SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to
Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. )
Filed by the Registrant /x/
Filed by a Party other than the Registrant / /
Check the appropriate box:
/ / Preliminary Proxy Statement
/x/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to ss. 240.14a-11(c) or ss. 240.14a-12
OXiGENE, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement)
Payment of Filing Fee (Check the appropriate box):
/ / $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or
14a-6(j)(2). $500
/ / per each party to the controversy pursuant to Exchange Act Rule 14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11:1
4) Proposed maximum aggregate value of transaction:
1 Set forth the amount on which the filing fee is calculated and state how it
was determined.
/ / Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number, or
the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration Statement No.:
3) Filing Party:
4) Date Filed:
363222.2
<PAGE>
OXiGENE, INC.
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS FOR THE ANNUAL MEETING
OF STOCKHOLDERS TO BE HELD ON JUNE 14, 1996
The undersigned hereby appoints Bjorn Nordenvall and Ronald W. Pero, and
each of them, with full power of substitution, proxies to vote all shares of
Common Stock of OXiGENE, Inc., a Delaware corporation (the "Company"), owned by
the undersigned at the 1996 Annual Meeting of Stockholders of the Company to be
held at Salenhuset, Norrlandsgatan 15, Stockholm, Sweden, on June 14, 1996, at
1:00 p.m., local time, and at any and all adjournments or postponements thereof.
THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS VOTES "FOR" EACH OF THE
FOLLOWING:
<TABLE>
<CAPTION>
1. Election of Directors. FOR / / WITHHOLD AUTHORITY / /
all nominees listed below to vote for all nominees listed below
(except as marked to the contrary below)
Nominees: Marvin H. Caruthers, Michael Ionata, Claus Moller, Bjorn Nordenvall and Ronald W. Pero
To withhold authority to vote for an individual nominee, print the name of such nominee on the line provided.
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<S> <C> <C> <C>
FOR AGAINST ABSTAIN
2. Approval of an amendment to the Company's Amended and Restated / / / / / /
Stock Incentive Plan.
3. Approval of the OXiGENE, Inc. 1996 Stock Incentive Plan. / / / / / /
4. Approval of the terms of the form of Indemnification Agreement between / / / / / /
the Company and its directors and officers.
5. Approval of amendment of the Corporation's Restated Certificate of / / / / / /
Incorporation to increase the number of authorized shares of Common Stock
from 15 million to 60 million.
6. Ratification of Ernst & Young LLP as Independent Auditors. / / / / / /
7. OTHER MATTERS: / / / / / /
Discretionary authority is hereby granted with respect to such other
matters as may properly come before the meeting or any adjournment or
postponement thereof.
</TABLE>
The shares represented by this Proxy will be voted in the manner directed and,
if no instructions to the contrary are indicated, will be voted FOR the election
of the named nominees and approval of the proposals set forth in the Notice of
Annual Meeting of Stockholders.
363194.2
<PAGE>
The undersigned hereby acknowledges receipt of the Notice of Annual Meeting of
Stockholders and the Proxy Statement furnished herewith.
PLEASE MARK, SIGN, DATE AND PROMPTLY RETURN THIS PROXY CARD USING THE ENCLOSED
ENVELOPE. YOU MAY REVOKE THIS PROXY AT ANY TIME PRIOR TO THE TAKING OF A VOTE ON
THE MATTERS HEREIN.
SIGNATURES _____________________________________ DATE _________________
_____________________________________ DATE _________________
Note: Please sign your name exactly as it appears hereon. When signing as
attorney, agent, executor, administrator, trustee, guardian or
corporate officer, please give full title as such. Each joint owner
should sign the Proxy.
363194.2
<PAGE>
[LOGO] OXiGENE, INC.
110 EAST 59TH STREET
NEW YORK, NEW YORK 10022
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 14, 1996
TO OUR STOCKHOLDERS:
Please take notice that the 1996 Annual Meeting of Stockholders (the
"Annual Meeting") of OXiGENE, Inc., a Delaware corporation (the "Company"), will
be held at 1:00 p.m. local time, on Friday, June 14, 1996, at Salenhuset,
Norrlandsgatan 15, Stockholm, Sweden, for the following purposes:
1. To elect five directors to hold office until the 1997 Annual
Meeting of Stockholders;
2. To approve a certain amendment to the Company's Amended and
Restated Stock Incentive Plan;
3. To approve the OXiGENE, Inc. 1996 Stock Incentive Plan;
4. To approve the terms of indemnification agreements between
the Company and its directors, executive officers and key
employees;
5. To amend the Company's Restated Certificate of Incorporation
to increase the number of authorized shares of Common Stock
from 15,000,000 shares to 60,000,000 shares;
6. To ratify the appointment of Ernst & Young LLP as independent
auditors of the Company for its fiscal year ending December
31, 1996; and
7. To transact such other business as may properly come before
the meeting or any postponement or adjournment thereof.
Stockholders of record at the close of business on the record date,
April 26, 1996, are entitled to notice of, and to vote at, the Annual Meeting
and any postponement or adjournment thereof.
By Order of the Board of Directors
Richard A. Brown
May 14, 1996 Secretary
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YOUR VOTE IS IMPORTANT. PLEASE COMPLETE, DATE, SIGN AND PROMPTLY RETURN THE
ENCLOSED FORM OF PROXY IN THE ENVELOPE PROVIDED WHETHER OR NOT YOU PLAN TO
ATTEND THE ANNUAL MEETING. NO POSTAGE IS REQUIRED FOR MAILING IN THE UNITED
STATES. STOCKHOLDERS WHO ATTEND THE ANNUAL MEETING MAY REVOKE THEIR PROXIES AND
VOTE THEIR SHARES IN PERSON.
- - --------------------------------------------------------------------------------
<PAGE>
[LOGO] OXiGENE, INC.
110 EAST 59TH STREET
NEW YORK, NEW YORK 10022
PROXY STATEMENT
FOR THE
1996 ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON
JUNE 14, 1996
GENERAL INFORMATION
This Proxy Statement is being furnished in connection with the
solicitation of proxies by the Board of Directors of OXiGENE, Inc., a Delaware
corporation ("OXiGENE" or the "Company"), for use at the 1996 Annual Meeting of
Stockholders scheduled to be held on Friday, June 14, 1996, at 1:00 p.m. local
time, or any postponement or adjournment thereof (the "Annual Meeting"). The
Annual Meeting will be held at Salenhuset, Norrlandsgatan 15, Stockholm, Sweden.
A form of proxy for use at the Annual Meeting and a return envelope for the
proxy are also enclosed.
Purpose of the Annual Meeting. It is proposed that at the Annual
Meeting: (i) five members of the Board of Directors be elected for terms
expiring at the 1997 Annual Meeting of Stockholders; (ii) a certain amendment to
the Company's Amended and Restated Stock Incentive Plan be approved; (iii) the
OXiGENE, Inc. 1996 Stock Incentive Plan be approved; (iv) the terms of
indemnification agreements between the Company and its directors, executive
officers and key employees be approved; (v) an amendment to the Company's
Restated Certificate of Incorporation be approved; and (vi) the appointment by
the Board of Directors of the independent auditors of the Company for fiscal
year 1996 be ratified.
The Company is not aware at this time of any other business to be acted
upon at the Annual Meeting. However, if any other business properly comes before
the Annual Meeting, it is the intention of the persons named in the enclosed
form of proxy to vote on those matters in accordance with their best judgment.
Solicitation and Voting of Proxies; Revocation. Shares cannot be voted
at the Annual Meeting unless the owner thereof is present in person or by proxy.
The Board of Directors urges stockholders to complete, date, sign and return
their proxies promptly whether or not they plan to attend the Annual Meeting.
All duly executed and unrevoked proxies in the accompanying form that are
received in time for the Annual Meeting will be voted at the Annual Meeting in
accordance with the instructions indicated thereon. In the absence of such
instructions, duly executed proxies will be voted "FOR" the election of the
director nominees listed below and "FOR" the approval of the other proposals set
forth in the Notice of Annual Meeting of Stockholders of the Company.
<PAGE>
The submission of a signed proxy will not affect a stockholder's right
to attend, or to vote in person at, the Annual Meeting. A stockholder who
executes a proxy may revoke it at any time before it is voted by filing a
revocation with the Secretary of the Company, executing a proxy bearing a later
date or by attending the Annual Meeting and voting in person. In accordance with
applicable rules, boxes and a designated blank space are provided on the form of
proxy for stockholders to mark if they wish either to withhold authority to vote
for the nominees for director or abstain on the other matters presented for a
vote of stockholders.
The solicitation will be by mail, and may also be made personally or by
telephone by directors, officers and employees of the Company, for which they
will receive no compensation other than their regular compensation as directors,
officers or employees, if any. All the expenses of the solicitation will be
borne by the Company. Arrangements will be made with brokerage houses and other
custodians, nominees and fiduciaries to send proxies and proxy materials to
beneficial owners of the Company's voting securities, and the Company will
reimburse such brokerage houses and others for their reasonable expenses in so
doing. This Proxy Statement and the enclosed proxy card are being mailed to
stockholders beginning approximately May 14, 1996.
Record Date; Voting Rights. Stockholders of record at the close of
business on April 26, 1996 (the "Record Date"), will be entitled to notice of,
and to vote at, the Annual Meeting. At the close of business on the Record Date,
there were issued and outstanding 7,023,300 shares of OXiGENE common stock,
$0.01 par value per share (the "Common Stock"). Holders of Common Stock are
entitled to one vote for each share of Common Stock registered in their name.
The presence at the Annual Meeting, in person or by proxy, of stockholders
holding a majority of the shares of Common Stock outstanding on the Record Date
will constitute a quorum to transact business at the Annual Meeting. Certain
matters to be voted upon at the Annual Meeting require the affirmative vote of a
majority of the votes cast at the Annual Meeting, while others require the
affirmative vote of a majority of the shares outstanding on the Record Date.
In accordance with applicable Securities and Exchange Commission
("SEC") rules, designated blank spaces are provided on the form of proxy for
stockholders to mark if they wish either to abstain on one or more of the
proposals or to withhold authority to vote for any nominee for director. Under
the rules of the principal stock exchanges, when brokers have not received
instructions from their customers, brokers holding shares in street name have
the authority to vote the shares on some matters, but not others. Such missing
votes are called "broker non-votes." Abstentions and broker non-votes are
counted for purposes of determining the presence or absence of a quorum. Since
the Company's By-Laws require the affirmative vote of a majority of shares
present, in person or by proxy, abstentions on the Company's proposals to ratify
the selection of its auditors will have the practical effect of a negative vote
since it represents one less vote for approval. With regard to the election of
directors, votes that are withheld will be excluded entirely from the vote and
will have no effect. Under applicable Delaware law, broker non-votes will not be
counted for purposes of determining total votes cast and thus will have no
effect on the outcome of the election of the Board of Directors or the Company's
other proposals.
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<PAGE>
PROPOSAL 1 - ELECTION OF DIRECTORS
Information concerning the nominees for election to the Company's Board
of Directors is set forth below. Each nominee for election to the Board of
Directors named below has consented to being named as a nominee and has agreed
to serve if elected. If elected, each director would serve for a one-year term,
expiring at the 1997 Annual Meeting of Stockholders. The persons identified as
proxies on the enclosed form of proxy intend to vote each properly executed
proxy "FOR" the election of the listed nominees for the ensuing terms or until
their successors are elected and qualified, unless indicated otherwise in a
properly executed form of proxy. If any of the named nominees is not available
for election at the time of the Annual Meeting, discretionary authority will be
exercised to vote for a substitute or substitutes unless the Board of Directors
chooses to reduce the number of directors. Management is not aware of any
circumstances that would render any nominee for director named below
unavailable.
Drs. Nordenvall, M0ller and Pero are currently serving on the Company's
Board of Directors and were elected to their present terms of office at the 1995
Annual Meeting of Stockholders. Mr. Michael Ionata was appointed to the Board of
Directors in October 1995 to fill a newly-created vacancy. Dr. Marvin Caruthers
is not presently serving on the Company's Board of Directors. Messrs. Binur,
Brown, Carlin, McConnaughy and Schafran, each of whom is currently serving on
the Company's Board of Directors, are not standing for election.
The Company has agreed, until August 26, 1998, to use its best efforts
to cause one individual designated by RAS Securities Corp. and ABD Securities
Corporation, the representatives of the underwriters of the Company's initial
public offering (the "Representatives"), to be elected to the Company's Board of
Directors. None of the nominees for election at the Annual Meeting has been
designated by the Representatives. Since the Company's initial public offering
in August 1993, the Representatives have not exercised their right to designate
an individual for election to the Board of Directors, and the Company has no
reason to believe they have any intention to do so in the future.
The following information with respect to each nominee has been
furnished to the Company by such nominee. The ages of the nominees are as of
March 29, 1996.
Marvin H. Caruthers, Ph.D., 56, is a Professor of Chemistry and
Biochemistry at the University of Colorado, Boulder, Colorado, whose research in
nucleic acid chemistry resulted in new methods for the chemical synthesis of
DNA. Dr. Caruthers is a co-founder, and serves on the Scientific Advisory Board,
of Amgen Incorporated, a biotechnology company engaged in the development of
products derived from gene synthesis capabilities, and is a co-founder of, and
serves as a consultant to, Applied Biosystems Incorporated, a biotechnology
company engaged in the development of DNA synthesizers and protein sequencers.
Dr. Caruthers also serves on the board of directors of BioStar, Inc., a
biotechnology company, and Skandigen AB, a Swedish biotechnology company
("Skandigen"). Dr. Caruthers, who is a member of the United States National
Academy of Sciences and the American Academy of Arts and Sciences, has published
more than 140 manuscripts related to his research.
-3-
<PAGE>
Michael Ionata, 45, was appointed as a director and Chairman of the
Compensation Committee in October 1995. Mr. Ionata is Director of Corporate
Finance of Nordberg Capital Inc., an investment banking firm based in New York,
the directors, officers and key employees of which own, collectively, 72,800
shares of OXiGENE Common Stock. From May 1983 to May 1991, Mr. Ionata worked in
corporate finance and venture capital management at Den Norske Bank in New York.
Prior to joining Den Norske Bank, Mr. Ionata worked for Coopers & Lybrand LLP
specializing in valuations, cost-benefit analysis and restructurings. Mr. Ionata
is currently a director of C.E.L. Industries Poland, a restaurant company, and
was a director of Skandigen.
Claus M0ller, M.D., Ph.D., 34, was appointed as a director in March
1995. Dr. M0ller also serves on the Executive Committee. Since April 1, 1994,
Dr. M0ller has served as a consultant to the Company, responsible for
coordinating its European clinical trials. Dr. M0ller is the President and a
principal shareholder of IPC Nordic A/S, a Danish consulting firm. See "Certain
Relationships and Related Transactions." From 1989 to 1994, Dr. M0ller was
Medical Director for Synthelabo Scandinavia A/S and from 1983 to 1984, he was
involved in cell biology and biomedical research at the University of
Copenhagen, Denmark.
Bjorn Nordenvall, M.D., Ph.D., 43, was appointed as a director in March
1995, and became the Company's President and Chief Executive Officer in June
1995. Dr. Nordenvall serves on the Executive Committee. Dr. Nordenvall is a
specialist in general surgery and, since 1987, has been President of
Sophiahemmet AB, a Stockholm-based hospital. During 1983 and 1984, Dr.
