409A AMENDMENT TO EMPLOYMENT AGREEMENT OF JAMES B. MURPHY
Exhibit 10.53
409A AMENDMENT TO
EMPLOYMENT AGREEMENT OF XXXXX X. XXXXXX
EMPLOYMENT AGREEMENT OF XXXXX X. XXXXXX
WHEREAS, OXiGENE, Inc. (“OXiGENE”) and Xxxxx X. Xxxxxx (“Executive”) entered into an
employment agreement as of February 23, 2004 (the “Agreement”);
WHEREAS, OXiGENE and Executive desire to 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. Section 6.2 is amended by adding the following sentence at the end thereof:
“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.”
2. The first phrase of Section 6.3 is amended in its entirety as follows:
“6.3 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:”
3. Section 6.4(a) is amended by adding the following sentence at the end thereof:
“Payments under this Section 6.4(a) will be made within sixty (60) days of
Executive’s Termination of Employment.”
4. The last sentence of Section 6.5 is amended in its entirety as follows:
“Upon such termination, Executive shall be entitled to receive a lump sum of cash
payment within sixty (60) days after the Executive’s termination of employment in
an amount equal to the Unpaid Salary.”
5. Section 8B is amended by adding the following sentence at the end thereof:
“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.”
6. The following new Section 17 shall be added to the Agreement:
“17. Compliance with Code Section 409A
(a) If any of the benefits set forth in this Agreement are deferred compensation
under Section 409A of the Internal Revenue Code of 1986, as amended, or any
successor statute, regulation and guidance thereto (“Code Section 409A”), any
termination of employment triggering payment of such benefits must constitute a
“separation from service” under Code Section 409A before distribution of such
benefits can commence. For purposes of clarification, this paragraph shall not
cause any forfeiture of benefits on the part of the Executive, but shall only act
as a delay until such time as a “separation from service” occurs.
(b) It is intended that each installment of the payments and benefits provided
under this Agreement shall be treated as a separate “payment” for purposes of Code
Section 409A. Neither OXiGENE nor Executive shall have the right to accelerate or
defer the delivery of any such payments or benefits except to the extent
specifically permitted or required by Code Section 409A.
(c) Any reimbursements or direct payment of Executive’s expenses subject to Code
Section 409A shall be made no later than the end of the calendar year following the
calendar year in which such expense is incurred by the Executive. Any reimbursement
or right to direct payment of Executive’s expense in one calendar year shall not
affect the amount that may be reimbursed or paid for in any other calendar year and
a reimbursement or payment of Executive’s expense (or right thereto) may not be
exchanged or liquidated for another benefit or payment.
(d) Notwithstanding any other provision of this Agreement to the contrary, the
Agreement shall be interpreted and at all times administered in a manner that
avoids the inclusion of compensation in income under Code Section 409A(a)(1) . Any
provision inconsistent with Code Section 409A will be read out of the Agreement.
For purposes of clarification, this Section 17(d) shall be a rule of construction
and interpretation and nothing in this Section 17(d) shall cause a forfeiture of
benefits on the part of the Executive.
(e) Notwithstanding any other provision of this Agreement to the contrary, if any
amount (including imputed income) to be paid to
Executive pursuant to this Agreement as a result of Executive’s termination of
employment is “deferred compensation” subject to Code Section 409A, and if the
Executive is a “Specified Employee” (as defined under Code Section 409A) as of the
date of Executive’s termination of employment hereunder, then, to the extent
necessary to avoid the imposition of excise taxes or other penalties under Code
Section 409A, the payment of benefits, if any, scheduled to be paid by Company to
Executive hereunder during the first six (6) month period following the date of a
termination of employment hereunder shall not be paid until the date which is the
first business day after six (6) months have elapsed since the Executive’s
termination of employment for any reason other than death. Any deferred
compensation payments delayed in accordance with the terms of this Section 17(e)
shall be paid in a lump sum after six (6) months have elapsed since the Executive’s
termination of employment. Any other payments will be made according to the
schedule provided for herein.”
7. Except as specifically modified herein, the terms of the Agreement, and all terms and
conditions of your employment with OXiGENE shall remain in full force and effect.
IN WITNESS WHEREOF, each of the parties has caused this 409A Amendment to be executed as of
December 30, 2008.
Executive:
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OXiGENE, Inc. | |||
/s/ Xxxxx X. Xxxxxx
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/s/ Xxxx X. Xxxxxxx
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