SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.1
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and entered into by and
between Xxxxxxxx Xxxxxxx (“Executive”) and OXiGENE, Inc. (“Employer”), and inures to the benefit of
each of Employer’s current, former and future parents, subsidiaries, related entities, employee
benefit plans and their fiduciaries, predecessors, successors, officers, directors, shareholders,
agents, attorneys, employees and assigns and of Executive’s heirs and assigns.
RECITALS
A. Executive was employed by Employer as its Vice President and Chief Medical Officer (“CMO”)
as of July 31, 2007, pursuant to an Employment Agreement dated July 27, 2007, a copy of which is
attached as Exhibit A (referred to herein as the “Employment Agreement”).
B. Executive’s employment was terminated, effective April 29, 2009 (the “Separation Date”).
C. Section 6.2(b)-(e) of the Employment Agreement provides that Executive receive certain
compensation upon the effective date of her separation. That compensation, if earned, was paid to
Executive by Employer on the Separation Date, and is not conditioned upon Executive’s execution of
this Agreement. In addition, in consideration for the release granted by Executive herein,
Employer wishes to provide, and Executive desires to receive, the consideration set forth in this
Agreement.
D. Executive and Employer (collectively, the “Parties”) wish permanently to resolve any and
all actual and/or potential disputes between them, including disputes arising out of Executive’s
employment with Employer or the cessation of that employment.
NOW, THEREFORE, for and in consideration of the execution of this Agreement and the mutual
covenants contained in the following paragraphs, Employer and Executive agree as follows:
1. No Admission of Liability. The Parties agree that neither this Agreement, nor
performance of the acts required by it, constitute an admission of liability, culpability,
negligence or wrongdoing on the part of anyone, and will not be construed for any purpose as an
admission of liability, culpability, negligence or wrongdoing by any Party and/or by any Party’s
current, former or future parents, subsidiaries, related entities, predecessors, successors,
officers, directors, shareholders, agents, employees and assigns.
2. Separation Benefit. In consideration of the releases granted by Executive herein,
Employer agrees to provide Executive with the following (collectively, the “Separation Benefit”):
(a) severance in the amount of three hundred thousand dollars ($300,000.00), payable over one year
in 26 equal installments on Employer’s normal paydays, beginning on the first
payday after the Effective Date of this Agreement, which payments will be made through
Employer’s normal payroll administrator; and (b) direct payment to the insurance carrier for any
premiums paid by Executive to continue group health coverage for herself and her dependents
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), after the
Effective Date and through the earlier of April 30, 2010, or the date on which Executive becomes
eligible for medical and dental coverage with another employer. Executive acknowledges and agrees
that she is not otherwise entitled to the Separation Benefit. Executive may also elect to obtain
COBRA coverage through Employer after the cessation of the Severance Benefit described herein, up
to the statutory limit of coverage, but Executive shall be solely responsible for the payment of
associated premiums after the Separation Benefit ceases.
3. Wages and Vacation Time Paid. Executive acknowledges that, as of the Separation
Date, she has been paid all wages by Employer, including pay for any unused vacation accrued
through the Separation Date, and that such receipt was not conditioned upon the execution of this
Agreement.
4. Protection of Confidential Information; Return of Property. Executive acknowledges
that during the course of her employment, she had ongoing access and exposure to, and obtained
knowledge of, Confidential Information belonging to Employer. For purposes of this Agreement,
“Confidential Information” is defined as set forth in Section 1 of the Confidentiality,
Noncompetition and Intellectual Property Agreement (“Confidentiality Agreement”), which is attached
hereto as Exhibit B to the Employment Agreement. Executive warrants that she will not use, or
disclose to any person, at any time, any Confidential Information, and that she will comply with
the confidentiality obligations in Section 1 of the Confidentiality Agreement, which obligations
extend beyond the Separation Date (as provided by the Confidentiality Agreement). By signing this
Agreement, Executive represents and warrants that she has returned to Employer any and all items of
property belonging to the Employer, including but not limited to Confidential Information, computer
equipment, books, articles and the like. Executive understands that this Section 4 is a material
inducement for Employer to enter into this Agreement; therefore, if the representations and
warranties made by Executive in this Section 4 are false, or if Executive does not abide by the
covenants in the Confidentiality Agreement, then Executive will have materially breached this
Agreement and/or fraudulently induced Executive to execute it, and Employer will be entitled to
recover the Separation Benefit, in addition to seeking any other damages or equitable relief
available to it.
