EXHIBIT 10.26
EMPLOYMENT AGREEMENT
PARTIES
EMPLOYMENT AGREEMENT ("Agreement") made as of January 15, 1998 between VI
Technologies, Inc. (VITEX), a Delaware corporation (the "Company"), and XXXXXXX
XXXXXXXX (the "Executive").
RECITALS
The Company desires to retain the Executive to provide the services set
forth below, and the Executive is willing to provide such services to the
Company, subject to the terms and conditions of this Agreement.
TERMS OF AGREEMENT
The parties agree as follows:
1. EMPLOYMENT
1.1 EMPLOYMENT DUTIES. The Company employs the Executive, for the
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Term (as hereinafter defined in Section 2), to render exclusive
and full-time services to the Company as Executive Vice President
and Chief Scientific Officer of the Company, subject to the
direction of the President and the Board of Directors of the
Company. In connection therewith, the executive shall perform
such duties consistent with his position as he shall reasonably
be directed by the Board of Directors or by the President of the
Company to perform.
1.2 ACCEPTANCE. The Executive accepts such employment and agrees to
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render the services described above. The Executive further agrees
to accept election and to serve the Term as an officer and
director of the Company, without any compensation therefor other
than that specified in the Agreement.
1.3 DIRECTOR. The Company shall use its best efforts to cause the
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Executive to be a member of its Board of Directors throughout the
Term and shall include him in the management slate for election
as a director at every stockholders' meeting at which his term as
a director would otherwise expire. The Executive agrees to tender
his resignation as a director of the Company upon termination of
the Term.
1.4 LOCATION. The duties to be performed by the Executive hereunder
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shall be performed primarily at the office of the Company in New
York
City, subject to reasonable travel requirements on behalf of the
Company.
1.5 SOLVENT/DETERGENT BUSINESS. Notwithstanding anything to the
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contrary set forth in this Agreement, the Executive may during
the Term continue to provide support and services in connection
with the blood solvent/detergent business, provided that such
support and services do not materially interfere with the
Executive's performance of duties under this Agreement.
2. TERM OF EMPLOYMENT.
The term of the Executive's employment under this Agreement (the
"Term") commenced as of February 1, 1995 hereof and shall end on the fourth
anniversary thereof, unless sooner terminated pursuant to Article 4 of this
Agreement; PROVIDED, HOWEVER, that the Term shall be extended automatically for
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additional one-year periods unless one party shall advise the other in writing
before the initial expiration of the Term or an anniversary date thereof that
this Agreement shall no longer be so extended.
3. COMPENSATION AND BENEFITS.
3.1 Base Salary. As compensation for the services to be rendered by
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the Executive pursuant to this Agreement, the Company agrees to
pay the Executive, commencing September 1, 1995 and for the
balance of the term, a base salary (the "BASE SALARY") at the
fixed rate of $170,000 per annum, payable in installments in
accordance with the Company's payroll practices for its senior
executives, less such deductions or amounts to be withheld as
shall be required by applicable law and regulations. The Base
Salary amount may be increased from time to time by the Board of
Directors of the Company.
3.2 Bonus. executive's Base Salary may be supplemented by an annual
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bonus payment ("Bonus"). The amount of the Bonus shall be
determined by the Company in its sole and absolute discretion,
based on the performance of Vitex and the Executive. The Bonus
shall be paid within 2 weeks after the audited financial results
for the Bonus period are approved by Vitex's Board of Directors.
The Bonus will be based on Vitex and Executive achieving the
targets set by Vitex's Board of Directors and will be an amount
targeted at 25% of Executive's Base Salary. Such Bonus may be
larger or smaller based on actual performance.
3.3 Stock Options. As additional compensation for the services to be
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rendered by the Executive pursuant to this Agreement, the Company
has granted the Executive stock options totaling 625,000 shares
(the "1995 Grant"). Such stock options vest annually over a four
year
period commencing February 1, 1995 and ending on the fourth
anniversary thereof and, subject to such vesting period, shall be
exercisable at any time prior to the tenth anniversary of the
date of grant of such options. The exercise price of the options
granted to the Executive in 1995 is equal to $1/share.
In December, 1997 the Executive received as additional grant of
stock options totaling 350,000 shares (the "1997 Grant"). The
exercise price of these options is equal to $3/share. Other
provisions of the 1997 Grant are the same as the 1995 Grant
including 4-year annual vesting.