Nordenvall was President of Carnegie Medicine AB, Stockholm, Sweden, a
biotechnology company, and from 1977 through 1985, he practiced surgery at
Danderyd Hospital, Stockholm. From 1984 through 1986, Dr. Nordenvall served as a
consultant to D. Carnegie AB, a Swedish investment banking company, and, since
1984, he has been a consultant to Skandia Insurance Company.
Ronald W. Pero, Ph.D., 55, is a co-founder of OXiGENE, and has been a
director and the Company's Chief Scientific Officer since its inception. Dr.
Pero serves on the Executive Committee and, from November 1993 to June 1995,
also served as President of the Company. Dr. Pero specializes in the field of
DNA repair and its relation to cancer treatment, and directs and coordinates the
Company's research and development efforts. Dr. Pero has been a fellow of the
National Institute of Environmental Health Sciences in Research Triangle Park,
North Carolina, a director of the Division of Biochemical Epidemiology at the
Strang Cancer Prevention Center in New York City, and currently holds faculty
positions at both New York University Medical Center and the University of Lund
in Lund, Sweden, where he is a Professor of Molecular Ecogenetics. Dr. Pero is
also a member, and serves as Scientific Director, of the Board of Trustees of
the Swedish American Research Foundation.
Unlessindividual stockholders indicate otherwise, each returned proxy will
be voted "FOR" the election to the Board of Directors
of each of the five nominees named above.
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<PAGE>
Messrs. Binur, Brown, Carlin, McConnaughy and Schafran, each of whom is
currently serving on the Company's Board of Directors, are not standing for
election at the Annual Meeting. The following information has been provided to
the Company by Messrs. Binur, Brown, Carlin, McConnaughy and Schafran. The ages
indicated are as of March 29, 1996.
Yuval Binur, Ph.D., 55, has been a director of the Company since
December 1991, and is the Chairman of the Audit Committee. From April 1993
through May 1995, Dr. Binur was the Company's Executive Vice President-Financial
and Chief Operating Officer. Currently, Dr. Binur is an independent investment
banker. From 1981 to 1990, Dr. Binur was a member of Adler and Company, a New
York-based, privately owned investment firm, where he was responsible for
venture capital investment, portfolio monitoring, syndication and divestitures.
Richard A. Brown, 48, is a co-founder of OXiGENE, and is the Company's
Secretary, Chairman of the Executive Committee and, since November 1993,
Chairman of the Board of Directors. Since 1989, Mr. Brown has been the sole
stockholder of Eagle Ventures, a private venture capital firm. Mr. Brown serves
on the board of directors of Delta Omega Technologies, Inc., a public company
engaged in the production of specialty chemicals ("Delta Omega").
Donald P. Carlin, 37, has been a director of the Company since June
1992. Mr. Carlin also serves on the Compensation Committee. Mr. Carlin is the
Chief Executive Officer and a principal shareholder of Moores, Inc., a
Louisiana-based oil and gas service company. Mr. Carlin also is the Chief
Executive Officer of Houston Oil Equipment, a manufacturer of hydraulic
equipment. Since 1990, Mr. Carlin has been a director of Delta Omega.
John E. McConnaughy, Jr., 66, was appointed as a director in 1991. Mr.
McConnaughy serves on the Audit Committee. Mr. McConnaughy is Chairman and CEO
of JEMC Corporation. From 1969 to 1986, Mr. McConnaughy served as Chairman and
CEO of Peabody International Corp. ("Peabody"). From 1981 to 1992, he served as
Chairman and CEO of GEO International Corporation ("GEO") when it was spun off
from Peabody in 1981. Mr. McConnaughy is a director of DeVlieg Bullard, Inc.;
Riddell Sports, Inc.; Mego Corp.; Transact International, Inc.; Pantapec
International, Inc.; Enviropur Waste Refining and Technologies, Inc.; and
Commonwealth Snack Company, Inc.
L.G. Schafran, 57, was appointed as a director in 1993. Mr. Schafran
also serves on the Compensation Committee. Mr. Schafran is the Managing General
Partner of L.G. Schafran & Associates, a real estate investment and advisory
firm established in October 1984. Mr. Schafran serves on the board of directors
of Capsure Holdings Corp., a public company holding interests in two property
and casualty insurers, Publicker Industries, Inc., a New York Stock
Exchange-listed holding company primarily engaged in manufacturing, and
Glasstech, Inc. In addition, Mr. Schafran is the chairman of the board of
directors of Delta Omega and a director and the chairman of the executive
committee of Dart Group Corp. and a director of its two publicly traded
affiliates, Trek Auto Corp. and Crown Books Corp. Mr. Schafran also is a trustee
of the National Income Realty Trust.
-5-
<PAGE>
Board of Directors Committees and Meetings
During 1995, the Board of Directors held two meetings. Except for Mr.
Carlin who was absent from one meeting, all members of the Board of Directors
attended all meetings. The Board of Directors has three standing committees: the
Executive Committee; the Audit Committee; and the Compensation Committee.
The Audit Committee reviews, with the Company's independent auditors,
the scope and timing of their audit services and any other services they are
asked to perform, the auditor's report on the Company's financial statements
following completion of their audit and the Company's policies and procedures
with respect to internal accounting and financial controls. In addition, the
Audit Committee makes annual recommendations to the Board of Directors regarding
the appointment of independent auditors for the ensuing year. The Audit
Committee currently consists of Messrs. Binur (Chairman) and McConnaughy.
Following the Annual Meeting, if all nominees for director are elected, the
Audit Committee is expected to consist of Messrs. Nordenvall (Chairman) and
Ionata. The Audit Committee did not meet in 1995.
The Compensation Committee did not meet in 1995. Its functions are
discussed in the Report on Executive Compensation which starts on page 26. The
Compensation Committee currently consists of Messrs. Ionata (Chairman), Carlin
and Schafran. Following the Annual Meeting, if all nominees for director are
elected, the Compensation Committee is expected to consist of Messrs. Ionata
(Chairman), Caruthers and Pero.
The Executive Committee has all the powers of the Company's full Board
of Directors, except that it is not authorized to amend the Company's
certificate of incorporation, declare any dividends or issue shares of stock of
the Company. The Executive Committee currently consists of Messrs. Brown
(Chairman), M0ller, Nordenvall and Pero. As a result of the reduced size of the
Board of Directors following the Annual Meeting, the Company does not expect to
have an Executive Committee. The Executive Committee held 10 meetings in 1995.
Except for Mr. Brown, who attended two meetings, all members of the Executive
Committee attended all meetings while they served on that committee.
Director Compensation
Directors receive no cash compensation for serving on the Board of
Directors, other than reimbursement of reasonable expenses incurred in
connection with meetings actually attended.
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<PAGE>
PROPOSAL 2 - APPROVAL OF AMENDMENT OF THE COMPANY'S
AMENDED AND RESTATED STOCK INCENTIVE PLAN
The Company instituted its Stock Incentive Plan in January 1992, and
subsequently amended that plan in May 1993 (as amended, the "Initial Plan"). An
aggregate of 1,166,900 shares of Common Stock have been authorized for issuance
under the Initial Plan, of which 1,062,675 shares may be issued pursuant to
options granted under the Initial Plan.
As of March 29, 1996, awards (net of cancelled or expired awards)
covering an aggregate of 1,054,000 shares of the Common Stock had been granted
under the Initial Plan, none of which have been exercised. If the OXiGENE, Inc.
1996 Stock Incentive Plan is approved by the stockholders at the Annual Meeting,
no further awards will be granted under the Initial Plan. See "Proposal 3 --
Approval of the OXiGENE, Inc. 1996 Stock Incentive Plan."
On March 11, 1996, the Board adopted, subject to stockholder approval,
an amendment to Article 10 of the Initial Plan. Approval of the amendment of the
Initial Plan by the Company's stockholders is being solicited by this Proxy
Statement. The affirmative vote of the holders of a majority of the outstanding
shares entitled to vote will be required to approve the Initial Plan, as
amended. As a result, abstentions and broker non-votes will have the same effect
as negative votes.
In recent years the Company has granted options to several employees
and consultants that are part of compensation packages negotiated between the
Company and such employees and consultants. In many instances, these
compensation packages provide for the granting of options partially in lieu of
cash compensation. For example, Dr. Nordenvall, the Chief Executive Officer and
President of the Company, in 1995 negotiated a compensation package that
emphasized the grant of options rather than salary.
Currently, Article 10 of the Initial Plan provides that if an option
holder ceases to be an employee, director or consultant of the Company for any
reason, other than death or permanent and total disability, then any option
granted to such option holder which has vested and has not previously been
exercised must be exercised within three months after the option holder ceases
to be an officer, director or consultant. Under the Initial Plan as presently in
effect, the Board of Directors does not have authority to vary this provision of
Article 10.
The Board of Directors believes that, in certain instances, to the
extent options granted in lieu of cash compensation have vested, they represent
remuneration earned by the optionees, and the termination of an optionee's
employment or other relationship with the Company (other than for "Cause," as
defined in the Initial Plan) should not result in the rapid expiration of any
such options. Accordingly, the Board of Directors, subject to stockholder
approval, has amended Article 10 of the Initial Plan to permit the amendment of
existing options to provide that if an optionee's employment or other
relationship with the Company terminates for any reason other than for Cause,
previously granted options, to the extent such options are vested and
exercisable as of the date of such termination, may be exercised by the optionee
after the date of the termination of his or her
-7-
<PAGE>
employment or other relationship with the Company until the first anniversary of
the date of such termination. To accomplish this, the Board of Directors and the
Compensation Committee will be given the authority to (but will not be required
to) amend each of the option agreements governing options previously granted and
currently outstanding under the Initial Plan. The proposed amendment of the
Initial Plan will give the Compensation Committee greater latitude in
administering the Initial Plan.
The Board of Directors Recommends a Vote "FOR"
Approval of the Amendment to the Company's
Amended and Restated Stock Incentive Plan
The principal provisions of the Initial Plan, as amended, are
summarized below. The following summary of the material provisions of the
Initial Plan does not purport to be complete and is qualified in its entirety by
the terms of the Initial Plan. Upon written request of any record or beneficial
owner of Common Stock of the Company whose proxy is being solicited in
connection with the Annual Meeting, the Company will furnish such owner, without
charge, a copy of the Initial Plan. A request for a copy of such plan should be
made in writing, addressed to OXiGENE, Inc., 110 East 59th Street, New York, New
York 10022, Attention: Secretary.
Stock Incentive Plan
The purpose of the Initial Plan is to provide long-term incentives and
rewards by granting awards of stock options, stock appreciation rights and/or
restricted stock to the Company's officers, directors, consultants and key
employees. As of March 29, 1996, the class of participants consisted of
approximately 38 persons.
The Initial Plan is administered by the Compensation Committee. Subject
to the terms of the Initial Plan, the Committee determines the persons to whom
awards are granted, the number of shares covered by an award, the type of award
granted and the terms and conditions of the awards. No award may be granted
under the Initial Plan after May 15, 2003.
Under the Initial Plan, the Company may grant both incentive stock
options ("ISOs") intended to qualify under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), and options that are not qualified as
ISOs. The exercise price of Options shall be determined by the Compensation
Committee, however, ISOs may not be granted under the Initial Plan at an
exercise price of less than the fair market value of the Common Stock on the
date of grant (110 percent of fair market value in the case of an ISO granted to
any holder of more than 10 percent of the voting power of all classes of stock
of the Company or a parent or subsidiary (a "Ten Percent Holder")). Options may
be granted for a ten-year term (five years in the case of an ISO granted to a
Ten Percent Holder. The closing bid price of Common Stock as reported on the
Nasdaq Small-Cap Market System on March 29, 1996 was $19.00 per share.
Options granted pursuant to the Initial Plan may not be exercised more
than twelve months after the option holder ceases to be an officer, director,
consultant or employee of
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<PAGE>
the Company, except that in the event of the death of the option holder, the
option may be exercised by the holder's estate for a period of up to one year
after the date of death. The exercise price may be paid in cash, in shares of
Common Stock (valued at fair market value at the date of exercise), in
installments, or by a combination of such means of payment, as may be determined
by the Committee. Options granted under the Initial Plan may include the right
to purchase shares of Common Stock equal to the shares tendered upon the
exercise of the option or withheld by the Company for withholding taxes.
The Initial Plan also provides for the grant of stock appreciation
rights ("SARs"). SARs permit the participant to receive a payment representing
the excess of the fair market value of one share of Common Stock on the date of
exercise over the share's fair market value as of the date of grant. Amounts
payable upon exercise of SARs may, at the discretion of the Committee, be made
in cash, shares of Common Stock, or a combination thereof. SARs granted in
tandem with an option expire upon the exercise of the option.
The Initial Plan also provides for the award of restricted Common Stock
outright for no consideration. Such stock awards may contain restrictions
regarding voting rights, dividend rights and transferability.
Unless otherwise specified in the award agreement, an award of options,
SARs or restricted stock will vest over a period of three years. The Initial
Plan also provides that all outstanding awards shall vest immediately upon the
acquisition of 40 percent or more of the Company's outstanding stock without
prior Board approval or upon the election or appointment within a 12-month
period of new Board members constituting a majority of the Board who were not
approved by a majority of the Board members at the beginning of the period.
Awards of options and SARs, and awards of restricted stock to the
extent the restriction period has not expired, are not transferable other than
by will or the laws of descent and distribution in the event of the awardee's
death. Shares of Common Stock subject to awards that were granted, but that
later terminate or expire, may again be made subject to awards.
The Board of Directors may from time to time amend or terminate the
Initial Plan, except that it may not take any action that would adversely affect
the rights and obligations with respect to outstanding awards without the
consent of the awardee. The Board may not, without approval of the stockholders,
(i) materially increase the benefits accruing to participants under the Initial
Plan, (ii) materially increase the maximum number of shares of Common Stock that
may be made subject to awards under the Initial Plan, or (iii) materially modify
the requirements as to eligibility for participation in the Initial Plan.
Federal income tax consequences relating to options granted under the
Initial Plan are discussed below. See Proposal 3 - "Approval of the OXiGENE,
Inc. 1996 Stock Incentive Plan -- Federal Income Tax Consequences Relating to
Options."
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PROPOSAL 3 - APPROVAL OF THE OXiGENE, INC. 1996 STOCK INCENTIVE PLAN
The Company's stockholders are also being asked to approve the OXiGENE,
Inc. 1996 Stock Incentive Plan (the "1996 Plan"). The 1996 Plan is the successor
equity incentive plan to the Company's Initial Plan. As of March 29, 1996, there
were approximately 112,900 shares of Common Stock available for issuance under
the Initial Plan. If the stockholders approve the 1996 Plan at the Annual
Meeting, no further options will be granted under the Initial Plan.
Equity incentives have continually been a significant component of
compensation for a broad range of the Company's employees and consultants. This
practice has enabled the Company to attract and retain the talent that it
continues to require. By linking key employees and consultants' compensation to
corporate performance, an employee or consultant's reward is directly related to
the Company's success. The Company believes the use of equity incentives
increases employee motivation to improve stockholder value.
