EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of April 1,
1997, between OXiGENE Inc., a Delaware corporation ("OXiGENE"), and Xx. Xxxxxx
X. Xxxx (the "Executive"). OXiGENE together with its subsidiary OXiGENE Europe
AB shall be referred to as the "Company."
W I T N E S S E T H:
WHEREAS, Executive is currently employed by OXiGENE in the capacity of
Executive Vice President, Scientific Affairs; and
WHEREAS, OXiGENE and Executive desire to enter into an agreement relating
to the continued employment of the Executive by OXiGENE for a four-year period
ending April 1, 2001.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, OXiGENE and Executive
hereby agree as follows:
1. Employment
1.1 Executive shall continue to serve in the capacity of Executive Vice
President, Scientific Affairs of OXiGENE, and shall have the duties,
responsibilities and authority assigned to Executive by the Board of Directors
of OXiGENE, ("Board") consistent with such position including, but not limited
to:
(a) all scientific matter, including "in-house" research, contract and GLP
pre-clinical research, the chemical aspects of GMP manufacturing and the
adaptation and development of pre-clinical procedures and discoveries into
clinical material; and
(b) all matters related to OXiGENE's Scientific Advisory Board, including
membership, meeting schedules and agenda, coordination of scientific projects,
public relations and publications and, subject to Compensation Committee
approval, compensation of the members of the Scientific Advisory Board.
Executive shall report directly to OXiGENE's President and Chief Executive
Officer.
1.2 Executive, so long as he is employed hereunder, (i) shall devote his
full professional time and attention to the services required of him as an
employee of OXiGENE, except as otherwise agreed and except as permitted in
accordance with paid vacation time subject to OXiGENE's existing vacation
policy, and subject to OXiGENE's existing policies pertaining to reasonable
periods of absence due to sickness, personal injury or other disability, (ii)
shall use his best efforts to promote the interests of OXiGENE, and (iii) shall
discharge his responsibilities in a diligent and faithful manner, consistent
with sound business practices. Notwithstanding the foregoing, Executive may
serve as a director of, and a consultant to, Campamed, Inc., provided such
activity does not interfere with Executive's ability to perform his duties and
responsibilities hereunder.
2. Term
The term of Executive's employment under this Agreement shall commence as
of April 1, 1997, and shall end April 1, 2001, unless terminated sooner as
hereinafter provided (the "Employment Term").
3. Base Salary; Stock Options
3.1 During the Employment Term, Executive shall receive an annual base
salary in an annual amount equal to $240,000 (such amount as adjusted, from time
to time, the "Base Salary"). Executive's salary shall be reviewed annually by
the Board. Executive and OXiGENE acknowledge that Executive has elected to defer
$180,000 of Executive's Base Salary pursuant to a deferred compensation plan
maintained by OXiGENE. The balance of Executive's Base Salary shall be payable
in equal installments no less frequently than monthly by OXiGENE Europe AB.
3.2 OXiGENE shall grant to Executive, subject to approval by the
Compensation Committee of the Board, pursuant to the OXiGENE Inc. 1996 Stock
Incentive Plan (the "Stock Plan"), an option to purchase 60,000 shares of common
stock of OXiGENE, $.01 par value per share, as of the date hereof. Such option
shall have an exercise price equal to the Fair Market Value (as defined in the
Stock Plan) on the date of grant of such option, and shall vest and become
exercisable in four (4) equal installments of 15,000 each on the first, second,
third and fourth anniversary of the date of grant of such option. The option
shall be evidenced by, and subject to, an option agreement having terms
described in the Stock Plan, except to the extent otherwise specified in this
Agreement, including Section 6 hereof.
4. Benefits
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan, arrangement or perquisite generally made available by
OXiGENE during the Employment Term to its executives and key management
employees.
5. Business Expenses
Executive shall be entitled to receive prompt reimbursement for all
reasonable and customary expenses incurred by him in performing services
hereunder during the Employment Term; provided that such expenses are incurred
and accounted for in accordance with the policies and procedures established by
OXiGENE and approved by the Board.
6. Termination
6.1 OXiGENE may, upon giving Executive six (6) months' written notice,
terminate Executive's employment subject to all provisions of this Agreement.
Notwithstanding the foregoing, OXiGENE may terminate Executive's employment for
Cause without prior notice. Executive may, upon giving OXiGENE ten (10) days'
notice, terminate Executive's employment hereunder. If Executive terminates his
employment following a material breach of the Agreement by OXiGENE, which breach
remains uncured ten (10) days after written notice thereof is received by
OXiGENE (a "Termination with Good Reason"), Executive shall be treated as if his
employment was terminated by OXiGENE without Cause.
