EX-10.17.1 Letter Agreement dated October 18, 2004

EX-10.17.1 2 b49911a4exv10w17w1.txt EX-10.17.1 LETTER AGREEMENT DATED OCTOBER 18, 2004 EXHIBIT 10.17.1 VIACELL, INC. From the desk of Marc D. Beer October 28, 2004 CEO Gamete Technology, Inc. 1130 Ten Rod road Suite E306 North Kingston, Rhode Island Attention: Nicholas H. Kondon Thomas Toth, M.D. 11 Tavern Circle Sudbury, MA 01776 Mehmet Toner, Ph.D Shriners Burn Hospital 51 Blossom Street Boston, MA 02114 Dear Nick, Tom and Mehmet: I am writing to set forth the terms under which we have agreed to terminate the Co-Development and License Agreement between ViaCell, Inc. ("ViaCell") and Gamete Technology, Inc. ("Gamete") dated as of July 15, 2003 (the "Agreement") and the Consulting Agreements between ViaCell and each of Drs. Toth and Toner (the "Consulting Agreements"). We have agreed as follows: 1. The Agreement shall be terminated, effective as of November 7, 2004, with the effect described in Section 12.5 of the Agreement except as modified hereby. 2. The Consulting Agreements shall each be terminated, with the effect as set forth herein, effective as of November 7, 2004. 3. In lieu of any other payments that would otherwise be due under the Agreement or the Consulting Agreements, ViaCell shall, within fourteen (14) days of your countersignature to this letter, pay $175,000 to Gamete and $12,500 to each of Drs. Toth and Toner. This payment obligation shall survive the termination of the Agreement and the Consulting Agreements. 4. In accordance with Section 12.5 of the Agreement, ownership of all equipment currently at the Boston IVF and identified on Exhibit A hereto (the "Equipment") will be transferred to Gamete, and gamete agrees that the Equipment constitutes all of the equipment required to be transferred to Gamete under the Agreement. 245 First Street - Fifteenth Floor - Cambridge, MA 02142 Phone ###-###-#### - Fax ###-###-#### 5. Each of Gamete, Dr. Toth and Dr. Toner agrees that the foregoing consideration represents settlement in full of all outstanding obligations owed to each of them by ViaCell. Gamete, ViaCell, Dr. Toth and Dr. Toner, on behalf of themselves, and their respective heirs, family members, executors, officers, directors, employees, inventors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and successor corporations, and assigns, hereby fully and forever release each other and their respective heirs, family members, executors, officers, directors, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and successor corporations, and assigns, from, and agree not to sue concerning, any claim, duty, obligation or cause of action relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected, that any of them may possess arising from any omissions, acts, or facts that have occurred up until and including the date that this letter is fully executed, without limitation, (a) any and all claims arising out of the Agreement and the termination of the Agreement, (b) any and all claims that were alleged or that could have been alleged, if any, and that have been filed, or will be filed, with any government body or arbitration body, (c) any and all claims will be filed, with any government body or arbitration body, (c) any and all claims (whether under federal, state law or otherwise, or the common law, statutory law or other legal authority of either) for termination in violation of public policy; breach of contract, both express and implied; breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel; negligent or intentional misrepresentation; negligent or intentional interference with contract or prospective economic advantage; and unfair business practices; and (d) any and all claims for attorneys' fees and costs. Gamete, ViaCell, Dr. Toth and Dr. Toner agree that the release set forth in this paragraph shall be and remain in effect in all respects as a complete general release as to the matters released. This release does not extend to any obligations incurred under this letter agreement. 6. Except as modified hereby, the terms of the Agreement shall govern all aspects of the termination of the Agreement. 7. This letter agreement may be executed in one or more counterparts, all of which taken together shall be deemed one original. Facsimile signatures shall be deemed original. Please indicate your agreement with the terms of this letter by countersigning a copy of this letter and returning it to me at your earliest convenience. Very truly yours, VIACELL, INC. ------------------------------ Marc Beer Chief Executive Officer AGREED: GAMETE TECHNOLOGY, INC. By: /s/ Nicholas H. Kondon 11/18/04 -------------------------------------------- Nicholas H. Kondon, Chief Executive Office Date: /s/ Thomas L. Toth - ------------------- Thomas Toth, M.D. Date: /s/ Mehmet Toner - ---------------- Mehmet Toner, Ph.D. Date: VIACELL, INC. 245 First Street - Fifteenth Floor - Cambridge, Massachusetts 02142 Phone ###-###-#### - Fax ###-###-#### - www.viacellinc.com APPENDIX A - EQUIPMENT LIST

*Controlled rate freezer on order Approved by VIACELL Inc. Gamete Technologies, Inc. 11/18/04 - -------------------------------------- ------------------------------------- APPENDIX A - EQUIPMENT LIST

*Controlled Rte freezer on order Approved by VIACELL Inc. Gamete Technologies Inc. - ---------------------------------- -------------------------------