ONCOTELIC THERAPEUTICS, INC.
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Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
of the Securities Exchange Act of 1934
(Amendment No.)
Filed by the Registrant þ
Filed by a Party other than the Registrant o
Check the appropriate box:
Filed by a Party other than the Registrant o
Check the appropriate box:
o
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Preliminary Proxy Statement | o | Confidential, for Use of the Commission | |||||
þ
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Definitive Proxy Statement | permitted by Rule 14a-6(e)(2)) | ||||||
o
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Definitive Additional Materials | |||||||
o
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Soliciting Material Under Rule 14a-12 |
OXiGENE, Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
| þ | No fee required. | |
| o | Fee computed on table below per Exchange Act Rules 14a-6(i) (1) 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 |
| 4) | Proposed maximum aggregate value of transaction: |
| 5) | Total fee paid: |
| o | Fee paid previously with preliminary materials. | |
| o | 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: |
Table of Contents
701 GATEWAY BOULEVARD, SUITE 210
SOUTH SAN FRANCISCO, CALIFORNIA 94080
SOUTH SAN FRANCISCO, CALIFORNIA 94080
NOTICE OF ANNUAL MEETING OF
STOCKHOLDERS
TO BE HELD ON JUNE 30, 2010
TO BE HELD ON JUNE 30, 2010
TO OUR STOCKHOLDERS:
Please take notice that the 2010 annual meeting of stockholders
of OXiGENE, Inc., a Delaware corporation, will be held on
June 30, 2010, at 10:00 a.m., local time, at the
Company’s offices located at 701 Gateway Boulevard,
Suite 210, South San Francisco, California 94080, for
the following purposes:
1. To elect seven members to the Board of Directors to hold
office until the 2011 annual meeting of stockholders and until
their successors are duly elected and qualified;
2. To approve the issuances of shares of our common stock
and warrants to purchase shares of our common stock to certain
accredited investors (the “Buyers”) pursuant to the
Securities Purchase Agreement, dated as of March 10, 2010,
by and between the Company and the Buyers (the “Securities
Purchase Agreement”), as described in the attached Proxy
Statement, to comply with NASDAQ Marketplace Rule 5635(d);
3. To approve an amendment to our Restated Certificate of
Incorporation to increase the authorized number of shares of our
common stock, $0.01 par value per share, from 175,000,000
to 300,000,000;
4. To ratify the appointment of Ernst & Young LLP
as the Company’s independent registered public accounting
firm for the fiscal year ending December 31, 2010; and
5. To transact such other business as may be properly
brought before the Annual Meeting and any adjournments thereof.
The Board of Directors has fixed the close of business on
May 28, 2010 as the record date for the determination of
stockholders entitled to notice of and to vote at the Annual
Meeting and at any adjournments thereof. A list of stockholders
of record will be available at the meeting and, during the
10 days prior to the meeting, at the office of the
Secretary at the above address.
All stockholders are cordially invited to attend the annual
meeting. Whether you plan to attend the Annual Meeting or
not, you are requested to complete, sign, date and return the
enclosed proxy card as soon as possible in accordance with the
instructions on the proxy card. A pre-addressed, postage prepaid
return envelope is enclosed for your convenience.
BY ORDER OF THE BOARD OF DIRECTORS
Peter J. Langecker, M.D., Ph.D.
Chief Executive Officer
May 28, 2010
TABLE OF
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APPENDIX B — PROXY CARD
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B-1 |
Table of Contents
OXiGENE,
Inc.
701 GATEWAY BOULEVARD, SUITE 210
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 635-7000
701 GATEWAY BOULEVARD, SUITE 210
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 635-7000
PROXY
STATEMENT FOR THE OXiGENE, INC. 2010
ANNUAL
MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 30,
2010
GENERAL
INFORMATION ABOUT THE ANNUAL MEETING
You received this proxy statement and the enclosed proxy card
because our Board of Directors is soliciting your proxy to vote
at the 2010 annual meeting of stockholders and any adjournments
of the Annual Meeting. This Proxy Statement summarizes the
information you need to know to vote at the Annual Meeting. You
do not need to attend the Annual Meeting to vote your shares.
Instead, you may vote your shares by marking, signing, dating
and returning the enclosed proxy card. This Proxy Statement and
the proxy card will be mailed to stockholders on or about
June 2, 2010.
Who Can Vote. Record holders of our common
stock at the close of business on the record date, May 28,
2010, may vote at the Annual Meeting. On May 27, 2010,
approximately 84 record holders held 69,664,000 shares of
our outstanding common stock. Holders of common stock are
entitled to one vote per share on all matters to be voted on by
stockholders.
