SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OXiGENE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-3679168
(I.R.S. employer identification no.)
One Copley Place, Suite 602, Boston MA 02116
- - ----------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
1996 Stock Incentive Plan
(Full title of the plan)
Gerald A. Eppner, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
(Name and address of agent for service)
(212) 504-6000
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
=======================================================================================
<CAPTION>
Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate registration
to be registered registered per share(1) offering price(1) fee
- - ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 1,260,419 $28.8125 $18,895,004 $4,989
=======================================================================================
</TABLE>
(1) Of the shares being registered, 12,000 shares are being offered at $6.00
per share, 16,000 shares are being offered at $8.50 per share, 186,804
shares are being offered at $8.9375 per share, 8,000 shares are being
offered at $9.00 per share, 2,000 shares are being offered at $9.438 per
share, 184,431 shares are being offered at $10.00 per share, 58,500 shares
are being offered at $10.25 per share, 55,569 shares are being offered at
$10.50 per share, 45,000 shares are being offered at $12.00 per share,
30,000 shares are being offered at $22.125 per share, and 100,000 shares
are being offered at $28.8125 per share. In addition, 552,115 shares are
to be offered at prices not presently determinable. Pursuant to Rule
457(h), the offering price of such 552,115 shares is estimated solely for
the purpose of determining the registration fee and is based on the
average of the bid and asked prices of the Common Stock (approximately
$17.625) quoted on The Nasdaq Stock Market, Inc. National Market on
December 9, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to employees who have been granted awards under the 1996 Stock
Incentive Plan, as amended (the "Plan"), of OXiGENE, Inc., a Delaware
corporation (the "Registrant"), and are not being filed with, or included in,
this Registration Statement on Form S-8 (the "Registration Statement") in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given to employees who have been granted awards under the Plan and are
not being filed with, or included in, this Registration Statement in accordance
with the rules and regulations of the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, as amended by Form 10-K/A-1, filed with the Commission on
April 30, 1999.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999.
(5) The Registrant's Current Report on Form 8-K, filed with the Commission
on February 17, 1999.
(6) The Registrant's Current Report on Form 8-K, filed with the Commission
on October 6, 1999.
(7) The Registrant's Current Report on Form 8-K, filed with the Commission
on December 8, 1999.
(8) The description of the shares of common stock, par value $.01 per
share (the "Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A filed with the Commission on June 24, 1993 (File Number 0-21990)
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference the description of the
shares of Common Stock contained in the Registration Statement on Form S-1 (File
Number 33-64968) filed by the Registrant on June 24, 1993 and declared effective
by the Commission on August 25, 1993, and any amendment or report filed with the
Commission for purposes of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment, which indicates
that all securities offered have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
2
<PAGE>
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the Delaware General Corporation Law,
as amended (the "DGCL"), which provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation in such capacity of another corporation or
business organization. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such director, officer, employee or agent in connection with such
action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interest of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of a corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the DGCL, which enables a
corporation in its certificate of incorporation to eliminate or limit the
personal liability of a director for monetary damages for violations of a
director's fiduciary duty, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (providing for
liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from which the director
derived an improper personal benefit.
Article Ninth of the Registrant's Restated Certificate of Incorporation
and Article IX, Section 3 of the Registrant's By-laws provide for the
elimination of personal liability of a director for breach of fiduciary duty as
permitted by Section 102(b)(7) of the DGCL, and provide that the Registrant
indemnify its directors and officers to the full extent permitted by Section 145
of the DGCL.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
4.2 OXiGENE, Inc. 1996 Stock Incentive Plan, as amended.
3
<PAGE>
4.3* Restated Certificate of Incorporation as filed with the Secretary of
State of the State of Delaware on April 27, 1993, and as amended on
June 22, 1995.
4.4** By-Laws, as amended through April 26, 1993.
5 Opinion of Cadwalader, Wickersham & Taft regarding the legality of
the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cadwalader, Wickersham & Taft (included in, and
incorporated by reference to, Exhibit 5 hereto).
* Included in, and incorporated by reference to, the IPO Registration
Statement and the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, as amended by Form 10-K/A-1, as
filed with the Commission on April 30, 1996.
** Included in, and incorporated by reference to, Registrant's
Registration Statement on Form S-1 (File Number 33-64968) filed with
the Commission on June 24, 1993 and declared effective on August 25,
1993 (the "IPO Registration Statement").