The purpose of the 1996 Plan is to enable the Company and its
affiliates to recruit and retain capable employees for the successful conduct of
its business and to provide an additional incentive to directors, officers and
other eligible key employees, consultants and advisors upon whom rest major
responsibilities for the successful operation and management of the Company and
its affiliates. The 1996 Plan is intended to enable the Company to attract
qualified personnel in a highly competitive labor market. The Company intends
future increases in the value of securities granted under the 1996 Plan to form
part of the compensation for services to be rendered by such persons in the
future.
The Board of Directors adopted the 1996 Plan effective March 11, 1996,
subject to stockholder approval. The affirmative vote of the holders of a
majority of the outstanding shares entitled to vote will be required to approve
the 1996 Plan. As a result, abstentions and broker non-votes will have the same
effect as negative votes. Below is a summary of the principal provisions of the
1996 Plan and its operation. A copy of the 1996 Plan is set forth in full in
Exhibit A to this Proxy Statement, and the following description of the 1996
Plan is qualified in its entirety by reference to that Exhibit.
The Board of Directors Recommends a Vote "FOR" Approval of the
OXiGENE, Inc. 1996 Stock Incentive Plan
OXiGENE, Inc. 1996 Stock Incentive Plan
General. Certain directors, officers and employees of the Company and
its subsidiary and consultants and advisors thereto may be granted options to
purchase shares of Common Stock of the Company or stock appreciation rights
("SARs") under the 1996 Plan. Following the Annual Meeting, if all nominees for
director are elected, the Company will have 3 officers and 2 non-employee
directors eligible to receive awards under the 1996 Plan. The number of
consultants, advisors, employees and other service providers eligible to receive
awards under the 1996 Plan is not presently determinable. As of the date of this
Proxy Statement, no awards had been made under the 1996 Plan.
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A maximum of 1,000,000 shares of Common Stock may be made the subject
of options and SARs granted under the 1996 Plan. No employee may be granted
options or free-standing SARs with respect to more than 500,000 shares of Common
Stock. That number of shares may be adjusted in the event of certain changes in
the capitalization of the Company. The closing bid price of Common Stock as
reported on the Nasdaq Small-Cap Market System on March 29, 1996 was $19.00 per
share.
The 1996 Plan will be administered by a committee of at least two
directors (the "Committee"), each of whom will be "disinterested" within the
meaning of Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and an "outside director" within the meaning of
Section 162(m) of the Code. The Committee will have authority, subject to the
terms of the 1996 Plan, to determine when and to whom to make grants under the
plan, the number of shares to be covered by the grants, the types and terms of
options and SARs granted, the exercise price of the shares of Common Stock
covered by options and SARs and to prescribe, amend and rescind rules and
regulations relating to the 1996 Plan. Options granted to non-employee directors
are governed by the formula discussed below. Options granted under the 1996 Plan
may not be transferred to another person except by will or the laws of descent
and distribution.
Director Options. Directors who are not employees of the Company
("Nonemployee Directors") will be granted an option to purchase 55,000 shares of
Common Stock on the first business day following the annual meeting of
stockholders of the Company beginning with the 1996 Annual Meeting. Thereafter,
on the first business day following each successive annual meeting, so long as
shares remain available under the 1996 Plan, each Nonemployee Director who is
first elected as a director at such meeting shall be granted options in respect
of 55,000 shares. Each Nonemployee Director will receive options with respect to
no more than 55,000 shares of Common Stock. The per share exercise price will be
equal to the fair market value of a share of Common Stock on the date the option
is granted. Options granted to Nonemployee Directors will be exercisable in five
equal annual installments of 11,000 shares on each anniversary of the date of
grant. Options granted to Nonemployee Directors will expire 10 years from the
option grant date.
Employee Options. Under the terms of the 1996 Plan, "incentive stock
options" ("ISOs") within the meaning of Section 422 of the Code, "nonqualified
stock options" ("NQSOs") and SARs may be granted by the Committee to employees
of the Company and any of its affiliates and to consultants and service
providers to the Company or any present or future Affiliate Companies (as
defined in the 1996 Plan) (each a "Participant"), except that ISOs may be
granted only to employees of the Company and any of its subsidiaries. The per
share purchase price (the "Option Price") under each Option granted to a
Participant shall established by the Committee on the time the Option is
granted. However, the per share Option Price of an ISO granted to a Participant
shall not be less than 100% of the Fair Market Value of a share on the date the
ISO is granted (110% in the case of an ISO granted to a Ten-Percent
Stockholder). Participant Options will be exercised at such times and in such
installments as determined by the Committee. The Committee may accelerate the
exercisability of any Participant Option at any time. Each Option granted
pursuant to the 1996 Plan shall be for such term as determined by the Committee,
provided, however, that no Employee Option shall be exercisable after the
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expiration of ten years from its grant date (five years in the case of an ISO
granted to a Ten-Percent Stockholder).
General Requirements. Options granted pursuant to the 1996 Plan
generally may not be exercised more than three months after the option holder
ceases to provide services to the Company or an affiliate, except that in the
event of the death or permanent and total disability of the option holder, the
option may be exercised by the holder (or the holder's estate, as the case may
be), for a period of up to one year after the date of death or permanent and
total disability. The agreements evidencing the grant of an option (other than
an option to a Nonemployee Director) may, in the sole and absolute discretion of
the Committee, set forth additional or different terms and conditions applicable
to such option upon a termination or change in status of the employment or
service of the optionee. Options terminate immediately if the option holder's
service was terminated for cause.
The shares purchased upon the exercise of an option are to be paid for
in cash (including cash that may be received from the Company at the time of
exercise as additional compensation) or through the delivery of other shares of
Common Stock with a value equal to the total Option Price or in a combination of
cash and such shares. In addition, the option holder may have the Option Price
paid by a broker or dealer and the shares issued upon exercise of the option
delivered directly to the broker or dealer.
Stock Appreciation Rights. The Committee also may grant SARs either
alone ("Free Standing Rights") or in conjunction with all or part of an option
("Related Rights"). Upon the exercise of an SAR a holder is entitled, without
payment to the Company, to receive cash, shares of Common Stock or any
combination thereof, as determined by the Committee, in an amount equal to the
excess of the fair market value of one share of Common Stock over the exercise
price per share specified in the related option (or in the case of a Free
Standing Right, the price per share specified in such right), multiplied by the
number of shares of Common Stock in respect of which the SAR is exercised.
Amendment or Termination. The Board of Directors of the Company has the
power to terminate or amend the 1996 Plan at any time. If the Board of Directors
does not take action to earlier terminate the 1996 Plan, it will terminate on
March 11, 2006. Certain amendments may require the approval of the Company's
stockholders, and no amendment may adversely affect options that have previously
been granted.
1996 Plan Benefits. The following table shows in the aggregate the
options that will be granted to Nonemployee Directors under the 1996 Plan if all
nominees are elected at the Annual Meeting and the stockholders approve the 1996
Plan. Because future awards to executive officers, employees, consultants and
advisors of the Company are discretionary and cannot be determined at this time,
the table does not reflect any such awards.
Exercise Price
Name and Position (per share) Number of Shares
All directors who are not
Executive Officers, as a group Fair market value on
(2 persons)....................... date of grant 110,000
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Federal Income Tax Consequences Relating to Options
The following is a general discussion of certain U.S. federal tax
consequences relating to the exercise of options, whether granted under the
Initial Plan or the 1996 Plan. This discussion does not address all aspects of
U.S. federal taxation, does not discuss state, local and foreign tax issues and
does not discuss considerations applicable to a holder who is, with respect to
the United States, a non-resident alien individual. This summary of federal
income tax consequences does not purport to be complete and is based upon
interpretations of the existing laws, regulations and rulings which could be
materially altered with enactment of any new tax legislation.
In general, an optionee will not recognize taxable income upon the
grant or exercise of an ISO, and the Company and its subsidiary will not be
entitled to any business expense deduction with respect to the grant or exercise
of an ISO. (However, upon the exercise of an ISO, the excess of the fair market
value on the date of exercise of the shares received over the exercise price of
the shares will be treated as an adjustment to alterative minimum taxable
income.) In order for the exercise of an ISO to qualify for this tax treatment,
the optionee generally must be an employee of the Company or its subsidiary
(within the meaning of Section 422 of the Code) from the date the ISO is granted
through the date three months before the date of exercise (one year preceding
the date of exercise in the case of an optionee who is terminated due to
disability). In addition, an option will not be treated as an ISO to the extent
that the fair market value of stock with respect to which ISOs first become
exercisable during any calendar year exceeds $100,000.
If the optionee has held the shares acquired upon exercise of an ISO
for at least two years after the date of grant and for at least one year after
the date of exercise, when the optionee disposes of the shares, the difference,
if any, between the sales price of the shares and the exercise price of the
option will be treated as long-term capital gain or loss. If the optionee
disposes of the shares prior to satisfying these holding period requirements (a
"disqualifying disposition"), the optionee will recognize ordinary income at the
time of the disqualifying disposition, generally in an amount equal to the
excess of the fair market value of the shares at the time the option was
exercised over the exercise price of the options. The balance of the gain
realized, if any, will be long-term or short-term capital gain, depending upon
whether or not the shares were sold more than one year after the option was
exercised. If the optionee sells the shares in a disqualifying disposition at a
price below the fair market value of the shares at the time the option was
exercised, the amount of ordinary income will be limited to the amount realized
on the sale over the exercise price of the option. The Company and its
subsidiary will be allowed a business expense deduction to the extent the
optionee recognized ordinary income.
In general, an optionee who receives a non-qualified stock option will
recognize no income at the time of the grant of the option. Upon exercise of a
non-qualified stock option, an optionee will recognize ordinary income in an
amount equal to the excess of the fair market value of the shares on the date of
exercise over the exercise price of the option. The optionee's tax basis in
shares acquired upon exercise of a non-qualified stock option will be the fair
market value on the date income is recognized, and the optionee's holding period
will commence on that date. The Company and its subsidiary will be entitled to a
business expense deduction in the same amount and at the same time as the
optionee recognizes ordinary income.
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PROPOSAL 4 - APPROVAL OF TERMS OF FORM OF INDEMNIFICATION AGREEMENT
The stockholders are being asked at the Annual Meeting to approve the
terms of a proposed form of agreement (the "Indemnification Agreement") to be
entered into between the Company and its directors and executive officers,
including future directors and executive officers, and, at the discretion of the
Board, with key employees, agents, fiduciaries and Delegates (as defined in the
Indemnification Agreement) (collectively, "Indemnitees"), in substantially the
form attached hereto as Exhibit B.
The Board of Directors believes that the Indemnification Agreements
serve the best interest of the Company and its stockholders by strengthening the
Company's ability to attract and retain over time the services of knowledgeable
and experienced persons to serve as directors, officers and key personnel and
service providers who, through their efforts and expertise, can make a
significant contribution to the success of the Company.
The Company does not currently have directors' and officers' liability
insurance, although it may obtain such insurance in the future. The
Indemnification Agreements are intended to complement the indemnity and other
protection available under applicable law, the Company's Restated Certificate of
Incorporation and Bylaws, and to provide for indemnification of Indemnitees to
the fullest extent permitted by applicable law.
Indemnification under Delaware Law
Section 145 of the Delaware General Corporation Law ("Delaware Law")
provides a detailed statutory framework covering indemnification of any
Indemnitee who was or is or is threatened to be made a party to any legal
proceeding by reason of his or her service on behalf of a corporation. Delaware
Law mandates that indemnification shall be made to any such person who has been
successful "on the merits" or "otherwise" with respect to the defense of any
such proceeding, but does not require indemnification in any other
circumstances. Delaware Law further provides that in derivative suits a person
shall not be indemnified by the corporation for any loss or damage suffered by
it on account of any action taken by him or her as a director, officer or agent
of the corporation unless he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation or, with respect to a criminal matter, had no reasonable cause to
believe that his or her conduct was unlawful. Furthermore, indemnification is
not available in derivative actions if the Indemnitee shall have been adjudged
to be liable to the corporation unless the court in which such action is or was
pending shall determine upon application that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnification
for expenses which such court shall determine to be proper. Indemnification for
expenses incurred in settling a derivative action is permitted. The Company may
advance the expenses incurred in defending such a proceeding upon the giving of
an undertaking, or promise, to repay such sums in the event it is later
determined that such Indemnitee is not entitled to be indemnified. The Company's
Restated Certificate of Incorporation has implemented the applicable statutory
framework by requiring that the Company indemnify its officers and directors to
the fullest extent permitted by Delaware Law.
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Delaware Law provides that a director shall not be held personally
liable for monetary damages for breach of fiduciary duty as a director, provided
(as specified in the Delaware Law) that such limitation of liability shall not
act to limit liability for the following conduct: (a) for any breach of the
director's duty of loyalty to the corporation or its stockholders; (b) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of Law; (c) for any violation of Section 174 of the Delaware
Law; or (d) for any transaction from which the director derived an improper
personal benefit.
Indemnification Agreements
The Indemnification Agreements provide the Indemnitees with the maximum
indemnification allowed under Delaware law. Since Delaware Law is non-exclusive,
it is possible that certain claims beyond the scope of the statute may be
indemnifiable. The Indemnification Agreements provide a scheme of
indemnification which may be broader than that specifically provided by Delaware
Law. It has not yet been determined, however, to what extent the indemnification
expressly permitted by Delaware Law may be expanded, and, therefore, the scope
of indemnification provided by the Indemnification Agreements may be subject to
future judicial interpretation.
The Indemnification Agreements provide that the Company shall indemnify
an Indemnitee who is or was a party or was or is threatened to be made a party
to or was or is involved or called as a witness in any threatened, pending or
completed action or proceeding whether civil, criminal, administrative or
investigative by reason of the fact that the Indemnitee is or was a director,
officer, key employee, agent, fiduciary or Delegate of the Company. The Company
shall advance all expenses, judgments, fines, penalties and amounts paid in
settlement incurred by the Indemnitee in connection with the investigation,
defense, settlement or appeal of any civil or criminal action or proceeding as
described above. The Indemnitee shall repay such amounts advanced only if it
shall be ultimately determined that he or she is not entitled to be indemnified
by the Company. Any award of indemnification to an Indemnitee, if not covered by
insurance, would come directly from the assets of the Company, thereby affecting
a stockholder's investment.
The Indemnification Agreements set forth a number of procedural and
substantive matters which are not addressed or are addressed in less detail in
Delaware Law, including the following:
First, in the event an action is instituted by the Indemnitee under the
Indemnification Agreements to enforce any of the terms thereof, the Indemnitee
shall be entitled to be paid all costs and expenses, including reasonable
attorneys' fees, incurred by the Indemnitee if successful, in whole or in part,
in such action. In the event of an action instituted by or in the name of the
Company under the Indemnification Agreements or to enforce any of the terms
thereof, the Indemnitee shall be entitled to be paid all costs and expenses,
including reasonable attorneys' fees, incurred by the Indemnitee in the defense
of such action only if such action (or part thereof) was authorized by the
Company's Board of Directors.
Second, the Indemnification Agreements explicitly provide for partial
indemnification of costs and expenses in the event that an Indemnitee is not
entitled to full indemnification
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under the terms of the Indemnification Agreements. Delaware Law does not
specifically address this issue. It does, however, provide that to the extent
that an Indemnitee has been successful on the merits, he or she shall be
entitled to such indemnification.