How Many Votes You Have. Each share of our
common stock that you own entitles you to one vote.
How You Can Vote. You can only vote your
shares if you are either present in person or represented by
proxy at the Annual Meeting. Whether you plan to attend the
Annual Meeting or not, we urge you to complete, sign and date
the enclosed proxy card and to return it promptly in the
envelope provided. Returning the proxy card will not affect your
right to attend the Annual Meeting and vote. If you properly
fill in your proxy card and send it to us in time, the
“proxy” (one of the individuals named on the proxy
card) will vote your shares as you have directed. If you sign
the proxy card but do not make specific choices, the proxy will
vote your shares as recommended by the Board of Directors.
| • | If your shares are held in a stock brokerage account. If your shares are held in a stock brokerage account, by a bank, broker, trustee or other nominee, you are considered the beneficial owner of shares held in street name. Stockholders holding OXiGENE shares in street name through their broker may receive instructions from their broker on internet and/or telephonic voting. These instructions should be followed very closely. | |
| • | In person at the meeting. If you attend the meeting, you may deliver your completed proxy card in person or you may vote by completing the ballot, which will be available at the meeting. |
Recommendation
of the Board of Directors.
The Board of Directors recommends that you vote:
“FOR” the election of the seven director
nominees;
“FOR” approval of the issuance of shares of our
common stock and warrants to purchase shares of our common stock
to certain accredited investors (the “Buyers”)
pursuant to the Securities Purchase Agreement, dated as of
March 10, 2010, by and between the Company and the Buyers
(the “Securities Purchase Agreement”);
“FOR” approval of an amendment to our Restated
Certificate of Incorporation to increase the authorized number
of shares of our common stock, $0.01 par value per share,
from 175,000,000 to 300,000,000, as set forth in the attached
proposed Certificate of Amendment of Restated Certificate of
Incorporation; and
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“FOR” the appointment of Ernst &
Young LLP as the Company’s independent registered public
accounting firm for the fiscal year ending December 31,
2010.
If any other matter is properly presented, the proxy holders
will vote your shares in accordance with their best judgment. At
the time this Proxy Statement was printed, we knew of no matters
that needed to be acted on at the Annual Meeting, other than
those discussed in this Proxy Statement.
Revocation of Proxies. If you return your
proxy card, you may revoke your proxy at any time before it is
exercised. You may revoke your proxy in any one of the following
ways:
| • | by voting in person at the Annual Meeting; | |
| • | by delivering a written notice of revocation before the annual meeting with a date later than your previously delivered proxy card to our principal offices at 701 Gateway Boulevard, Suite 210, South San Francisco, California 94080 Attention — Secretary; or |
• by timely delivering another proxy card dated after the
date of the proxy card that you wish to revoke.
| • | by re-voting your shares by internet or telephone after you return your proxy card (only applicable to beneficial owner of shares held in street name). |
Your most current proxy card, or telephone or Internet vote if
allowed by your broker, is the one that is counted.
How to Vote if You Receive More Than One Proxy
Card. You may receive more than one proxy card or
voting instruction form if you hold shares of our common stock
in more than one account, which may be in registered form or
held in street name. Please vote in the manner described under
“How You Can Vote” for each account to ensure that all
of your shares are voted.
How Your Shares Will Be Voted if You Do Not
Vote. If your shares are registered in your name,
they will not be voted if you do not return your proxy card by
mail or vote as described under “How You Can Vote”. If
your shares are held in street name and you do not provide
voting instructions to the bank, broker or other holder of
record that holds your shares as described above under “How
You Can Vote”, the bank, broker or other holder of record
has the authority to vote your unvoted shares on
Proposals 3 and 4 even if it does not receive any
instructions from you.
In the past, if you held your shares in street name and you did
not indicate how you wanted your shares voted in the election of
directors, your bank, broker or other holder of record was
allowed to vote those shares on your behalf in the election of
directors as it felt appropriate. Recent changes in regulation
were made to take away the ability of your bank, broker or other
record holder to vote your uninstructed shares in the election
of directors on a discretionary basis, and absent your
instructions, no votes will be cast on this proposal on your
behalf. We encourage you to provide voting instructions. This
ensures your shares will be voted at the meeting in the manner
you desire. If your broker cannot vote your shares on a
particular matter because it has not received instructions from
you and does not have discretionary voting authority on that
matter or because your broker chooses not to vote on a matter
for which it does have discretionary voting authority, this is
referred to as a “broker non-vote.”
