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409A AMENDMENT TO
EMPLOYMENT AGREEMENT OF DR. DAVID CHAPLIN
WHEREAS, OXiGENE,
Inc. (“OXiGENE”) and Dr. David Chaplin
(“Executive”) entered into an employment agreement as
of April 1, 2001 as amended (the
“Agreement”);
WHEREAS, OXiGENE
and Executive desire to further amend the Agreement to comply with
Internal Revenue Code Section 409A; and
WHEREAS, all
capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Agreement.
NOW THEREFORE, the
Agreement is hereby amended as follows.
1. The last
sentence of Section 6.1 is amended in its entirety as
follows:
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“If Executive terminates his
employment following a material breach of the Agreement by OXiGENE,
which breach remains uncured thirty (30) 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.”
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2. Section 6.1
is further amended by adding the following sentence at the end
thereof:
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“For purposes of this
Agreement, Good Reason must also meet the requirements for a good
reason termination in accordance with Treasury Regulation
§1.409A-1(n)(2), and any successor statute, regulation and
guidance thereto.”
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3. The first
phrase of Section 6.2 is amended as follows:
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“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 to Executive within sixty (60) days
of Executive’s termination of employment:”
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4. The last
sentence of Section 6.3 is amended in its entirety as
follows:
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“Upon such termination,
Executive shall be entitled to receive a lump sum cash payment
within sixty (60) days after the Termination Date an amount
equal to the Unpaid Salary.”
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3. Section 6.3(a)
is amended by adding the following sentence at the end
thereof:
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“Payments under this
Section 6.3(a) will be made within sixty (60) days of the
Termination Date.”
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5. Section 8B
is amended by adding the following sentence at the end
thereof:
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“Reimbursements under this
Section 8B will be paid within sixty (60) days from the
date it is determined that Executive is entitled to payment under
this Section 8B.”
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6.
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The
following new Section 17 shall be added to the
Agreement:
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“17.
Compliance with Code Section 409A
(a) If any
of the benefits
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