Exhibit 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of October
23, 2000, between OXiGENE Inc., a Delaware corporation ("OXiGENE" or the
"Company"), and Mr. Frederick W. Driscoll (the "Executive").
W I T N E S S E T H:
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WHEREAS, Executive and OXIGENE desire to enter into an employment agreement
relating to the position of OXiGENE's President and Managing Director, Finance &
Operations, located in Boston, pursuant to which position Executive shall report
to Dr. Bjorn Nordenvall, OXiGENE's Chairman Chief Executive 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:
1. Employment
1.1 Executive shall serve in the capacity of President and Managing
Director, Finance & Operations, and shall have the duties, responsibilities and
authority assigned to Executive by the Board of Directors of OXiGENE ("Board")
consistent with such position. Executive shall report directly to OXiGENE's
Chairman and Chief Executive Officer.
1.2 Executive, so long as he is employed hereunder, (i) shall devote 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 OX1GENE's existing vacation policy
and subject to OX1GENE'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.
2. Term
The term of Executive's employment under this Agreement shall commence as
of October 23, 2000, and shall continue until terminated by either party in
accordance with Section 6 hereof (the "Employment Term").
3. Base Salary; Stock Options
3.1 During the Employment Term, Executive shall receive an annual base
salary in the amount of $250,003 (such amount as adjusted, from time to time,
the "Base Salary"), payable in twenty four (24) equal installments in accordance
with OXiGENE's payroll schedule from time to time in effect. Executive's salary
shall be reviewed annually by the Board.
3.2 OXiGENE shall grant to Executive, subject to approval by the
Compensation Committee of the Board, pursuant to the OXiGENE Inc. 1996 Stock
Incentive Plan (the "Stock Plan"), an option to purchase 40,000 shares of common
stock of OXiGENE, $.01 par value per share. Such option shall have an exercise
price equal to the Fair Market Value (as defined in the Stock Plan) on the date
of grant of such option, and shall vest and become exercisable after one year of
employment. Thereafter, Executive will be a participant of the Stock Plan, and
will be eligible to receive an annual grant of an equivalent number of options,
which shall contain the customary terms and provisions of options granted
generally to key executives under the Stock Plan.
3.3 Nothing hereunder shall preclude the Board from extending bonuses or
other compensation to Executive during the Employment Term at the sole
discretion of the Board.
4. Benefits
Executive shall be entitled to participate in or receive benefits under any
employee benefit plan, arrangement or perquisite generally made available by
OXIGENE during the Employment Term to its executives and key management
employees. These benefits shall consist of a minimum of paid health and life
insurance plans and four (4) weeks vacation.
5. Business Expenses
Executive shall be entitled to receive prompt reimbursement for all
reasonable and customary expenses incurred by him in performing services
hereunder during the Employment Terra; provided that such expenses are incurred
and accounted for in accordance with the policies and procedures established by
OXiGENE,
6. Termination
6.1 OXIGENE may, upon giving Executive six (6) months' written notice,
terminate Executive's employment subject to all provisions of this Agreement.
Notwithstanding the foregoing, OXiGENE may terminate Executive's employment for
Cause (as defined in Section 6.6 hereof) without prior notice.
6.2 (a) Executive may, upon giving OXIGENE thirty (30) days' notice,
terminate Executive's employment hereunder 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"). If Executive has not otherwise materially breached the Agreement,
Executive's Termination with Good Reason shall be treated as if his employment
was terminated by OXiGENE other than for Cause.
(b) The Executive may voluntarily resign from employment with the Company
upon written notice to the Company specifying the effective date of such
resignation, which effective date shall not be less than ninety (90) days from
the date of such notice. Upon the effective date of Executive's resignation, the
Company shall have no further obligations or liabilities to Executive, except
for obligations due to Executive for services rendered prior to the effective
date of Executive's resignation, and Executive shall have no further obligations
to perform duties as specified in Section 1 of this Agreement.
