AGREEMENT
AGREEMENT, dated as of May 1, 1998, by and between OXiGENE, Inc., a
Delaware corporation ("OXiGENE USA"), OXiGENE Europe AB, a company organized
under the laws of Sweden and a wholly-owned subsidiary of OXiGENE USA ("OXiGENE
Europe" and together with OXiGENE USA, the "Company"), and Claus X. Xxxxxx, a
resident of Denmark ("Consultant").
WHEREAS, OXiGENE Europe and Consultant are parties to a letter agreement,
dated August 1, 1995, and amended in January 1997 (the "Letter Agreement"),
which sets forth the terms and conditions pursuant to which Consultant provides
consulting services to the Company;
WHEREAS, OXiGENE USA and Consultant are parties to an employment
agreement, dated as of March 1,1997 (the "Employment Agreement");
WHEREAS, Consultant has executed a secured revolving credit note (the
"Note") in favor of the Company, with an outstanding principal amount of
$103,333.00 as of the date hereof; and
WHEREAS, the Company and Consultant desire to terminate each of the Letter
Agreement and the Employment Agreement, and to provide for Consultant to provide
advisory and consulting services to the Company on the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Term. The Company hereby engages Consultant to provide the services
specified in Section 2 hereof, on the terms and conditions of this Agreement,
for a period commencing on the date hereof and ending on April 4, 2000, unless
sooner terminated in accordance with the provisions of Section 10 (the
"Termination Date"). Each of the Letter Agreement and the Employment Agreement
are hereby terminated and shall no longer have any force and effect.
2. Services. During the term of this Agreement, Consultant shall provide
such advisory and consulting services as may be requested by the Company from
time to time, including, without limitation, advice and consultation in
connection with (a) the Company's clinical trials, (b) the marketing of the
Company's products in compliance with applicable government regulations, and (c)
cGMP manufacturing of the Company's products. Consultant shall make himself
available to render services upon reasonable prior notice from the Company and
at such reasonable times and places as the parties hereto shall from time to
time mutually agree. In rendering services hereunder, Consultant shall be under
the supervision and direction of, and shall report to, the Company's Chief
Executive Officer.
3. Compensation. In consideration of Consultant performing, and of making
himself available to perform, the services specified in Section 2 hereof, the
Company shall pay Consultant $200,000 per annum, payable in twelve (12) monthly
installments of $16,667.00 each as follows (subject to the last sentence of this
Section): (a) $10,000.00 payable by wire transfer to Consultant's account on or
before the fifth day of each month; and (b) $6,667.00 payable by reducing (x)
first, the interest accrued on the Note, and (y) second, the principal amount of
the Note from time to time outstanding. Consultant hereby expressly and
irrevocably authorizes the Company, prior to the Termination Date and without
any further action on the part of Consultant, to satisfy the amounts due and
payable from time to time by Consultant to the Company under the Note by
reducing and withholding $6,667.00 from the amounts due and payable from time to
time by the Company to Consultant under this Agreement. Upon payment of the Note
in full, the amount of $16,667.00 shall be payable by wire transfer to
Consultant's account on or before the fifth day of each month.
4. Expenses. Consultant shall be entitled to reimbursement of reasonable
travel and other out-of-pocket expenses actually and necessarily incurred in the
performance of his duties hereunder, upon submission of written statements and
bills in accordance with the then regular procedures of the Company.
5. Options. Consultant confirms that he holds, as of the date hereof, the
following options (collectively, the "Options"): (i) option to purchase,
pursuant to OXiGENE USA Amended and Restated Stock incentive Plan, 70,000 shares
of common stock, par value $0.01 per share (the "Common Stock"), exercisable at
$6.3750 per share, vesting in three (3) equal installments on each of June 21,
1996, 1997 and 1998, which option has been exercised with respect to 46,666
shares of Common Stock, and (ii) option to purchase, pursuant to the OXiGENE USA
1996 Stock Incentive Plan, 100,000 shares of Common Stock, exercisable at
$28.8125 per share, vesting in four (4) equal installments on each of April 4,
1998, 1999, 2000 and 2001, none of which has been exercised. The Options shall
continue to vest through, and shall not be deemed to expire before, the
Termination Date and, to the extent vested on the Termination Date, shall be
exercisable in accordance with their respective terms and the terms and
conditions of the respective stock incentive plans under which such Options were
issued. Any Options that have not vested on the Termination Date shall terminate
and expire on the Termination Date. The Company will cause its appropriate
officers to take such actions and execute such documents as are necessary to
carry out further the intent and purposes of the foregoing.
