Exhibit 10.1
------------
SEPARATION AGREEMENT AND GENERAL RELEASE
----------------------------------------
Separation Agreement and General Release ("Agreement") executed this ___
day of September 1999, by and between Xxxxxxx Xxxxxxxx, Ph.D. ("Xx. Xxxxxxxx" or
"Releasor") and V.I. Technologies, Inc. ("VITEX" or "the Company").
WHEREAS, Xx. Xxxxxxxx and VITEX entered into an Employment Agreement
dated January 15, 1998 (the "Employment Agreement") a copy of which is annexed
hereto as Exhibit "B"; and
WHEREAS, Xx. Xxxxxxxx has expressed his intention to voluntarily
terminate his employment pursuant to the provisions of (P)4.3 of the Employment
Agreement;
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, it is hereby agreed that:
1. XX. XXXXXXXX'X RESIGNATION
--------------------------
(a) Xx. Xxxxxxxx hereby irrevocably gives notice of his intention to
resign from his employment at VITEX, effective October 1, 1999, and
VITEX accepts that resignation. Xx. Xxxxxxxx and VITEX expressly
acknowledge that this Agreement supercedes and replaces the Employment
Agreement and except as otherwise provided herein, effective October
1, 1999, the Employment Agreement, and all terms, conditions, and
obligations set forth therein, will expire and will be declared null
and void.
2. THE SEVERANCE PAYMENT, VESTING OF STOCK OPTIONS, AND LIFE
---------------------------------------------------------
INSURANCE
---------
(a) As used herein, the term "Severance Period" refers to the one
year period beginning on October 1, 1999 and ending on September 30,
2000.
(b) Subject to Xx. Xxxxxxxx'x execution of this Agreement, VITEX shall
pay Xx. Xxxxxxxx severance equivalent to one year's salary at his
current rate of pay, a total of $198,919.00 (the "Severance Payment"),
less applicable withholding taxes and deductions. The Severance
Payment will be made in two (2) equal installments, paid six months
apart, less applicable withholding taxes and deductions. The first
such payment will be made on or before October 20, 1999.
(i) Xx. Xxxxxxxx expressly acknowledges that he will not be
entitled to any annual bonus payment pursuant to (P)3.2
of the Employment Agreement.
(c) Subject to the approval of the Compensation Committee of the
Board of Directors of VITEX, (i) the stock options granted to Xxxxxxxx
in 1995 and 1997 to purchase 223,614 shares (at $2.795 per share) and
125,224 shares (at $8.39 per
1
share) respectively, of VITEX common stock, $.01 par value per share
under the Equity Incentive Plan (the "Stock Options"), shall fully
vest, to the extent they have not previously vested, on October 1,
1999, and (ii) Xxxxxxxx shall be permitted to exercise the Stock
Options at any time prior to the tenth anniversary of the date of
grant of such options, in accordance with the terms of the Equity
Incentive Plan and the stock option agreements executed thereunder (as
modified by this Agreement).
(d) Xx. Xxxxxxxx'x participation in VITEX's medical and dental benefit
plans will continue for the duration of the Severance Period, and will
terminate on September 30, 2000, at which time, and on an annual basis
thereafter for as long as he is alive, he will be offered the
opportunity to enroll in any major medical and dental insurance plans
VITEX provides to its full time, senior management staff. If he
chooses to enroll in such plans, the cost to Xx. Xxxxxxxx will be as
though he were still actively employed by VITEX.
(e) The life insurance referenced in (P)3.8 of the Employment
Agreement will remain in force (to the extent the policy is payable to
Xx. Xxxxxxxx'x family), at VITEX's cost, until the end of the
Severance Period (September 30, 2000).
(f) Except as provided herein, Xx. Xxxxxxxx'x participation in all
other benefit plans will cease on October 1, 1999.