5. Post-Employment Non-Solicitation and Non-Interference Obligations. Executive
understands and acknowledges that she is subject to certain non-solicitation obligations, set forth
in Section 2 of the Confidentiality Agreement, and agrees that she will comply with said
obligations, to the fullest extent allowable by state and federal law. Executive further agrees
that following the Separation Date, she shall not, directly or indirectly, interfere with
Employer’s business by: (i) revealing any Confidential Information; (ii) soliciting, causing to be
solicited, or knowingly accepting the disclosure of any Confidential Information for any purpose
whatsoever or for any other party; or (iii) disrupting or seeking to disrupt in any manner,
directly or indirectly, any contractual relationship she knows to exist between Employer and any
customer, supplier, partner or other entity. Executive further agrees that she shall not, directly
or indirectly, for a period of one (1) year following the Separation Date, interfere with
Employer’s
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business by (i) inducing or attempting to induce any employee of Employer to end his or her
employment; (ii) inducing or attempting to induce a consultant, independent contractor, licensee or
other third party to sever any relationship with Employer; or (iii) assisting any other person,
firm or entity in the solicitation of any such executive, consultant, independent contractor,
licensee or third party.
6. Non-Disparagement. Executive agrees not to disparage Employer, its officers,
directors, employees, shareholders, and agents, in any manner likely to be harmful to its or their
business, business reputation, or personal reputation, and Employer agrees to take reasonable steps
to ensure that none of its officers and/or directors disparage Executive, and to notify the
officers and/or directors of Symphony ViDA, Inc. that they should not disparage Executive, in any
manner likely to be harmful to her business or personal reputation; provided that each Party may
respond accurately and fully to any question, inquiry or request for information when required by
legal process.
7. Executive’s General Release. In consideration of the benefits provided under this
Agreement, including without limitation the Separation Benefit, and subject to the exceptions
listed in Sections 8(i)-(vii) below, Executive on her own individual behalf and on behalf of her
heirs, executors, administrators, assigns and successors, fully and forever releases and discharges
Employer and each of its current, former and future parents, subsidiaries, related entities,
employee benefit plans and their fiduciaries, predecessors, successors, officers, directors,
shareholders, agents, employees and assigns (collectively, “Releasees”), with respect to any and
all claims, liabilities and causes of action, of every nature, kind and description, in law, equity
or otherwise, which have arisen, occurred or existed at any time prior to the signing of this
Agreement, arising out of, or in connection with, or resulting from Executive’s employment with
Employer, or the cessation of that employment.
8. Waiver of Employment-Related Claims. Executive understands and agrees that, with
the exception of potential employment-related claims identified below, she is waiving and releasing
any and all rights or remedies she may have had or now has to pursue against Employer or any of the
Releasees for any employment-related causes of action, including without limitation, claims of
wrongful discharge, breach of contract (including, without limitation, stock option-related
contracts and grants), breach of the covenant of good faith and fair dealing, fraud, violation of
public policy, defamation, discrimination, personal injury, physical injury, emotional distress,
claims under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the
Federal Rehabilitation Act, the Family and Medical Leave Act, the Health Insurance and Portability
and Accountability Act, the California Fair Employment and Housing Act, the California Family
Rights Act, the Equal Pay Act of 1963, the provisions of the California Labor Code and any other
federal, state or local laws and regulations relating to employment, conditions of employment
(including wage and hour laws) and/or employment discrimination. Claims not covered by Executive’s
release are (i) claims for unemployment insurance benefits, (ii) claims under the California
Workers’ Compensation Act, (iii) claims arising out of the breach of this Agreement, (iv) claims
under any disability policy under which Executive was covered on or prior to the Separation Date,
(v) claims under any clinical trial insurance policy under which Executive was covered on or prior
to the Separation Date, (vi) claims of indemnification under any applicable state corporate law,
Employer
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agreement or Employer insurance policy under which Executive was covered prior to the
Separation Date, and (vii) any other claims, the release of which are otherwise prohibited by law.
Executive expressly acknowledges that Employer would not enter into this Agreement but for the
representation and warranty that Executive is hereby releasing any and all claims of any nature
whatsoever, known or unknown, whether statutory or at common law, which Executive now has or could
assert directly or indirectly against any of the Releasees (other than as expressly set forth
herein).
9. Waiver of Unknown Claims. Executive expressly waives any and all statutory and/or
common law rights she may have to the effect that a General Release does not release unknown
claims, including any rights under Section 1542 of the Civil Code of the State of California, which
states as follows:
“A general release does not extend to claims which the creditor does
not know or suspect to exist in her favor at the time of executing
the release, which if known by her must have materially affected her
settlement with the debtor.”
Executive expressly agrees and understands that the general releases given by her pursuant to this
Agreement apply to all unknown, unsuspected and unanticipated claims, liabilities and causes of
action which may exist against the Employer.