6. Intellectual Property Rights. Consultant agrees and acknowledges that
any proprietary information discovered or developed in connection with the
services performed under this Agreement ("Proprietary Discoveries") shall be the
sole property of the Company. Consultant covenants and agrees to execute and
deliver to the Company such documentation as the Company may reasonably request
in order to vest in the Company the sole and exclusive right and title to the
Proprietary Discoveries and to enable the Company to file any patent or other
intellectual property applications.
7. Confidentiality; No Publicity. In connection with this Agreement, the
following provisions with respect to confidentiality, announcements and
non-disparagement shall apply:
(a) Consultant acknowledges that, prior to the date hereof, through
his status as an executive officer, senior employee and a director
of the Company, and, from time to time hereafter, through his status
as a consultant to the Company, he has had and will continue to have
access to information which is not generally available to the public
and which in nature is confidential and proprietary to the Company,
including, without limitation, information related to drugs and
compounds developed or under development by the Company
(collectively, "Confidential Information"). Confidential Information
includes not only written information, or copies, abstracts or
summaries thereof or references thereto in any other document, but
also information transferred orally or by other means. The foregoing
notwithstanding, Confidential Information shall not include any
knowledge or information that (i) is or becomes available to others,
other than as a result of a breach by Consultant of this Section 7,
(ii) was available to Consultant on a nonconfidential basis prior to
its disclosure to Consultant through his status as a director,
officer, consultant or employee of the Company or any affiliate, of
(iii) becomes available to Consultant on a nonconfidential basis
from a third party (other than the Company, any affiliate or any of
its or their representatives) who is not bound by any
confidentiality obligation to the Company or any affiliate.
(b) Consultant shall keep secret and confidential, and shall not
disclose, discuss, reproduce, distribute, or otherwise release any
Confidential Information to any third party without the prior
written consent of the Company. Consultant agrees to take reasonable
precautions to protect the confidential and proprietary nature of
all Confidential Information and to prevent its disclosure to third
parties. Each person to whom Confidential Information is disclosed
in accordance with this Agreement shall be advised of its
confidential nature and of the terms of this Section 7 and, prior to
receiving and Confidential Information, unless already bound by an
obligation of confidentiality to the Company, shall agree in writing
to abide by such terms.
(c) Consultant agrees and acknowledges that (I) all Confidential
Information remains the exclusive property of the Company; and (II)
the Company reserves all rights with respect to all information
relating to the Company's products, including, but not limited to,
the right to apply for patents. Upon demand by the Company,
Consultant agrees to return all Confidential Information (including
copies of any materials that may have been made) immediately to the
Company.
(d) Consultant agrees that the provisions of this Section 7 are fair
and reasonable, that money damages would not be a sufficient remedy
for any breach by Consultant of this Section 7 and that, in addition
to all other remedies, the Company shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for
such breach.
(e) Consultant shall not, publicly or privately, discuss with anyone
or make any announcement with respect to the subject matter of this
Agreement, the Company or its business and affairs, without the
express prior written consent of the Company. Without limiting the
foregoing, Consultant shall not make any remark disparaging the
conduct or character of the Company or any of its directors,
officers, employees, affiliates, successors or assigns. The
foregoing notwithstanding, in connection with the performance of the
services required of him pursuant to this Agreement, Consultant may
identify himself as a "Medical Consultant" to the Company. The
Company shall not make any remarks disparaging the character and
reputation of the Consultant.