Item 9. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 ("Securities Act"), each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered hereby which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act of 1934) that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Registrant of expenses
incurred or paid by a director, officer or controlling person of Registrant in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the
4
<PAGE>
Registrant 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 Securities Act and will be governed by the final adjudication
of such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stockholm, Sweden or in the City of New York, State
of New York, on this 13th day of December 1999.
OXiGENE, INC.
By: /s/ Bjorn Nordenvall
------------------------------------
Bjorn Nordenvall
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 13, 1999.
Signature Title
/s/ Bjorn Nordenvall President, Chief Executive Officer
- ----------------------- and Director (principal executive
Bjorn Nordenvall officer)
/s/ Bo Haglund Chief Financial Officer
- -----------------------
Bo Haglund
Director
- -----------------------
Marvin H. Caruthers
/s/ Michael Ionata Director
- ----------------------
Michael Ionata
<PAGE>
/s/ Arthur Laffer Director
- -----------------------
Arthur Laffer
Director
- -----------------------
Ronald W. Pero
Director
- -----------------------
Per-Olof Soderberg
/s/ Gerald A. Eppner Director
- -----------------------
Gerald A. Eppner
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page Number
4.2 OXiGENE, Inc. 1996 Stock Incentive Plan, as amended.
4.3* Restated Certificate of Incorporation as filed with the Secretary of
State of the State of Delaware on April 27, 1993, and as amended on
June 22, 1995.
4.4** By-Laws, as amended through April 26, 1993.
5 Opinion of Cadwalader, Wickersham & Taft regarding the legality of
the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cadwalader, Wickersham & Taft (included in, and
incorporated by reference to, Exhibit 5 hereto).
- - -----------------------
* Included in, and incorporated by reference to, the IPO Registration
Statement and the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, as amended by Form 10-K/A-1, as
filed with the Commission on April 30, 1996.
** Included in, and incorporated by reference to, the Registrant's
Registration Statement on Form S-1 (File Number 33-64968) filed with
the Commission on June 24, 1993 and delared effective on August 25,
1993 (the "IPO Registration Statement").
OXiGENE, INC.
1996 STOCK INCENTIVE PLAN
(As Amended Through November 12, 1998)
<PAGE>
TABLE OF CONTENTS
Page
1. Purpose................................................................1
2. Definitions............................................................1
3. Administration.........................................................4
4. Stock Subject to the Plan..............................................5
5. Discretionary Option Grants for Eligible Individuals...................6
5.1 Authority of Committee............................................6
5.2 Purchase Price....................................................6
5.3 Maximum Duration..................................................6
5.4 Vesting...........................................................6
5.5 Modification......................................................6
6. Option Grants for Nonemployee Directors................................7
6.1 Grant.............................................................7
6.2 Purchase Price....................................................7
6.3 Vesting...........................................................7
7. Terms and Conditions Applicable to All Options.........................8
7.1 Duration..........................................................8
7.2 Transferability...................................................8
7.3 Method of Exercise................................................9
7.4 Rights of Optionees...............................................9
7.5 Effect of Change in Control......................................10
8. Stock Appreciation Rights.............................................10
8.1 Time of Grant....................................................10
8.2 Stock Appreciation Right Related to an Option....................10
(a) Exercise...................................................10
(b) Amount Payable.............................................11
(c) Treatment of Related Options and Stock Appreciation
Rights Upon Exercise......................................11
8.3 Stock Appreciation Right Unrelated to an Option..................11
8.4 Method of Exercise...............................................11
8.5 Form of Payment..................................................12
8.6 Modification.....................................................12
8.7 Effect of Change in Control......................................12
9. Adjustment Upon Changes in Capitalization.............................12
10. Effect of Certain Transactions........................................13
i
<PAGE>
11. Interpretation........................................................13
12. Pooling Transactions..................................................13
13. Termination and Amendment of the Plan.................................14
14. Non-Exclusivity of the Plan...........................................14
15. Limitation of Liability...............................................14
16. Regulations and Other Approvals; Governing Law........................15
17. Miscellaneous.........................................................16
17.1 Multiple Agreements.............................................16
17.2 Withholding of Taxes............................................16
17.3 Effective Date..................................................16
ii
<PAGE>
OXiGENE, INC.
