This Employment
Agreement (the “Agreement”) is entered into as of June
10th, 2009 by and between OXiGENE, Inc., a Delaware corporation
(“OXiGENE”), and Peter Langecker (the
“Executive”).
WHEREAS, OXiGENE
and Executive desire to enter into an employment agreement relating
to the position of OXiGENE’s Executive Vice President and
Chief Development Officer.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, OXiGENE and Executive
hereby agree as follows:
Executive shall
serve in the capacity of Executive Vice President and Chief
Development Officer, and shall have the duties, responsibilities
and authority assigned to Executive by OXiGENE’s Chief
Executive Officer to whom he shall report.
Executive, so long
as he is employed hereunder, (i) shall devote substantially
all of his full professional time and attention to the services
required of him as an employee of OXiGENE, except as otherwise
agreed and except as permitted in accordance with paid vacation
time subject to OXiGENE’s existing vacation policy, and
subject to OXiGENE’s existing policies pertaining to
reasonable periods of absence due to sickness, personal injury or
other disability, (ii) shall use his best efforts to promote
the interests of OXiGENE, and (iii) shall discharge his
responsibilities in a diligent and faithful manner, consistent with
sound business practices. Notwithstanding the above, Executive may
continue to serve as a consultant/advisor for the entities listed
on Exhibit A provided that such service does not create any
conflicts, ethical or otherwise, with Executive’s
responsibilities to OXiGENE and further provided that
Executive’s time commitments do not unreasonably interfere
with his fulfillment of his responsibilities hereunder, as
determined by OXiGENE.
The term of
Executive’s employment under this Agreement shall commence at
a date mutually agreed upon by the parties, in any case not later
than June 30, 2009, and shall continue until terminated by
either party in accordance with Section 6 hereof (the
“Employment Term”).
3. Base
Salary; Stock Options, Sign-on Bonus
3.1 During the
Employment Term, Executive initially shall be paid an annual base
salary in the amount of $350,000 (such amount as adjusted, from
time to time, the
“Base
Salary”), payable in biweekly (26) installments in
accordance with OXiGENE’s payroll schedule from time to time
in effect. The Base Salary will be subject to review annually or on
such periodic basis (not to exceed annually) as OXiGENE reviews the
compensation of OXiGENE’s other senior executives and may be
adjusted upwards in the sole discretion of the Board of Directors
of OXiGENE (the “Board”) or its designee. Executive
will be eligible during each year of the Employment Term for
consideration for an annual bonus (the “Annual Bonus”)
equal to up to forty percent (40%) of his then-current Base Salary,
based upon OXiGENE’s assessment of the performance of
Executive and OXiGENE at the sole discretion of OXiGENE, to be paid
prior to March 15th of the year following the year in which
the Annual Bonus is earned. The Annual Bonus is based on the
achievement of individual and Company written goals established on
an annual basis and on overall Company performance. Executive shall
be eligible for a pro-rated Annual Bonus for 2009. The Board may in
its discretion award Executive a more generous bonus.
3.2 OXiGENE shall
grant to Executive, subject to approval by the Compensation
Committee of the Board, options to purchase two hundred fifty
thousand (250,000) shares of OXiGENE’s common stock at an
exercise price equal to the fair market value of such stock on the
date of grant pursuant to and in accordance with the terms of
OXiGENE’s 2005 Stock Plan (the “Stock Plan”) and
OXiGENE’s standard form of option agreement within
60 days of Executive’s first day of employment. To the
extent allowed by law, the options shall be treated as incentive
options. The options shall vest in four equal annual increments
over the four (4) year period measured from the date of grant
of such options, with vesting to begin on the one (1) year
anniversary of the grant date. In addition, Executive shall be
eligible to receive stock option grants, stock bonuses, restricted
stock grants or other equity compensation awards granted to
Executive from time to time by the Board in its sole discretion and
to participate in any equity compensation plan that may be
established by OXiGENE for Executive or its executive team
generally.
3.3 Executive
shall earn a signing bonus (the “Commencement Bonus”)
in the amount of seventy thousand dollars ($70,000), payable on the
first payroll date following Executive’s first day of
employment. If Executive’s employment hereunder is terminated
either by OXiGENE for Cause or voluntarily by Executive in the
absence of a Good Reason (as defined in Section 6.6) within
one (1) year of the Commencement Date, Executive will promptly
repay a portion of the Commencement Bonus equal to the amount of
the Commencement Bonus, net of applicable taxes and deductions,
multiplied by a fraction, the numerator of which equals the number
of days from the effective date of such termination to the first
anniversary of the Commencement Date and the denominator of which
will be 365.
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4.
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Benefits
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Executive
shall be entitled to participate in employee benefit plans and
arrangements made available by OXiGENE generally to OXiGENE
employees of comparable title or responsibilities during the
Employment Term.
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5.1 Executive
shall be entitled to receive an American Express Corporate Card (or
other card should OXiGENE change to another card issuer), for
business related expenses and prompt reimbursement will be made for
all reasonable and customary expenses incurred by him in performing
services hereunder during the Employment Term; provided that such
expenses are incurred and accounted for in accordance with the
policies and procedures established by OXiGENE.
