Exhibit 4.1
OXIGENE INC.
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FORM OF COMPENSATION AWARD STOCK AGREEMENT FOR NON-EMPLOYEE DIRECTORS
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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.
3. Taxes. The Company hereby offers to loan to Grantee such sum of money
to satisfy all applicable federal, state, and local income and employment tax
requirements arising as a result of the Stock grant (the "Grant Taxes") by
Grantee's presentation to the Company, in a form acceptable to, and in the
discretion of, the Company, of information regarding the total amount of Grant
Taxes. Subsequently, the Grantee shall present to the Company a 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:
(a) Amount of the Promissory Note. Grantee shall give to the Company
a promissory note for the full amount (100%) of the Grant Taxes due, or such
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lesser amount as Grantee shall determine, plus interest at the rate of 10% (ten
percent) per year, compounded annually;
(b) Due Date of Promissory Note.
(i) The full amount (100%) of the principal together with accrued
interest thereon is due on the three year anniversary date following the
effective date of the Promissory Note (the "Maturity Date").
(ii) 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:
(A) a "Change of Control" of the Company, which shall be
deemed to have occurred if:
(1) 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;
(2) 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;
(3) 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
(4) the stockholders of the Company approve:
a. 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
b. 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
(B) the termination, for any reason, of Grantee's service
with the Company as a Director;
(c) 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;
(d) Company to Possess Stock Certificates. Certificates representing
Stock equal in fair market value, as determined in the discretion of the
Company, to the total amount (100%) of the principal together with accrued
interest thereon that shall be due on the Maturity Date, or such other property
as the Company shall deem sufficient, shall be presented to the Company at the
time the executed Promissory Notes are presented to the Company and 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(d) into
account designated by Grantee;
(e) Dividend and Voting Rights. Stock retained by the Company
pursuant to Section 3(d) 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
(f) 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(d) (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(f) 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 pursuant to Section 3(d). If Grantee's Stock is held by the
Company pursuant to Section 3(d) 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 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 SATIFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
If Grantee elects to borrow money from the Company to pay the Grant
Taxes pursuant to Section 3 hereof, then all certificates representing the Stock
held by the Company pursuant to Section 3(d) 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.
______________________________
Name: ________________________
By: __________________________
Title: _______________________
Address: _____________________
_____________________
Fax: _________________________
GRANTEE
______________________________
Name:
Address:
Fax: