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EXHIBIT 10.45(A)
March 21, 2001
Xx. Xxxxxxx Xxxxx
Xxxxxx Pharmaceuticals
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxx:
This letter is to confirm our mutual understanding with respect to the terms and
conditions under which you agree to provide Viragen Inc. ("Viragen"), directly
or through its subsidiaries, affiliated and associated companies, with services
in a consulting capacity during the period beginning April 1, 2001 and ending
March 31, 2003 (hereinafter referred to as the "CONSULTING PERIOD"), it being
understood that this CONSULTING PERIOD may be extended by mutual agreement in
writing.
1. "Consulting capacity" herein means that you will provide VIRAGEN with
the full benefit of your knowledge, experience and skill with respect
to questions and problems which VIRAGEN will stipulate. During the term
of this Agreement, Xxxxxxx Xxxxx shall generally render advice and
counsel on pharmaceutical and biotech related projects.
2. VIRAGEN acknowledges that other clients may use your consulting
services and it is understood and agreed that you are not to disclose
to VIRAGEN any confidential information of other parties, including
past and present clients. VIRAGEN will rely upon your ethical judgment
to avoid conflicts of interest. It is understood and agreed that during
the CONSULTING PERIOD you shall not consult for other parties regarding
the same subject matter set forth above for the consulting capacity
covered by this Agreement.
3. You will make yourself available to VIRAGEN from time-to-time for
consulting services in the consulting capacity stated herein.
4. XXXXXXX agrees to compensate you as follows:
a) First Year Options:
Options on 100,000 shares of Viragen Common Stock at market
price at the date of grant (coincides with date of execution
of agreement). One-half vests upon execution of consultant
agreement and one-half vests 6 months from date of execution
of the consultant agreement.
b) Second Year Options:
Option on 100,000 shares of Viragen Common Stock at market
price at the date of grant (coincides with date of execution
of agreement). One-half vests upon the first anniversary of
the date of execution of the consultant agreement and one-half
vests 18 months from the date of execution of the consultant
agreement.
In the event that you provide consulting service at a location away
from the metropolitan area of your regular place of business, VIRAGEN
will reimburse you for reasonable travel and living expenses incurred
by you, provided that travel time shall not be considered time spent in
the
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Xxxxxxx Xxxxx
Consulting Agreement
March 16, 2001
Page 2 of 3 Pages
service of VIRAGEN in a consulting capacity. It is understood and
agreed that VIRAGEN will stipulate in advance in writing the places and
locations where you will provide services in a consulting capacity.
Payment for your expenses will be made upon submission by you and
approval by VIRAGEN of an itemized account of the expenses incurred and
payments due. All payments shall be made by check payable to Xxxxxxx
Xxxxx at Chugai Pharmaceuticals, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000. No payments will be made until you provide a taxpayer
identification number.
5. During the discussions leading up to this Agreement and during the
CONSULTING PERIOD and any extensions thereof you have acquired and will
acquire from VIRAGEN information which VIRAGEN considers to be
proprietary and confidential, for example, information with respect to
materials, compounds, formulations, samples, processes, methods,
apparatus, operations and present and future plans of VIRAGEN. You
agree to keep confidential and not to use, except in connection with
services in a consulting capacity provided VIRAGEN, all such
information, as well as all information developed by you as a result of
your services to VIRAGEN under this Agreement, and not to divulge any
such information to others at any time. Upon termination of this
Agreement or at any other time VIRAGEN requests, you will transmit to
VIRAGEN any written, printed or other materials embodying such
information, including all copies, excerpts thereof, and samples given
to you or prepared by you in connection with your work for VIRAGEN
under this Agreement. These obligations on your part with respect to
VIRAGEN information shall continue at all times beyond the CONSULTING
PERIOD and any extensions thereof.
Notwithstanding the above, this Agreement shall not restrict your use
or disclosure of information which:
a) is or later becomes publicly known through no fault of yours;
b) was already known to you as evidenced by your written records
at the time of its receipt from VIRAGEN; or
c) is lawfully and in good faith made available to you without
restriction on disclosure or use by a third party.
Specific information disclosed to you by VIRAGEN shall not be deemed to
be available to the public or in your prior possession merely because
it is embraced by more general information available to the public or
in your prior possession.
