stock of the Company acquired by You
after the date hereof and pursuant to the exercise of options granted to You by
the Company upon return by the Company to You of the exercise price thereof and
You must return all payments made to You under the Letter Agreement. You also
acknowledge the amendment to the option agreements between You and the Company
will be terminated.
If the Company does not receive a written revocation and return of the
items referred to in clause (c) in accordance with the foregoing terms, You will
not be able to rescind this Release.
* * * * * * * * *
It is understood and agreed by the undersigned that this is a full, final
and complete release of any and all claims and demands of every kind and
character whatsoever and releases any and all claims and demands which are
known, unknown, suspected or unsuspected relating to Your employment by the
Company and termination of that employment.
Notwithstanding any other provision of this Release, You are not by this
Release releasing the Company from any of its obligations under the Letter
Agreement or in any way limiting Your right to enforce Your rights under the
Letter Agreement.
WITNESSED: DATE OF EXECUTION:
/s/ Xxx X. Xxxx /s/ Xxxxxx X. Xxxxxxxxxxxx November 12, 1997
--------------- -------------------------
Xxxxxx X. Xxxxxxxxxxxx
WITNESSED: V.I. TECHNOLOGIES, INC.
/s/ Xxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx November 12, 1997
--------------- -------------------
EXHIBIT B
AMENDMENT AGREEMENT
This Amendment Agreement entered into on November 12, 1997 by and between
Xxxxxx X. Xxxxxxxxxxxx ("Optionee") and V.I. Technologies, Inc., a Delaware
corporation (formerly known as Melville Biologics, Inc.) (the "Company").
WHEREAS, the Company granted an option 1995 ISO-20 under the V.I.
Technologies, Inc. 1995 Equity Incentive Plan (the "Plan") covering 400,000
shares of common stock of the Company dated October 18, 1995 (the "ISO Option");
WHEREAS, the Company granted an option 1995 NSQ-2 under the Plan covering
225,000 shares of common stock of the Company dated October 18, 1995 (the "NSQ
Option").
NOW, THEREFORE, the parties hereto agree as follows:
1. The ISO Option is amended to change the Exercisability Schedule thereof
to strike the words "after February 8, 1998, as to 100,000 additional shares,
and after February 8, 1999, as to 100,000 additional shares" and add the
following words in their place: "and, after January 4, 1998, as to 50,000
additional shares."
2. The NSQ Option is amended to change the Exercisability Schedule thereof
to strike the words "after February 8, 1998 as to 56,250 additional shares, and
after February 8,
1999, as to 56,250 additional shares" and add the following words in their
place: "and, after October 5, 1997, as to 28,125 additional shares."
3. Pursuant to Paragraph 4 of the ISO Option, the committee administering
the Plan has agreed to permit the Optionee to exercise the ISO Option by
delivering to the Company a recourse note in the form attached hereto secured by
the common stock of the Company received by the Optionee upon exercise of the
ISO Option to the extent exercised by delivery of such note.
4. The first sentence of Paragraph 8 of the NSQ Option is amended to
strike the words "three months" and insert the words "twelve months."
5. The number of shares covered by the ISO Option is reduced to 250,000
shares and the NSQ Option is reduced to 140,625 shares effective as of October
5, 1997.
6. For purposes of the NSQ Option and the ISO Option, the Optionee shall
have terminated his employment with the Company on October 5, 1997.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
Agreement this 12th day of November 1997.
V.I. TECHNOLOGIES, INC.
/s/ Xxxxx X. Xxxxxx
By: ___________________________
Name: Xxxxx Xxxxxx
Title: Director
/s/ Xxxxxx X. Xxxxxxxxxxxx
______________________________
Xxxxxx X. Xxxxxxxxxxxx
