Exhibit 4.2
OXIGENE INC.
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FORM OF RESTRICTED STOCK AGREEMENT FOR NON-EMPLOYEES
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This Restricted Stock Agreement (this "Agreement") is made as of the
_____ day of __________, 2002, between OXiGENE Inc., a Delaware corporation (the
"Company"), and _______________ ("Grantee").
The Company has adopted a program of restricted stock awards for
non-director executives, employees, and consultants that provides for the grant
of shares of Company common stock, par value $0.01, subject to restrictions as
set forth in this Agreement (the "Restricted Stock").
NOW THEREFORE, in consideration of the mutual benefits hereinafter
provided, and each intending to be legally bound, the Company and Grantee hereby
agree as follows:
1. Effect of the Agreement. Grantee will abide by, and the Restricted
Stock granted to Grantee will be subject to, all of the provisions of this
Agreement, together with all rules and determinations from time to time issued
by the Company's Compensation Committee (the "Committee") and by the Board of
Directors of the Company (the "Board"). The Company hereby reserves the right to
amend, modify, restate, or supplement this Agreement without the consent of
Grantee, so long as such amendment, modification, restatement, or supplement
shall not materially reduce the rights and benefits available to Grantee
hereunder.
2. Grant of Restricted Stock.
(a) Number of Shares Granted. Subject to the terms and conditions this
Agreement, the Company hereby grants to Grantee, effective __________, 2002 (the
"Grant Date"), __________ shares of Restricted Stock. Grantee agrees that the
Restricted Stock shall be subject to all of the terms and conditions set forth
in this Agreement, including, but not limited to, the forfeiture conditions set
forth in Section 3(b) and the restrictions on transfer set forth in Section 3(d)
of this Agreement.
(b) Company to Retain Custody of Restricted Stock Until Vesting. The
Company shall retain custody of the Restricted Stock until the Restricted Stock
has vested in accordance with Section 3 of this Agreement. Upon vesting of the
Restricted Stock, the Company shall instruct its transfer agent to deposit that
portion of the Restricted Stock which has vested and has, therefore, ceased to
be Restricted Stock (the "Common Stock") into an account designated by Grantee,
subject to payment of any amounts due to the Company in accordance with Section
6 of this Agreement.
3. Terms of the Restricted Stock.
(a) Vesting Schedule; Service Requirement. One-third (33 and 1/3%) of the
Restricted Stock will vest on each of the first three annual anniversary dates
from the Grant Date,
as set forth hereto on Schedule I (each, a "Vesting Date"), if Grantee has been
employed by or provided advisory services to the Company continuously from the
Grant Date to the applicable Vesting Date.
(b) Conditions of Forfeiture. If Grantee's employment or service with the
Company is terminated for any reason, including, but not limited to, Grantee's
voluntary resignation or termination by the Company with or without cause,
except as provided in Sections 3(c), all Restricted Stock shall, without further
action of any kind by the Company, be forfeited. For purposes of this Agreement,
termination from employment shall be deemed to occur on the last day actually
worked by Grantee, rather than the last day that Grantee is on the payroll of
the Company. The Committee shall in good faith determine whether a leave of
absence shall constitute a termination of employment. Restricted Stock that is
forfeited shall be immediately transferred to the Company without any payment by
the Company to Grantee and the Company shall have the full right upon such
forfeiture to cancel any evidence of Grantee's ownership of such forfeited
Restricted Stock and take any other action necessary to demonstrate that Grantee
no longer owns such forfeited Restricted Stock. Following such forfeiture,
Grantee shall have no further rights with respect to such forfeited Restricted
Stock.
(c) Immediate Vesting of All Restricted Stock. All of Grantee's Restricted
Stock shall immediately vest if:
(i) there is a "Change of Control" of the Company, which shall be
deemed to have occurred if:
(A) any "person" (as such term is used in Section 13(d) and
14(d) of the Exchange Act), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or
a corporation owned directly or indirectly by the stockholders of
the Company in substantially the same proportions as their ownership
of stock of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 40% or more of
the total voting power represented by the Company's then outstanding
voting securities;
(B) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board and any new
director whose election by the Board or nomination for election by
the Company's stockholders was approved by a vote of at least
two-thirds of the directors who either were directors at the
beginning of the two-year period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority thereof;
(C) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation or entity,
regardless of which entity is the survivor, other than a merger or
consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or being converted into
voting securities of the surviving entity) at least 80% of the
combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation; or
(D) the stockholders of the Company approve:
1. a plan of complete liquidation or winding up of the
Company and such complete liquidation or winding up of the
Company is consummated, such consummation date to be
determined by the Committee or Board; or
2. an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets
and such sale or disposition of the Company is consummated,
such consummation date to be determined by the Committee or
Board;
(ii) there is a "Strategic Reorganization" of the Company (as that
term shall be defined in the sole good faith determination of the
Committee or Board) and Grantee's employment or service is terminated as a
result of such Strategic Reorganization; or
(iii) Grantee's engagement with the Company terminates as a result
of Grantee's death or disability.
