Exhibit 10.17
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement') is entered into as of April
1st, 2001, between OXiGENE Inc., a Delaware corporation ("OXiGENE," or the
"Company"), and Dr. David Chaplin (the "Executive").
W I T N E S S E T H:
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WHEREAS, Executive will be employed by OXiGENE in the capacity of Chief
Operating 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 Chief Operating Officer, 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 President 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 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.
1.3 Executive will be required to allocate all of his professional time and
activities to OXiGENE. As a result, you will not be allowed to exercise any paid
or unpaid professional activities, whether in a competing field or not, for
others than for OXIGENE, except after having obtained prior written consent from
OXiGENE, produced, however, that nothing herein shall prevent executive from
rendering services in the United Kingdom on behalf of David Chaplin Consultants
Ltd. In connection with the performance of that certain Independent Contractor
Agreement for Consulting Services between OXiGENE and David Chaplin Consultants
Ltd. of even date herewith.
1.4 Executive shall perform his duties and responsibilities, and exercise
his authority pursuant to this Agreement exclusively with the United States of
America. Without limiting the foregoing sentence, Executive is specifically
prohibited from performing any of his duties or responsibilities, or exercising
his authority as Chief Operating Officer, within the United Kingdom. Executive's
violation of the restrictions of this Paragraph 1.4 shall constitute a material
breach of this Agreement.
On the basis of the information you have provided OXIGENE with, and more
specifically considering your 16.7% capital share in Angiogene Pharmaceutical
Ltd., you are authorised to continue to hold this financial participation. In
addition you are authorised to retain a position as non-executive director of
Angiogene Pharmaceutical Ltd. Any raise in your capital share of Angiogene Ltd.
or participation in the scientific or strategic management however, shall be
subject to OXiGENE's prior written consent.
2. Term
The term of Executive's employment under this Agreement shall commence as
of April 1, 2001, and shall continue until terminated by either party in
accordance with Section 6 hereof (the "Employment Term").
3. Base Salary
3.1 During the Employment Term, Executive shall receive an annual base
salary in an annual amount of $160,000 (including bonus the "Base Salary"),
payable in twelve (12) 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.
4. Benefits
Executive shall be entitled to five (5) 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 Term; 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 sixty (180) days' 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 6.5 hereof) without prior notice. Executive may,
upon giving OXiGENE thirty (30) days' notice, terminate Executive's employment
hereunder. If Executive terminates his employment following a material breach of
the Agreement by OXiGENE, which breach remains uncured ten (10) days after
written notice thereof is received by OXiGENE (a "Termination with Good
Reason"), Executive shall be treated as if his employment was terminated by
OXiGENE without Cause.
6.2 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 the following to Executive:
(a) 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
(b) the greater of six (6) months of salary or two (2) months of salary for
each year of the Executive's employment at OXiGENE; plus
(c) 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 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.
a. 6.3(a) 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 in the event of a Termination with Good Reason, then
1) OXiGENE shall provide the following to the Executive:
(i) the Unpaid Salary, as soon as practicable after the Termination Date;
plus
an amount equal to twelve (12) months of Executive's then current Base
Salary.6.4 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.
6.5 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 fails 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.
6.6 Upon termination of Executive's employment for any reason, Executive
shall resign from the Board of OXiGENE, and the board of directors of any of its
affiliates of which he is then a director; such resignations shall be effective
not later than the effective date of termination of his employment unless
otherwise mutually agreed by Executive and the Board.
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 Chief Operating
Officer 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 related to drugs and compounds
developed or under development by the Company, 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 knowledge and information
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, at any time, whether while employed by OXiGENE or following
termination of Executive's employment with OXiGENE for any reason, whether by
OXiGENE or by Executive, divulge, communicate, furnish or make accessible
(whether orally or in writing or in books, articles or any other medium) to any
individual, firm, partnership or corporation, 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 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 known or available within OX1GENE's
industry; or (vii) is information that is not otherwise entitled to protection
under applicable law.
(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 OXiGENE 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 time on
request and such information shall be held confidential by Executive after the
termination of his employment with OXiGENE for any reason, whether by OXiGENE or
by Executive.
7.3 The Executive grants the Company and each affiliate of the Company, as
appropriate, all rights in and to the contribution made by the Executive to any
projects or matters on which the Executive worked 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 lawfully
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 violation 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; provided, 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:
Dr. David Chaplin
14, Plowden Park
Aston Rowant
Watlington
Oxfordshire OX9 5SX
U.K.
If to OXiGENE, to it as follows:
OXiGENE Inc.
321 Arsenal St.
Watertown, MA 02472
Attention: Fred Driscoll
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/ David Chaplin
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David Chaplin
OXiGENE Inc.
By:/s/ Frederick W. Driscoll
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Name: Frederick W. Driscoll
Title: President & CFO