Confidentiality of Votes. We will keep all the
proxies, ballots and voting tabulations private. We only let our
Inspector of Election, American Stock Transfer &
Trust Company, examine these documents. Management will not
know how you voted on a specific proposal unless it is necessary
to meet legal requirements. We will, however, forward to
management any written comments you make, on the proxy card or
elsewhere.
Voting in Person. If you plan to attend the
Annual Meeting and vote in person, we will give you a ballot
when you arrive. However, if your shares are held in the name of
your broker, bank or other nominee, you must bring an account
statement or letter from the nominee indicating that you were
the beneficial owner of the shares on May 28, 2010, the
record date for determining who is entitled to vote.
Required Votes. With respect to the election
of directors, the nominees for director who receive the most
votes (also known as a “plurality” of the votes) will
be elected. The affirmative vote of a majority of our
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outstanding common stock is required for approval of the
amendment to our Restated Certificate of Incorporation, set
forth as Proposal 3. The affirmative vote of a majority of
the votes cast on each proposal is required for approval of
Proposals 2 and 4.
Broker
Non-Votes, Withholdings and Abstentions.
| • | Broker Non-Votes: If your broker holds your shares in its name and cannot vote your shares on a particular matter because the broker does not have instructions from you or discretionary voting authority on that matter, this is referred to as a “broker non-vote.” Your broker will be entitled to vote your shares on Proposals 3 and 4. Your broker will not be entitled to vote your shares on Proposals 1 and 2. Broker non-votes will be counted towards the vote total for Proposal 3, and will have the same effect as “against” votes. Broker non-votes will have no effect and will not be counted towards the vote total for Proposals 1, 2 and 4. | |
| • | Withholdings: Withholding authority to vote for a nominee for director will have no effect on the results of the vote for directors. | |
| • | Abstentions: Abstentions are not counted towards the vote total for purposes of electing directors and Proposals 2 and 4 and will have no effect on these votes. Abstentions will be counted towards the vote total for Proposal 3 and will have the same effect as “against” votes. |
Quorum. The presence, in person or by proxy,
of the holders of a majority of the outstanding shares of our
common stock is necessary to constitute a quorum at the Annual
Meeting. Votes of stockholders of record who are present at the
meeting in person or by proxy, abstentions, and broker non-votes
are counted for purposes of determining whether a quorum exists.
Householding
of Annual Disclosure Documents.
In December 2000, the Securities and Exchange Commission adopted
a rule concerning the delivery of annual disclosure documents.
The rule allows us or your broker to send a single set of our
annual report and proxy statement to any household at which two
or more of our stockholders reside, if we or your broker believe
that the stockholders are members of the same family. This
practice, referred to as “householding,” benefits both
you and OXiGENE. It reduces the volume of duplicate information
received at your household and helps to reduce OXiGENE’s
expenses. The rule applies to our annual reports, proxy
statements and information statements. Once you receive notice
from your broker or from us that communications to your address
will be “householded,” the practice will continue
until you are otherwise notified or until you revoke your
consent to the practice. Each stockholder will continue to
receive a separate proxy card or voting instruction card.
If your household received a single set of disclosure documents
this year, but you would prefer to receive your own copy, please
contact our transfer agent, American Stock Transfer &
Trust Company, by calling their toll free number,
1-800-937-5449.
If you do not wish to participate in “householding”
and would like to receive your own set of OXiGENE annual
disclosure documents in future years, follow the instructions
described below. Conversely, if you share an address with
another OXiGENE stockholder and together both of you would like
to receive only a single set of our annual disclosure documents,
follow these instructions:
| • | If your OXiGENE shares are registered in your own name, please contact our transfer agent, American Stock Transfer & Trust Company, and inform them of your request by calling them at 1-800-937-5449 or writing to them at 6201 15th Avenue, Brooklyn, NY 11219. | |
| • | If a broker or other nominee holds your OXiGENE shares, please contact the broker or other nominee directly and inform them of your request. Be sure to include your name, the name of your brokerage firm and your account number. |
Throughout this Proxy Statement, the terms
“OXiGENE,” “WE,” “US,”
“OUR” or “COMPANY” mean OXiGENE,
Inc.