6. Any and all information, inventions and discoveries, whether or not
patentable, which you develop, conceive and/or make:
a) within the CONSULTING PERIOD and any extensions mutually
agreed upon and which are related to any questions or problems
with respect to which VIRAGEN has utilized your services under
this Agreement, and/or
b) as a result of confidential information received from VIRAGEN,
shall be the sole and exclusive property of VIRAGEN. You will,
upon request of VIRAGEN, promptly execute any and all
applications, assignments or other instruments which VIRAGEN
shall deem necessary or
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Xxxxxxx Xxxxx
Consulting Agreement
March 16, 2001
Page 3 of 3 Pages
useful in order to apply for and obtain patent protection
worldwide for said inventions and discoveries, and in order to
assign and convey to VIRAGEN the sole and exclusive right,
title and interest in and to said inventions and discoveries
and patent applications and patents thereon. VIRAGEN will bear
the costs of preparation and filing of all said patent
applications.
7. While providing services for VIRAGEN in a consulting capacity you will
be acting as an independent contractor and not as an employee or agent
of VIRAGEN and you will not be entitled to any of the benefits, direct
or indirect, of an employee of VIRAGEN.
8. The validity, interpretation and performance of this Agreement and any
dispute connected herewith shall be governed and construed in
accordance with the laws of the State of Florida, USA.
9. The parties agree that all works created pursuant to this Agreement are
deemed to be assigned to VIRAGEN, including all copyrights throughout
the world. You agree to execute any documents deemed necessary by
VIRAGEN to record said assignments. You shall also secure for VIRAGEN
the assignment of copyrights in any work created by others pursuant to
this Agreement, and shall notify VIRAGEN prior to commencing any
activity toward creation if the copyright of any such work cannot be
secured. The parties agree that all works made for hire under this
Agreement shall vest in VIRAGEN.
10. VIRAGEN will not be liable for any loss, injury or damage incurred by
you or by a third party as a result of your performance of the
services, including any loss, injury or damage resulting from the
negligent or willful act or omission by you. You shall indemnify and
hold VIRAGEN harmless from any liability, loss, cost, and expense
(including attorneys' fees and costs) incurred by VIRAGEN as a result
of your breach of this agreement, negligence or willful misconduct.
This obligation shall survive the expiration or earlier termination of
this agreement.
If the foregoing terms and conditions meet with your understanding and approval,
please show your acceptance and agreement by signing this letter in duplicate at
the place indicated below.
Very truly yours,
VIRAGEN, INC.
By: /s/ Xxxxxx Xxxxx By: /s/ Xxxxxxx Xxxxx
-------------------------------- ---------------------------------
Xxxxxx Xxxxx Xxxxxxx Xxxxx
Chairman & CEO Title:
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SS#:
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Telephone No.
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EXHIBIT 10.45(B)
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of the Effective Date of Optionee's Consulting
Agreement (the "Effective Date" or "Grant Date") between Viragen, Inc. a
Delaware Corporation (the "Company") and Xxxxxxx Xxxxx ("Optionee").
The Company, pursuant to the provisions of its 1997 Stock Option Plan (the
"Plan"), hereby grants to Optionee an Option to acquire 200,000 shares of Common
Stock, par value $.01 per share, of the Company (the "Common Stock"), subject to
the following terms and conditions:
1. Grant of Option. The Company hereby grants to Optionee (the
"Option") to purchase up to 200,000 shares of Common Stock (the "Shares"), to be
transferred upon the exercise thereof, fully paid and nonassessable.
2. Exercise Price. The exercise price of the Shares subject to
the Option shall be the closing market price on the Effective Date, $1.20 per
share. The Company shall pay all original issue or transfer taxes upon the
exercise of the Option by Optionee.
3. Exercisability of Option; Rights and Privileges. Subject to
the provisions of Paragraph 6 hereof, the Option shall be exercisable by
Optionee: (i) 50,000 upon the Effective Date; (ii) 50,000 upon six (6) months
following the Effective Date; (iii) 50,000 upon the first anniversary of the
Effective Date and (iv) 50,000 upon eighteen (18) months following the Effective
Date (the "Exercise Date(s)") for a period of five (5) years from each Exercise
Date (the "Exercise Period").
All granted but unexercised Options shall continue to be fully
exercisable in accordance with the provisions herein:
(i) if there occurs any corporate transaction
(which shall include a series of corporate transactions occurring within 60 days
or occurring pursuant to a plan), that has the result that shareholders of the
Company immediately before such transaction cease to own at least 66 2/3 percent
of the voting stock of the Company in a (a) reorganization, (b) consolidation,
(c) merger, (d) liquidation or (e) a similar corporate transaction;
(ii) if the shareholders of the Company shall
approve a plan of merger, consolidation, reorganization, liquidation or
dissolution in which the Company does not survive (unless the approved merger,
consolidation, reorganization, liquidation or dissolution is subsequently
abandoned); or
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(iii) if the shareholders of the Company shall
approve a plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such plan is
subsequently abandoned).
