Exhibit 10.22
OXiGENE Inc.
Restricted Stock Agreement for Employees
This Restricted Stock Agreement (this "Agreement") is made as of the 2nd
day of January 2002, between OXiGENE Inc., a Delaware corporation (the
"Company"), David Chaplin ("Grantee").
The Company has adopted a program of restricted stock awards for
non-director executives, employees, and consultants that provides for the grant
of shares of Company common stock, par value $0.01, subject to restrictions as
set forth in this Agreement (the "Restricted Stock").
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 Restricted 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 Restricted Stock.
(a) Number of Shares Granted. Subject to the terms and, conditions this
Agreement, the Company hereby grants to Grantee, effective' January 2, 2002 (the
"Grant Date"), 45,000 shares of Restricted Stock. Grantee agrees that the
Restricted Stock shall be subject to all of the terms and conditions set forth
in this Agreement, including, but not limited to, the forfeiture conditions set
forth in Section 3(b), the restrictions on transfer set forth in Section 3(d),
and the payment of withholding taxes as set forth in Section 6 of this
Agreement.
(b) Company to Retain Custody of Restricted Stock Until Vesting. The Company
shall retain custody of the Restricted Stock until the Restricted Stock has
vested in accordance with Section 3 of this Agreement. Upon vesting of the
Restricted Stock, the Company shall instruct its transfer agent to deposit that
portion of the Restricted Stock which has vested and has, therefore, ceased to
be Restricted Stock (the "Common Stock") into an account designated by Grantee,
subject to payment of any amounts due to the Company in accordance with Section
6 of this Agreement.
3. Terms of the Restricted Stock.
(a) Vesting Schedule; Service Requirement. One-third (33 and 1/3%) of the
Restricted Stock will vest on each of the first three annual anniversary dates
from the Grant Date, as set forth hereto on Schedule I (each, a "Vesting Date"),
if Grantee has been employed by or provided advisory services to the Company
continuously from the Grant Date to the applicable Vesting Date.
(b) Conditions of Forfeiture. If Grantee's employment or service with the
Company is terminated for any reason, including, but not limited to, Grantee's
voluntary resignation or termination by the Company with or without cause,
except as provided in Sections 3(c), all Restricted Stock shall, without further
action of any kind by the Company, be forfeited. For purposes of this Agreement,
termination from employment shall be deemed to occur on the last day actually
worked by Grantee, rather than the last day that Grantee is on the payroll of
the Company. The Committee shall in good faith determine whether a leave of
absence shall constitute a termination of employment. Restricted Stock that is
forfeited shall be immediately transferred to the Company without any payment by
the Company to Grantee and the Company shall have the full right upon such
forfeiture to cancel any evidence of Grantee's ownership of such forfeited
Restricted Stock and take any other action necessary to demonstrate that Grantee
no longer owns such forfeited Restricted Stock. Following such forfeiture,
Grantee shall have no further rights with respect to such forfeited Restricted
Stock.
(c) Immediate Vesting of All Restricted Stock. All of Grantee's Restricted
Stock. shall immediately vest if:
(i) there is 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%
or 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 immediately after such merger or consolidation; or
(D) the stockholders of the Company approve:
1. 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
2. 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;
(ii) there is a "Strategic Reorganization" of the Company (as that term shall be
defined in the sole good faith determination of the Committee or Board) and
Grantee's employment or service is terminated as a result of such Strategic
Reorganization; or
(iii)Grantee's engagement with the Company terminates as a result of Grantee's
death or disability.
(d) 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 Restricted Stock (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(d) shall be void and of no force or effect, and shall result in the
immediate forfeiture of all Restricted Stock.
4. Dividend And Voting Rights. Subject to the restrictions contained in this
Agreement, Grantee shall have the rights of a stockholder with respect to the
Restricted Stock, including the right to vote all such Restricted Stock, and to
receive all dividends, cash or stock, paid or delivered thereon, from and after
the Grant Date. In the event of forfeiture of the Restricted Stock, Grantee
shall have no further rights with respect to such Restricted Stock. However, the
forfeiture of Restricted Stock shall not create any obligation to repay
dividends received as to such Restricted Stock, nor shall such forfeiture
invalidate any votes given by Grantee with respect to such Restricted Stock
prior to forfeiture.
5. Section 83(b) Election. Under Section 83(b) of the Internal Revenue Code of
1986, as amended (the "Code"), Grantee will recognize ordinary income equal to
the fair market value of the shares of Common Stock received upon the date the
Restricted Stock vests. However, Grantee may elect to be taxed at the time the
Restricted Stock is granted, rather than when the Restricted Stock vests. To
elect this early taxation, Grantee would need to file an election under Section
83(b) of the Code within thirty (30) days after the Grant Date (an "83(b)
Election"). In addition, Grantee would have to make a payment to the Company, in
accordance with the procedures set forth in Section 6, to cover the withholding
taxes on the fair market value of the Restricted Stock on the Grant Date.