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Electronic
Delivery of Stockholder Communications
Important
Notice Regarding the Availability of Proxy Materials for the
Annual Meeting of Stockholders of OXiGENE, Inc. to Be Held on
June 30, 2010.
| • | The proxy statement, annual report to security holders for the year ended December 31, 2009 and the proxy card are available at the Investor Relations section of our website, www.oxigene.com. | |
| • | The 2010 Annual Meeting of stockholders of OXiGENE, Inc. will be held on June 30, 2010, at 10:00 a.m., local time, at the Company’s offices at 701 Gateway Blvd., Suite 210, South San Francisco, California 94080. | |
| • | The Annual Meeting of stockholders will be held for the following purposes: |
| 1. | To elect seven members to the Board of Directors to hold office until the 2011 annual meeting of stockholders and until their successors are duly elected and qualified; | |
| 2. | To approve the issuances of shares of our common stock and warrants to purchase shares of our common stock to certain accredited investors (the “Buyers”) pursuant to the Securities Purchase Agreement, dated as of March 10, 2010, by and between the Company and the Buyers (the “Securities Purchase Agreement”), as described in the attached Proxy Statement, to comply with NASDAQ Marketplace Rule 5635(d); | |
| 3. | To approve an amendment to our Restated Certificate of Incorporation to increase the authorized number of shares of our common stock, $0.01 par value per share, from 175,000,000 to 300,000,000; and | |
| 4. | To ratify the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2010. |
| • | OXiGENE’s Board of Directors recommends voting “FOR” all of the proposals listed above. | |
| • | You are urged to attend the Annual Meeting and vote in person, but if you are unable to do so, the Board of Directors would appreciate your prompt vote either electronically via the Internet or telephone or via regular mail. We strongly encourage you to vote electronically, if you have that option. |
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PROPOSAL 1 —
ELECTION OF DIRECTORS
Information concerning the nominees for election to the Board of
Directors is set forth below. Each nominee for election to the
Board of Directors 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 2011 annual meeting
of stockholders or until his or her successor is elected. We
will vote your shares as you specify on your proxy card. If you
sign, date and return the proxy card but do not specify how you
want your shares voted, we will vote them FOR the election of
the nominees listed below. If unforeseen circumstances (such as
death or disability) make it necessary for the Board of
Directors to substitute another person for any of the nominees,
we will vote your shares FOR that other person. If we do not
name a substitute nominee, the size of the Board of Directors
will be reduced. We are not aware of any circumstances that
would render any nominee for director unavailable.
Our Board of Directors currently consists of seven members,
including four members who are “Non-Employee
Directors” within the meaning of
Rule 16b-3
under the Securities Exchange Act of 1934, as amended. Under our
by-laws, the number of members of our Board of Directors is
fixed from time to time by the Board of Directors, and directors
serve in office until the next annual meeting of stockholders
and until their successors have been elected and qualified. The
Board of Directors has set the size of the Board of Directors at
seven, effective as of April 2, 2010, and nominated
Mr. Roy Hampton Fickling, Ms. Tamar D. Howson and
Messrs. Mark Kessel, Peter J.
Langecker, M.D., Ph.D., William D.
Schwieterman, M.D., William N. Shiebler and Alastair J.J.
Wood, M.D. for election at the Annual Meeting. The seven
nominees include four members who qualify as independent
directors under the rules of the NASDAQ Stock Market. A
plurality of the shares voted affirmatively at the Annual
Meeting is required to elect each nominee as a director.
Each nominee for election to the Board of Directors is currently
serving as a director. The following information with respect to
each nominee has been furnished to us by that nominee. The ages
of the nominees are as of February 28, 2010.