(d) Non-Transferability. Grantee shall not sell, transfer, assign, pledge
or otherwise encumber or dispose of, by operation of law or otherwise, this
Agreement or any Restricted Stock (each, a "Transfer"), except as may be
transferred by will or the laws of descent and distribution. References to
Grantee, to the extent relevant in the context, shall include references to
authorized transferees. Any such transfer by Grantee in violation of this
Section 3(d) shall be void and of no force or effect, and shall result in the
immediate forfeiture of all Restricted Stock.
4. Dividend And Voting Rights. Subject to the restrictions contained in
this Agreement, Grantee shall have the rights of a stockholder with respect to
the Restricted Stock, including the right to vote all such Restricted Stock, and
to receive all dividends, cash or stock, paid or delivered thereon, from and
after the Grant Date. In the event of forfeiture of the Restricted Stock,
Grantee shall have no further rights with respect to such Restricted Stock.
However, the forfeiture of Restricted Stock shall not create any obligation to
repay dividends received as to such Restricted Stock, nor shall such forfeiture
invalidate any votes given by Grantee with respect to such Restricted Stock
prior to forfeiture.
5. Section 83(b) Election. Under Section 83(b) of the Internal Revenue
Code of 1986, as amended (the "Code"), Grantee will recognize ordinary income
equal to the fair market value of the shares of Common Stock received upon the
date the Restricted Stock vests. However, Grantee may elect to be taxed at the
time the Restricted Stock is granted, rather than when the Restricted Stock
vests. To elect this early taxation, Grantee would need to file an election
under Section 83(b) of the Code within thirty (30) days after the Grant Date (an
"83(b) Election").
GRANTEE ACKNOWLEDGES THAT HE OR SHE HAS BEEN INFORMED OF THE
AVAILABILITY OF MAKING AN ELECTION IN
ACCORDANCE WITH SECTION 83(b) OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED; THAT SUCH ELECTION MUST BE FILED WITH THE INTERNAL REVENUE
SERVICE WITHIN 30 DAYS OF THE GRANT OF RESTRICTED STOCK TO GRANTEE; AND
THAT GRANTEE IS SOLELY RESPONSIBLE FOR MAKING SUCH ELECTION.
GRANTEE ACKNOWLEDGES THAT HE OR SHE IS RELYING SOLELY ON HIS OR HER
OWN ADVISORS WITH RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE ANY
SECTION 83(b) ELECTION. IF GRANTEE DETERMINES THAT THE ELECTION IS
ADVISABLE, GRANTEE ACKNOWLEDGES THAT IT IS HIS OR HER SOLE RESPONSIBILITY,
AND NOT THE COMPANY'S, TO FILE A TIMELY 83(b) ELECTION, EVEN IF GRANTEE
REQUESTS THAT THE COMPANY OR ITS REPRESENTATIVES MAKE THE FILING ON
GRANTEE'S BEHALF.
6. Taxes. The Company hereby offers to loan to Grantee such sum of money
to satisfy all applicable federal, state, and local income and employment tax
requirements arising as a result of the Restricted Stock grant (the "Grant
Taxes") by Grantee's presentation to the Company of executed promissory notes,
which may be either recourse or non-recourse at Grantee's election, in a form
satisfactory to the Company ("Promissory Notes"), which Promissory Notes shall
have the following conditions incorporated by reference therein:
(a) Amount of Promissory Notes. Grantee shall give to the Company
Promissory Notes for the full amount (100%) of the Grant Taxes due as a result
of an 83(b) Election plus interest at the rate of 10% (ten percent) per year,
compounded annually;
(b) Maturity Dates.
