Exhibit 10.3
December 4,2006
Xxxxx X. Xxxxx
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Dear Xxxxx:
The purpose of this letter agreement (the "Agreement") is to confirm
the terms regarding your separation of employment from OXiGENE, Inc. (the
"Company"). As more fully set forth below, the Company desires to provide you
with severance pay and benefits in exchange for certain agreements by you. This
Agreement shall become effective (the "Effective Date") on the 8th day following
your acceptance of it as provided below
1. SEPARATION OF EMPLOYMENT. Your employment with the Company
will terminate (or terminated) effective August 14, 2006 (the "Separation
Date"). You acknowledge that from and after the Separation Date, you shall have
no authority and shall not represent yourself as an employee or agent of the
Company.
2. SEVERANCE PAY AND BENEFITS. In exchange for the mutual
covenants set forth in this agreement, the Company agrees to provide you with
the following:
(a) Payment of an amount equal to sixteen (16) months of your
gross base salary or $320,000, less all applicable federal, state,
local and other employment-related deductions. The first such payment
shall be for the gross amount of $120,000 and shall be made on the
Company's first regularly scheduled payday following February 14, 2007,
with the balance to be paid in approximately equal installments on the
Company's regularly scheduled paydays following such initial payment.
If you die before you receive any of your payments herein, the payments
will be made to your estate.
(b) In the event that you choose to exercise your right under
COBRA to continue your participation in the Company's health and dental
insurance plan (which you may do, to the extent permitted by COBRA,
regardless of whether you accept this Agreement), the Company shall pay
for the costs for such coverage (the "Severance Benefits") for a period
of twelve (12) month(s) beginning on the Separation Date to the same
extent that such insurance is provided to persons then currently
employed by the Company. Notwithstanding any other provision of this
Agreement, this obligation shall cease on the date you become eligible
to receive health and dental insurance benefits through any other
employer, and you agree to provide the Company with written notice
immediately upon securing such employment and upon becoming eligible
for such benefits.
(c) The Company shall accelerate the vesting of the 30,000 shares
of restricted stock granted on October 3, 2005 and currently held by
you so that the restrictions on such shares lapse on the
Separation Date. The Company agrees to waive its repurchase rights
under paragraph 2.1(a) and any restrictions on transfer under
paragraph 2.1(f) of the OXiGENE Restricted Stock Agreement.
(d) As of the Separation Date, you will be vested in a total of
12,500 options. You may exercise any vested options by December
31, 2006. Subject to any provisions in the applicable stock plan that
would extend the exercise period for such options beyond December 31,
2006, any options not exercised by that date shall terminate. All
unvested options shall terminate as of the Separation Date.
You acknowledge and agree that the Severance Pay to be provided to you
is not intended to, and shall not constitute, a severance plan, and shall confer
no benefit on anyone other than the parties hereto. You further acknowledge that
except for the specific financial consideration set forth in this Agreement, you
are not and shall not in the future be entitled to any other compensation
including, without limitation, wages, bonuses, vacation pay, holiday pay or any
other form of compensation or benefit.
3. UNEMPLOYMENT BENEFITS. The Company agrees that it will not
contest any claim for unemployment benefits by you with the MASSACHUSETTS
DIVISION OF UNEMPLOYMENT ASSISTANCE The Company, of course, shall not be
required to falsify any information.
4. COOPERATION. You agree that both during and at any time after
your employment, you shall cooperate fully with the Company in connection with
any matter or event relating to your employment or events that occurred during
your employment, including, without limitation, in the defense or prosecution of
any claims or actions now in existence or which may be brought or threatened in
the future against or on behalf of the Company, including any claims or actions
against its affiliates and its and their officers and employees. Your
cooperation in connection with such matters, actions and claims shall include,
without limitation, being available, upon reasonable notice to meet with the
Company regarding matters in which you have been involved, and any contract
matters or audits; to prepare for, attend and participate in any proceeding
(including, without limitation, depositions, consultation, discovery or trial);
to provide affidavits; to assist with any audit, inspection, proceeding or other
inquiry; and to act as a witness in connection with any litigation or other
legal proceeding affecting the Company. The Company agrees not to unreasonably
infringe on your professional and personal commitments when requesting your
compliance with this paragraph. You further agree that should you be contacted
(directly or indirectly) by any person or entity (for example, by any party
representing an individual or entity) adverse to the Company, you shall promptly
notify me or Human Resources. You shall be reimbursed for any reasonable costs
and expenses, including but not limited to attorneys' fees and costs if
reasonably necessary to protect your legitimate interests, incurred in
connection with providing such cooperation under this section. Before incurring
any material costs or expenses hereunder, you shall notify the Company, and both
parties shall confer in good faith regarding the need for such expenditures and
to agree upon reasonable steps to minimize same. Nothing herein shall be
construed to require you to provide any cooperation with respect to any matter
in which your interests are or reasonably may become adverse to the interests of
the Company.