6.1 Executive may
resign from employment with OXiGENE upon written notice to
OXiGENE.
6.2 If
Executive’s employment is terminated by OXiGENE other than
for Cause (as defined below) or Executive’s disability, then
OXiGENE shall provide to Executive the following termination
compensation:
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(a)
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payments equal to Executive’s
then-current Base Salary for a period of twelve (12) months,
payable on OXiGENE’s normal paydays.
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(b)
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a
payment equal to the portion of the Executive’s Base Salary
that has accrued prior to any termination of the Executive’s
employment with OXiGENE that has not yet been paid;
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(c)
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to
the extent required by law and OXiGENE’s policy, an amount
equal to the value of the Executive’s accrued but unused
vacation days;
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(d)
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the
amount of any expenses properly incurred by the Executive on behalf
of OXiGENE prior to any termination and not yet
reimbursed;
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(e)
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the
Annual Bonus related to the most recently completed calendar year,
if not already paid, and
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(f)
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should Executive timely elect and be
eligible for COBRA coverage, payment of Executive’s COBRA
premiums for the Executive and the Executive’s immediate
family’s medical and dental insurance coverage for a period
of twelve (12) months; provided, that OXiGENE shall have no
obligation to provide such coverage if Executive becomes eligible
for medical and dental coverage with another employer. Executive
shall give prompt written notice to the Company on attaining such
eligibility.
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Such payments
described in Sections 6.2 (b), (c) and (e), shall be
payable upon Executive’s last day of employment, or as
otherwise allowable by law; such payments described in Section (d)
shall be payable upon Executive’s last day of employment, or
on the earliest practicable date after Executive provides proof of
the expenses and the business purpose thereof. Such payments
described in Sections 6.2(a) and (f), unless otherwise
required by law, shall be paid or commence to be paid within ninety
(90) days of Executive’s termination of employment
provided Executive has delivered to OXiGENE and has not thereafter
revoked a general release within forty-five (45) days of
Executive’s termination of employment.
6.3 If, following
any Change in Control (as such term is defined below) and prior to
the expiration of one (1) year from the date of such Change in
Control, (1) Executive’s employment is terminated (other
than for Cause or the Executive’s disability) or (2) in
the event of a termination with Good Reason, then
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(a)
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Executive shall receive, within
sixty (60) days after Executive’s termination of
employment:
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(i)
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A
lump sum payment of an amount equal to twelve (12) months of
Executive’s then current Base Salary; and
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(ii)
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the
termination compensation described in Sections 6.2(b), (c),
(d), (e) and (f) above, payable as described, and subject
to the conditions set forth in Section 6.2, above.
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(b)
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All
stock options, stock appreciation rights, restricted stock, and
other incentive compensation granted to the Executive by OXiGENE
shall vest and be immediately exercisable. Executive may exercise
all such vested options and rights, and shall receive payments and
distributions accordingly
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“Change
in Control” shall mean the occurrence of any of the following
events:
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(i)
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Ownership. Any “Person”
(as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) becomes the “Beneficial
Owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of OXiGENE representing more
than fifty percent (50%) of the total voting power represented by
OXiGENE’s then outstanding voting securities (excluding for
this purpose any such voting securities held by OXiGENE or its
affiliates or by any employee benefit plan of OXiGENE) pursuant to
a transaction or a series of related transaction which the Board of
Directors does not approve; or
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(ii)
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Merger/Sale of Assets. (A) A
merger or consolidation of OXiGENE whether or not approved by the
Board of Directors, other than a merger or consolidation which
would result in the
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voting securities of OXiGENE
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or the parent of such
corporation) at least 50% of the total voting power represented by
the voting securities of OXiGENE or such surviving entity or parent
of such corporation, as the case may be, outstanding immediately
after such merger or consolidation; or (B) the stockholders of
OXiGENE approve an agreement for the sale or disposition by OXiGENE
of all or substantially all of OXiGENE’s assets;
or
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(iii)
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Change in Board Composition. A
change in the composition of the Board of Directors, as a result of
which fewer than a majority of the directors are Incumbent
Directors. “Incumbent Directors” shall mean directors
who either (A) are directors of OXiGENE as of the date of this
Agreement, or (B) are elected, or nominated for election, to
the Board of Directors with the affirmative votes of at least a
majority of the Incumbent Directors at the time of such election or
nomination (but shall not include an individual whose election or
nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to
OXiGENE).
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For purposes of
this Agreement, a Change in Control must also meet the requirements
of a “Change in Control Event” within the meaning of
Section 409A(a)(2)(A)(v) of the Code and Treasury
Regulation Section 1.409A-3(i)(5).
6.4 Except as
otherwise set forth in this Section 6 or as required by
applicable law, all obligations of OXiGENE under this Agreement
shall cease if, during the Employment Term, OXiGENE terminates
Executive for Cause or Executive resigns for other than Good
Reason. Upon such termination, Executive shall be entitled to
receive only the termination compensation described under
Sections 6.2(b), (c), (d) and (e).
6.5 For the
purposes of this Agreement, the term “ Caus
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