3. CONTINUED MEMBERSHIP ON VITEX'S BOARD OF DIRECTORS
--------------------------------------------------
(a) Xx. Xxxxxxxx will remain a member of VITEX's Board of Directors
after October 1, 1999. Xx. Xxxxxxxx expressly acknowledges that he
has been given no guarantees with respect to his continued membership
on the Board of Directors. Xx. Xxxxxxxx agrees that if the Board of
Directors requests his resignation from the Board of Directors for any
reason, he will immediately tender his resignation as a Director of
VITEX. After the expiration of the Severance Period, if Xx. Xxxxxxxx
remains a member of the Board of Directors, he will be entitled to
receive the same benefits received by other members of the Board of
Directors.
4. CONSULTING SERVICES
-------------------
(a) Although under no obligation to do so, Xx. Xxxxxxxx may perform
consulting services to VITEX. Any such consulting services will be
performed upon reasonable notice, at mutually agreeable times and
locations. Xx. Xxxxxxxx agrees that during the Severance Period he
will not seek, nor is he entitled to, any additional compensation for
any such consulting services, unless he has provided more than 800
hours of services during the Severance Period. Xx. Xxxxxxxx will be
compensated for each hour of consulting services provided during the
Severance Period in excess of 800 hours at the rate of $200.00 per
hour.
(b) After the expiration of the Severance Period, and beginning on
October 1, 2000, Xx. Xxxxxxxx will begin receiving quarterly retainer
payments of $25,000.00 as compensation for consulting services to be
provided during the following calendar quarter (e.g. the October 1,
2000 payment will cover services rendered
2
during the fourth quarter of 2000). Such payments will be made on the
first day of each quarter during which the contemplated services are
to be provided. These quarterly retainer payments will continue until
such time as this consulting arrangement is terminated by VITEX or Xx.
Xxxxxxxx in the manner described below. The $25,000.00 retainer will
constitute full compensation for up to 200 hours of consulting
services provided during the quarter. Xx. Xxxxxxxx will be compensated
for each hour of consulting services in excess of 200 hours during a
calendar quarter at the rate of $200.00 per hour.
(i) The consulting arrangement described in this sub paragraph
"4(b)" can be terminated by either Xx. Xxxxxxxx or VITEX, at any
time, with 90 days notice.
5. CONSIDERATION AND FULL DISCHARGE
--------------------------------
a) Xx. Xxxxxxxx agrees that the aggregate consideration provided in
this Agreement:
(i) exceeds any payment, benefit, or other thing of value
to which he might otherwise be entitled under any
policy, plan or procedure of VITEX, and
(ii) is in full discharge of any and all of VITEX's
liabilities and obligations to him, whether written or
oral, including, without limitation, any bonus,
deferred bonus, accrued vacation pay, severance payment
or any other contractual or other obligation,
compensation or remuneration that may be owed to Xx.
Xxxxxxxx by VITEX.
6. GENERAL RELEASE
---------------
(a) For good and valuable consideration, the receipt of which is
hereby acknowledged, Xx. Xxxxxxxx for himself and for his heirs,
executors, administrators, trustees, legal representatives and assigns
(hereinafter, collectively referred to as ("Releasors"), hereby
forever release and discharge VITEX, or any of VITEX's past, present
or future parent entities, partners, subsidiaries, affiliates,
divisions, employee benefit and/or pension plans or funds, successors
and assigns and any of its or their past, present or future directors,
officers, attorneys, agents, trustees, administrators, employees, or
assigns (whether acting as agents for VITEX or in their individual
capacities) (collectively referred to as "Releasees") from any and all
claims, demands, causes of action, and liabilities of any kind
whatsoever (upon any legal or equitable theory, whether contractual,
common-law, statutory, federal, state, local, or otherwise), whether
known or unknown, by reason of any act, omission, transaction or
occurrence which Releasors ever had, now have or hereafter can, shall
or may have against Releasees up to and including the Agreement
Effective Date, as defined in Paragraph 10(c) below.