6.3A If, following any Change in Control (as such term is defined in the
Stock Plan) and prior to expiration of one (1) year from the date of such Change
in Control, (1) Executive's employment is terminated by OXiGENE (other than for
Cause) or (2) in the event of a Termination with Good Reason, then
(a) OXiGENE shall provide the following to Executive:
(i) the Unpaid Salary, as soon as practicable after the Termination Date;
plus
(ii) an amount equal to twelve (12) months of Executive's then current Ease
Salary; and
(b) all stock options, stock appreciation rights, restricted stock, and
other incentive compensation granted to the Executive by OXIGENE shall, to the
extent vested, remain exercisable in accordance with the terms of the Stock Plan
(or prior applicable plan) and the agreement entered pursuant thereto, and the
Executive may exercise all such vested options and rights, and shall receive
payments and distributions accordingly.
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 (a)
OXiGENE shall provide the following to Executive:
(i) as soon as practicable after the effective date of Executive's
termination of employment ("Termination Date") a lump sum cash payment
equal to the portion of Executive's then current Base Salary accrued
to the Termination Date but unpaid as of the Termination Date (the
"Unpaid Salary"); plus
(ii) an amount equal to three (3) months of Executive's then current Base
Salary;
and (b) all stock options, stock appreciation rights, restricted stock, and
other incentive compensation granted to the Executive by OXIGENE shall, to the
extent vested, remain exercisable in accordance with the terms of the Stock Plan
(or prior applicable plan) and the agreement entered pursuant thereto, and the
Executive may exercise all such vested options and rights, and shall receive
payments and distributions accordingly.
6.4 Except as otherwise set forth in this Section 6, all obligations of
OXIGENE under this Agreement shall cease if, during the Employment Term, OXIGENE
terminates Executive for Cause or the Executive resigns his employment other
than in a Termination with Good Reason, Upon such termination, Executive shall
be entitled to receive in a lump sum cash payment as soon as practicable after
the Termination Date an amount equal to the Unpaid Salary.
6.5 The foregoing payments upon Executive's termination shall constitute
the exclusive payments due Executive upon termination from his employment with
OXiGENE under this Agreement or otherwise, provided, however, that except as
stated above, such payments shall have no effect on any benefits which may be
payable to Executive under any plan of OXIGENE which provides benefits after
termination of employment.
6.6 For the purposes of this Agreement, the term "Cause" shall mean any of
the following:
(a) the (i) continued failure by Executive to perform substantially his
duties on behalf of OXIGENE if Executive fails to remedy that breach within ten
(10) days of OXiGENE's written notice to Executive of such breach; Or (ii)
material breach of any other provision of this Agreement by the Executive, if
the Executive falls to remedy that breach within ten (10) days of OXiGENE's
written notice to Executive of such breach; or
(b) any act of fraud, material misrepresentation or material omission,
misappropriation, dishonesty, embezzlement or similar conduct against OXiGENE or
any affiliate, or conviction of Executive for a felony or any crime involving
moral turpitude.
7. No Solicitation; Confidentiality; Work for Hire
7.1 For a period of one year after the Termination Date, neither the
Executive nor any Executive-Controlled Person (as defined below) will, without
the prior written consent of the Board, directly or indirectly solicit for
employment, or make an unsolicited recommendation to any other person that it
employ or solicit for employment, any person who is or was, at any time during
the nine (9) month period prior to the Termination Date, an officer, executive
or key employee of OXiGENE or of any affiliate of OXiGENE. As used in this
Agreement, the term "Executive-Controlled Person" shall mean any company,
partnership, firm or other entity as to which Executive possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such entity, whether through the ownership of voting securities, by
contract or otherwise. Notwithstanding the foregoing, this provision shall not
apply to the solicitation of individuals who have, for at least one (1) year
prior to the Termination Date, not been employed by OXiGENE.