6.2 If Executive's employment is terminated by OXiGENE other than for Cause
(as defined below) or in the event of a Termination with Good Reason, then
OXiGENE shall provide the following to Executive:
(a) as soon as practicable after the effective date of Executive's
termination of employment ("Termination Date") a lump sum cash payment equal to
the aggregate of the following:
(1) the portion of Executive's then current Base Salary accrued to
the Termination Date but unpaid as of the Termination Date (the
"Unpaid Salary"); plus
(2) an amount equal to three (3) months' Base Salary; plus
(3) if Executive's termination is a Termination with Good Reason, an
amount equal to six (6) month's Base Salary.
(b) All stock options, stock appreciation rights, restricted stock, and
other incentive compensation granted to the Executive by OXiGENE shall, to the
extent vested, remain exercisable in accordance with the terms of the Stock Plan
(or prior applicable plan) and the agreement entered pursuant thereto and the
Executive may exercise all such vested options and rights, and shall receive
payments and distributions accordingly.
6.3 Except as otherwise set forth in this Section 6, all obligations of
OXiGENE under this Agreement shall cease if, during the Employment Term, OXiGENE
terminates Executive for Cause or the Executive resigns his employment other
than in a Termination with Good Reason. Upon such termination, Executive shall
be entitled to receive in a lump sum cash payment as soon as practicable after
the Termination Date an amount equal to the Unpaid Salary.
6.4 The foregoing payments upon Executive's termination shall constitute
the exclusive payments due Executive upon termination from his employment with
OXiGENE under this Agreement or otherwise, provided, however, that except as
stated above, such payments shall have no effect on any benefits which may be
payable to Executive under any plan of OXiGENE which provides benefits after
termination of employment, other than severance pay or salary continuation
pursuant to an OXiGENE plan which amount shall be reduced by the severance
amount received by Executive pursuant to this Agreement.
6.5 For the purposes of this Agreement, the term "Cause" shall mean any of
the following:
(a) the (i) continued failure by Executive to perform substantially his
duties on behalf of OXiGENE if Executive fails to remedy that breach within ten
(10) days of OXiGENE's written notice to Executive of such breach; or (ii)
material breach of any other provision of this Agreement by the Executive, if
the Executive fails to remedy that breach within ten (10) days of OXiGENE's
written notice to Executive of such breach; or
(b) any act of fraud, material misrepresentation or material omission,
misappropriation, dishonesty, embezzlement or similar conduct against OXiGENE or
any affiliate, or conviction of Executive for a felony or any crime involving
moral turpitude.
6.6 Upon termination of Executive's employment for any reason, Executive
shall resign from the Board of OXiGENE, and any of its affiliates of which he is
then a director; such resignations shall be effective not later than the
effective date of termination of his employment unless otherwise mutually agreed
by Executive and the Board.
7. No Solicitation; Confidentiality; Work for Hire
7.1 Executive nor any Executive-Controlled Person (defined below) will,
without the prior written consent of the Board, directly or indirectly solicit
for employment, employ in any capacity or make an unsolicited recommendation to
any other person that it employ or solicit for employment any person who is or
was, at any time during the nine (9) month period prior to the Termination Date,
an officer, executive or key employee of OXiGENE or of any affiliate of OXiGENE.
As used in this Agreement, the term "Executive-Controlled Person" shall mean any
company, partnership, firm or other entity as to which Executive possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of such entity, whether through the ownership of voting
securities, by contract or otherwise.
7.2 (a) Executive acknowledges that, through his status as Executive Vice
President, Scientific Affairs of OXiGENE and as a member of the Board, he has,
and will have, possession of important, confidential information and knowledge
as to the business of OXiGENE and its affiliates, including, but not limited to,
information related to drugs and compounds developed or under development by the
Company, financial results and projections, future plans, the provisions of
other important contracts entered into by OXiGENE and its affiliates, possible
acquisitions and similar information. Executive agrees that all such knowledge
and information constitutes a vital part of the business of OXiGENE and its
affiliates and is by its nature trade secrets and confidential information
proprietary to OXiGENE and its affiliates (collectively, "Confidential
Information"). Executive agrees that he shall not, so long as the Company
remains in existence, divulge, communicate, furnish or make accessible (whether
orally or in writing or in books, articles or any other medium) to any
individual, firm, partnership or corporation, any knowledge or information with
respect to Confidential Information directly or indirectly useful in any aspect
of the business of OXiGENE or any of its affiliates. As used in the preceding
sentence, "Confidential Information" shall not include any knowledge or
information that: (i) is or becomes available to others, other than as a result
of breach by Executive of this Section 7.2; (ii) was available to Executive on a
nonconfidential basis prior to its disclosure to Executive through his status as
an officer or employee of OXiGENE or any affiliate; or (iii) becomes available
to Executive on a nonconfidential basis from a third party (other than OXiGENE,
any affiliate or any of its or their representatives) who is not bound by any
confidentiality obligation to OXiGENE or any affiliate.