8. Non Competition and Non-Solicitation. Through the end of the Restricted
Period (as defined below), Consultant agrees not to compete, directly or
indirectly, whether as an employee of, a consultant to, or in any other
capacity, any other person or entity, with the Company and the products and
compounds under development by the Company, without the Company's prior written
consent. From the date hereof through the date that is twelve (12) months
following the Termination Date (the "Restricted Period"), neither Consultant nor
any Controlled Person (as defined below) shall, directly or indirectly, solicit
for employment, employ in any capacity or make an unsolicited recommendation to
any other person, any person who is or was, at any time during the six-month
period prior to the Restricted Period or during the Restricted Period, an
officer, executive or employee of the Company or of any affiliate of the
Company. As used in this Agreement, the term "Controlled Person" shall mean any
company, partnership, firm or other entity as to which Consultant 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.
9. Independent Contractor. The Company and Consultant agree that the
relationship created by this Agreement is and shall be that of an independent
contractor and not that of employer and employee, or partners or joint
venturers. Consultant is responsible for the payment of any and all taxes,
including, without limitation, all personal and business income taxes.
Consultant shall indemnify and hold the Company harmless from and against all
third-party claims, demands and suits arising out of the performance by
Consultant of any services under this Agreement.
10. Termination. The Company may terminate this Agreement at any time,
upon three (3) days prior notice to Consultant, for breach of any provisions of
this Agreement by Consultant. In the event the Company terminates this Agreement
pursuant to the foregoing sentence prior to November 1, 1998, the Company shall
continue to pay Consultant in accordance Section 3 hereof through January
31,1999. Consultant may terminate this Agreement, upon thirty (30) days prior
written notice to the Company, for any reason whatsoever.
11. Non-Assignability. This Agreement is personal in nature and may not be
assigned by Consultant. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns.
12. Notice. All notices and other communications hereunder shall be in
writing and delivered by hand or by first class registered or certified mail,
return receipt requested, postage prepaid, addressed as follows: If to the
Company, to it at OXiGENE, Inc., Xxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000,
Attn: Xx. Xxxxx Xxxxxxxxxx, with a copy to OXiGENE Europe AB, Xxxxxxxxxxxxxxxx
0X, X000 00 Xxxxxxxxx, Xxxxxx, Attn: Xx Xxxxxxx. If to Consultant, to him at Xx.
Xxxxx X. Xxxxxx, Endrup Xxxxx 0, 0000 Xxxxxxxxxxx, Xxxxxxx.
13. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Massachusetts, without regard to the
principles thereof respecting conflicts of law.
14. Section Headings. The section headings in this Agreement are for
reference purposes only, and shall not affect in any way the meaning or
interpretation of this Agreement.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes and replaces any prior agreement or understanding, whether written or
oral. No representations and warranties, other than those expressly set forth
herein, shall be deemed to have been made. This Agreement may not be amended,
modified or supplemented, except by an instrument in writing executed by the
Company and Consultant.
16. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement. This
Agreement shall become a binding agreement when one or more counterparts shall
have been signed by each of the parties whose signature is provided for below.
17. Severability. If any of the provisions of this Agreement shall be held
by a court of competent jurisdiction to be void or unenforceable, the balance of
the provisions of this Agreement shall remain in effect and be enforced so as to
give effect as nearly as possible to the intentions of the parties hereto.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Consulting Agreement as of the date first written above.
OXIGENE, INC. CONSULTANT
/s/ Xxxxx Xxxxxxxxxx /s/ Claus X. Xxxxxx
------------------------ --------------------
Name: Xxxxx Xxxxxxxxxx Claus X. Xxxxxx
Title: CEO
OXIGENE, EUROPE AB
/s/ Xx Xxxxxxx
------------------------
Name: Xx Xxxxxxx
Title: VD
------------------------
Name:
Title:
SECURED REVOLVING CREDIT NOTE
$200,000 Boston, Massachusetts
April 1,1998
FOR VALUE RECEIVED, Claus X. Xxxxxx, an individual residing at Endrup
Xxxxx 0, 0000 Xxxxxxxxxxx, Xxxxxxx ("Borrower"), unconditionally promises to pay
to the order of OXiGENE, Inc., a Delaware corporation ("Lender"), at its offices
located at Xxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such
other place as may be designated from time to time in writing by Lender, the
principal amount of the lesser of (a) TWO HUNDRED THOUSAND DOLLARS ($200,000),
and (b) the aggregate principal amount of all Loans (as defined below) made by
Lender to Borrower (the "Principal Amount"), with interest thereon from and
including the date of this Note to, but excluding, the date this Note is paid in
full, calculated in the manner hereinafter set forth, in accordance with the
terms and conditions hereof.