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5. ADDITIONAL COVENANTS.
(a) You expressly acknowledge and agree to the following:
(i) that you have returned to the Company all Company
documents (and any copies thereof) and property, and that you
will abide by any and all common law and/or statutory
obligations relating to protection and nondisclosure of the
Company's trade secrets and/or confidential and proprietary
documents and information;
(ii) that, except as required by law (including without
limitation filings under federal or state securities laws),
all information relating in any way to the negotiation of this
Agreement, including the terms and amount of financial
consideration provided for in this Agreement, shall be held
confidential by the parties and shall not be publicized or
disclosed to any person (other than an immediate family
member, legal counsel or financial advisor, taxing
authorities, provided that any such individual to whom
disclosure is made agrees to be bound by these confidentiality
obligations), business entity or government agency (except as
mandated by state or federal law);
(iii) that, except as required by law, you will not make
any statements that are professionally or personally
disparaging about, or adverse to, the interests of the Company
(and its officers, directors and managers) including, but not
limited to, any statements that disparage any such person,
product, service, finances, financial condition, capability or
any other aspect of the business of the Company, and that you
will not engage in any conduct which is intended to harm
professionally or personally the reputation of the Company
(and its officers, directors and managers); provided that
nothing in this paragraph applies to statements, either oral
or written, in any privileged or confidential communication
you have with counsel and/or prevents you from complying with
the legal process;
(iv) that a material breach of any of the foregoing
covenants by you shall constitute a material breach of this
Agreement and shall relieve the Company of any further
obligations hereunder and, in addition to any other legal or
equitable remedy available to the Company, shall entitle the
Company to recover any Severance Pay and the cost of Benefits
already paid to or for you pursuant to Section 2 of this
Agreement.
(b) The Company agrees that its officers and directors shall not
make any private or public statements that are professionally or personally
disparaging about you or your reputation; provided, that nothing in this
paragraph shall interfere with the Company's ability to comply with legal
process, the requirements of applicable federal or state laws or regulations
(including but not limited to applicable federal or state securities laws or
regulations) or the
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requirements of governmental entities (including but not limited to any
securities exchange, quotation system or over-the-counter market on
which the Company has its securities listed or traded), to fulfill its
public disclosure obligations, or to conduct its business.
6. RELEASE OF CLAIMS. You hereby agree and acknowledge that by
signing this Agreement and accepting the Severance Pay and Benefits to be
provided to you, and other good and valuable consideration provided for in this
Agreement, you, except as expressly provided below, are waiving and releasing
your right to assert any form of legal claim against the Company1/ whatsoever
for any alleged action, inaction or circumstance existing or arising from the
beginning of time through the Effective Date. Your waiver and release herein,
except as expressly provided below, is intended to bar any form of legal claim,
charge, complaint or any other form of action (jointly referred to as "Claims")
against the Company seeking any form of relief including, without limitation,
equitable relief (whether declaratory, injunctive or otherwise), the recovery of
any damages or any other form of monetary recovery whatsoever (including,
without limitation, back pay, front pay, compensatory damages, emotional
distress damages, punitive damages, attorneys fees and any other costs) against
the Company, for any alleged action, inaction or circumstance existing or
arising through the Effective Date.
Without limiting the foregoing general waiver and release, you, except
as expressly provided below, specifically waive and release the Company from any
Claim arising from or related to your employment relationship with the Company
or the termination thereof, including, without limitation:
- Claims under any state or federal discrimination, fair
employment practices or other employment related statute,
regulation or executive order (as they may have been amended
through the Effective Date) prohibiting discrimination or
harassment based upon any protected status including, without
limitation, race, national origin, age, gender, marital
status, disability, veteran status or sexual orientation.
Without limitation, specifically included in this paragraph
are any Claims arising under the federal Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act, the
Civil Rights Acts of 1866 and 1871, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Equal
Pay Act, the Americans With Disabilities Act and any similar
Massachusetts or other state statute.
- Claims under any other state or federal employment related
statute, regulation or executive order (as they may have been
amended through the Effective Date) relating to wages, hours
or any other terms and conditions of employment. Without
limitation, specifically included in this paragraph are any
Claims arising under the Fair Labor Standards Act, the
National Labor Relations Act, the Employee Retirement Income
Security Act of 1974, the Consolidated Omnibus Budget
Reconciliation Act of 1985 (COBRA) and any similar
Massachusetts or other state statute.