1996 STOCK INCENTIVE PLAN
(As Amended Through October 8, 1998)
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 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
<PAGE>
(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 2.1,
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 "Discretionary Option" means an Option granted pursuant to
Section 5.
2.15 "Eligible Individual" means any director, officer or employee
of, or consultant or advisor to, the Company or an Affiliate who is designated
by the Committee as eligible to receive Awards subject to the conditions set
forth herein.
2.16 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
2
<PAGE>
2.17 "Fair Market Value" on any date means the closing price 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 closing price per Share 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 has been no closing price
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.
2.18 "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.
2.19 "Nonemployee Director" means a director of the Company who is
not an employee of the Company or an Affiliate.
2.20 "Nonqualified Stock Option" means an Option which is not an
Incentive Stock Option.
2.21 "Option" means a Nonqualified Stock Option, an Incentive Stock
Option, a Director Option, a Discretionary Option or any or all of them.
2.22 "Optionee" means a person to whom an Option has been granted
under the Plan.
2.23 "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.
2.24 "Parent" means any corporation which is a parent corporation
(within the meaning of Section 424(e) of the Code) with respect to the Company.
2.25 "Plan" means the OXiGENE, Inc. 1996 Stock Incentive Plan.
2.26 "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.
2.27 "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.
2.28 "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.
2.29 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
3
<PAGE>
2.30 "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.
2.31 "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 both
a "non-employee director" (within the meaning of Rule 16b-3(b)(3) under the
Exchange Act) 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. Notwithstanding the foregoing, the
full Board may administer the Plan if the Board deems such action necessary or
desirable. In such case the Board shall be substituted for the Committee herein.
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 Discretionary
Options shall be granted under the Plan and the number of Discretionary Options
to be granted and to prescribe the terms and conditions (which need not be
identical) of each such Discretionary Option, including the purchase price per
Share subject to each Discretionary 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 Awards 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
4
<PAGE>
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;
(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; and
(f) cancel an outstanding Award in connection with the
replacement of such Award, with, where applicable, the consent of the Award
holder, including, without limitation, the cancellation of Director Options and
replacement thereof with Discretionary Options.
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 1,500,000; 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 Award, the number of Shares available
under Section 4.1 for the granting of further Awards shall be reduced by the
number of Shares subject to such Award granted. Whenever any outstanding Award
or portion thereof expires, is canceled or is otherwise terminated for any
reason without having been exercised or payment having been made in respect of
the entire Award, the Shares allocable to the expired, canceled or otherwise
terminated portion of the Award may again be the subject of Awards granted
hereunder.
5. Discretionary 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 receive Discretionary Options, the terms and conditions of
which shall be set forth in an Agreement; provided, however, that no person
shall receive an Incentive Stock Option unless he or she is an employee of the
Company, a Parent or a Subsidiary at the time the Incentive Stock Option is
granted.
5
<PAGE>
5.2 Purchase Price. The purchase price or the manner in which the
purchase price is to be determined for Shares under each Discretionary 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. Discretionary 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 Discretionary
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, each Discretionary Option shall
become exercisable either immediately or 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 and from time to time after
becoming exercisable, but not later than the date the Discretionary Option
expires. Shares purchased pursuant to the exercise of a Discretionary Option
shall, to the extent designated by the Committee, remain subject to forfeiture
in the event that the Optionee's employment or service is terminated before such
Shares have become non-forfeitable and such Shares shall become non-forfeitable,
in whole or in such portions, and at such times, as shall be designated by the
Committee. The Committee may at any time accelerate the exercisability of any
Option or portion thereof or the non-forfeitability of any Shares purchased
pursuant to the exercise of an Option.
5.5 Modification. No modification of an Discretionary Option shall
adversely alter or impair any rights or obligations under the Discretionary
Option without the Optionee's consent.
6. Option Grants for Nonemployee Directors.
6.1 Grant. With respect to periods before October 8, 1998, 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 to each Nonemployee Director who is first elected as
a director at such meeting. Thereafter, subject to Section 6.3 and so long as
Options remain available for grant, each Nonemployee Director who first becomes
a director on or after October 8, 1998 shall be granted a Director Option in
respect of 55,000 Shares on the date on which such Director is first elected or
appointed to the Board, whichever is earlier. 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. Nothing herein shall
preclude a Director from waiving his or her right to receive Director Options.