4. Non-Assignability of Option. The Option shall not be given,
granted, sold, exchanged, transferred, pledged, encumbered, assigned or
otherwise disposed of by Optionee, other than by will, the laws of descent and
distribution, estate planning purposes or assignment to a personal or family
related trust, and during the lifetime of Optionee, shall not be exercisable by
any other person, but only by Optionee.
5. Method of Exercise of Option. Optionee shall notify the
Company by written notice, in the form of the Notice of Exercise attached hereto
(Attachment A), delivered to the Company's principal office, attention: Chief
Financial Officer. Payment for the Shares shall be made by Optionee's check
payable to the order to the Company in full payment for the total exercise price
of the number of Shares purchased accompanying the Notice of Exercise. As soon
as practicable after the receipt of such Notice of Exercise and accompanying
payment for the purchase of Shares, the Company shall, at its principal office,
tender to Optionee a certificate or certificates issued in Optionee's name
evidencing the Shares purchased by Optionee hereunder.
6. Termination of Option. To the extent exercisable but not
exercised, the Option shall terminate upon the first to occur of the following
dates:
(a) five (5) years from each Exercise Date as defined
herein if still serving as a director of the Company; or
(b) the expiration of ninety (90) days following the date
Optionee ceases to serve a director of the Company and/or any of its
subsidiaries in the event of normal retirement or voluntary termination.
Subject to the provisions of this paragraph, in the event of
Optionee's death, the exercisable but unexercised portion of the Option may be
exercised by the estate of Optionee, or by the person who acquired the right to
exercise the Option by bequest or inheritance or by reason of the death of
Optionee.
7. Securities Laws. Employer represents and warrants that (i) all
shares underlying the Options will be issued from shares authorized by and
subject to the provisions of the Plan; (ii) the Plan and the shares underlying
the Options have been registered under the applicable regulations of the
Securities and Exchange Commission on Form S-8; and (iii) such registration
covering the shares underlying the Options will be maintained as effective for
the duration of the Exercise Period of the Options as defined herein.
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8. Adjustment of Shares. If at any time prior to the expiration
or exercise in full of the Option, there shall be any increase or decrease in
the number of issued and outstanding shares of the Common Stock through the
declaration of a stock dividend or through any recapitalization resulting in a
stock split-up, combination or exchange of the Common Stock, then and in such
event:
(i) appropriate adjustment shall be made in the maximum
number of Shares available for grant, so that the same percentage of the
Company's issued and outstanding Shares shall continue to be subject to being so
optioned; and
(ii) appropriate adjustment shall be made in the number of
Shares, and the exercise price per Share thereof, that remain unexercised under
the Option, so that the same percentage of the Company's issued and outstanding
shares of Common Stock shall remain subject to purchase at the same aggregate
exercise price.
Except as otherwise expressly provided herein, the issuance by
the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection with
a direct sale of upon the exercise of rights or warrants to subscribe therefore,
or upon conversions of shares or obligations the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or exercise price of the
Shares that remain unexercised under the Option.
Without limiting the generality of the foregoing, the
existence of unexercised Shares under the Option shall not affect in any manner
the right or power of the Company to make, authorize or consummate (i) any or
all adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or consolidation of
the Company; (iii) any issue by the Company of debt securities, or preferred or
preference stock that would rank above the Shares issuable upon exercise of the
Option; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
9. No Rights as Stockholder. Optionee shall have no rights as a
stockholder of the Company in respect of the Shares as to which the Option shall
not have been exercised and payments made therefore as herein provided.
10. Binding Effect. Except as otherwise provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
their heirs, legal representatives, successors and permitted assigns. Optionee
acknowledges that Optionee has read and understands the Plan and agrees to abide
by its terms.
11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the conflict of
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laws principles thereof. All terms not defined in this Agreement shall have the
same meaning as in the Plan.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
VIRAGEN, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President & CFO
OPTIONEE
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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ATTACHMENT A
NOTICE OF EXERCISE
The undersigned hereby irrevocably elects to exercise the within Option to the
extent of purchasing __________ shares of Common Stock of Viragen, Inc., a
Delaware Corporation, and hereby makes payments of $________ in payment
therefor.
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Signature
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Date
INSTRUCTIONS FOR ISSUANCE OF STOCK AND CORPORATE RECORDS
Name:
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(Please type or print in block letters)
Address:
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Social Security #:
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Phone #: ( )
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Fax #: ( )
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