3.4 Other Benefits. The Executive shall be entitled to any
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additional rights and benefits (such as, for example, dental,
medical, medical reimbursement and hospital plans, pension plans,
employee stock purchase plans, profit sharing plans, bonus plans
and other so-called "fringe" benefits) as the Company shall make
available to its senior executives.
At the time the Executive retires from VITEX, or otherwise ceases
to be employed by VITEX for any reason, and annually thereafter,
VITEX will offer the Executive the opportunity to enroll in any
major medical and dental insurance plans VITEX provides to its
full time, senior management staff. The cost to the Executive
will be as though he were still actively employed by VITEX.
3.5 Expenses. The Company shall pay or reimburse the Executive for
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all reasonable expenses actually incurred or paid by him during
the Term in the performance of his services under this Agreement,
upon presentation of expense statements or vouchers or such other
supporting information as the Company may reasonably require.
3.6 Office and Support Staff. The Executive shall be entitled to an
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office or offices of a size and with furnishings and other
appointments, and to secretarial and other support staff and
assistance, as shall be provided by the Company for its other
senior executives.
3.7 Vacation. The Executive shall be entitled to such period or
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period of vacation during each year of the Term in accordance
with the Company's vacation policy for its senior executives.
3.8 Life Insurance. The Executive shall be entitled to $500,000 of
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term life insurance, payable to his family, at the Company's
expense. This insurance shall remain in full force for a period
of one year beyond the Executive's employment Term.
4. TERMINATION.
4.1 Termination for Cause. The Company may discharge the Executive
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and terminate this Agreement for cause (as defined below). Discharge for cause
shall be effective ten (10) days after the Executive's receipt of written notice
of discharge or at such later date as may be specified in that notice, provided
such notice contains the specific reasons and the specific events upon which
discharge is predicated.
4.1.1 As used in this Agreement, "CAUSE" shall mean any or all
of the following occurring during the Term:
(i) any act or acts of dishonesty taken by the Executive
and intended to result in substantial personal
enrichment of the Executive at the expense of the
Company; or
(ii) any gross negligence or willful violation by the
Executive of the Executive's obligations under this
Agreement or the Employee Non-Competition Agreement
dated December 16, 1997 or the Non-Disclosure and
Inventions Agreement, which results in material injury
to the Company.
4.2 Disability; Death. If during the Term the Executive fails to
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perform his usual duties under this Agreement for a period in
excess of 120 consecutive days mental disability, the Company
shall have the right to terminate the Executive's employment on
30 days' notice to the Executive. If the Executive dies during
the Term, this Agreement shall be deemed to have been terminated
on the date of the Executive's death.
4.3 Good Reason. The Executive may voluntarily terminate his
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employment hereunder for good reason. For purposes of this
Agreement, "good reason" shall mean any or all of the following:
(i) The assignment to the Executive of any duties materially
inconsistent with his position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1 of this Agreement, or any other action taken by the Company which results in a
material diminishment in such position, authority, duties or responsibilities,
which assignment or other action is not remedied by the Company within 30 days
after receipt of notice thereof given by the Executive.
(ii) any failure by the Company to comply with any of the material
provisions of Section 3 of this Agreement, which failure is not remedied by the
Company within 30 days after receipt of notice thereof given by the Executive;
(iii) the termination of the Executive as a director of the Company,
other than in connection with a termination of the Executive's employment
hereunder for cause or as a result of his death or disability pursuant to
Section 4.2;
(iv) the Company's shifting the Executive's principal office to a
location that would require the Executive to relocate his residence (other than
as part of the movement of all of the Company's offices).
4.4 Payment Upon Termination of Employment
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4.1.1 If (a) the Executive's employment is terminated by the
Company for cause pursuant to Section 4.1 or (b) the Executive voluntarily
terminates his employment under this Agreement other than for good reason
pursuant to Section 4.3, the Executive shall receive his Base Salary and Annual
Bonus, if any, together with any accrued but unreimbursed or unsubmitted
expenses, through the termination date of his employment.
4.4.2 If the Executive's employment is terminated by the Company
as a result of his death or disability pursuant to Section 4.2, (a) the
Executive (or his legal representatives, if applicable) shall receive his Base
Salary and Annual Bonus, if any, together with any accrued but unreimbursed or
unsubmitted expenses, through the termination date of his employment, (b) the
Executive (or his legal representatives, if applicable) shall continue to
receive any benefits remaining effective thereafter in accordance with the terms
of the underlying benefit plans and (c) the stock options granted to the
Executive in the 1995 Grant shall vest in full and the stock options granted in
the 1997 Grant shall be vested to include the Executive's next annual vesting
anniversary after the date of termination.
