Exhibit 4.1
OXiGENE INC.
[FORM OF] COMPENSATION AWARD STOCK AGREEMENT FOR EMPLOYEE DIRECTORS
This Compensation Award Agreement (this "Agreement") is made as of the
____ day of _________, 2002 between OXiGENE Inc., a Delaware corporation (the
"Company"), and _____________ ("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 ____________, 2002 (the "Grant
Date"), ______________ 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 withholding taxes and the restrictions on transfer as
set forth in Section 3 of this Agreement.
3. Withholding 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 Taxes 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
of the Grant Date (the "Maturity Date").
(B) Not withstanding 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% of 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 the 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 full amount (100%) of the principal
together with accrued interest thereon that shall be due on the Maturity
Date 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 an 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)(vi) 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 held by the Company pursuant to Section 3(b)(iv) is
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 legend:
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 SATIFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
If Grantee elects to pay the Withholding Taxes with a Promissory
Note 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
________________, 2002 BY AND BETWEEN OXIGENE, INC. AND
__________________, 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:
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Name:
Title:
Address:
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Fax:
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GRANTEE
Name: -------------------------------
Address:
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Fax:
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