--------------------------
1/ For the purposes of this section, the parties agree that the term
"OXiGENE" shall include OXiGENE, its divisions, affiliates and subsidiaries, and
its and their respective officers, directors, employees, attorneys, agents and
assigns.
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- Claims under any state or federal common law theory including,
without limitation, wrongful discharge, breach of express or
implied contract, promissory estoppel, unjust enrichment,
breach of a covenant of good faith and fair dealing, violation
of public policy, defamation, interference with contractual
relations, intentional or negligent infliction of emotional
distress, invasion of privacy, misrepresentation, deceit,
fraud or negligence,
- Any other Claim arising under local, state or federal law.
You explicitly acknowledge that because you are over forty (40) years
of age, you have specific rights under the Older Workers Benefits Protection Act
("OWBPA"), which prohibits discrimination on the basis of age, and that the
releases set forth in this section are intended to release any right that you
may have to file a claim against the Company alleging discrimination on the
basis of age.
Notwithstanding the foregoing, this section does not:
- release the Company from any obligation expressly set forth in
this Agreement or from any obligation, including without
limitation obligations under the Workers Compensation laws,
which as a matter of law cannot be released; claims for vested
benefits and/or your rights to indemnification by the company
under the Company's bylaws, this Agreement, and/or your
Employment Agreement dated January 1, 2002;
- prohibit you from filing a charge with the Equal Employment
Opportunity Commission ("EEOC");
- prohibit you from participating in an investigation or
proceeding by the EEOC or any comparable state or local
agency; or
- prohibit you from challenging or seeking a determination in
good faith of the validity of this release or waiver under the
Age Discrimination in Employment Act and does not impose any
condition precedent, penalty, or costs for doing so unless
specifically authorized by federal law.
Your waiver and release, however, are intended to be a complete bar to
any recovery or personal benefit by or to you with respect to any claim
whatsoever, including those raised through a charge with the EEOC, except those
which, as a matter of law, cannot be released. In the event that you
successfully challenge the validity of the release with respect to the Age
Discrimination in Employment Act, the Company or any affected party sought to be
released hereunder may seek recovery from you of all amounts paid and the cost
of any benefits provided pursuant to this Agreement. Nothing in this Agreement,
however, shall limit the right of the Company or any affected party sought to be
released hereunder to seek immediate dismissal of a charge on the basis that
your signing of this Agreement constitutes a full release of any rights you
might otherwise have to pursue the charge.
You acknowledge and agree that, but for providing this waiver and
release, you would
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not be receiving the Severance Pay being provided to you under the terms of this
Agreement.
It is the Company's desire and intent to make certain that you fully
understand the provisions and effects of this Agreement. To that end, you have
been encouraged and given the opportunity to consult with legal counsel for the
purpose of reviewing the terms of this Agreement, and have been provided certain
additional information required by OWBPA, including job titles and ages of other
employees affected by layoff and eligible for severance pay and benefits, as set
forth in Exhibit A, and ages of employees in your job classification or
organizational unit not affected by layoff, as set forth in Exhibit B.
Consistent with the provisions of OWBPA, the Company is providing you with
forty-five (45) days in which to consider and accept the terms of this Agreement
by signing below and returning it to Xxxxxxx Xxxx, President and CEO, OXiGENE,
Inc. 000 Xxxxx Xxxxxx, Xxxxxxx, XX 00000. In addition, you may rescind your
assent to this Agreement within seven (7) days after you sign it. To do so, you
must deliver a notice of rescission to Xxxxxxx Xxxx. To be effective, such
rescission must be hand delivered or postmarked within the seven (7) day period
and sent by certified mail, return receipt requested, to Agreement by signing
below and returning it to Xxxxxxx Xxxx, President and CEO, OXiGENE, Inc. 000
Xxxxx Xxxxxx, Xxxxxxx, XX 00000.
7. COMPANY'S RELEASE OF CLAIMS. The Company hereby agrees and
acknowledges that by signing this Agreement and for other good and valuable
consideration, it is, to the maximum extent allowed by the Company's By-laws and
applicable law, waiving and releasing its right to assert any form of legal
claim against you whatsoever for any alleged action, inaction or circumstance
existing or arising from the beginning of time through the Execution Date, but
specifically excluding claims arising out of fraud by you. Subject to the
foregoing exception, the Company's waiver and release herein is intended to bar
any form of legal claim, charge, complaint or any other form of action against
you seeking any form of relief including, without limitation, equitable relief
(whether declaratory, injunctive or otherwise), the recovery of any damages or
any other form of monetary recovery whatsoever (including, without limitation,
back pay, front pay, compensatory damages, emotional distress damages, punitive
damages, attorneys' fees and any other costs) against you, for any alleged
action, inaction or circumstance existing or arising through the Execution Date.