No Director shall receive Director Options with respect to more than 55,000
Shares.
6
<PAGE>
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.
6.3 Vesting. Subject to Section 7.5, each Director Option shall
become exercisable in accordance with the following provisions:
(a) In the case of Options granted to Non-Employee Directors
who on the date of grant are not subject only to Swedish income tax law, each
Director Option shall become exercisable in 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 become
exercisable pursuant to the preceding sentence and the Optionee shall
automatically forfeit the right to exercise that portion of the Director Option
which remains unexercisable.
(b) In the case of Options granted to Non-Employee Directors
who on the date of grant are subject only to Swedish income tax law, each
Director Option shall become exercisable immediately on the date of grant, the
Shares purchased pursuant to the exercise of the Director Option shall become
non-forfeitable in five (5) equal annual installments beginning on the first
anniversary of the date of grant and such Shares shall remain subject to
forfeiture by the Non-Employee Director to the Company in the event the
Non-Employee Director ceases to serve as a Director before such Shares have
become non-forfeitable. If an Optionee ceases to serve as a Director for any
reason, the Optionee shall have no rights with respect to that portion of such
Shares purchased pursuant to the exercise of the Director Option which has not
then become non-forfeitable pursuant to the preceding sentence, the Optionee
shall automatically forfeit that portion of such Shares which remains
forfeitable, the Optionee shall have no rights with respect to that portion of a
Director Option which has not then been exercised and the Optionee shall
automatically forfeit the right to exercise that portion of the Director Option
which has not then been exercised.
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
7
<PAGE>
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 Option may, in the Committee's sole and absolute discretion, set
forth additional or different terms and conditions applicable to Options upon a
termination or change in status of the employment or service of an Eligible
Individual. Such terms and conditions may be determined at the time the Option
is granted or thereafter; provided, however, with respect to Optionees subject
to Section 16 of the Exchange Act, any changes made after an Option is granted
shall be made in accordance with an exemption from Section 16(b).
7.2 Transferability. Except as specifically provided by the
Committee, 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. Notwithstanding the
foregoing, the Committee may provide that an Option that is not an Incentive
Stock Option may be transferred by an Optionee to the Optionee's children,
grandchildren, spouse, one or more trusts for the benefit of such family members
or a corporation (including a limited liability company) or partnership
(including a limited liability partnership) in which such family members and/or
the Optionee are the majority shareholders, members or partners; provided,
however, that the Optionee may not receive any consideration for the transfer.
The holder of an Option transferred pursuant to this section shall be bound by
the same terms and conditions that governed the Option during the period that it
was held by the Optionee. 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
Discretionary Option or at any later
8
<PAGE>
date (up to and including the date of exercise) that the form of payment
acceptable in respect of the exercise of such Discretionary Option may consist
of either of the following (or any combination thereof): (i) cash, (ii) the
transfer of Shares to the Company upon such terms and conditions as determined
by the Committee, (iii) a loan, or (iv) any combination thereof. 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 Discretionary 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 Discretionary Option, an
Optionee will be permitted to surrender for cancellation within sixty (60) days
after such Change in Control, any Discretionary Option or portion of an
Discretionary 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 Discretionary Option or portion thereof surrendered or (2) the Adjusted
Fair Market Value of the Shares subject to the Discretionary 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 Discretionary Option or portion thereof surrendered, over (y) the
aggregate purchase price for such Shares under the Discretionary Option or
portion thereof surrendered; provided, however, that in the case of an
Discretionary 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 Discretionary
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.
9
<PAGE>
8. Stock Appreciation Rights.
The Committee may, in its discretion, either alone or in connection
with the grant of an Discretionary 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 8.7, 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.
(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 canceled 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 canceled 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 8.7), 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
10
<PAGE>
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.
8.6 Modification. No modification of an Award shall adversely alter
or impair any rights or obligations under the Agreement without the holder's
consent.
8.7 Effect of Change in Control. In the event of a Change in
Control, 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. 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
11
<PAGE>
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 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 8.7 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) 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
<PAGE>
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
Award, (ii) providing that the payment or settlement in respect of any Award be
made in the form of cash, Shares or securities of a successor or acquired of the
Company, or a combination of the foregoing and (iii) providing for the extension
of the term of any Award to the extent necessary to accommodate the foregoing,
but not beyond the maximum term permitted for any Award.