(b) All memoranda, notes, lists, records and other documents or papers (and
all copies thereof), including such items stored in computer memories, on
microfiche or by any other means, made or compiled by or on behalf of Executive
or made available to him relating to OXiGENE are and shall be OXiGENE's property
and shall be delivered to OXiGENE promptly upon the termination of Executive's
employment with OXiGENE or at any other time on request and such information
shall be held confidential by Executive after the termination of his employment
with OXiGENE.
7.3 As used in this Agreement, "Restricted Period" shall mean the twelve
(12) months following Executive's termination of employment.
7.4 The Executive grants the Company and each affiliate of the Company, as
appropriate, all rights in and to the contribution made by the Executive to any
projects or matters on which the Executive works during the Term. The Executive
acknowledges that each such matter and the contribution made by the Executive
thereto shall constitute a work made for hire within the meaning of the United
States copyright law and other applicable laws. The Company reserve's all rights
with respect to information relating to the Company's products, including, but
not limited to, the right to apply for patents.
7.5 The provisions contained in this Section 7 as to the time periods,
scope of activities, persons or entities affected, and territories restricted
shall be deemed divisible so that, if any provision contained in this Section 7
is determined to be invalid or unenforceable, such provisions shall be deemed
modified so as to be valid and enforceable to the full extent lawfully
permitted.
7.6 Executive agrees that the provisions of this Section 7 are reasonable
and necessary for the protection of OXiGENE and that they may not be adequately
enforced by an action for damages and that, in the event of a breach thereof by
Executive or any Executive-Controlled Person, OXiGENE shall be entitled to apply
for and obtain injunctive relief in any court of competent jurisdiction to
restrain the breach or threatened breach of such violation or otherwise to
enforce specifically such provisions against such violation, without the
necessity of the posting of any bond by OXiGENE. Executive further covenants and
agrees that if he shall violate any of his covenants under this Section 7,
OXiGENE shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remuneration or other benefits that Executive
directly or indirectly has realized and/or may realize as a result of, growing
out of or in connection with any such violation. Such a remedy shall, however,
be cumulative and not exclusive and shall be in addition to any injunctive
relief or other legal or equitable remedy to which OXiGENE is or may be
entitled. Accordingly, Executive agrees that he shall reimburse OXiGENE for any
reasonable attorneys' fees and expenses that OXiGENE might incur in enforcing
this Section 7 if it is judicially determined that Executive has breached this
Section 7.
8. Taxes
Any amounts payable to the Executive hereunder shall be paid to the
Executive subject to all applicable taxes required to be withheld by the Company
pursuant to federal, state or local law. The Executive shall be solely
responsible for all taxes imposed on the Executive by reason of his receipt of
any amounts of compensation or benefits payable hereunder.
9. Amendments
This Agreement may not be altered, modified or amended except by a written
instrument signed by each of the parties hereto.
10. Assignment
Neither this Agreement nor any of the rights or obligations hereunder shall
be assigned or delegated by any party hereto without the prior written consent
of the other parties; provided, however, that any payments and benefits owed to
Executive under this Agreement shall inure to the benefit of his heirs and
personal representatives.
11. Waiver
Waiver by any party hereto of any breach or default by any other party of
any of the terms of this Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from the breach or default
waived.
12. Severability
In the event that any one or more of the provisions of this Agreement shall
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.
13. Notices
All notices and other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by United States registered mail, return receipt
requested, postage prepaid, addressed as follows:
If to Executive, to him as follows:
Xx. Xxxxxx Xxxx
Xxxxxxxxxxxx 0
X-000 00 Xxxx
Xxxxxx
With a copy to:
If to OXiGENE, to it as follows:
OXiGENE Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: M. Xxxxxx Xxxxx, Esq.
With a copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
or to such other address or such other person as Executive or OXiGENE shall
designate in writing in accordance with this Section 13, except that notices
regarding changes in notices shall be effective only upon receipt.
14. Headings
Headings to Sections in this Agreement are for the convenience of the
parties only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.
15. Governing Law
This Agreement shall be governed by the laws of the State of New York
without reference to the principles of conflict of laws. Each of the parties
hereto consents to the jurisdiction of the federal and state courts of the State
of New York in connection with any claim or controversy arising out of or
connected with this Agreement. Service of process in any such proceeding may be
made upon each of the parties hereto at the address of such party as determined
in accordance with Section 13 of this Agreement, subject to the applicable rules
of the court in which such action is brought.
16. All Other Agreements Superseded
This Agreement contains the entire agreement between Executive and OXiGENE
with respect to all matters relating to Executive's employment with OXiGENE and,
as of the date hereof, will supersede and replace any other agreements, written
or oral, between the parties relating to the terms or conditions of Executive's
employment with OXiGENE other than agreements relating to options entered into
pursuant to the Stock Plan or a predecessor plan of OXiGENE.
IN WITNESS WHEREOF, OXiGENE and Executive have caused this Agreement to be
executed as of the date first above written.
____________________________
Xxxxxx X. Xxxx
OXiGENE Inc.
By: _________________________
Name:
Title:
