Exhibit 10.23
OXiGENE Inc.
Compensation Award Stock Agreement for Non-Employee Directors
This Compensation Award Agreement (this "Agreement") is made as of the 2nd
day of January 2002 between OXiGENE Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxxxxxxx ("Grantee").
The Company has adopted a program of stock grant awards for directors that
provides for the grant of shares of Company common stock, par value $0.01, as
set forth in this Agreement (the "Stock").
In return for past services rendered by Grantee and other good and adequate
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company is entering into this Agreement.
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 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 Stock. Subject to the terms and conditions of this Agreement, the
Company hereby grants to Grantee, effective January 2, 2002 (the "Grant Date"),
345,053 shares of Stock. Grantee agrees that the Stock shall be subject to all
of the terms and conditions set forth in this Agreement, including the payment
of withholder taxes and the restrictions on transfer as set forth in Section 3
of this Agreement.
3. Withholder of Taxes. The Company's obligation to deliver Stock to Grantee
shall be subject to the satisfaction of all applicable federal, state, and local
income and employment tax withholding requirements (the "Withholding Taxes"). In
order to satisfy all Withholding Taxes due, Grantee agrees to, at his
discretion, either:
(a) make a cash payment to the Company within thirty (30) days after the
Grant Date for the full amount (100%) of the Withholding Taxes due; or
(b) pay the Withholding Taxes by the presentation to the Company of an
executed Promissory Note, which may be either recourse or non-recourse at
Grantee's election, in a form satisfactory to the Company the ("Promissory
Note"), which Promissory Note shall have the following conditions incorporated
by reference therein:
(i) Amount of the Promissory Note. Grantee shall give to the Company a
Promissory Note for the full amount (100%) of the Withholding due, plus interest
at the rate of 10% (ten percent) per year, compounded annually;
(ii) Due Date of Promissory Note.
(A) The full amount (100%) of the principal together with accrued interest
thereon is due on the three year anniversary date following the effective
date of the Grant Date (the "Maturity Date").
(B) Notwithstanding the Maturity Date set forth above, the full amount (100%)
of unpaid principal and accrued interest shall become due within thirty
(30) days upon:
(1) 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:
i. 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
ii. 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; or
(2) the termination, for any reason, of Grantee's service with the Company as a
Director;
(iii)Pre-Payment of Amount Due. Grantee (or Grantee's personal representative
under the laws of decent and distribution) may, at his or her option, repay
the principal together with accrued interest at any time prior to any
Maturity Date;
(iv) Company to Possess Stock Certificates. Certificates representing Stock
equal in fair market value, as determined in the discretion of the Company,
to the total amount (100%) of the principal together with accrued interest
thereon that shall be due on the Maturity Date, or such other property as
the Company shall deem sufficient, shall be presented to the Company at the
time the executed Promissory Notes are presented to the Company and shall
remain in the possession of the Company as security for the payment of the
indebtedness evidenced by the Promissory Note, including both principal and
accrued interest. Upon payment of the indebtedness evidenced by the
Promissory Note at the Maturity Date, the Company shall instruct its
transfer agent to deposit the Stock which has been retained by the Company
pursuant to this Section 3(b)(iv) into account designated by Grantee;
(v) Dividend and Voting Rights. Stock retained by the Company pursuant to
Section 3(b)(iv) above shall have all dividend and voting rights except
that any stock dividends shall remain in the possession of the Company
together with and be treated in the same manner as the certificates for
shares retained for security for payment of the principal and accrued
interest on the Promissory Note; and
(vi) 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 Stock for which a certificate is in the Company's
possession held as security for the payment of the indebtedness evidenced
by the Promissory Note pursuant to Section 3(b)(iv) (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(b)(iv) shall be void and of no force
or effect, and shall result in the immediate forfeiture of all Stock for
which a certificate is in the Company's possession held as security for the
payment of the indebtedness evidenced by the Promissory Note. If Grantee's
Stock is held by the Company pursuant to Section 3(b)(iv) forfeited, then
the full amount (100%) of unpaid principal and accrued interest shall
become due.
4. 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 4.
5. 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.
6. Legends. All certificates representing the 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
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
If Grantee elects to borrow money from the Company to pay the Grant Taxes
pursuant to Section 3(b) hereof, then all certificates representing the Stock
held by the Company pursuant to Section 3(b)(iv) shall additionally have
endorsed thereon the following legend:
THESE SHARES ARE SUBJECT TO A STOCK AGREEMENT DATED AS OF JANUARY 2,
2002 BY AND BETWEEN OXIGENE, INC. AND XXXXXX X. XXXXXX INCLUDING
RESTRICTIONS ON PLEDGE AND TRANSFER CONTAINED THEREIN.
7. 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.
8. Nature of Payments. Any and all grants or deliveries of Stock hereunder shall
constitute special 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.
9. 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.
10. 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.
11. 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 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.
12. Entire Agreement. This Agreement (along with any related Promissory Note)
embodies the entire agreement of the parties hereto with respect to the 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: /s/ Xxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxx
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Title: President & CEO
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Address: 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX
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Fax: 000-000-0000
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Grantee
Name: /s/ Xxxxx Xxxxxxxxxx
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Address: Xxxxx Xxxxxxxxxx
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Fax:
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