Without limiting the generality of the foregoing, Releasors hereby
release and discharge Releasees from:
3
(i) any and all claims relating to Xx. Xxxxxxxx'x
employment by VITEX, the terms and conditions of such
employment, the employee benefits related to his
employment and/or his separation from such employment;
(ii) any and all claims of employment discrimination and/or
retaliation under any federal, state or local statute
or ordinance, including without limitation, any and all
claims under Title VII of the Civil Rights Act of 1964
as amended; the Age Discrimination in Employment Act,
the Older Workers Benefit Protection Act, the Americans
with Disabilities Act; the Family and Medical Leave Act
of 1993; the Employee Retirement Income Security Act;
the New York State Human Rights Law; and the New York
City Human Rights Law;
(iii) any and all claims for wrongful discharge and/or
breach of employment contract (including, but not
limited to the Employment Agreement) or any claims
related to compensation or benefits, including claims
for bonus or deferred payments;
(iv) any and all claims for defamation, libel or slander
against any Releasees; and
(v) any and all claims for attorney's fees, costs
disbursements and the like;
which Releasors ever had, now have or hereafter can, shall or may have
against Releasees for, upon or by reason of any act, omission,
transaction or occurrence up to and including the date of the
execution of this Agreement.
(b) Xx. Xxxxxxxx agrees, unless such agreement is otherwise prohibited
by law, that he will not commence, maintain, prosecute or participate
(except as compelled by legal process) in any action or proceeding of
any kind (judicial or administrative) against Releasees, arising out
of any act, omission, transaction or occurrence occurring up to and
including the Agreement Effective Date, as defined in paragraph 10(c)
below.
(c) Xx. Xxxxxxxx further agrees, unless such agreement is otherwise
prohibited by law, that he will not seek or accept any award or
settlement from any source or proceeding with respect to any claim or
right covered by paragraphs "6(a) and (b)" and that this Agreement
shall act as a bar to recovery in any such proceedings.
4
7. CONFIDENTIALITY
---------------
(a) Xx. Xxxxxxxx acknowledges that this Agreement and all terms and
conditions thereof shall be kept strictly confidential and shall not
be disclosed by Xx. Xxxxxxxx to anyone, except to the extent required
by law; except that Xx. Xxxxxxxx may disclose the terms of this
Agreement to his spouse, accountant, attorney and/or his financial
advisor, who shall be instructed that the Agreement and its terms are
to be kept confidential. In the event of any breach of this
provision, Xx. Xxxxxxxx consents to the entry of injunctive relief in
the United States District Court for the Southern District of New
York, and further, inasmuch as the damages from any material breach of
this confidentiality provision cannot be ascertained, Xx. Xxxxxxxx
agrees that a material breach of this provision by Xx. Xxxxxxxx shall
result in the payment by Xx. Xxxxxxxx to VITEX of liquidated damages
in the amount of $198,919.00. Notwithstanding the foregoing, this
paragraph shall not apply to Xx. Xxxxxxxx if he is acting in his
capacity as director of VITEX.
(b) VITEX acknowledges that this Agreement and all terms and
conditions thereof shall be kept strictly confidential and shall not
be disclosed by any officer or director of VITEX to anyone, except to
the extent required by law and to those persons whose efforts are
required to effectuate the terms of this Agreement; except that VITEX,
through its officers, may disclose the terms of this Agreement to
VITEX's attorneys and/or accountants, who shall be instructed that the
Agreement and its terms are to be kept confidential.
(c) The parties agree that this Agreement and the attached General
Release may be used as evidence only in a subsequent proceeding in
which any of the parties allege a breach of this Agreement or the
attached General Release.
8. NON-DISPARAGEMENT
-----------------
(a) Xx. Xxxxxxxx agrees that he will not disparage (or induce or
encourage others to disparage) VITEX, any of its past or present
directors, officers, agents, trustees, administrators, attorneys or
employees with respect to any events relating to his employment with
VITEX, including, without limitation, disparaging any of such parties
in connection with disclosing the facts or circumstances surrounding
his separation from employment with VITEX or criticizing VITEX's
business strategy. For the purposes of this Agreement, the term
"disparage" means any comments or statements which would adversely
affect in any manner: (i) the conduct of VITEX's business; or (ii) the
business reputation or relationships of VITEX and/or any of its past
or present directors, officers, agents, trustees, administrators,
attorneys or employees. Notwithstanding the foregoing, this paragraph
shall not apply to Xx. Xxxxxxxx if he is acting in his capacity as a
director of VITEX.
