Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
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Separation Agreement and General Release ("Agreement") executed this ___
day of September 1999, by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Ph.D. ("▇▇. ▇▇▇▇▇▇▇▇" or
"Releasor") and V.I. Technologies, Inc. ("VITEX" or "the Company").
WHEREAS, ▇▇. ▇▇▇▇▇▇▇▇ 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, ▇▇. ▇▇▇▇▇▇▇▇ 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. ▇▇. ▇▇▇▇▇▇▇▇'▇ RESIGNATION
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(a) ▇▇. ▇▇▇▇▇▇▇▇ hereby irrevocably gives notice of his intention to
resign from his employment at VITEX, effective October 1, 1999, and
VITEX accepts that resignation. ▇▇. ▇▇▇▇▇▇▇▇ 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
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(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 ▇▇. ▇▇▇▇▇▇▇▇'▇ execution of this Agreement, VITEX shall
pay ▇▇. ▇▇▇▇▇▇▇▇ 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) ▇▇. ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ in 1995
and 1997 to purchase 223,614 shares (at $2.795 per share) and 125,224
shares (at $8.39 per
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) ▇▇▇▇▇▇▇▇ 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) ▇▇. ▇▇▇▇▇▇▇▇'▇ 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 ▇▇. ▇▇▇▇▇▇▇▇ 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
▇▇. ▇▇▇▇▇▇▇▇'▇ family), at VITEX's cost, until the end of the Severance
Period (September 30, 2000).
(f) Except as provided herein, ▇▇. ▇▇▇▇▇▇▇▇'▇ participation in all
other benefit plans will cease on October 1, 1999.
3. CONTINUED MEMBERSHIP ON VITEX'S BOARD OF DIRECTORS
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(a) ▇▇. ▇▇▇▇▇▇▇▇ will remain a member of VITEX's Board of Directors
after October 1, 1999. ▇▇. ▇▇▇▇▇▇▇▇ expressly acknowledges that he has
been given no guarantees with respect to his continued membership on the
Board of Directors. ▇▇. ▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇ 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
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(a) Although under no obligation to do so, ▇▇. ▇▇▇▇▇▇▇▇ may perform
consulting services to VITEX. Any such consulting services will be
performed upon reasonable notice, at mutually agreeable times and
locations. ▇▇. ▇▇▇▇▇▇▇▇ 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. ▇▇. ▇▇▇▇▇▇▇▇ 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, ▇▇. ▇▇▇▇▇▇▇▇ 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
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 ▇▇.
▇▇▇▇▇▇▇▇ 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. ▇▇. ▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇ or VITEX, at any
time, with 90 days notice.
5. CONSIDERATION AND FULL DISCHARGE
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a) ▇▇. ▇▇▇▇▇▇▇▇ 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 ▇▇.
▇▇▇▇▇▇▇▇ by VITEX.
6. GENERAL RELEASE
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(a) For good and valuable consideration, the receipt of which is
hereby acknowledged, ▇▇. ▇▇▇▇▇▇▇▇ 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:
(i) any and all claims relating to ▇▇. ▇▇▇▇▇▇▇▇'▇
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) ▇▇. ▇▇▇▇▇▇▇▇ 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) ▇▇. ▇▇▇▇▇▇▇▇ 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.
7. CONFIDENTIALITY
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(a) ▇▇. ▇▇▇▇▇▇▇▇ acknowledges that this Agreement and all terms and
conditions thereof shall be kept strictly confidential and shall not be
disclosed by ▇▇. ▇▇▇▇▇▇▇▇ to anyone, except to the extent required by
law; except that ▇▇. ▇▇▇▇▇▇▇▇ 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, ▇▇. ▇▇▇▇▇▇▇▇
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, ▇▇. ▇▇▇▇▇▇▇▇ agrees that a material breach of
this provision by ▇▇. ▇▇▇▇▇▇▇▇ shall result in the payment by ▇▇.
▇▇▇▇▇▇▇▇ to VITEX of liquidated damages in the amount of $198,919.00.
Notwithstanding the foregoing, this paragraph shall not apply to ▇▇.
▇▇▇▇▇▇▇▇ 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
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(a) ▇▇. ▇▇▇▇▇▇▇▇ 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 ▇▇.
▇▇▇▇▇▇▇▇ if he is acting in his capacity as a director of VITEX.
(b) VITEX agrees not to disparage ▇▇. ▇▇▇▇▇▇▇▇. 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 ▇▇. ▇▇▇▇▇▇▇▇'▇ personal or professional
reputation.
9. COMPANY DOCUMENTS AND PROPERTY
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(a) ▇▇. ▇▇▇▇▇▇▇▇ agrees not to copy or take any books, notes or
documents belonging to VITEX without its express written consent. In
this regard, ▇▇. ▇▇▇▇▇▇▇▇ 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, ▇▇.
▇▇▇▇▇▇▇▇ 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, ▇▇. ▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇'▇
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) ▇▇. ▇▇▇▇▇▇▇▇ brought certain materials with him when
he joined VITEX and that such materials do not belong to VITEX, (ii) ▇▇.
▇▇▇▇▇▇▇▇ may retain published scientific works and slides which he
collected while an employee of VITEX.
(b) If ▇▇. ▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇ to
retain) including, but not limited to credit cards, building passes,
airline tickets, facsimile machines, paging devices and portable
telephones.
(c) If ▇▇. ▇▇▇▇▇▇▇▇ 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
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(a) ▇▇. ▇▇▇▇▇▇▇▇ 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. ▇▇. ▇▇▇▇▇▇▇▇ may accept this Agreement by
signing it, having his signature notarized and returning it to ▇▇▇▇▇
▇▇▇▇▇▇▇▇, VITEX, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, by no later
than 5:00 p.m. on September ___, 1999. Further, ▇▇. ▇▇▇▇▇▇▇▇ may sign
and return this Release at any time prior to September 30, 1999.
(b) After signing this Release, ▇▇. ▇▇▇▇▇▇▇▇ shall have seven (7) days
to revoke this Agreement by indicating his desire to do so in writing
(a) addressed to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, at the address listed above, and (b)
received by ▇▇. ▇▇▇▇▇▇▇▇ no later than 5:00 p.m. on the seventh (7th)
day following the date ▇▇. ▇▇▇▇▇▇▇▇ signs this Agreement.
(c) The effective date of this Agreement shall be the eighth (8th) day
following ▇▇. ▇▇▇▇▇▇▇▇'▇ signing of this Agreement (the "Agreement
Effective Date"), provided ▇▇. ▇▇▇▇▇▇▇▇ does not revoke this Agreement
during the revocation
period. In the event ▇▇. ▇▇▇▇▇▇▇▇ 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. ▇▇. ▇▇▇▇▇▇▇▇ 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
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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 ▇▇.
▇▇▇▇▇▇▇▇.
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, ▇▇.
▇▇▇▇▇▇▇▇ 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 ▇▇. ▇▇▇▇▇▇▇▇ seeks to challenge
the validity of or otherwise vitiate this Agreement or any provision
thereof (including, without limitation, paragraphs "5,"and "6"), ▇▇.
▇▇▇▇▇▇▇▇ 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, ▇▇. ▇▇▇▇▇▇▇▇ places his hand on the dates hereinafter set
forth.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Ph.D.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date September 13, 1999
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On this 13/th/ day of September, 1999, before me personally appeared ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Notary Public
Agreed:
V.I.Technologies, Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇
President & Chief Executive Officer