(i) One third (33 and 1/3%) of the principal together with accrued
interest thereon is due and shall be paid at each of the three Vesting
Dates and not at any time prior to or after such date, as set forth hereto
on Schedule I (each a "Maturity Date").
(ii) Notwithstanding the due date set forth above, the full amount
(100%) of unpaid principal and accrued interest shall become due and shall
be paid if all of Grantee's Restricted Stock vests pursuant to Section
3(c) hereof or Grantee's Restricted Stock is forfeited pursuant to Section
3(b) or 3(d) of this Agreement and not any time prior to or after such
vesting event;
(c) Company to Possess Stock Certificates. The stock certificates
representing the Restricted Stock shall remain in the possession of the Company
as security for the payment of the indebtedness evidenced by the Promissory
Notes, including both principal and accrued interest;
(d) Voting Shares. Restricted Stock retained by the Company pursuant to
Section 6(d) above shall have all dividend and voting rights as provided in
Section 4 of this Agreement except that any stock dividends shall remain the
possession of the Company together with and be
treated in the same manner as the certificate of shares retained for security
for payment of the principal and accrued interest on the Promissory Notes; and
(e) Satisfaction of Conditions of Note. The one-third (33 and 1/3%)
portion of the Restricted Stock granted on the Grant Date that is to vest on a
Vesting Date shall be forfeited in the event that, on such Vesting Date and
associated Maturity Date, the conditions of the note have not been fulfilled.
7. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) when delivered
personally, (ii) when transmitted by facsimile (receipt confirmed), (iii) on the
fifth (5th) business day following mailing by registered or certified mail
(return receipt requested), or (iv) on the next business day following deposit
with an overnight delivery service of national reputation, to the parties at the
address or facsimile numbers shown beneath his, her or its respective signature
to this Agreement, or at such other address or addresses as such party shall
designate to the other in accordance with this Section 7.
8. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the State of New York without
regard to any applicable conflicts of laws.
9. Legends. All certificates representing the Restricted Stock shall have
endorsed thereon the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER STATE OR U.S. FEDERAL SECURITY LAWS AND MAY NOT BE
OFFERED, SOLD, PLEDGED, HYPOTHECATED, OR OTHERWISE DISTRIBUTED OR
TRANSFERRED, NOR MAY THESE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE
COMPANY IN THE ABSENCE OF SUCH REGISTRATION OR AN OPINION OF COUNSEL
SATIFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THESE SHARES ARE SUBJECT TO A RESTRICTED STOCK AGREEMENT DATED AS OF
__________, 2002 BY AND BETWEEN OXIGENE, INC. AND _______________,
INCLUDING RESTRICTIONS ON PLEDGE AND TRANSFER CONTAINED THEREIN.
10. No Right to Employment or Other Status. This Agreement shall not be
construed as giving Grantee the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with Grantee free from
any liability or claim under this Agreement, except as expressly provided in
this Agreement.
11. Nature of Payments. Any and all grants or deliveries of Restricted
Stock hereunder shall constitute special incentive payments to Grantee and shall
not be taken into account in computing the amount of salary or compensation of
Grantee for the purpose of determining any retirement, death, or other benefits
under any retirement, bonus, life insurance, or other employee benefit plan of
the Company, or, any agreement between the Company on the
one hand, and Grantee on the other hand, except as such plan or agreement shall
otherwise expressly provide.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company and Grantee and their respective heirs, executors,
administrators, legal representatives, successors, and assigns subject, however,
to the limitations set forth herein with respect to the restrictions on transfer
and assignment.
13. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
14. Amendment; Waiver. This Agreement may be amended or modified only by a
written instrument executed by both the Company and Grantee except as provided
in Section 1 hereof. Any provision for the benefit of the Company contained in
this Agreement may be waived, either generally or in any particular instance, by
the Committee or the Board. A waiver on one occasion shall not be deemed to be a
waiver of the same or any other breach on a future occasion.
15. Entire Agreement. This Agreement (along with any related Promissory
Notes) embodies the entire agreement of the parties hereto with respect to the
Restricted Stock and all other matters contained herein. This Agreement
supersedes and replaces any and all prior oral or written agreements with
respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company and Grantee have caused this Agreement to
be duly executed as of the date first above written.
OXIGENE, INC.
By:
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Name:
Title:
Address:
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Fax:
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GRANTEE
Name:
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Address:
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Fax:
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