(b) VITEX agrees not to disparage Xx. Xxxxxxxx. For purposes of this
subparagraph, the term "disparage" means any statements made by VITEX
senior officers or directors, or any statements made officially by
VITEX that adversely affect Xx. Xxxxxxxx'x personal or professional
reputation.
5
9. COMPANY DOCUMENTS AND PROPERTY
------------------------------
(a) Xx. Xxxxxxxx agrees not to copy or take any books, notes or documents
belonging to VITEX without its express written consent. In this regard, Xx.
Xxxxxxxx acknowledges that he has had access to confidential, sensitive or
proprietary information during the course of his employment at VITEX. Unless
compelled by judicial process, Xx. Xxxxxxxx agrees that he will not, for herself
or any other person or entity, directly or indirectly divulge, communicate or in
any way make use of any confidential, sensitive, or proprietary information
acquired in the performance of his services or in connection with the
performance of such services for VITEX without the prior written consent of
VITEX. Upon receipt of judicial process or governmental request for such
information, Xx. Xxxxxxxx shall immediately notify VITEX and shall cooperate
with VITEX in efforts to limit such disclosure and shall not make such
disclosure unless compelled to do so. For the purpose of this Agreement, all
information acquired during the course of Xx. Xxxxxxxx'x employment and in
connection with such employment shall be deemed to be confidential, sensitive or
proprietary, unless VITEX shall have published said information. Not
withstanding the foregoing, it is understood that (i) Xx. Xxxxxxxx brought
certain materials with him when he joined VITEX and that such materials do not
belong to VITEX, (ii) Xx. Xxxxxxxx may retain published scientific works and
slides which he collected while an employee of VITEX. '
(b) If Xx. Xxxxxxxx has not already done so, he shall immediately
return to VITEX all Company property in his possession (with the
exception of a computer which VITEX has permitted Xx. Xxxxxxxx to
retain) including, but not limited to credit cards, building passes,
airline tickets, facsimile machines, paging devices and portable
telephones.
(c) If Xx. Xxxxxxxx has not already done so, he shall immediately
deliver to VITEX all correspondence, documents, papers and other media
containing information about the accounts, clients, interests, or
business of VITEX together with all copies in his possession.
10. REVIEW AND REVOCATION PERIODS
-----------------------------
(a) Xx. Xxxxxxxx shall have at least twenty-one (21) days from the
date of receipt, or until September 30, 1999, to consider the terms
and conditions of this Agreement. Xx. Xxxxxxxx may accept this
Agreement by signing it, having his signature notarized and returning
it to Xxxxx Xxxxxxxx, VITEX, Inc., 000 Xxxxxx Xxxx, Xxxxxxxx, XX
00000, by no later than 5:00 p.m. on September ___, 1999. Further,
Xx. Xxxxxxxx may sign and return this Release at any time prior to
September 30, 1999.
(b) After signing this Release, Xx. Xxxxxxxx shall have seven (7) days
to revoke this Agreement by indicating his desire to do so in writing
(a) addressed to Xxxxx Xxxxxxxx, at the address listed above, and (b)
received by Xx. Xxxxxxxx no later than 5:00 p.m. on the seventh (7th)
day following the date Xx. Xxxxxxxx signs this Agreement.
(c) The effective date of this Agreement shall be the eighth (8th) day
following Xx. Xxxxxxxx'x signing of this Agreement (the "Agreement
Effective Date"), provided Xx. Xxxxxxxx does not revoke this Agreement
during the revocation
6
period. In the event Xx. Xxxxxxxx does not accept this Agreement as
set forth above, or revokes this Agreement during the Revocation
Period, this Agreement including but not limited to the obligation of
the Releasees to provide the payments, and provide the benefits,
referred to in paragraph "2" and "3" above, shall automatically be
deemed null and void.