4.4.3 If the Executive's employment is terminated by the Company
for reasons other than for cause pursuant to Section 4.1, or the Executive
terminates his employment hereunder for good reason pursuant to Section 4.3:
(a) all stock options granted to the Executive in the 1995 Grant shall vest in
full and the stock options granted in the 1997 Grant shall be vested to include
the Executive's next annual vesting anniversary after the date of termination,
and (b) in addition to all amounts due to the Executive hereunder through the
date of such termination, the Company shall pay the Executive in cash in 6-month
installments commencing within 30 days after such termination (i) an amount
equal to the Executive's Base Salary for one year at the rate in effect on the
date of such termination and (ii) any vested benefits.
5. INDEMNIFICATION.
The Company shall indemnify, defend and hold harmless the Executive,
to the maximum extent permitted by applicable law, against all costs, charges
and expenses incurred or sustained by him in connection with any action, suit or
proceeding to which he may be made a party by reason of his being an officer,
director or an executive of the Company or of any subsidiary or affiliate of the
Company. The provisions of this Section
shall survive the termination or expiration of this Agreement irrespective of
the reason therefor.
6. NOTICES.
All notices, requests, consents and other communications, required or
permitted to be given hereunder, shall be in writing and shall be delivered
personally or by an overnight courier service or transmitted by facsimile or
sent by registered or certified mail, postage prepaid, return receipt requested,
to the following parties at the following addresses and numbers, and shall be
deemed given when so delivered personally or by overnight courier, or when
transmitted and received by facsimile, or, if mailed, five days after the date
of deposit in the United States mails:
(i) if to the Company, as follows:
V.I. Technologies, Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Chairman of the Board and President
Facsimile No.: 000-000-0000
(ii) if to the Executive, as follows:
Xxxxxxx Xxxxxxxx, Ph.D.
000 Xxxxxx Xxxx
Xxx Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Either party may designate another address, number, or person for
receipt of notices hereunder by giving notice to the other party in accordance
with this Section.
7. GENERAL.
7.1 Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in such State.
7.2 Arbitration. Any dispute arising out of, or relating to, this
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Agreement or the breach thereof, or regarding the interpretation thereof, shall
be finally settled by arbitration conducted in New York City in accordance with
the rules of the American Arbitration Association then in effect before a single
arbitrator appointed in accordance with such rule. Judgment upon any award
rendered therein may be entered and enforcement obtained thereon in any court
having jurisdiction. The arbitrator shall have authority to grant any form of
appropriate relief, whether legal or equitable in nature, including specific
performance. For the purpose of any judicial proceeding to enforce such award
or incidental to such arbitration or to compel arbitration, the parties hereby
submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York, New York County, or
the United States District Court for the Southern District of New York and that
service of process in such arbitration proceedings or in any court action
ancillary to such proceedings shall be satisfactorily made upon it if sent by
registered mail addressed to it at the address set forth in Section 6 hereof.
7.3 Headings. The article and section headings contained herein are
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for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
7.4 Entire Agreement. This Agreement sets forth the entire agreement
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and understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by either party that is not embodied in this Agreement,
and neither party shall be bound by or liable for any alleged representation,
promise or inducement not so set forth.
7.5 Assignments. This Agreement, and the Executive's rights other
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than the right to receive payments hereunder and obligations hereunder, may not
be assigned by the Executive. The Company may assign its rights, together with
its obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets; in all
events, the obligations of the Company hereunder shall be binding on its
successors or assigns, whether by merger, consolidation or acquisition of all or
substantially all of its business or assets.
7.6 Amendments; Waivers. This Agreement may be amended, modified,
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superseded, canceled, renewed or extended and the terms or covenants hereof xxx
be waived, only by a written instrument executed by both of the parties hereto,
or in the case of a waiver, by the party waiving compliance. The failure of
either party at any time or times to require performance of any provision hereof
shall in no manner affect the right at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
breach or a waiver of the breach of any other term or covenant contained in this
Agreement.
7.7 Severability. If any one or more of the terms, provisions,
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covenants or restrictions of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, unless the parties hereto would not have entered into this
Agreement without such invalid, void or unenforceable term, provision, covenant
or restriction.
7.8 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall constitute an original, but all of which
together shall constitute one and the same instrument.
EXECUTION
The parties have executed this Agreement as of the date first above
written.
V.I. Technologies, Inc.
/s/ Xxxx Xxxx
By: _________________________________
Name:
Title:
/s/ Xxxxxxx Xxxxxxxx
_________________________________
Xxxxxxx Xxxxxxxx