7.2 (a) Executive acknowledges that, through his status as President and
Managing Director, Finance & Operations of OXiGENE, he has, and will have,
possession of important, confidential information and knowledge as to the
business of OXiGENE and its affiliates, including, but not limited to,
information and knowledge related to drugs and compounds developed or under
development by the Company or any of its affiliates, financial results and
projections, future plans, the provisions of other important contracts entered
into by OXiGENE and its affiliates, possible acquisitions and similar
information. Executive agrees that all such information and knowledge
constitutes a vital part of the business of OXiGENE and its affiliates and is by
its nature trade secrets and confidential information proprietary to OXiGENE and
its affiliates (collectively, "Confidential Information"). Executive agrees that
he shall not, so long as the Company or any of its affiliates remains in
existence, divulge, communicate, furnish Or make accessible (whether orally or
in writing or in books, articles or any other medium) to any individual, firm,
partnership, corporation or other entity, any knowledge or information with
respect to Confidential Information directly or indirectly useful in any aspect
of the business of OXiGENE or any of its affiliates. As used in the preceding
sentence, "Confidential Information" shall not include any knowledge or
information that; (i) is or becomes available to others, other than as a result
of a breach by Executive of this Section 7.2; (ii) was available to Executive on
a nonconfidential basis prior to its disclosure to Executive through his status
as an officer or employee of OXiGENE or any affiliate; (iii) becomes available
to Executive on a nonconfidential basis from a third party (other than OXiGENE,
any affiliate or any of its or their representatives) who is not bound by any
confidentiality obligation to OXiGENE or any affiliate; (iv) was known by the
Executive prior to his employment by OXiGENE as evidenced by Executive's
pre-existing written records; (v) was not maintained as confidential information
by OXiGENE; (vi) is otherwise information generally known or available to others
within OXiGENE's industry; or (vii) is information that is legally compelled, by
applicable law, to be disclosed by Executive, provided, however, that in such an
event Executive shall give prompt notice to OXiGENE of such requirement so that
OXiGENE may seek a protective order or other appropriate remedy.
(b) All memoranda, notes, lists, records and other documents or papers (and
all copies thereof), including such items stored in computer memories, on
microfiche or by any other means, made or compiled by or on behalf of Executive
or made available to him relating to the business of OXiGENE or any of its
affiliates are and shall be and remain OXiGENE's property and shall be delivered
to OXIGENE promptly upon the termination of Executive's employment with OXIGENE
or at any other tine on request and such information shall be held confidential
by Executive after the termination of his employment with OXiGENE.
7.3 The Executive grants the Company and each affiliate of the Company, as
appropriate, all rights in and to the contributions made by the Executive to any
projects or matters on which the Executive worked prior to, or during the
Employment Term. The Executive acknowledges that each such matter and the
contribution made by the Executive thereto shall constitute a work made for hire
within the meaning of the United States copyright law and other applicable laws.
The Company reserves all rights with respect to information relating to the
Company's products, including, but not limited to, the right to apply for
patents.
7.4 The provisions contained in this Section 7 as to the time periods,
scope of activities, persons or entities affected, and territories restricted
shall be deemed divisible so that, if any provision contained in this Section 7
is determined to be invalid or unenforceable, such provisions shall be deemed
modified so as to be valid and enforceable to the full extent [awfully
permitted.
7.5 Executive agrees that the provisions of this Section 7 are reasonable
and necessary for the protection of OXiGENE and that they may not be adequately
enforced by an action for damages and that, in the event of a breach thereof by
Executive or any Executive-Controlled Person, OXiGENE shall be entitled to apply
for and obtain injunctive relief in any court of competent jurisdiction to
restrain the breach or threatened breach of such provision or otherwise to
enforce specifically such provisions against such violation, without the
necessity of the posting of any bond by OXiGENE. Executive further covenants and
agrees that if he shall violate any of his covenants under this Section 7,
OXiGENE shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remuneration or other benefits that Executive
directly or indirectly has realized and/or may realize as a result of, growing
out of or in connection with any such violation. Such a remedy shall, however,
be cumulative and not exclusive and shall be in addition to any injunctive
relief or other legal or equitable remedy to which OXiGENE is or may be
entitled.