Third, in the event the Company shall be obligated to pay the expenses
of any proceeding against the Indemnitee, the Company shall be entitled to
assume the defense of such proceeding, with counsel approved by the indemnified
party, which approval shall not be unreasonably withheld, upon the delivery to
the Indemnitee of written notice of its election to do so. The Company shall
have the right to conduct such defense as it sees fit in its sole discretion,
including the right to settle any claim against Indemnitee without the consent
of the Indemnitee.
Fourth, indemnification provided by the Indemnification Agreements is
not exclusive of any rights to which the Indemnitee may be entitled under the
Company's Restated Certificate of Incorporation, its By-laws, any agreement, any
vote of stockholders or disinterested directors, Delaware Law, or otherwise. The
indemnification provided under the Indemnification Agreements continues for any
action taken or not taken while serving in an indemnified capacity even though
the Indemnitee many have ceased to serve in such capacity at the time of the
action, suit or other covered proceeding.
Finally, the Indemnification Agreements do not provide for (a)
indemnification for liabilities where Delaware Law prohibits indemnification;
and (b) indemnification for expenses in the payment of profits arising from the
purchase and sale by the Indemnitee of securities in violation of Section 16(b)
of the Exchange Act or any similar or successor statute.
The proposed Indemnification Agreements significantly reduce the number
of instances in which directors may be held liable to the Company for monetary
damages for breach of their fiduciary duties. Therefore, any nominee for
director of the Company has a direct personal interest in the approval of the
Indemnification Agreements.
THE FOREGOING DISCUSSION OF THE INDEMNIFICATION AGREEMENTS IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO THE FORM OF INDEMNIFICATION AGREEMENT
ATTACHED TO THIS PROXY STATEMENT AS EXHIBIT B, WHICH STOCKHOLDERS ARE
URGED TO READ AND CONSIDER CAREFULLY.
At present there is no pending litigation or proceeding involving an
Indemnitee where indemnification would be required or permitted under the
Indemnification Agreements. The Company is not aware of any threatened
litigation or proceeding which may result in a claim for indemnification under
the Indemnification Agreements by an Indemnitee.
Indemnification of Liabilities under The Securities Act of 1933
The SEC has expressed its opinion that indemnification of directors,
officers and controlling persons of the Company against liabilities arising
under the Securities Act of 1933 (the "Act") is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other
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than the payment by the Company of expenses incurred or paid by an Indemnitee of
the Company in the successful defense of any such action or proceeding) is
asserted by such Indemnitee in connection with securities which have been
registered by the Company, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
Vote Required
Section 144 of the Delaware General Corporation Law provides that no
contract between a corporation and one or more of its directors is either void
or voidable solely because such director or directors are parties to such
contract if the material facts as to the transaction and as to such director's
interest are disclosed or known to the stockholders and such contract is
approved in good faith by vote of the stockholders, or the contract has been
approved by a disinterested majority of the corporation's board of directors, or
the contract is fair to the Company as of the time it is authorized, approved or
ratified by the board of directors, a committee thereof or the stockholders.
Following the Annual Meeting, if approved by the Company's
stockholders, the Company intends to enter into Indemnification Agreements with
each of the nominees for director listed above under "Proposal 1- Election of
Directors." Although the Company believes that the form of Indemnification
Agreement is fair to the Company, and that stockholder approval may not
therefore be required to validate the Indemnification Agreements, the Company
believes that it is good corporate practice to submit the Indemnification
Agreements to the stockholders for their consideration. If the Indemnification
Agreements are approved by the stockholders, they are not void or voidable and
the Company's stockholders may not later assert a claim that the Indemnification
Agreements are invalid due to improper authorization; however, the stockholders
may challenge the validity of the Indemnification Agreements on other grounds.
If the Indemnification Agreements are not approved by the Stockholders, the
invalidity of such agreements could hereafter be asserted by the stockholders.
In such an instance, the person asserting the validity of the Indemnification
Agreements will bear the burden of proving that they were fair to the Company at
the time they were authorized.
Approval of the Indemnification Agreements will require the affirmative
vote of the holders of a majority of the outstanding shares of Common Stock held
by disinterested stockholders. Since each director is an interested party with
respect to this matter, shares owned, directly or indirectly, by any director
may not be voted on this proposal although they will be counted for purposes of
determining whether a quorum is present. An abstention is not an affirmative
vote and, therefore, will have the same effect as a vote against the proposal. A
broker non-vote will not be treated as entitled to vote on this subject matter
at the meeting.
The Board of Directors Recommends that Stockholders Vote "FOR"
Approval of the Terms of the Form of Indemnification Agreement
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PROPOSAL 5 - APPROVAL OF AMENDMENT TO RESTATED CERTIFICATE
OF INCORPORATION TO INCREASE NUMBER OF
AUTHORIZED SHARES OF COMMON STOCK
The Board of Directors has adopted, subject to stockholder approval, an
amendment to the Company's Restated Certificate of Incorporation to increase the
number of shares of Common Stock that the company is authorized to issue from
15,000,000 shares to 60,000,000 shares.
The additional shares of Common Stock to be authorized by adoption of
the proposed amendment would have rights identical to the currently outstanding
shares of Common Stock of the Company. Adoption of the proposed amendment and
issuance of additional shares of Common Stock would not affect the rights of the
holders of currently outstanding shares of Common Stock, except for effects
incidental to increasing the number of shares of the Company's Common Stock
outstanding, such as dilution of the earnings per share and voting rights of
current holders of Common Stock. If the amendment is adopted, it will become
effective upon filing of a Certificate of Amendment of the Company's Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware.
In addition to the 6,973,300 shares of Common Stock outstanding on
March 29, 1996, the Board has reserved approximately 1,936,000 shares for
issuance upon exercise of warrants and options (including awards granted under
the Initial Plan), approximately 1,717,350 shares for issuance upon exercise of
the public warrants sold in connection with the Company's initial public
offering in 1993, and, subject to stockholders' approval at the Annual Meeting,
1,000,000 shares under the 1996 Plan.
Although at present the Board of Directors has no plans to issue
additional shares of Common Stock, it believes additional capital will be
required to maintain the Company's operations in the foreseeable future and it
desires to have such shares available to provide additional flexibility to use
its capital stock for business and financial purposes in the future. Further,
the additional shares may be issued for various purposes, including, without
limitation, stock splits, stock dividends, providing equity incentives to
employees, officers or directors, establishing strategic relationships with
other companies and expanding the Company's business or product lines through
the acquisition of other businesses or products. If the proposed amendment to
the Company's Restated Certificate of Incorporation is approved, the Board of
Directors may determine to take any of the foregoing actions without the need
for further stockholder approval.
The additional shares of Common Stock that would become available for
issuance if the proposal were adopted could also be used by the Company to
oppose a hostile takeover attempt or delay or prevent changes in control or
management of the Company. For example, without further stockholder approval,
the Board could more easily adopt a "poison pill" which would, under certain
circumstances related to an acquisition of shares not approved by the Board of
Directors, give certain holders the right to acquire additional shares of Common
Stock at a low price, or the Board could strategically sell shares of Common
Stock in a private transaction to purchasers who would oppose a takeover or
favor the current Board of Directors. Although this proposal to increase the
authorized
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Common Stock has been prompted by business and financial considerations and not
by the threat of any hostile takeover attempt (nor is the Board currently aware
of any such attempts directed at the Company), nevertheless, stockholders should
be aware that approval of the proposal could facilitate future efforts by the
Company to deter or prevent changes in control of the Company, including
transactions in which the stockholders might otherwise receive a premium for
their shares over then current market prices.
The affirmative vote of the holders of a majority of the outstanding
shares of the Common Stock will be required to approve the proposed amendment to
the Company's Restated Certificate of Incorporation. As a result, abstentions
and broker non-votes will have the same effect as negative votes.
The Board of Directors Recommends a Vote "FOR" Approval of the Amendment to the
Company's Restated Certificate of Incorporation
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PROPOSAL 5 - RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITORS
The Board of Directors has appointed Ernst & Young LLP as the Company's
independent auditors for the fiscal year ending December 31, 1996, and has
directed that the appointment of the independent auditors be submitted for
ratification by the stockholders at the Annual Meeting. Ernst & Young LLP has
audited the Company's financial statements since 1992.
Stockholder ratification of the appointment of Ernst & Young LLP as the
Company's independent auditors is not required by the Company's By-laws or
otherwise. However, the Board of Directors is submitting the appointment of
Ernst & Young LLP to the stockholders for ratification as a matter of what it
considers to be good corporate practice. If the stockholders fail to ratify the
appointment, the Board of Directors will reconsider whether or not to retain
that firm. Even if the appointment is ratified, the Board of Directors in its
discretion may direct the appointment of a different independent accounting firm
at any time during the year if the Board of Directors determines that such a
change would be in the best interests of the Company and its stockholders.
Representatives of the Swedish affiliate of Ernst & Young LLP, are
expected to be present at the Annual Meeting, will have an opportunity to make a
statement if they so desire and will be available to respond to appropriate
questions from stockholders.
TheBoard of Directors Recommends a Vote "FOR" Ratification of the
Appointment of Ernst & Young LLP as the Independent
Auditors for the Current Fiscal Year.
-20-
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT.
The following table sets forth the number of shares of Common Stock
beneficially owned, as of March 29, 1996, by (i) each stockholder known to the
Company to be a beneficial owner of more than 5% of the Common Stock, (ii) each
director and nominee for director, (iii) each Named Executive Officer (as
defined below) included in the Summary Compensation Table under the caption
"Executive Compensation" below, and (iv) the directors and officers of the
Company as a group. Unless otherwise noted, all shares are owned directly with
sole voting and dispositive powers.
Beneficial Ownership(2)
Name(1) No. of Shares % of Total
Richard A. Brown 864,900(3) 11.63%
Ronald W. Pero 790,000(4) 10.77%
Bjorn Nordenvall 365,000 5.11%
Donald P. Carlin 320,000(5) 4.54%
Yuval Binur 125,000 *
John E. McConnaughy 65,000 *
Claus M0ller 30,000 *
L.G. Schafran 30,000(6) *
Michael Ionata 5,000 *
Marvin H. Caruthers 0 *
All directors and executive
officers as a group (9 persons) 2,594,900 31.72%
* Indicates less than one percent.
(1) Each person listed in the table is a director or nominee for director of
the Company, with an address at c/o OXiGENE, Inc., 110 E. 59th Street, New
York, New York 10022.
(2) Includes the following shares which are purchasable under options and
warrants that are presently exercisable or exercisable within 60 days of
the date of this table: Mr. Brown - 465,000 shares; Dr. Pero - 360,000
shares; Dr. Nordenvall - 165,000 shares; Mr. Carlin - 70,000 shares; Dr.
Binur - 60,000 shares; Mr. McConnaughy - 35,000 shares; Dr. M0ller - 30,000
shares; Mr. Schafran - 17,500 shares and Mr. Ionata - 5,000 shares.
(3) Includes 20,000 shares held for the benefit of his minor child.
(4) Includes 70,588 shares held by a trust for the benefit of Dr. Pero's
children, and 120,588 shares held by The Ronald Pero Charitable Remainder
Unitrust, a trust of which Dr. Pero is the trustee.
(5) Includes 135,256 shares held as nominee for certain individuals not
affiliated with the Company as to which Mr. Carlin disclaims beneficial
ownership; and 10,000 shares and 35,000 warrants held by a profit-sharing
plan of which Mr. Carlin is a beneficiary.
(6) Includes 12,500 shares and 2,500 public warrants held by his spouse as to
which Mr. Schafran disclaims beneficial ownership.
-21-
<PAGE>
EXECUTIVE OFFICERS
See "Proposal 1 - Election of Directors" above for information
pertaining to Drs. Nordenvall, Pero and M0ller, the Company's executive officers
holding the offices of President and Chief Executive Officer; Chief Scientific
Officer; and Chief Medical Officer, respectively. Currently, Drs. M0ller and
Pero are devoting a substantial majority of their time to the Company's business
and affairs. Dr. Nordenvall devotes such time, but less than all of his time, to
the Company's business and affairs as is required from time to time. Executive
officers of the Company serve at the discretion of the Board. There are no
family relationships between or among any of the Company's directors or
executive officers.
Employment Agreements
In May 1993, the Company entered into an employment agreement with Dr.
Pero. The agreement provides that either party may terminate the agreement upon
90-days prior written notice. In September 1995, pursuant to the recommendation
of the Compensation Committee, Dr. Pero's annual salary was fixed at $240,000.
In October 1995, the Company entered into an employment agreement with
Dr. Nordenvall. The initial term of the agreement expires on May 31, 1997, but
will be extended automatically for additional one-year periods unless terminated
by either party upon 90 days prior written notice. The agreement provides that
Dr. Nordenvall's base salary shall be determined in good faith by the Company's
Board of Directors, but shall not be less than $50,000. Currently, in light of
Dr. Nordenvall devoting less than all of his time to the Company's business and
affairs, his annual base salary has been fixed at $50,000. However, if its
business and affairs would require Dr. Nordenvall to devote more time to the
Company, his base salary is expected to be adjusted accordingly.
EXECUTIVE COMPENSATION
The following table sets forth information for the years indicated
concerning the compensation awarded to, earned by or paid to the Chief Executive
Officer of the Company and the four most highly paid executive officers, other
than the Chief Executive Officer (collectively, the "Named Executive Officers")
for services rendered in all capacities to the Company and its Swedish
subsidiary during such period.
-22-
<PAGE>
<TABLE>
Summary Compensation Table
<CAPTION>
Long Term
Annual Compensation Compensation
Securities All Other
Underlying Compensation
Name and Principal Position Year Salary($) Bonus($) Options(#) ($)
<S> <C> <C> <C> <C> <C>
Bjorn Nordenvall 1995 $56,847(1) $ -- 165,000 $ --
President and Chief
Executive Officer
Yuval Binur 1995 80,000(2) -- -- 17,990(3)
Executive Vice President-Finance 1994 120,000 20,000 25,000 --
and Chief Operating Officer 1993 -- -- 100,000 125,000(4)
Richard A. Brown 1995 -- -- -- 160,000(4)
Chairman and Secretary 1994 -- 32,500(5) 80,000 160,000(4)
1993 -- -- 165,000 85,000(4)
Claus M0ller 1995 134,467(6) -- 70,000 --
Chief Medical Officer 1994 -- -- 30,000 90,000(4)(7)
Ronald W. Pero 1995 201,850 -- -- --
Chief Scientific Officer 1994 180,000 60,000 90,000 25,000(8)
1993 75,000 20,000 170,000 25,000(8)
</TABLE>
(1) Includes a consulting fee of $27,680 paid to B. Omentum Consulting AB, a
company organized under the laws of Sweden of which Dr. Nordenvall is the
sole shareholder ("Omentum"). Dr. Nordenvall joined the Company as Chief
Executive Officer and President in June 1995. His current salary is $50,000
per year. In October 1995, the Company and Omentum entered into a
consulting agreement pursuant to which the Company pays Omentum a
consulting fee of $50,000 per year. See "Certain Relationships and Related
Transactions."
(2) Dr. Binur's employment with the Company ceased in May 1995.
(3) Represents reimbursement of medical insurance premiums paid in 1995.
(4) Represents consulting fees.
(5) Paid in January 1995.