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 Award may be granted thereafter.
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 or securities exchange rule, 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 Award other
than at the sole discretion of the Committee;
13
<PAGE>
(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.
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 Award 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 Award or the issuance of
Shares, no Awards 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
14
<PAGE>
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.
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, the Committee may, by the adoption of rules
or otherwise, (i) modify the provisions of this Section 17.2 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.
15
EXHIBIT 5
<PAGE>
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
(212)504-6000
December 14, 1999
OXiGENE, Inc.
110 East 59th Street
New York, NY 10022
Re: OXiGENE, Inc.
Registration of Stock Incentive Plan on Form S-8
Ladies and Gentlemen:
We have acted as counsel for OXiGENE, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form S-8 (the "S-8 Registration Statement"), to which this opinion
is Exhibit 5, and pursuant to which the Company proposes to offer and sell up to
an aggregate of 1,260,419 shares ("Employee Option Shares") of its Common Stock,
par value $0.01 per share ("Common Stock"). You have requested that we furnish
our opinion as to the matters hereinafter set forth.
In rendering the opinions set forth below, we have examined and
relied upon the originals, copies or specimens, certified or otherwise
identified to our satisfaction, of: (i) the Restated Certificate of
Incorporation of the Company, as certified by the Secretary of State of the
State of Delaware on June 3, 1996; (ii) the By-Laws of the Company, as amended
on April 26, 1993; (iii) the resolutions of the Board of Directors of the
Company (the "Board"), dated November 16, 1999 (the "Resolutions"), approving
the filing of the S-8 Registration Statement and ratifying the reservation of
the Employee Option Shares; (iv) the OXiGENE, Inc. 1996 Stock Incentive Plan
(the "Plan"), as amended; and (v) the S-8 Registration Statement.
In such examination we have assumed the genuineness of all
signatures, the authenticity of all documents, certificates and instruments
submitted to us as originals, the conformity to original documents, certificates
and instruments of all documents, certificates and instruments submitted to us
as copies or specimens, the authenticity of the originals of such documents,
certificates and instruments submitted to us as copies or specimens, and the
accuracy of the matters set forth in the documents, certificates and instruments
we reviewed. Except as expressly set forth herein, we have not undertaken any
independent investigation (including, without limitation, conducting any review,
search or investigation of any public files, records or dockets) to determine
the existence or absence of the facts that are material to our opinions, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the Company in connection with the
preparation and delivery of this letter.
We have relied upon the written representations of the Company as to
the accuracy and completeness of (1) the By-Laws of the Company; (2) the Plan;
(3) the S-8 Registration Statement; and (4) the Resolutions. We also have relied
upon the written
<PAGE>
2
OXiGENE, Inc. December 14, 1999
representations of the Company that the Resolutions and the By-Laws of the
Company have not been amended or revoked.
We have also assumed (other than with respect to the Company) that
all documents, certificates and instruments have been duly authorized, executed
and delivered by all parties thereto, that all such parties had the power and
legal right to execute and deliver all such documents, certificates and
instruments, and that such documents, certificates and instruments are valid,
binding and enforceable obligations of such parties.
We express no opinion concerning the laws of any jurisdiction other
than the laws of the State of New York and, to the extent expressly referred to
in this opinion letter, the federal laws of the United States of America. While
we are not licensed to practice law in the State of Delaware, we have reviewed
applicable provisions of the Delaware General Corporation Law as we have deemed
appropriate in connection with the opinions expressed herein. Except as
described, we have neither examined nor do we express any opinion with respect
to Delaware law.
Based upon and subject to the foregoing, we are of the opinion that
all of the Employee Option Shares have been duly authorized for issuance and
when (i) the S-8 Registration Statement shall have become effective, (ii) the
Employee Option Shares shall have been issued in the proposed form, and (iii)
the Employee Option Shares shall have been issued and delivered against payment
therefor as contemplated by the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft
EXHIBIT 23.1
<PAGE>
[CONSENT OF INDEPENDENT AUDITORS]
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1996 Stock Incentive Plan of OXiGENE, Inc., as amended,
of our report dated January 13, 1999, with respect to the consolidated financial
statements of OXiGENE, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
New York, New York
December 8, 1999