8. Taxes
Any amounts payable to the Executive hereunder shall be paid to the
Executive subject to all applicable taxes required to be withheld by OXiGENE
pursuant to federal, state or local law. The Executive shall be solely
responsible for all taxes imposed on the Executive by reason of his receipt of
any amounts of compensation or benefits payable hereunder.
8A. Indemnification
OXiGENE shall indemnify the Executive for all claims, losses, expenses,
costs, obligations, and liabilities of every nature whatsoever incurred by the
Executive as a result of the Executive's acts or omissions as an employee of
OXiGENE, but excluding from such indemnification any claims, losses, expenses,
costs, obligations, or liabilities incurred by the Executive as a result of the
Executive's bad faith, willful misconduct or gross negligence.
8B. Attorney's Fees and Expenses
OXiGENE and the Executive agree that in the event of litigation arising out
of or relating to this Agreement, the prevailing party shall be entitled to
reimbursement from the other party of the prevailing party's reasonable attorney
fees and expenses.
9. Amendments
This Agreement may not be altered, modified Or amended except by a written
Instrument signed by each of the parties hereto,
10. Assignment
Neither this Agreement nor any of the rights or obligations hereunder shall
be assigned or delegated by any party hereto without the prior written consent
of the other party; provicle4, however, that any payments and benefits owed to
Executive under this Agreement shall inure to the benefit of his heirs and
personal representatives.
11. Waiver
Waiver by any party hereto of any breach or default by any other party of
any of the terms of this Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from the breach or default
waived.
12. Severability
In the event that any one or more of the provisions of this Agreement shall
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.
13. Notices
All notices and other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by registered mail, return receipt requested, postage
prepaid, addressed as follows:
If to Executive, to him as follows:
Mr. Frederick W. Driscoll
15 Crestwood Road
North Reading, MA 01864
If to OXiGENE, to it as follows:
OXiGENE Inc.
321 Arsenal Street
Watertown, MA 02472
Attention: Bjorn Nordenvall
or to such other address or such other person as Executive or OXIGENE shall
designate in writing in accordance with this Section 13, except that notices
regarding changes in notices shall be effective only upon receipt.
14. Headings
Headings to Sections in this Agreement are for the convenience of the
parties only and are not intended to be a part of, or to affect the meaning or
interpretation of, this Agreement.
15. Governing Law
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts without reference to the principles of conflict of laws. Each of
the parties hereto consents to the jurisdiction of the federal and state courts
of the Commonwealth of Massachusetts in connection with any claim or controversy
arising out of or connected with this Agreement, and said courts shall be the
exclusive forum for the resolution of any such claim or controversy. Service of
process in any such proceeding may be made upon each of the parties hereto at
the address of such party as determined in accordance with Section 13 of this
Agreement, subject to the applicable rules of the court in which such action is
brought.
16. All Other Agreements Superseded
This Agreement contains the entire agreement between Executive and OXiGENE
with respect to all matters relating to Executive's employment with OXiGENE and,
as of the date hereof, will supersede and replace any other agreements, written
or oral, between the parties relating to the terms or conditions of Executive's
employment with OXiGENE, provided, however, that nothing in this Agreement shall
amend or affect any options previously granted to Executive pursuant to the
Stock Plan,
IN WITNESS WHEREOF, OXIGENE and Executive have caused this Agreement to be
executed as of the date first above written.
/s/ Frederick W. Driscoll
-------------------------
Frederick W. Driscoll
OXiGENE Inc.
By: /s/ Bjorn Nordenvall
------------------------
Name: Bjorn Nordenvall
Title: Chairman and CEO