11. Xx. Xxxxxxxx acknowledges that: (a) he has carefully read this
Agreement in its entirety; (b) he has had an opportunity to consider
fully the terms of this Agreement for at least twenty-one (21) days;
(c) he has been advised by VITEX in writing to consult with an
attorney of his choosing in connection with this Agreement; (d) he
fully understands the significance of all of the terms and conditions
of this Agreement; (e) he has discussed it with his independent legal
counsel, or has had a reasonable opportunity to do so; (f) he has had
answered to his satisfaction any questions he has asked with regard to
the meaning and significance of any of the provisions of this
Agreement; (g) he is signing this Agreement voluntarily and of his own
free will and assents to all the terms and conditions contained
herein; (h) the amounts being paid hereunder are in excess of those
amounts he would be entitled to if he did not sign this Agreement; and
(i) that as of December 23, 1999 his employment relationship with
VITEX will be permanently and irrevocably severed and that to the full
extent permitted by law he will not be eligible for rehire or re-
employment with any of the Releasees, that he will not apply for re-
employment with any of the Releasees and that the Releasees have no
obligation, now or at any time in the future, to rehire or re-employ
him in any capacity, that any future decision by any of the Releasees
not to hire him will be based upon this subparagraph and that he will
not assert any claims against any Releasees based upon such decision.
ADDITIONAL PROVISIONS
---------------------
12. The making of this Agreement is not intended, and shall not be
construed, as an admission that Releasees have violated any federal,
state or local law (statutory or decisional), ordinance or regulation,
breached any contract, or committed any wrong whatsoever against Xx.
Xxxxxxxx.
13. This Agreement is binding upon, and shall inure to the benefit
of, the parties and their respective heirs, executors, administrators,
successors and assigns.
14. This Agreement shall be interpreted, construed and governed
according to the laws of the State of New York.
15. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, void, or unenforceable, such
provision shall be of no force and effect. However, the illegality or
unenforceability of such provision shall have no effect upon, and
shall not impair the enforceability of, any other provision of this
Agreement; provided, however, that, upon any finding by a court of
competent jurisdiction that the release and covenants provided for by
paragraphs "5," and "6" of this Agreement are illegal, void, or
unenforceable, Xx. Xxxxxxxx agrees, at the Releasees option, either to
return promptly to VITEX the amounts paid to his or paid on his behalf
pursuant to this Agreement or to execute a release, waiver and/or
covenant that is legal and enforceable. Further, if Xx. Xxxxxxxx
seeks to challenge
7
the validity of or otherwise vitiate this Agreement or any provision
thereof (including, without limitation, paragraphs "5,"and "6"), Xx.
Xxxxxxxx shall, as a precondition, be required to repay to VITEX the
amounts paid to him or paid on his behalf pursuant to the terms of
this Agreement. Finally, any breach of the terms of paragraphs "5,"
"6," "7," "8," and/or "9" shall constitute a material breach of this
Agreement as to which the Releasees may seek appropriate relief
(including but not limited to repayment of the amounts paid to him or
paid on his behalf referred to this Agreement) in a court of competent
jurisdiction.
17. The paragraph and section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
18. This Agreement (together with the accompanying cover letter)
constitutes the complete understanding between the parties and
supersedes any and all Releases, understandings, and discussions,
whether written or oral, between the parties. No other promises or
agreements shall be binding unless in writing and signed after the
Agreement Effective Date by the parties to be bound thereby.
WHEREFORE, Xx. Xxxxxxxx places his hand on the dates hereinafter set
forth.
Xxxxxxx Xxxxxxxx, Ph.D.
/s/ Xxxxxxx Xxxxxxxx Date September 13, 1999
--------------------------------- ------------------------
On this 13th day of September , 1999, before me personally appeared Xxxxxxx
---- -----------
Xxxxxxxx, Ph.D., to me known personally and known to me to be the individual
described herein, whose name is subscribed to, and who executed the above
Agreement and General Release.
/s/Xxxxxx Xxxxxxx
------------------
Notary Public
Agreed:
V.I.Technologies, Inc.
By: /s/ Xxxx Xxxx
-------------
Xxxx Xxxx
President & Chief Executive Officer
8