(6) Includes a consulting fee of $70,000 paid to IPC Nordic A/S, a company
organized under the laws of Denmark of which Dr. M0ller is the president
and a principal shareholder ("IPC"). In August 1995, the Company and IPC
entered into an agreement pursuant to which the Company pays IPC a
consulting fee of approximately $144,000 per year. See "Certain
Relationships and Related Transactions."
(7) Dr. M0ller commenced providing services to the Company and its Swedish
subsidiary in April 1994.
(8) Represents housing allowance.
-23-
<PAGE>
Stock Option Grants and Exercise
The following table sets forth information regarding stock options
granted to each Named Executive Officer during fiscal year 1995 pursuant to the
Company's Initial Plan.
<TABLE>
<CAPTION>
% of Total
Awards
Granted to Exercise
Options Employees or Base Potential Realizable Value at
Granted in Fiscal Price Expiration Assumed Annual Rates
Name (#)(1) Year(2) ($/Sh) Date(3) 5%($)(4) 10%($)(4)
<S> <C> <C> <C> <C> <C> <C>
Bjorn Nordenvall...... 165,000 39.86 6.0 5/31/05 622,605 1,577,805
Yuval Binur........... -- -- -- -- -- --
Richard A. Brown...... -- -- -- -- -- --
Claus M0ller.......... 70,000 16.91 6.375 6/21/05 280,644 711,208
Ronald W. Pero........ -- -- -- -- -- --
</TABLE>
(1) Options granted under the Initial Plan are exercisable over a period of ten
years, except that incentive stock options granted to any holder of more
than 10% of the Company's outstanding shares of Common Stock are
exercisable over a period of 5 years.
(2) Awards include stock options and stock appreciation rights ("SARs") granted
pursuant to the Initial Plan. No SARs were granted to any Named Executive
Officer. In 1995, SARs with respect to 2,000 shares of Common Stock were
granted to a certain consultant and options to purchase an aggregate of
412,000 shares of Common Stock were granted as follows: Dr. Nordenvall
(options for 165,000); Messrs. Carlin, Ionata and Schafran (each options
for 5,000); Dr. M0ller (options for 70,000 vesting in three equal
installments on each of July 1, 1996, 1997 and 1998) and certain other
employees and consultants (collectively options for 162,000).
(3) The Initial Plan generally provides that if an optionee ceases to be an
employee, consultant or director for any reason other than death,
disability or discharge for "cause," the unexercised portion of any
outstanding options granted to the optionee, whether vested or unvested,
shall terminate three months after such cessation. Upon termination as a
result of death or disability, the optionee or the optionee's legal
representative may exercise outstanding options within one year of
termination. In no event, however, shall the exercise period for an option
extend beyond the expiration of the option term. If the optionee is
discharged for "cause," all outstanding options terminate immediately.
Options are not transferable during the optionee's lifetime and may only be
exercised by the optionee's legal representative in the event of the
optionee's death. Options granted under the Initial Plan may, in the
discretion of the Compensation Committee, include a "reload" feature,
allowing the optionee to repurchase, through the grant of new options,
shares of Common Stock used to exercise outstanding options. In the event
of a "change in control" all outstanding options become immediately
exercisable. In the event of a "recapitalization," appropriate adjustments
will be made to outstanding options without a change in their total fair
market value as of the date of the adjustment.
(4) The dollar amount under each of these columns assumes that the market price
of the Common Stock from the date of the option grant appreciates at the
cumulative annual rates of 5% and 10%, respectively, over the option term
of ten years. The assumed rates of 5% and 10% were established by the SEC
and, therefore, are not intended to forecast possible future appreciation
of the Common Stock.
-24-
<PAGE>
Option Exercises and Holdings as of December 31, 1995
No stock options were exercised in fiscal year 1995 by any of
the Named Executive Officers. The following table sets forth, as of December 31,
1995, the number of unexercised options held by each Named Executive Officer and
the value thereof based on the closing bid price of the Common Stock of $10.25
on December 29, 1995.
<TABLE>
Aggregated Option/Warrant Exercises in Last Fiscal Year
and Fiscal Year-End Option/Warrant Values
<CAPTION>
Number of Unexercised Value of Unexercised In-the-
Options/Warrants Money Options/Warrants
at FY-End(#) at FY-End($)
Exercisable/ Exercisable/
Name Unexercisable Unexercisable
<S> <C> <C>
Bjorn Nordenvall 165,000/0 701,250/0
Yuval Binur 175,000/0 1,178,250/0
Richard A. Brown 465,000/0 3,045,500/0
Claus M0ller 30,000/70,000 142,500/271,250
Ronald W. Pero 360,000/0 1,946,250/0
</TABLE>
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
IPC Nordic Consulting Agreement. In August 1995, the Company entered
into a consulting agreement with IPC Nordic A/S, a company organized under the
laws of Denmark ("IPC") of which Dr. Claus M0ller, a director and the Chief
Medical Officer of the Company, is the president and a principal shareholder.
Pursuant to the agreement, IPC and Dr. M0ller provide services with respect to
the Company's clinical trials and a possible future compassionate use program in
consideration of a monthly consulting fee of Dkr.70,245 (approximately $11,970
based on an exchange rate of US$0.1704 to one Danish Krone).
Omentum Consulting Agreement. In October 1995, the Company entered into
a consulting agreement with B. Omentum Consulting AB, a company organized under
the laws of Sweden ("Omentum") of which Dr. Bjorn Nordenvall, a director and the
President and Chief Executive Officer of the Company, is the sole shareholder.
Pursuant to the agreement, the Company pays Omentum an annual consulting fee of
$50,000.
-25-
<PAGE>
REPORT ON EXECUTIVE COMPENSATION1
Introduction
Three of OXiGENE's directors, Messrs. Ionata (Chairman), Carlin and
Schafran, who are outside directors, constitute the Compensation Committee,
which, among other things, is responsible for making recommendations to the
Board of Directors with respect to (1) the Company's compensation philosophy and
compensation guidelines for its executives; (2) the roles and respective
performances of the Company's executive officers, especially as these affect
compensation; (3) appropriate compensation levels for the Chief Executive
Officer and other executives of the Company based on a comparative review of
compensation practices in similarly situated business; and (4) the design and
implementation of the Company's compensation plans and the establishment of
criteria and the approval of performance results relative to the Company's
incentive plans. As a practical matter, the Committee sets and administers all
compensation of the three management directors, Drs. Nordenvall, M0ller and
Pero, since the management directors do not participate in deliberations
regarding or vote on compensation matters affecting them. The Board of Directors
did not modify or reject any action or recommendation of the Compensation
Committee regarding compensation for the 1995 fiscal year.
This report sets out the Company's executive compensation philosophy
and objectives, describes the components of its executive compensation program
and describes the bases on which 1995 executive compensation determinations were
made with respect to the executive officers of the Company, including those
named in the Summary Compensation Table preceding this report.
Executive Compensation Philosophy and Objectives
It is the Company's policy to maintain a flexible managerial and
compensation structure in order that it may meet its evolving and changing
supervisory needs, while tightly controlling its overhead expenses, as its
business progresses. As part of this policy, the Company provides a compensation
package that is intended to focus executive behavior on the fulfillment of
annual and long-term business objectives, and to create a sense of ownership in
the Company that causes executive decisions to be aligned with the best
interests of the Company's stockholders.
In 1995, total cash remuneration arrangements with the Company's
executive officers serving from time to time amounted to approximately $375,000.
In addition, in 1995, the Company paid cash remuneration to certain consultants,
who often perform functions traditionally associated with executive officer
positions, of approximately -------- 1 Pursuant to Item 402(a)(9) of Regulation
S-K promulgated by the SEC, neither the "Report on Executive Compensation" nor
the material under the caption "Performance Measurement Comparison" shall be
deemed to be filed with the SEC for purposes of the Securities Exchange Act of
1934, as amended, nor shall such report or such material be deemed to be
incorporated by reference in any past or future filing by the Company under the
Exchange Act or the Securities Act of 1933, as amended.
-26-
<PAGE>
$320,000. The amount of cash remuneration payable is likely to increase
significantly if the Company's activities, including the progress of its
clinical trials, would warrant Dr. Nordenvall devoting all of his time to the
business and affairs of the Company. As the Company's clinical trials continue
to progress and expand and the Company prepares to file a new drug application
with the United States Food and Drug Administration and similar government
authorities in other countries, it will be necessary to hire more full-time
executives and key employees. The Company's Board of Directors continually
monitors its managerial composition and compensation structure.
Compensation Program Components
Consistent with the Company's executive compensation objectives,
compensation for its senior managers consists of three elements: an annual base
salary, annual incentive compensation and long-term incentive compensation.
Annual Base Salary. Base salaries for executive officers are determined
with reference to a salary range for each position. Salary ranges are determined
by evaluating a particular employee's position and comparing it with what are
believed to be representative prevailing norms for similar positions in
similarly-sized companies. Within this salary range, an executive's initial
salary level is determined largely through Compensation Committee judgment based
on the experience of its members. Salaries are determined at a level to attract,
motivate and retain superior executives. The Compensation Committee determines
annual salary adjustments based on the Company's performance, the individual
executive's contribution to that performance, prevailing norms and the
Compensation Committee members' knowledge and experience.
Annual Incentive Compensation. The executive officers are eligible to
receive an annual bonus which is intended to provide additional compensation for
significant and outstanding achievement during the past year. These bonuses are
usually awarded for extra work that was contributed by the executive towards the
enhancement of value to the shareholders. Typically, the annual bonus, when
awarded, will not exceed 25% of the yearly base salary.
Long-Term Incentive Compensation. Long-term incentive compensation is
provided by the grant of options to purchase shares of Common Stock under the
Company's stock incentive plans. In considering awards, the Compensation
Committee takes into account such factors as prevailing norms for the ratio of
options outstanding to total shares outstanding, the relative influence each
position will have on the building of shareholder value over the long term, and
the amount, vesting and expiration dates of each executive's outstanding
options.
Consultant's Compensation. The Company continues to rely to a great
extent on consultants, including, among others, the members of the Company's
Scientific Advisory Board, in the areas of research and development, clinical
trials and clinical trial management, marketing and finance. The Board of
Directors has determined that it is less expensive and more efficient to engage
consultants rather than to expand the Company's
-27-
<PAGE>
overhead by hiring individuals for these positions. In order to retain their
motivation and long-term commitment, from time to time these consultants will be
granted options under the Company's stock incentive plans.
Other. Based on currently prevailing authority, including proposed
Treasury regulations, and in consultation with outside tax and legal experts,
the Compensation Committee has determined that it is unlikely that the
Compensation Committee would require the Company to pay any amounts in 1996 that
would result in the loss of a federal income tax deduction under Section 162(m)
of the Internal Revenue Code of 1986, as amended, and accordingly has not
recommended that any special actions be taken or plans or programs be revised at
this time in light of such tax provisions.
The Compensation Committee
Michael Ionata (Chairman)
Donald P. Carlin
L.G. Schafran
-28-
<PAGE>
Performance Measurement Comparison
The following chart shows cumulative total shareholder return
on the Company's Common Stock (since the initial public offering on August 26,
1993), compared with the Standard & Poor's Midcap Biotechnology Index and the
Standard & Poor's Midcap 400 Index.
OXiGENE, INC.
Performance Graph
<TABLE>
<CAPTION>
Measurement S&P Midcap
Period OXiGENE, Inc. Biotechnology S&P Midcap 400
<S> <C> <C> <C>
12/31/93 135.90 120.31 104.81
6/31/94 158.34 88.21 97.15
12/30/94 97.44 127.28 101.05
6/30/95 148.72 135.88 118.86
12/30/95 217.95 224.71 132.32
</TABLE>
-29-
<PAGE>
ANNUAL REPORT
A copy of the Company's Annual Report to Stockholders is being provided
to each stockholder of the Company with this Proxy Statement. Additional copies
may be obtained by writing to OXiGENE, Inc., 110 East 59th Street, New York, New
York 10022, Attention: Secretary.
FILINGS PURSUANT TO SECTION 16 OF THE SECURITIES EXCHANGE ACT OF 1934
Section 16(a) of the Securities Exchange Act of 1934 requires certain
officers of the Company and its directors, and persons who own beneficially more
than ten percent of any registered class of the Company's equity securities, to
file reports of ownership and changes in ownership of Common Stock of the
Company with the SEC, the Nasdaq Small-Cap Market System and the Company. Based
solely on a review of the reports and representations provided to the Company by
the above-referenced persons, the Company believes that during 1995, all filing
requirements applicable to its reporting officers, directors and greater than
ten percent beneficial owners were properly and timely satisfied, except as set
forth below. Forms 3 on behalf of Joann Conklin, the Company's former Chief
Financial Officer, Michael Ionata, Claus M0ller and Bjorn Nordenvall were filed
late. Messrs. Carlin, M0ller and Schafran each filed one late report, each
reporting one transaction. Mr. Nordenvall filed two late reports, one reporting
five transactions and one reporting one transaction. The Company believes that
all transactions reportable by Messrs. Carlin, M0ller, Nordenvall and Schafran
in 1995 have now been reflected on their respective filings. In making these
statements, the Company has relied on representations of its directors, officers
and greater than ten percent beneficial owners, and copies of reports they have
filed with the SEC.
STOCKHOLDER PROPOSALS
The eligibility of stockholders to submit proposals, the proper
subjects of stockholder proposals and the form of stockholder proposals are
regulated by Rule 14a-8 under Section 14 of the Securities Exchange Act of 1934,
as amended. In accordance with regulations issued by the SEC, stockholder
proposals intended for presentation at the 1997 Annual Meeting of stockholders
must be received by the Company at its principal executive office, 110 East 59th
Street, New York, New York 10022, no later than February 14, 1997, if such
proposals are to be considered for inclusion in the Company's proxy statement
for the 1997 Annual Meeting of stockholders. Each proposal submitted should
include the full and correct name and address of the stockholder(s) making the
proposal, the number of shares beneficially owned and their date of acquisition.
If beneficial ownership is claimed, proof thereof should also be submitted with
the proposal. The stockholder or his or her representative must appear in person
at the annual meeting and must present the proposal, unless he or she can show
good reason for not doing so.
By Order of the Board of Directors
Richard A. Brown, Secretary
-30-
<PAGE>
Exhibit A
OXiGENE, INC.
1996 STOCK INCENTIVE PLAN
1. Purpose.
The purpose of this Plan is to enable the Company and its affiliates to
recruit and retain capable employees for the successful conduct of its business
and to provide an additional incentive to directors, officers and other eligible
key employees, consultants and advisors upon whom rest major responsibilities
for the successful operation and management of the Company and its affiliates.
2. Definitions.
For purposes of the Plan:
2.1 "Adjusted Fair Market Value" means, in the event of a Change
in Control, the greater of (i) the highest price per Share paid to holders of
the Shares in any transaction (or series of transactions) constituting or
resulting in a Change in Control or (ii) the highest Fair Market Value of a
Share during the ninety (90) day period ending on the date of a Change in
Control.
2.2 "Affiliate Corporation" or "Affiliate" shall mean any
corporation, directly or indirectly, through one of more intermediaries,
controlling, controlled by or under common control with the Company.
2.3 "Agreement" means the written agreement between the Company
and an Optionee evidencing the grant of an Award.