10. Employer’s Release. Employer, on its behalf and on behalf its current, former and
future parents, subsidiaries, related entities, employee benefit plans and their fiduciaries,
predecessors, successors, officers, directors, shareholders, agents, employees and assigns, fully
and forever releases and discharges Executive, her heirs, executors, administrators, assigns and
successors, with respect to any and all claims, liabilities and causes of action, in law, equity or
otherwise, which have arisen, occurred or existed at any time prior to the signing of this
Agreement, arising out of, or in connection with, or resulting from Executive’s employment with
Employer, or the cessation of that employment, provided that Employer does not
release claims (if any) arising out of Executive’s gross negligence or willful misconduct.
Employer represents that at the time of execution of this Agreement, Employer is aware of no
conduct on the part of Executive, in connection with her employment, that would support a claim of
gross negligence or willful misconduct.
11. Consideration/Revocation Period. This Agreement is intended to release and
discharge any claims by Executive under the Age Discrimination and Employment Act. To satisfy the
requirements of the Older Workers’ Benefit Protection Act, 29 U.S.C. section 626(f), the Parties
agree as follows:
(a) Executive acknowledges that she has read and understands the terms of this Agreement.
(b) Executive acknowledges that she has been advised to consult with independent counsel
regarding this Agreement, and that she has received all counsel necessary to willingly and
knowingly enter into this Agreement.
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(c) Executive acknowledges that she has been given twenty-one (21) days to consider the terms
of this Agreement (the “Consideration Period”), has taken sufficient time to consider whether to
execute it, and has chosen to enter into this Agreement knowingly and voluntarily. If Executive
does not present an executed copy of this Agreement to Employer’s Chief Financial Officer on or
before the expiration of the Consideration Period, this Agreement and the offer it contains will
lapse.
(d) For seven (7) days following the execution of this Agreement (should she elect to execute
it), Executive may revoke this Agreement by delivering a written revocation to Employer’s Chief
Financial Officer. This Agreement shall not become effective until the eighth (8th) day after
Executive executes and does not revoke it (the “Effective Date”). If Executive either fails to
sign the Agreement during the Consideration Period, or revokes it prior to the Effective Date, she
shall not receive the Separation Benefit described herein.
12. Severability. The Parties agree that if any provision of the releases given under
this Agreement is found to be unenforceable, it will not affect the enforceability of the remaining
provisions and the courts may enforce all remaining provisions to the extent permitted by law.
13. Integrated Agreement. The Parties represent and warrant that they are not
relying, and have not relied, upon any representations or statements, verbal or written, made by
any other with regard to the facts involved in this controversy, or their rights (or asserted
rights) arising out of their alleged claims, or the execution and/or terms of this Agreement,
except as provided herein. The Parties acknowledge that this Agreement (together with Exhibits A
and B and their attachments) contains the entire agreement between the Parties concerning its
subject matter, and further acknowledge and agree that parol evidence shall not be required to
interpret the Parties’ intent.
14. Taxes. Executive assumes full responsibility for any and all taxes, interest
and/or penalties, if any, that may ultimately be assessed upon the Separation Benefit hereunder,
and acknowledges that the benefits listed in Section 3 shall be subject to applicable income and
employment tax withholdings.
15. Voluntary Execution. The Parties acknowledge that they have read and understand
this Agreement and that they sign it voluntarily and without coercion. The Parties further agree
that if any of the facts or matters upon which they relied in signing this Agreement prove to be
otherwise, this Agreement will nonetheless remain in full force and effect.
16. Waiver, Amendment and Modification. The Parties agree that no waiver, amendment
or modification of any of the terms of this Agreement shall be effective unless in writing and
signed by all parties affected by the waiver, amendment or modification. No waiver of any term,
condition or default of any term of this Agreement shall be construed as a waiver of any other
term, condition or default.
17. Choice of Law and Venue. This Agreement shall be deemed to have been made in the
Commonwealth of Massachusetts, shall take effect as an instrument under seal within Massachusetts,
and the validity, interpretation and performance of this Agreement shall be governed by, and
construed in accordance with, the internal law of Massachusetts, without
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giving effect to conflict of law principles. Any action, demand, claim or counterclaim
relating to, or arising under, the terms and provisions of this Agreement, or to its breach, may be
commenced in a court of competent jurisdiction either in Massachusetts or in California.
18. Assignment. This Agreement will be binding upon and inure to the benefit of (a)
the heirs, executors, and legal representatives of Executive upon Executive’s death and (b) any
successor of the Company. Any such successor to the Company shall be deemed substituted for the
Company under the terms of this Agreement for all purposes.
19. Counterparts. This Agreement may be signed in counterparts and said counterparts
shall be treated as though signed as one document.
| Dated: June 9, 2009 | /s/ Xxxxxxxx Xxxxxxx | |||
| Xxxxxxxx Xxxxxxx | ||||
| OXiGENE, Inc. |
||||
| Dated: June 10, 2009 | /s/ Xxxx X. Xxxxxxx | |||
| By: Xxxx X. Xxxxxxx | ||||
| Chief Executive Officer | ||||
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