Notwithstanding the foregoing, this section does not release you from any
obligation expressly set forth in this Agreement.
8. ENTIRE AGREEMENT/MODIFICATION/WAIVER/CHOICE OF
LAW/ENFORCEABILITY/JURY WAIVER. You acknowledge and agree that, with the
exception of the Confidentiality and Inventions Agreement and Section 7 and
Section 8(A) of your Employment Agreement dated January 1, 2002, this Agreement
supersedes any and all prior or contemporaneous oral and/or written agreements
between you and the Company, and sets forth the entire agreement between you and
the Company. No variations or modifications hereof shall be deemed valid unless
reduced to writing and signed by the parties hereto. The failure of the Company
to seek enforcement of any provision of this Agreement in any instance or for
any period of time shall not be construed as a waiver of such provision or the
Company's right to seek enforcement of such provision in the future. This
Agreement is binding upon and shall inure to the benefit of the parties and
their respective agents, assigns, heirs, executors, successors and
administrators. This Agreement shall be deemed to have been made in the
Commonwealth of Massachusetts, shall take effect as an instrument under seal
within the
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Commonwealth of Massachusetts, and shall be governed by and construed in
accordance with the laws of Massachusetts, without giving effect to conflict of
law principles. You agree that any action, demand, claim or counterclaim
relating to the terms and provisions of this Agreement, or to its formation or
breach, shall be commenced in the Commonwealth of Massachusetts in a court of
competent jurisdiction, and you further acknowledge that venue for such actions
shall lie exclusively in the Commonwealth of Massachusetts and that material
witnesses and documents would be located in the Commonwealth of Massachusetts.
Both parties hereby waive and renounce in advance any right to a trial by jury
in connection with such legal action. The provisions of this Agreement are
severable, and if for any reason any part hereof shall be found to be
unenforceable, the remaining provisions shall be enforced in full.
By executing this Agreement, you are acknowledging that you have been
afforded sufficient time to understand the terms and effects of this Agreement,
that your agreements and obligations hereunder are made voluntarily, knowingly
and without duress, and that neither the Company nor its agents or
representatives have made any representations inconsistent with the provisions
of this Agreement.
This Agreement may be signed on one or more copies, each of which when
signed will be deemed to be an original, and all of which together will
constitute one and the same Agreement.
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If the foregoing correctly sets forth our understanding, please sign,
date and return the enclosed copy of this Agreement to Xxxxxxx Xxxx, President
and CEO, at the Company within forty-five (45) days.
Very truly yours,
OXiGENE, Inc.
By: /s/ Xxxxxxx Xxxx
-----------------------------------
Dated: 12/7/06
--------------------------------
Confirmed and Agreed:
/s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx
Dated: Dec. 4, 2006
----------------------------
Enclosures
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EXHIBIT A
CLASS: ALL OXIGENE, INC. EMPLOYEES ELIGIBLE FOR SEVERANCE PAYMENT
TITLE DIVISION AGE AS OF AUGUST 14, 2006
Clinical Data Manager Clinical 35,37,41
Clinical Research Associate Clinical 30,35
Clinical Trial Assistant Clinical 46
Director, Regulatory Affairs Operations 39
Director, Pharmaceutical Development
& Manufacturing Operations 55
Chief Operation Officer Operations 44
Receptionist Administrative 25
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EXHIBIT B
CLASS: ALL OXIGENE, INC. EMPLOYEES NOT ELIGIBLE FOR SEVERANCE PAYMENT
TITLE DIVISION AGE AS OF AUGUST 14, 2006
Accounting Manager Administrative 31
Accounts Payable Specialist Administrative 35
Office Manager Administrative 30
Controller Administrative 40
Program Business Analyst Administrative 36
Vice President & Chief Financial Officer Administrative 50
Contracts Specialist Administrative 42
President & CEO Administrative 39
Clinical Research Associate II Clinical 29,35
Clinical Trial Assistant Clinical 24
Sr. Director, Clinical Affairs Clinical 47
Clinical Trial Manager Clinical 34
Assoc. Director, Clinical Affairs Clinical 35
Chief Medical Officer Clinical 62
Sr. Clinical Data Manager Clinical 33
Assoc. Director, Preclinical Development Operations 34
Assoc. Director, Pharmaceutical Development & Operations 45
Manufacturing
Sr. Regulatory Affairs Assoc. Operations 28
Manager, RA/QA Operations 36
Chief Science Officer Research 50
Director, Research Research 40
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