2.4 "Award" means an Incentive Stock Option, Nonqualified Stock
Option or Stock Appreciation Right granted to or to be granted pursuant to the
Plan.
2.5 "Board" means the Board of Directors of the Company.
2.6 "Cause" means:
(a) Solely with respect to Nonemployee Directors, the
commission of an act of fraud or intentional misrepresentation or an act of
embezzlement, misappropriation or conversion of assets or opportunities of the
Company or any Affiliate and
(b) for all other purposes, unless otherwise defined in the
Agreement evidencing a particular Award, an Optionee (other than a Nonemployee
Director) (i) intentional failure to perform reasonably assigned duties, (ii)
dishonesty or willful misconduct in the performance of duties, (iii) involvement
in a transaction in connection with the performance of duties to the Company or
any of its Subsidiaries
A-1
<PAGE>
thereof which transaction is adverse to the interests of the Company or any of
its Subsidiaries and which is engaged in for personal profit or (iv) willful
violation of any law, rule or regulation in connection with the performance of
duties (other than traffic violations or similar offenses).
2.7 "Change in Capitalization" means any increase or reduction in
the number of Shares, or any change (including, but not limited to, a change in
value) in the Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company, by reason of a reclassification,
recapitalization, merger, consolidation, reorganization, spin-off, split-up,
issuance of warrants or rights or debentures, stock dividend, stock split or
reverse stock split, cash dividend, property dividend, combination or exchange
of shares, repurchase of shares, change in corporate structure or otherwise.
2.8 A "Change in Control" shall mean the occurrence during the
term of the Plan of either of the following: (a) any "person" (as such term is
used in Section 13(c) 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; or (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.
2.9 "Code" means the Internal Revenue Code of 1986, as amended.
2.10 "Committee" means a committee, as described in Section 3.1,
appointed by the Board to administer the Plan and to perform the functions set
forth herein.
2.11 "Company" means OXiGENE, Inc.
2.12 "Director Option" means an Option granted pursuant to Section
6.
2.13 "Disability" means a physical or mental infirmity which
impairs an Optionee's ability to perform substantially his or her duties for a
period of one hundred eighty (180) consecutive days.
2.14 "Disinterested Director" means a director of the Company who
is "disinterested" within the meaning of Rule 16b-3 under the Exchange Act.
A-2
<PAGE>
2.15 "Eligible Individual" means any director (other than a
Nonemployee Director), officer or employee of, or consultant or advisor to, the
Company or an Affiliate who is receiving cash compensation and who is designated
by the Committee as eligible to receive Awards subject to the conditions set
forth herein.
2.16 "Employee Option" means an Option granted pursuant to Section
5.
2.17 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2.18 "Fair Market Value" on any date means the average of the high
and low sales prices of the Shares on such date on the principal national
securities exchange on which such Shares are listed or admitted to trading, or,
if such Shares are not so listed or admitted to trading, the arithmetic mean of
the per Share closing bid price and per Share closing asked price on such date
as quoted on the quotation system of the Nasdaq Stock Market, Inc. or such other
market in which such prices are regularly quoted, or, if there have been no
published bid or asked quotations with respect to Shares on such date, the Fair
Market Value as established by the Board in good faith and, in the case of an
Incentive Stock Option, in accordance with Section 422 of the Code.
2.19 "Incentive Stock Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as an
Incentive Stock Option.
2.20 "Nonemployee Director" means a director of the Company who is
not an employee of the Company or an Affiliate.
2.21 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.22 "Option" means a Nonqualified Stock Option, an Incentive
Stock Option, a Director Option, an Employee Option or any or all of them.
2.23 "Optionee" means a person to whom an Option has been granted
under the Plan.
2.24 "Outside Director" means a director of the Company who is an
"outside director" within the meaning of Section 162(m) of the Code and the
regulations promulgated thereunder.
2.25 "Parent" means any corporation which is a parent corporation
(within the meaning of Section 424(e) of the Code) with respect to the Company.
2.26 "Plan" means the OXiGENE, Inc. 1996 Stock Option Plan.
2.27 "Pooling Transaction" means an acquisition of the Company in
a transaction which is intended to be treated as a "pooling of interests" under
generally accepted accounting principles.
A-3
<PAGE>
2.28 "Shares" means the common stock, par value $.01 per share, of
the Company and any securities or other consideration issuable in respect of
Shares in connection with a Change in Capitalization or Change in Control.
2.29 "Stock Appreciation Right" or "SARs" means a right to receive
all or some portion of the increase in the value of the Shares as provided in
Section 8 hereof.
2.30 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
2.31 "Successor Corporation" means a corporation, or a parent or
subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a stock option in a transaction to which Section 424(a) of the
Code applies.
2.32 "Ten-Percent Stockholder" means an Eligible Individual, who,
at the time an Incentive Stock Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company, or of a Parent or a Subsidiary.
3. Administration.
3.1 The Plan shall be administered by the Committee which shall
hold meetings at such times as may be necessary for the proper administration of
the Plan. The Committee shall keep minutes of its meetings. A quorum shall
consist of not fewer than two (2) members of the Committee and a majority of a
quorum may authorize any action. Any decision or determination reduced to
writing and signed by a majority of all of the members shall be as fully
effective as if made by a majority vote at a meeting duly called and held. The
Committee shall consist of at least two (2) directors of the Company each of
whom shall be a Disinterested Director and an Outside Director. No member of the
Committee shall be liable for any action, failure to act, determination or
interpretation made in good faith with respect to this Plan or any transaction
hereunder, except for liability arising from his or her own willful misfeasance,
gross negligence or reckless disregard of his or her duties. The Company hereby
agrees to indemnify each member of the Committee for all costs and expenses and,
to the extent permitted by applicable law, any liability incurred in connection
with defending against, responding to, negotiating for the settlement of or
otherwise dealing with any claim, cause of action or dispute of any kind arising
in connection with any actions in administering this Plan or in authorizing or
denying authorization to any transaction hereunder.
3.2 Subject to the express terms and conditions set forth herein,
the Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom Employee
Options shall be granted under the Plan and the number of Employee Options to be
granted and to prescribe the terms and conditions (which need not be identical)
of each such Employee Option, including the purchase price per Share subject to
each Employee
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Option, and make any amendment or modification to any Option Agreement
consistent with the terms of the Plan;
(b) to construe and interpret the Plan and the Options
granted hereunder and to establish, amend and revoke rules and regulations for
the administration of the Plan, including, but not limited to, correcting any
defect or supplying any omission, or reconciling any inconsistency in the Plan
or in any Agreement, in the manner and to the extent it shall deem necessary or
advisable so that the Plan complies with applicable law, including Rule 16b-3
under the Exchange Act and the Code to the extent applicable, and otherwise to
make the Plan fully effective. All decisions and determinations by the Committee
in the exercise of this power shall be final, binding and conclusive upon the
Company, its Affiliate Corporations, the Optionees, and all other persons having
any interest therein;
(c) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee on an individual basis without
constituting a termination of employment or service for purposes of the Plan;
(d) to exercise its discretion with respect to the powers and
rights granted to it as set forth in the Plan; and
(e) generally, to exercise such powers and to perform such
acts as it deems necessary or advisable to promote the best interests of the
Company with respect to the Plan.
4. Stock Subject to the Plan.
4.1 The maximum number of Shares that may be made the subject of
Options granted under the Plan is 1,000,000; provided, however, that the maximum
number of Shares that may be the subject of Options granted to any employee
during the term of the Plan may not exceed 500,000 Shares. Upon a Change in
Capitalization the maximum number of Shares shall be adjusted in number and kind
pursuant to Section 11. The Company shall reserve for the purposes of the Plan,
out of its authorized but unissued Shares or out of Shares held in the Company's
treasury, or partly out of each, such number of Shares as shall be determined by
the Board.
4.2 Upon the granting of an Option, the number of Shares available
under Section 4.1 for the granting of further Options shall be reduced by the
number of Shares subject to such Option granted. Whenever any outstanding Option
or portion thereof expires, is cancelled or is otherwise terminated for any
reason without having been exercised or payment having been made in respect of
the entire Option, the Shares allocable to the expired, cancelled or otherwise
terminated portion of the Option may again be the subject of Options granted
hereunder.
5. Option Grants for Eligible Individuals.
5.1 Authority of Committee. Subject to the provisions of the Plan,
the Committee shall have full and final authority to select those Eligible
Individuals who will
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receive Employee Options, the terms and conditions of which shall be set forth
in an Agreement.
5.2 Purchase Price. The purchase price or the manner in which the
purchase price is to be determined for Shares under each Employee Option shall
be determined by the Committee and set forth in the Agreement; provided,
however, that the purchase price per Share under each Incentive Stock Option
shall not be less than 100% of the Fair Market Value of a Share on the date the
Incentive Stock Option is granted (110% in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder).
5.3 Maximum Duration. Employee Options granted hereunder shall be
for such term as the Committee shall determine, provided that an Incentive Stock
Option shall not be exercisable after the expiration of ten (10) years from the
date it is granted (five (5) years in the case of an Incentive Stock Option
granted to a Ten-Percent Stockholder) and a Nonqualified Stock Option shall not
be exercisable after the expiration of ten (10) years from the date it is
granted. The Committee may, subsequent to the granting of any Employee Option,
extend the term thereof but in no event shall the term as so extended exceed the
maximum term provided for in the preceding sentence.
5.4 Vesting. Subject to Section 7.5 hereof, each Employee Option
- - ------- shall become exercisable in such installments (which need not be equal)
and at such times as may be designated by the Committee and set forth in the
Agreement. To the extent not exercised, installments shall accumulate and be
exercisable, in whole or in part, at any time after becoming exercisable, but
not later than the date the Employee Option expires. The Committee may
accelerate the exercisability of any Option or portion thereof at any time.
5.5 Modification. No modification of an Employee Option shall
adversely alter or impair any rights or obligations under the Employee Option
without the Optionee's consent.
6. Option Grants for Nonemployee Directors.
6.1 Grant. Subject to Section 6.3, Director Options in respect of
55,000 Shares shall be granted on the first business day following the annual
meeting of stockholders of the Company to elect directors in 1996 to each
Nonemployee Director who is elected as a director at such meeting. Thereafter on
the first business day following each successive annual meeting so long as
Options remain available for grant, each Nonemployee Director who is first
elected as a director at such meeting shall be granted a Director Option in
respect of 55,000 Shares. Each Nonemployee Director shall receive Director
Options with respect to no more than 55,000 Shares. Such Options shall be
evidenced by an Agreement containing such other terms and conditions not
inconsistent with the provisions of this Plan as determined by the Board;
provided, however, that such terms shall not vary the price, amount or timing of
Director Options as provided under this Section 6, including provisions dealing
with forfeiture and termination of such Director Options.
6.2 Purchase Price. The purchase price for Shares under each
Director Option shall be equal to 100% of the Fair Market Value of such Shares
on the date immediately preceding the date of grant.
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6.3 Vesting. Subject to Sections 6.4 and 7.5, each Director
- - ------- Option shall become exercisable within five (5) equal annual
installments beginning on the first anniversary of the date of grant; provided,
however, that the Optionee continues to serve as a Director as of such dates. If
an Optionee ceases to serve as a Director for any reason, the Optionee shall
have no rights with respect to that portion of a Director Option which has not
then vested pursuant to the preceding sentence and the Optionee shall
automatically forfeit that portion of the Director Option which remains
unvested.
6.4 Limitations on Amendment. The provisions in this Section 6
- - ------------------------ and Section 7.1 shall not be amended more than once
every six (6) months, other than to comport with changes in the Code or the
rules and regulations thereunder.
7. Terms and Conditions Applicable to All Options.
7.1 Duration. Each Option shall terminate on the date which is the
tenth anniversary of the grant date, unless terminated earlier as follows:
(a) If an Optionee's employment or service terminates for any
reason other than Disability, death or Cause, the Optionee may for a period of
three (3) months after such termination exercise his or her Option to the
extent, and only to the extent, such Option or portion thereof was vested and
exercisable as of the date the Optionee's employment or service terminated,
after which time the Option shall automatically terminate in full.
(b) If an Optionee's employment or service terminates by
reason of the Optionee's Disability, the Optionee may, for a period of one (1)
year after such termination, exercise his or her Option to the extent, and only
to the extent, such Option or portion thereof was vested and exercisable as of
the date the Optionee's employment or service terminated, after which time the
Option shall automatically terminate in full.
(c) If an Optionee's employment or service terminates for
Cause, the Option granted to the Optionee hereunder shall immediately terminate
in full and no rights thereunder may be exercised.
(d) If an Optionee dies while employed or in the service of
the Company or an Affiliate or within the three (3) month or twelve (12) month
period described in clause (a) or (b) of this Section 7.1, respectively, the
Option granted to the Optionee may be exercised at any time within twelve (12)
months after the Optionee's death by the person or persons to whom such rights
under the Option shall pass by will, or by the laws of descent or distribution,
after which time the Option shall terminate in full; provided, however, that an
Option may be exercised to the extent, and only to the extent, such Option or
portion thereof was exercisable on the date of death or earlier termination of
the Optionee's services as a Director.
Notwithstanding clauses (a) through (d) above, the Agreement evidencing the
grant of an Employee Option may, in the Committee's sole and absolute
discretion, set forth additional or different terms and conditions applicable to
Employee Options upon a termination or
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change in status of the employment or service of an Eligible Individual. Such
terms and conditions may be determined at the time the Employee Option is
granted or thereafter.
7.2 Non-transferability. No Option granted hereunder shall be
transferable by the Optionee to whom granted except by will or the laws of
descent and distribution, and an Option may be exercised during the lifetime of
such Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such Option shall be final, binding and conclusive
upon the beneficiaries, executors, administrators, heirs and successors of the
Optionee.
7.3 Method of Exercise. The exercise of an Option shall be made
only by a written notice delivered in person or by mail to the Secretary of the
Company at the Company's principal executive office, specifying the number of
Shares to be purchased and accompanied by payment therefor and otherwise in
accordance with the Agreement pursuant to which the Option was granted. The
purchase price for any Shares purchased pursuant to the exercise of an Option
shall be paid in full in cash upon such exercise. Notwithstanding the foregoing,
the Committee shall have discretion to determine at the time of grant of each
Employee Option or at any later date (up to and including the date of exercise)
that the form of payment acceptable in respect of the exercise of such Employee
Option may consist of either of the following (or any combination thereof): (i)
cash or (ii) the transfer of Shares to the Company upon such terms and
conditions as determined by the Committee. Any Shares transferred to the Company
as payment of the purchase price under an Option shall be valued at their Fair
Market Value on the day preceding the date of exercise of such Option. In
addition, both Employee Options and Director Options may be exercised through a
registered broker-dealer pursuant to such cashless exercise procedures (other
than Share withholding) which are, from time to time, deemed acceptable by the
Committee. The Optionee shall deliver the Agreement evidencing the Option to the
Secretary of the Company who shall endorse thereon a notation of such exercise
and return such Agreement to the Optionee. No fractional Shares (or cash in lieu
thereof) shall be issued upon exercise of an Option and the number of Shares
that may be purchased upon exercise shall be rounded to the nearest number of
whole Shares.
7.4 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and until (i)
the Option shall have been exercised pursuant to the terms thereof, (ii) the
Company shall have issued and delivered the Shares to the Optionee and (iii) the
Optionee's name shall have been entered as a stockholder of record on the books
of the Company. Thereupon, the Optionee shall have full voting, dividend and
other ownership rights with respect to such Shares, subject to such terms and
conditions as may be set forth in the applicable Agreement.