1. As used herein, the following capitalized terms shall have the
following meanings:
"Employment Agreement" shall mean that certain employment agreement, dated
as of April 4,1997, as amended and modified as of May 1, 1998, between OXiGENE,
Inc. and Claus X. Xxxxxx.
"Loans" shall mean the amounts advanced or provided from time to time by
Lender to Borrower and, for the account and on behalf of Borrower, to Xxxxxxx
Xxxxx Xxxxxx, provided such amounts shall not exceed $200,000. Lender is
authorized to, and so long as it holds this Note shall, record the date and
amount of each Loan and the date and amount of each Principal Amount payment or
Principal Amount prepayment on Schedule A attached hereto and made part hereof.
"Maturity Date" shall mean the date that is three (3) months after the
Termination Date.
"Termination Date" shall have the meaning ascribed to such term in the
Employment Agreement.
2. Subject to Section 6 below, payments on this Note shall be made as
follows:
(i) monthly Principal Amount payments in the amount of $6,667
each, due and payable on the fifth day of each calendar month (each a "Payment
Date"), with the first such Principal Amount payment due and payable on May 5,
1998, and the final such Principal Amount payment due and payable on the
Maturity Date; and
(ii) interest on the unpaid balance of the Principal Amount for
each day such Principal Amount is outstanding, calculated in the manner
hereinafter set forth, due and payable on each Payment Date; and
(iii) the entire unpaid balance of the Principal Amount remaining
unpaid, together with all interest accrued and unpaid thereon, calculated in the
manner hereinafter set forth, and all other sums due under this Note, due and
payable on the Maturity Date.
3. Subject to the provisions of this Note hereinafter set forth, the
entire Principal Amount of this Note shall bear interest at a fixed rate per
annum equal to 5.0%, which rate shall be calculated on the basis of the actual
number of days elapsed over a year of 360 days, provided, that any Principal
Amount not paid when due (whether on a Payment Date or the Maturity Date, by
acceleration or otherwise) shall bear interest for each day overdue, until the
date such Principal Amount is paid in full, at a rate per annum (calculated on
the basis of the actual number of days elapsed over a year of 360-days) equal to
10.0%. Interest accruing on any Principal Amount not paid when due shall be
payable on demand. In no case shall the interest on this Note exceed the maximum
amount which Lender may charge or collect under applicable law.
4. The Principal Amount of this Note may be prepaid in whole or in part,
at any time and from time to time, and such prepayment shall be accompanied by
payment of accrued interest to, but excluding, the date of prepayment. Any
prepayment shall be applied in reduction of the Principal Amount outstanding in
direct order of maturity, and shall be without penalty or premium.
5. All payments under this Note shall be made in lawful money of the
United States of America and, except as otherwise set forth in paragraph 6
below, shall be made by certified check or in immediately available funds at
Lender's address designated above.
6. Borrower and Lender are parties to the Employment Agreement. This Note
shall be secured by the amounts due and payable from time to time by Lender to
Borrower under the Employment Agreement. Borrower hereby expressly and
irrevocably authorizes Lender, prior to the Termination Date and without any
further action on the part of Borrower, to satisfy the amounts due and payable
from time to time by Borrower to Lender under this Note by reducing and
withholding $6,667 from the amounts due and payable from time to time by Lender
to Borrower under the Employment Agreement. The Principal Amount remaining
unpaid on the Termination Date may be set off against or withheld from the
severance payments, if any, due and payable by Lender to Borrower pursuant to
Section 6 of the Employment Agreement. This Note shall be further secured by
56,066 shares (the "Shares") of Common Stock, par value $.01 per share, of
OXiGENE, Inc., owned by Borrower and pledged by Borrower to Lender as collateral
security pursuant to a pledge agreement, dated as of the date of this Note,
between Borrower and Lender (the "Pledge Agreement"). Lender acknowledges that
Borrower has pledged the Shares to SalomonSmithBarney, and that the security
interest hereby granted to Lender is subordinate to that of SalomonSmith Barney.