GRANTEE ACKNOWLEDGES THAT HE OR SHE HAS BEEN INFORMED OF THE
AVAILABILITY OF MAKING AN ELECTION IN ACCORDANCE WITH SECTION 83(b) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED; THAT SUCH ELECTION MUST BE FILED
WITH THE INTERNAL REVENUE SERVICE WITHIN 30 DAYS OF THE GRANT OF RESTRICTED
STOCK TO GRANTEE; AND THAT GRANTEE IS SOLELY RESPONSIBLE FOR MAKING SUCH
ELECTION.
GRANTEE ACKNOWLEDGES THAT HE OR SHE IS RELYING SOLELY ON HIS OR HER
OWN ADVISORS WITH RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE ANY
SECTION 83(b) ELECTION. IF GRANTEE DETERMINES THAT THE ELECTION IS
ADVISABLE, GRANTEE ACKNOWLEDGES THAT IT IS HIS OR HER SOLE RESPONSIBILITY,
AND NOT THE COMPANY'S, TO FILE A TIMELY 83(b) ELECTION, EVEN IF GRANTEE
REQUESTS THAT THE COMPANY OR ITS REPRESENTATIVES MAKE THE FILING ON
GRANTEE'S BEHALF.
6. Withholding Of Taxes. The Company's obligation to deliver Common Stock to
Grantee upon the vesting of the Restricted Stock 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:
(a) within thirty (30) days after each of the three Vesting Dates, make a cash
payment to the Company for the full amount (100%) of the Withholding Taxes due
upon the Vesting Date of the respective one-third (33 and 1/3%) portion of the
Restricted Stock; and if all of Grantee's remaining Restricted Stock has vested
pursuant to Sections 3(c) hereof, within thirty (30) days after such date,
Grantee (or Grantee's legal representative in the event of legal incapacity)
shall make a cash payment to the Company for the remaining amount of the
Withholding Taxes due upon the vesting of all remaining Restricted Stock;
(b) make an 83(b) Election and 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
(c) make an 83(b) Election and pay the Withholding Taxes by the presentation to
the Company of executed promissory notes, which may be either recourse or
non-recourse at Grantee's election, in a form, satisfactory to the Company (the
"Promissory Notes"), which Promissory Notes shall have the following conditions
incorporated by reference therein:
(i) Amount of Promissory Notes. Grantee shall give to the Company a Promissory
Notes for the full amount (100%) of the Withholding Taxes due as a result of an
83(b) Election plus interest at the rate of 10% (ten percent) per year,
compounded annually;
(ii) Maturity Dates.
(A) One third (33 and 1/3%) of the principal together with accrued interest
thereon is due at each of the three Vesting Dates, as set forth hereto on
Schedule I (each a "Maturity Date").
(B) Not withstanding the due date set forth above, the full amount (100%) of
unpaid principal and accrued interest shall become due if all of Grantee's
Restricted Stock vests pursuant to Section 3(c) hereof or Grantee's
Restricted Stock is forfeited pursuant to Section 3(b) or 3(d) of this
Agreement;
(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 any Maturity Date;
(iv) Company to Possess Stock Certificates. The stock certificates representing
the Restricted Stock shall remain in the possession of the Company as
security for the payment of the indebtedness evidenced by the Promissory
Notes, including both principal and accrued interest;
(v) Voting Shares. Restricted Stock retained by the Company pursuant to Section
6(c)(iv) above shall have all dividend and voting rights as provided in
Section 4 of this Agreement except that any stock dividends shall remain
the possession of the Company together with and be treated in the same
manner as the certificate of shares retained for security for payment of
the principal and accrued interest on the Promissory Notes; and
(vi) Satisfaction of Conditions of Note. The one-third (33 and 1/3%) portion of
the Restricted Stock granted on the Grant Date that is to vest on a Vesting
Date shall be forfeited in the event that, on such Vesting Date and
associated Maturity Date, the conditions of the note have not been
fulfilled.
7. 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 7.
8. 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.
9. Legends. All certificates representing the Restricted Stock shall have
endorsed thereon the following legends:
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
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THESE SHARES ARE SUBJECT TO A RESTRICTED STOCK AGREEMENT DATED AS OF
JANUARY 2, 2002 BY AND BETWEEN OXIGENE, INC. AND DAVID CHAPLIN, INCLUDING
RESTRICTIONS ON PLEDGE AND TRANSFER CONTAINED THEREIN.
10. 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.
11. Nature of Payments. Any and all grants or deliveries of Restricted Stock
hereunder shall constitute special incentive 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.
12. 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.
13. 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.
14. 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 Committee or 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.
15. Entire Agreement. This Agreement (along with any related Promissory Notes)
embodies the entire agreement of the parties hereto with respect to the
Restricted 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: /s/ Frederick W. Driscoll
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Name: Frederick W. Driscoll
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Title: President & CEO
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Address: 321 Arsenal Street, Watertown, MA
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Fax: 617-924-9229
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Grantee
Name: /s/ David Chaplin
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Address: David Chaplin
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Fax:
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SCHEDULE I
Vesting Schedule of Restricted Stock
Stock Certificate No. Number of Shares Vesting Date
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15,000 January 2, 2002
15,000 January 2, 2003
15,000 January 2, 2004
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