7.5 Effect of Change in Control. In the event of a Change in
Control, all Options outstanding on the date of such Change in Control shall
become immediately and fully vested and exercisable. In addition, to the extent
set forth in an Agreement evidencing the grant of an Employee Option, an
Optionee will be permitted to surrender for cancellation within sixty (60) days
after such Change in Control, any Employee Option or portion of an Employee
Option to the extent not yet exercised and the Optionee will be entitled to
receive a cash payment in an amount equal to the excess, if any, of (x) (A) in
the case of a Nonqualified Stock Option, the greater of (1) the Fair Market
Value, on the date preceding the date of surrender, of the Shares subject to the
Employee
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Option or portion thereof surrendered or (2) the Adjusted Fair Market Value of
the Shares subject to the Employee Option or portion thereof surrendered or (B)
in the case of an Incentive Stock Option, the Fair Market Value, on the date
preceding the date of surrender, of the Shares subject to the Employee Option or
portion thereof surrendered, over (y) the aggregate purchase price for such
Shares under the Employee Option or portion thereof surrendered; provided,
however, that in the case of an Employee Option granted within six (6) months
prior to the Change in Control to any Optionee who may be subject to liability
under Section 16(b) of the Exchange Act, such Optionee shall be entitled to
surrender for cancellation his or her Option during the sixty (60) day period
commencing upon the expiration of six (6) months from the date of grant of any
such Employee Option. In the event an Optionee's employment or service with the
Company is terminated by the Company following a Change in Control each Option
held by the Optionee that was exercisable as of the date of termination of the
Optionee's employment or service shall remain exercisable for a period ending
not before the earlier of the first anniversary of the termination of the
Optionee's employment or service or the expiration of the stated term of the
Option.
8. Stock Appreciation Rights. The Committee may, in its discretion,
either alone or in connection with the grant of an Employee Option, grant Stock
Appreciation Rights in accordance with the Plan, the terms and conditions of
which shall be set forth in an Agreement. If granted in connection with an
Option, a Stock Appreciation Right shall cover the same Shares covered by the
Option (or such lesser number of Shares as the Committee may determine) and
shall, except as provided in this Section 8, be subject to the same terms and
conditions as the related Option.
8.1 Time of Grant. A Stock Appreciation Right may be granted (i)
at any time if unrelated to an Option, or (ii) if related to an Option, either
at the time of grant, or at any time thereafter during the term of the Option.
8.2 Stock Appreciation Right Related to an Option.
(a) Exercise. Subject to Section 8.8, a Stock Appreciation
Right granted in connection with an Option shall be exercisable at such time or
times and only to the extent that the related Options are exercisable, and will
not be transferable except to the extent the related Option may be transferable.
A Stock Appreciation Right granted in connection with an Incentive Stock Option
shall be exercisable only if the Fair Market Value of a Share on the date of
exercise exceeds the purchase price specified in the related Incentive Stock
Option Agreement.
(b) Amount Payable. Upon the exercise of a Stock Appreciation
Right related to an Option, the holder shall be entitled to receive an amount
determined by multiplying (A) the excess of the Fair Market Value of a Share on
the date preceding the date of exercise of such Stock Appreciation Right over
the per Share purchase price under the related Option, by (B) the number of
Shares as to which such Stock Appreciation Right is being exercised.
Notwithstanding the foregoing, the Committee may limit in any manner the amount
payable with respect to any Stock Appreciation Right by including such a limit
in the Agreement evidencing the Stock Appreciation Right at the time it is
granted.
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(c) Treatment of Related Options and Stock Appreciation
Rights Upon Exercise. Upon the exercise of a Stock Appreciation Right granted in
connection with an Option, the Option shall be cancelled to the extent of the
number of Shares as to which the Stock Appreciation Right is exercised, and upon
the exercise of an Option granted in connection with a Stock Appreciation Right
or the surrender of such Option pursuant to Section 7.3, the Stock Appreciation
Right shall be cancelled to the extent of the number of Shares as to which the
Option is exercised or surrendered.
8.3 Stock Appreciation Right Unrelated to an Option. The Committee
may grant to Eligible Individuals Stock Appreciation Rights unrelated to
Options. Stock Appreciation Rights unrelated to Options shall contain such terms
and conditions as to exercisability (subject to Section 8.8), vesting and
duration as the Committee shall determine, but in no event shall they have a
term of greater than ten (10) years. Upon exercise of a Stock Appreciation Right
unrelated to an Option, the holder shall be entitled to receive an amount
determined by multiplying (A) the excess of the Fair Market Value of a Share on
the date preceding the date of exercise of such Stock Appreciation Right over
the Fair Market Value of a Share on the date the Stock Appreciation Right was
granted, by (B) the number of Shares as to which the Stock Appreciation Right is
being exercised. Notwithstanding the foregoing, the Committee may limit in any
manner the amount payable with respect to any Stock Appreciation Right by
including such a limit in the Agreement evidencing the Stock Appreciation Right
at the time it is granted.
8.4 Method of Exercise. Stock Appreciation Rights shall be
exercised by a holder only by a written notice delivered in person or by mail to
the Secretary of the Company at the Company's principal executive office,
specifying the number of Shares with respect to which the Stock Appreciation
Right is being exercised. If requested by the Committee, the holder shall
deliver the Agreement evidencing the Stock Appreciation Right being exercised
and the Agreement evidencing any related Option to the Secretary of the Company
who shall endorse thereon a notation of such exercise and return such Agreement
to the holder.
8.5 Form of Payment. Payment of the amount determined under
Sections 8.2(b) or 8.3 may be made in the discretion of the Committee, solely in
whole Shares in a number determined at their Fair Market Value on the date
preceding the date of exercise of the Stock Appreciation Right, or solely in
cash, or in a combination of cash and Shares. If the Committee decides to make
full payment in Shares and the amount payable results in a fractional Share,
payment for the fractional Share will be made in cash. Notwithstanding the
foregoing, no payment in the form of cash may be made upon the exercise of a
Stock Appreciation Right pursuant to Sections 8.2(b) or 8.3 to an officer of the
Company or a Subsidiary who is subject to liability under Section 16(b) of the
Exchange Act, unless the exercise of such Stock Appreciation Right is made
either (i) during the period beginning on the third business day and ending on
the twelfth business day following the date of release for publication of the
Company's quarterly or annual statements of earnings (the "Window Period") or
(ii) pursuant to an irrevocable election to receive cash made at least six (6)
months prior to the exercise of such Stock Appreciation Right.
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8.6 Restrictions. No Stock Appreciation Right may be exercised
before the date six (6) months after the date it is granted.
8.7 Modification. No modification of an Award shall adversely
alter or impair any rights or obligations under the Agreement without the
holder's consent.
8.8 Effect of Change in Control. In the event of a Change in
Control but subject to Section 8.6, all Stock Appreciation Rights shall become
immediately and fully exercisable. In addition, to the extent set forth in an
Agreement evidencing the grant of a Stock Appreciation Right, a holder will be
entitled to receive a payment in cash or stock, in either case, with a value
equal to the excess, if any, of (A) the greater of (x) the Fair Market Value, on
the date preceding the date of exercise, of the underlying Shares subject to the
Stock Appreciation Right or portion thereof exercised and (y) the Adjusted Fair
Market Value, on the date preceding the date of exercise, of the Shares over (B)
the aggregate Fair Market Value, on the date the Stock Appreciation Right was
granted, of the Shares subject to the Stock Appreciation Right or portion
thereof exercised; provided, however, that in the case of a Stock Appreciation
Right granted within six (6) months of the Change in Control to any holder who
may be subject to liability under Section 16(b) of the Exchange Act, such holder
shall be entitled to exercise his or her Stock Appreciation right during the
sixty (60) day period commencing upon the expiration of six (6) months from the
date of grant of any such Stock Appreciation Right. In the event a holder's
employment or service with the Company is terminated by the Company following a
Change in Control, each Stock Appreciation Right held by the holder that was
exercisable as of the date of termination of the holder's employment or service
shall remain exercisable for a period ending not before the earlier of the first
anniversary of the termination of the holder's employment or service or the
expiration of the stated term of the Stock Appreciation Right.
9. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to the (i)
maximum number and class of Shares or other stock or securities with respect to
which Options may be granted under the Plan, (ii) maximum number and class of
Shares or other stock or securities with respect to which Options may be granted
to any Eligible Individual during the term of the Plan, (iii) the number and
class of Shares or other stock or securities which are subject to outstanding
Options granted under the Plan, and the purchase price therefor, if applicable,
and (iv) the number and class of Shares or other securities in respect of which
Director Options are to be granted under Section 6.
(b) Any such adjustment in the Shares or other stock or securities
subject to outstanding Incentive Stock Options (including any adjustments in the
purchase price) shall be made in such manner as not to constitute a modification
as defined by Section 424(h)(3) of the Code and only to the extent otherwise
permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a Change in Capitalization, an Optionee shall
be entitled to exercise an Option with respect to new, additional or different
shares of stock or securities, such new, additional or different shares shall
thereupon be subject to
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all of the conditions, restrictions and performance criteria which were
applicable to the Shares subject to the Option, prior to such Change in
Capitalization.
10. Effect of Certain Transactions. Subject to Sections 7.5 and 8.8 or
as otherwise provided in an Agreement, in the event of (i) the liquidation or
dissolution of the Company or (ii) a merger or consolidation of the Company (a
"Transaction"), the Plan and the Options issued hereunder shall continue in
effect in accordance with their respective terms except that following a
Transaction each Optionee shall be entitled to receive in respect of each Share
subject to any outstanding Options as the case may be, upon exercise of any
Award the same number and kind of stock, securities, cash, property, or other
consideration that each holder of a Share was entitled to receive in the
Transaction in respect of a Share; provided, however, that such stock,
securities, cash, property, or other consideration shall remain subject to all
of the conditions, restrictions and performance criteria which were applicable
to the Options prior to such Transaction.
11. Interpretation.
(a) The Plan is intended to comply with Rule 16b-3 promulgated
under the Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Agreement in a manner consistent therewith. Any
provisions inconsistent with such Rule shall be inoperative and shall not affect
the validity of the Plan.
(b) The Director Options described in Section 6 are intended to
qualify as formula awards under Rule 16b-3 promulgated under the Exchange Act
(thereby preserving the disinterested status of Nonemployee Directors receiving
such Awards) and the Committee shall interpret and administer the provisions of
the Plan or any Agreement in a manner consistent therewith. Any provisions
inconsistent with the foregoing intent shall be inoperative and shall interpret
and administer the provisions of the Plan or any Agreement in a manner
consistent therewith. Any provisions inconsistent with the foregoing intent
shall be inoperative and shall not affect the validity of the Plan.
(c) Unless otherwise expressly stated in the relevant Agreement,
each Option granted under the Plan is intended to be performance-based
compensation within the meaning of Section 162(m)(4)(C) of the Code. The
Committee shall not be entitled to exercise any discretion otherwise authorized
hereunder with respect to such Options if the ability to exercise such
discretion or the exercise of such discretion itself would cause the
compensation attributable to such Options to fail to qualify as
performance-based compensation.
12. Pooling Transactions.
Notwithstanding anything contained in the Plan or any Agreement to
the contrary, in the event of a Change in Control which is also intended to
constitute a Pooling Transaction, the Committee shall take such actions, if any,
which are specifically recommended by an independent accounting firm retained by
the Company to the extent reasonably necessary in order to assure that the
Pooling Transaction will qualify as such, including but not limited to (i)
deferring the vesting, exercise, payment or settlement with respect to any
Option, (ii) providing that the payment or settlement in respect of any Option
be made in the form of cash, Shares or securities of a successor or acquired of
the
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Company, or a combination of the foregoing and (iii) providing for the extension
of the term of any Option to the extent necessary to accommodate the foregoing,
but not beyond the maximum term permitted for any Option.
13. Termination and Amendment of the Plan.
The Plan shall terminate on the day preceding the tenth
anniversary of the date of its adoption by the Board and no Option may be
granted thereafter. Subject to Section 6.5, the Board may sooner terminate the
Plan and the Board may at any time and from time to time amend, modify or
suspend the Plan; provided, however, that:
(a) No such amendment, modification, suspension or termination
shall impair or adversely alter any Award theretofore granted under the Plan,
except with the consent of the Optionee or holder of an SAR nor shall any
amendment, modification, suspension or termination deprive any Optionee or
holder of an SAR of any Shares which he or she may have acquired through or as a
result of the Plan; and
(b) To the extent necessary under Section 16(b) of the Exchange
Act and the rules and regulations promulgated thereunder or other applicable
law, no amendment shall be effective unless approved by the stockholders of the
Company in accordance with applicable law and regulations.
14. Non-Exclusivity of the Plan.
The adoption of the Plan by the Board shall not be construed as
amending, modifying or rescinding any previously approved incentive arrangement
or as creating any limitations on the power of the Board to adopt such other
incentive arrangements as it may deem desirable, including, without limitation,
the granting of stock options otherwise than under the Plan, and such
arrangements may be either applicable generally or only in specific cases.
15. Limitation of Liability.
As illustrative of the limitations of liability of the Company,
but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(i) give any person any right to be granted an
Option other than at the sole discretion of the Committee;
(ii) give any person any rights whatsoever with
respect to Shares except as specifically provided in the Plan;
(iii) limit in any way the right of the Company
to terminate the employment of any person at any time; or
(iv) be evidence of any agreement or
understanding, expressed or implied, that the Company will employ any person at
any particular rate of compensation or for any particular period of time.
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16. Regulations and Other Approvals; Governing Law.
16.1 Except as to matters of federal law, this Plan and the rights
of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of New York without giving effect to
conflicts of law principles thereof.
16.2 The obligation of the Company to sell or deliver Shares with
respect to Options granted under the Plan shall be subject to all applicable
laws, rules and regulations, including all applicable federal and state
securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
16.3 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Individuals granted Incentive Stock Options
the tax benefits under the applicable provisions of the Code and regulations
promulgated thereunder.
16.4 Each Option is subject to the requirement that, if at any
time the Committee determines, in its discretion, that the listing, registration
or qualification of Shares issuable pursuant to the Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or the issuance of
Shares, no Options shall be granted or payment made or Shares issued, in whole
or in part, unless listing, registration, qualification, consent or approval has
been effected or obtained free of any conditions as acceptable to the Committee.
16.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration statement
under the Securities Act of 1933, as amended (the "Securities Act"), and is not
otherwise exempt from such registration, such Shares shall be restricted against
transfer to the extent required by the Securities Act and Rule 144 or other
regulations thereunder. The Committee may require any individual receiving
Shares pursuant to an Award granted under the Plan, as a condition precedent to
receipt of such Shares, to represent and warrant to the Company in writing that
the Shares acquired by such individual are acquired without a view to any
distribution thereof and will not be sold or transferred other than pursuant to
an effective registration thereof under said Act or pursuant to an exemption
applicable under the Securities Act as amended, or the rules and regulations
promulgated thereunder. The certificates evidencing any of such Shares shall be
appropriately amended to reflect their status as restricted securities as
aforesaid.