7. If any of the following events of default shall occur: (a) Borrower
fails to pay any Principal Amount or interest to Lender when due and payable;
(b) Borrower shall breach any representation, warranty or covenant in this Note,
the Employment Agreement or the Pledge Agreement, or shall breach in any
material respect any representation, warranty or covenant in any other document
delivered in connection with this Note or the Pledge Agreement (this Note, the
Pledge Agreement and any other document so delivered being a "Facility
Document") or in any certificate, opinion or financial or other statement
delivered in connection with a Facility Document; (c) Borrower shall fail to pay
any other indebtedness in excess of $25,000 when due and payable or if there
shall be any default by Borrower thereunder; (d) Borrower shall become insolvent
(however evidenced) or shall seek any relief under any bankruptcy or similar law
of any jurisdiction (or any person shall seek such relief against Borrower) and
any proceeding in connection therewith shall continue without being discharged
for a period of sixty (60) days; (e) any Facility Document shall at any time
cease to be in full force and effect or its validity or enforceability shall be
disputed or contested; or (f) any lien or security interest securing this Note
shall cease to create a valid and perfected lien or security interest in the
property purported to be subject thereto; THEN, if Lender shall elect by notice
to Borrower, the unpaid Principal Amount of this Note, together with interest
and any other amounts due hereunder shall become forthwith due and payable;
provided, that in the case of an event of default under (d) above, such amounts
shall automatically become due and payable without any notice or other action by
Lender.
8. Borrower shall reimburse Lender on demand for all costs, expenses
and charges in connection with the enforcement of this Note.
9. This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought. Whenever used, the singular number
shall include the plural, the plural the singular, and the words "Borrower" and
"Lender" shall include their respective successors, assigns, heirs, executors
and administrators. Borrower may not delegate or assign any obligations
hereunder without the prior written consent of Lender.
10. Borrower does, and all others who may become liable for the payment of
all or any part of the indebtedness hereunder do, hereby severally waive
presentment and demand for payment, notice of dishonor, protest, notice of
protest, notice of nonpayment, notice of intent to accelerate the maturity
hereof and of acceleration. No release of any security, including, without
limitation, the Shares (as defined in the Pledge Agreement), for the
indebtedness hereunder or any person liable for payment of the indebtedness
hereunder, and no extension of time for payment of this Note shall release,
modify, amend, waive, extend, change, discharge, terminate or affect the
liability of the undersigned, and any other person or party who may become
liable for the payment of all or any part of the indebtedness hereunder.
11. Borrower represents that (i) he has full power, authority and legal
right to execute, deliver and perform his obligations under this Note, the
Pledge Agreement and each Facility Document, if any, and (ii) this Note, the
Pledge Agreement and each Facility Document, if any, constitutes his valid and
binding obligations.
THIS NOTE SHALL BE GOVERNED BY THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS.
BORROWER CONSENTS TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF THE STATE OR
FEDERAL COURTS LOCATED IN THE CITY OF BOSTON. SERVICE OF PROCESS BY LENDER IN
CONNECTION WITH ANY DISPUTE SHALL BE BINDING ON BORROWER IF SENT TO BORROWER BY
REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT THE ADDRESS SPECIFIED ABOVE.
/s/ Claus X. Xxxxxx
--------------------------------
Claus X. Xxxxxx
SCHEDULE A TO
SECURED REVOLVING CREDIT NOTE
LOANS AND PAYMENTS OF LOANS
Date Principal Amount of Unpaid Notation Made
Amount of Loan Principal Principal By
Repaid Balance
---------------------------------------------------------------
1998-04-02 60,000 60,000 Xx Xxxxxxx
1998-04-03 6,667 53,333 Xx Xxxxxxx
1998-04-06 30,000 83,333 Xx Xxxxxxx
1998-04-28 20,000 103,333 Xx Xxxxxxx
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