17. Miscellaneous.
17.1 Multiple Agreements. The terms of each Award Granted to an
Eligible Individual may differ from other Awards granted under the Plan at the
same time, or at some other time. The Committee may also grant more than one
Award to a given Eligible Individual during the term of the Plan, either in
addition to, or in substitution for, one or more Awards previously granted to
that Eligible Individual.
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17.2 Withholding of Taxes. (a) At such times as an Optionee or
holder of an SAR recognizes taxable income in connection with the receipt of
Shares or cash hereunder (a "Taxable Event"), the Optionee or holder shall pay
to the Company an amount equal to the federal, state and local income taxes and
other amounts as maybe required by law to be withheld by the Company in
connection with the Taxable Event (the "Withholding Taxes") prior to the
issuance, or release from escrow, of such Shares or the payment of such cash.
The Company shall have the right to deduct from any payment of cash to an
Optionee or holder an amount equal to the Withholding Taxes in satisfaction of
the obligation to pay Withholding Taxes. In satisfaction of the obligation to
pay Withholding Taxes to the Company, the Optionee or holder may make a written
election (the "Tax Election"), which may be accepted or rejected in the
discretion of the Committee to have withheld a portion of the Shares then
issuable to him or her having an aggregate Fair Market Value, on the date
preceding the date of such issuance, equal to the Withholding Taxes, provided
that in respect of an Optionee or holder who may be subject to liability under
Section 16(b) of the Exchange Act either: (i)(A) the Tax Election is made at
least six (6) months prior to the date of the Taxable Event and (B) the Tax
Election is irrevocable with respect to all Taxable Events of a similar nature
occurring prior to the expiration of six (6) months following a revocation of
the Tax Election; or (ii)(A) the Tax Election is made at least six (6) months
after the date the Award was granted, (B) the Award is exercised during the
Window Period and (C) the Tax Election is made during the Window Period in which
the related Award is exercised or prior to such Window Period and subsequent to
the immediately preceding Window Period. Notwithstanding the foregoing, the
Committee may, by the adoption of rules or otherwise, (i) modify the provisions
of this Section 17.2 (other than as regards Director Options) or impose such
other restrictions or limitations on Tax Elections as may be necessary to ensure
that the Tax Elections will be exempt transactions under Section 16(b) of the
Exchange Act, and (ii) permit Tax Elections to be made at such times and subject
to such other conditions as the Committee determines will constitute exempt
transactions under Section 16(b) of the Exchange Act.
(b) If an Optionee makes a disposition, within the meaning of
Section 424(c) of the Code and regulations promulgated thereunder, of any Share
or Shares issued to such Optionee pursuant to the exercise of an Incentive Stock
Option within the two-year period commencing on the day after the date of the
grant or within the one-year period commencing on the day after the date of
transfer of such Share or Shares to the Optionee pursuant to such exercise, the
Optionee shall, within ten (10) days of such disposition, notify the Company
thereof, by delivery of written notice to the Company at its principal executive
office.
17.3 Effective Date. The effective date of the Plan shall be as
determined by the Board, subject only to the approval by the affirmative vote of
the holders of a majority of the securities of the Company present, or
represented, and entitled to vote at a meeting of stockholders duly held in
accordance with the applicable laws of the State of New York within twelve (12)
months of the adoption of the Plan by the Board.
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<PAGE>
Exhibit B
INDEMNIFICATION AGREEMENT
THIS AGREEMENT, dated as of the ____ day of _________, 199_, is made by
and between OXiGENE, Inc., a Delaware corporation having its principal place of
business in the State of New York (the "Company") and _____________ (the
"Indemnitee"), a resident of ________________.
WHEREAS, it is essential to the Company to retain and attract the most
capable persons available as officers, directors and key employees; and
WHEREAS, Indemnitee is currently serving as
_____________________________ (the "Position"); and
WHEREAS, both the Company and Indemnitee recognize the increased risk
of litigation and other claims being asserted against directors and officers of
publicly-traded and other corporations, as a result of which competent and
experienced persons have become more reluctant to serve in such positions, and
as a result of which creative management and decision making has been deterred;
and
WHEREAS, the provision of indemnification will assist the Company in
attracting and retaining the most skilled and competent officers and directors;
and
WHEREAS, in recognition of Indemnitee's need for substantial protection
against personal liability in order to allow Indemnitee to continue to provide
service to the Company in an effective manner, the Company wishes to provide in
this Agreement for the indemnification of the Indemnitee and for the advancing
of expenses to Indemnitee, in each case to the full extent permitted by law and
as set forth in this Agreement.
NOW THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee agree as follows:
1. Agreement to Serve. Indemnitee will continue to serve faithfully and
to the best of his ability in the Position, at the will of the Company or
pursuant to the terms of any separate agreement which may exist, so long as he
is duly elected or appointed and qualified or until such time as he tenders his
resignation in writing.
2. Right to Indemnification. In the event Indemnitee was or is made a
party or was or is threatened to be made a party to or was or is involved or
called as a witness in any action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes may lead to the institution of such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative or investigative, and any appeal therefrom (hereinafter,
collectively a "Proceeding"), by reason of the fact that he was, is or had
agreed to become a director, officer, employee, agent, fiduciary or Delegate (as
defined herein) of the Company, Indemnitee shall be indemnified and held
harmless by the
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Company to the fullest extent permitted under the Delaware General Corporation
Law (the "DGCL"), as the same now exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Company to provide broader indemnification rights than the DGCL permitted
the Company to provide prior to such amendment) against all expenses (including
reasonable attorneys' fees and all other costs, expenses, liabilities,
obligations and disbursements in connection with investigating, prosecuting,
defending, preparing to prosecute and defend, or being a witness or other
participant in any Proceeding), liabilities and losses (including, but not
limited to, judgements; fines; liabilities under ERISA for damages, excise taxes
or penalties; damages, fines or penalties arising out of violation of any law
related to the protection of the public health, welfare or the environment; and
amounts paid or to be paid in settlement) incurred or suffered by such person in
connection with any Proceeding (collectively, "Expenses"); provided, that except
as provided in Section 6 hereof, the Company shall indemnify any such person
seeking indemnity in connection with a Proceeding (or part thereof) initiated by
such person only if such Proceeding (or part thereof) was authorized by the
Board of Directors of the Company.
For purposes of this Agreement, a "Delegate" is any person serving at
the request of the Company as a director, officer, trustee fiduciary, partner,
employee or agent of an entity or enterprise other than the Company (including,
but not limited to, service with respect to employee benefit plans and trusts).
3. Expenses. Expenses incurred by Indemnitee in defending or otherwise
being involved in a Proceeding shall be paid by the Company in advance of the
final disposition of such Proceeding, including any appeal therefrom, upon
receipt of an undertaking (the "Undertaking") by or on behalf of Indemnitee to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Company; provided, that in connection with a Proceeding
(or part thereof) initiated by Indemnitee, except as provided in Section 6
hereof, the Company shall pay such Expenses in advance of the final disposition
only if such Proceeding (or part thereof) was authorized by the Board of
Directors of the Company. The Undertaking shall provide that if Indemnitee has
commenced Proceedings in a court of competent jurisdiction to secure a
determination that he should be indemnified by the Company, he shall not be
obligated to repay the Company during the pendency of such Proceeding.
4. Mandatory Payment of Expenses. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense or any Proceeding or in the defense of any claim,
issue or matter therein, Indemnitee shall be indemnified against all Expenses
incurred by Indemnitee in connection therewith.
5. Notice. Indemnitee shall, as a condition precedent to Indemnitee's
right to be indemnified under this Agreement, give the Company notice in writing
as soon as practicable of any Proceeding for which indemnification will or could
be sought under this Agreement.
6. Protection of Rights. If a claim under Section 2 or any agreement
("Other Agreement") providing indemnification to Indemnitee is not promptly paid
in full by
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<PAGE>
the Company after a written claim has been received by the Company or if
Expenses pursuant to Section 3 or an Other Agreement have not been promptly
advanced after a written request for such advancement accompanied by the
Undertaking has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or the advancement of Expenses. If successful, in whole or in part, in
such suit Indemnitee shall also be entitled to be paid the reasonable expense
thereof. It shall be a defense to any such action (other than an action brought
to enforce a claim for Expenses incurred in defending any Proceeding in advance
of its final disposition where the required Undertaking has been tendered to the
Company) that Indemnitee has not met the standards of conduct which make it
permissible under the DGCL for the Company to indemnify Indemnitee for the
amount claimed, but the burden of proving such defense shall be on the Company.
Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
that indemnification of Indemnitee is proper in the circumstances because he has
met the applicable standard of conduct required under the DGCL, nor the actual
determination by the Company (including its Board of Directors, independent
legal counsel, or its stockholders) that Indemnitee had not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that Indemnitee had not met the applicable standard of conduct.
If a Change of Control has occurred, Indemnitee upon making a claim
under Section 2 or seeking to avoid repayment to the Company pursuant to an
Undertaking under Section 3 shall have (i) the right, but not the obligation, to
have a determination made by independent legal counsel as to whether
indemnification of the claimant is proper because he or she has met the
applicable standard of conduct required under the DGCL; and (ii) shall have the
right to select as independent legal counsel for such purpose any law firm as
designated (or within a category designated) for such purpose in a resolution
adopted by the Board of Directors of the Company prior to the Change of Control
and in full force and effect immediately prior to the Change of Control. If a
determination has been made in accordance with the preceding sentence, no
determination inconsistent therewith by other legal counsel, by the Board of
Directors, or by stockholders shall be of any force or effect, provided however,
that Indemnitee shall maintain all rights granted hereby to bring an action as
specified in the preceding paragraph.
A "Change of Control" shall be deemed to have occurred if (i)
individuals who as of June 15, 1996 constitute the Board of Directors of the
Company (the "Incumbent Directors") cease for any reason to constitute at least
a majority of the Board of Directors of the Company, or (ii) there is a merger,
consolidation or reorganization ("Merger") of the Company in which the Company
is not the surviving entity (the "Survivor") and at any time following such
Merger, Incumbent Directors do not constitute a majority of the Board of
Directors of the Survivor; provided that any individual who becomes a director
after June 14, 1996 whose election, or nomination for election by the Company's
stockholders was approved by a vote or written consent of at least two-thirds of
the directors then comprising the Incumbent Directors shall be deemed to be an
Incumbent Director, but excluding, for this purpose, any such individual whose
initial assumption of office is in connection with an actual or threatened
election contest (as such term is used in Rule 14a-11 under the Securities
Exchange Act of 1934, as amended) relating to the election of the directors of
the Company.
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<PAGE>
7. No Presumption. For purposes of this Agreement, the termination of
any Proceeding, by judgement, order, settlement (whether with or without court
approval) or conviction, or upon a plea of nolo contendere or its equivalent,
shall not create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined
that indemnification or contribution is not permitted by applicable law.
8. Non-Exclusivity of Rights. The rights conferred on Indemnitee by
this Agreement shall not be exclusive of any other right which Indemnitee may
have or hereafter acquire under any statute, provision of the Company's Restated
Certificate of Incorporation or By-Laws, other agreement, vote of stockholders
or directors or otherwise.
9. Selection of Counsel. In the event the Company shall be obligated
hereunder to pay the Expenses of any Proceeding, the Company shall be entitled
to assume the defense of such Proceeding with counsel approved by Indemnitee,
which approval shall not be unreasonably withheld, upon the delivery to
Indemnitee of written notice of its election so to do. After delivery of such
notice, approval of such counsel by Indemnitee and the retention of such counsel
by the Company, the Company will not be liable to Indemnitee under this
Agreement for any fees of counsel subsequently incurred by Indemnitee with
respect to the same Proceeding; provided that, (i) Indemnitee shall have the
right to employ Indemnitee's counsel in any such Proceeding at Indemnitee's
expense and (ii) if (A) the employment of counsel by Indemnitee has been
previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there is a conflict of interest between the Company and
Indemnitee in the conduct of any such defense, or (C) the Company shall not
continue to retain such counsel to defend such Proceeding, then the fees and
expenses of Indemnitee's counsel shall be at the expense of the Company. The
Company shall have the right to conduct such defense as it sees fit in its sole
discretion, including the right to settle any claim against Indemnitee at the
Company's expense without the consent of the Indemnitee.
10. Subrogation. In the event of any payment under this Agreement to
Indemnitee, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee, who shall execute all papers required
and shall do everything that may be necessary to secure such rights, including
execution of such documents as are necessary to enable the Company to bring suit
to enforce such rights.
11. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:
(a) Excluded Action or Omissions. To indemnify Indemnitee for Expenses
resulting from acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification under applicable law; and
(b) Claims under Section 16(b). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or any similar successor
statute.
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<PAGE>
12. Amended; Waiver. No provision of this Agreement may be amended or
modified except with the consent in writing of Indemnitee and the Company, nor
may any provision of this Agreement be waived except in writing by the party
granting such waiver. A waiver of any provision hereof shall not be deemed a
waiver of any other provision hereof. Failure of either of the parties hereto to
insist upon strict compliance with any provision hereof shall not be deemed to
be a waiver of such provision or any other provision hereof.
13. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Proceeding to the
extent Indemnitee has otherwise actually received payment under any insurance
policy, statute, provision of the Company's Restated Certificate of
Incorporation or By-Laws, other agreement, vote of stockholders or directors or
otherwise of the amounts otherwise indemnifiable.
14. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in connection with any Proceeding, but not,
however, for all of the total amount thereof, the Company shall nevertheless
indemnify Indemnitee for the portion of such Expenses to which Indemnitee is
entitled.
15. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns (including, without limitation, any successor by
purchase, merger, consolidation, reorganization or otherwise to all of
substantially all of the business and/or assets of the Company) and their
spouses, heirs, and personal and legal representatives.
16. Term. The provisions of this Agreement shall be applicable to all
Proceedings, regardless of when commenced and regardless of whether relating to
events, acts or omissions occurring before, on or after the date on which this
Agreement becomes effective. This Agreement shall continue in effect regardless
of whether Indemnitee continues to serve in the Position; provided, however,
that notwithstanding any other provision hereof, the Company shall have no
obligations hereunder with respect to liability, losses and Expenses of any
Proceeding to the extent that such liability, losses and Expenses relate to
conduct of the Indemnitee which occurs after Indemnitee no longer holds the
Position nor a position of a corporate officer or director of the Company.
17. Severability. If this Agreement or any portion hereof shall be
invalidated or held to be unenforceable, such invalidity or unenforceability
shall not affect the other provisions hereof, and this Agreement shall be deemed
to be modified to the minimum extent necessary to avoid such invalidity or
unenforceability, and as so modified this Agreement and the remaining provisions
hereof shall remain valid and enforceable in accordance with their terms to the
fullest extent permitted by law.
18. Notice. All notices and other communications hereunder shall be in
writing and delivered by hand or by first class registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
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If to the Indemnitee:
If to the Company:
OXiGENE, Inc.
110 East 59th Street
New York, NY 10022
Attention: President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
19. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the state of Delaware, without
regard to the principles thereof respecting conflicts of law.
20. Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
21. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument originals.
IN WITNESS WHEREOF, Indemnitee and the Company, pursuant to the
authorization of its Board of Directors, execute this Agreement on the date
stated below.
OXiGENE, Inc.
By:
Title:
Date:
INDEMNITEE
Name:
Date:
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