| ROY HAMPTON FICKLING | ||
| Age: | 44 | |
| Director Since: | 2007 | |
| Principal Occupation: | Mr. Fickling has been the owner and President of Fickling & Company, Inc., a Macon, Georgia-based regional real estate development, brokerage, management and consulting firm, since October 1993. | |
| Business Experience: | Mr. Fickling was a founding Director of Rivoli Bank & Trust, of Macon and of Beech Street, U.K., Ltd. of London, England, an international healthcare administration firm. He was a major shareholder and advisor to Beech Street Corporation, the largest private PPO network, prior to its acquisition by Concentra, Inc. in 2005. Prior to forming Fickling & Company, Mr. Fickling was employed by Charter Medical Corporation where he worked in the administration of both a medical surgical hospital and a psychiatric hospital. Mr. Fickling holds a B.A. in Business Administration from the University of Georgia. | |
| Other Directorships: | Mr. Fickling is a member of the board of directors of Piedmont Community Bank (public), and also serves on the board of directors of several closely held investment and operating companies. |
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| Director Qualifications: | The Board highly values Mr. Fickling’s experiences in financial, consulting, healthcare administration, and real estate matters, developed in the course of his career as a senior executive in those industries. The Board believes that these experiences and skills are invaluable characteristics that Mr. Fickling brings to his Board service, and led to the Board’s conclusion that Mr. Fickling should be a member of the Board of Directors. | |
| TAMAR D. HOWSON | ||
| Age: | 61 | |
| Director Since: | 2010 | |
| Principal Occupation: | Ms. Howson is currently a Partner with JSB-Partners, a transaction advisory firm serving the life sciences industry. | |
| Business Experience: | Ms. Howson formerly served as Executive Vice President of Corporate Development for Lexicon Pharmaceuticals. Prior to Lexicon, she served as Senior Vice President of Corporate and Business Development and was a member of the executive committee at Bristol-Myers Squibb. During her tenure there, Ms. Howson was responsible for leading the company’s efforts in external alliances, licensing and acquisitions. Earlier, Ms. Howson served as Senior Vice President and Director of Business Development at SmithKline Beecham. She also managed SR One Ltd., the $100 million venture capital fund of SmithKline Beecham. Ms. Howson has served as an independent business consultant and adviser to companies both in the United States and in Europe. She held the position of Vice President, Venture Investments at Johnston Associates, a venture capital firm, and earlier as Director of Worldwide Business Development and Licensing for Squibb Corporation. Ms. Howson received her M.B.A. in finance and international business from Columbia University. Educated as a chemical engineer, she holds a M.S. from the City College of New York and a B.S. from the Technion in Israel. | |
| Other Directorships: | Ms. Howson currently serves on the boards of Idenix Pharmaceuticals, Inc. (Nasdaq:IDIX), a biopharmaceutical company engaged in the discovery and development of drugs for the treatment of human viral diseases, and S*Bio Pte Ltd. She also serves as a consultant to Pitango Venture Fund and is a member of the advisory board to Triana Venture Partners. She previously served on the boards of Ariad Pharmaceuticals, SkyePharma, NPS Pharma, Targacept, and HBA. | |
| Director Qualifications: | The Board highly values Ms. Howson’s significant business development and life sciences industry expertise, developed through her career as a senior professional at several leading pharmaceutical companies. The Board believes that these characteristics uniquely qualify Ms. Howson to serve as a director of the Company and led to the Board’s conclusion that she should be a member of the Board of Directors. Ms. Howson was appointed to the Board on April 2, 2010. Her appointment was recommended to the Nominating Committee by certain of the executive officers and directors of the Company, including Mr. Kessel and Dr. Langecker, who were familiar with Ms. Howson from her extensive background in the life sciences industry. |
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| MARK KESSEL | ||
| Age: | 68 | |
| Director Since: | 2008 | |
| Principal Occupation: | Mr. Kessel, a Managing Director of Symphony Capital LLC, co-founded Symphony in 2002 and is widely recognized as the leader in structuring product development investments for the biopharmaceutical industry. | |
| Business Experience: | Mr. Kessel was formerly the Managing Partner of Shearman & Sterling LLP, with day-to-day operating responsibility for this large international law firm. He received a B.A. with honors in Economics from the City College of New York and a J.D. magna cum laude from Syracuse University College of Law. Mr. Kessel has written on financing for the biotech industry for Nature Reviews Drug Discovery, Nature Biotechnology and other publications, and on issues related to governance and audit committees for such publications as The Wall Street Journal, Financial Times, The Deal and Euromoney. | |
| Other Directorships: | Mr. Kessel is a director and Chairman of Symphony Icon, Inc., and a director of Symphony Dynamo, Inc., all Symphony portfolio companies. In addition, Mr. Kessel is a director of the Global Alliance for TB Drug Development, Fondation Santé and the Biotechnology Industry Organization. | |
| Director Qualifications: | The Board believes that Mr. Kessel’s leadership and expertise in matters of strategic transactions and financing for life sciences companies, coupled with his extensive executive management experience leading one of the world’s premier professional services organizations, uniquely qualify Mr. Kessel to serve as a director of the Company and led to the Board’s conclusion that Mr. Kessel should be a member of the Board of Directors. | |
| PETER J. LANGECKER, M.D., PH.D. | ||
| Age: | 59 | |
| Director Since: | 2010 | |
| Principal Occupation: | Dr. Langecker joined OXiGENE as Executive Vice President and Chief Development Officer in June 2009 and was appointed Chief Executive Officer in October 2009. | |
| Business Experience: | Dr. Langecker served as Chief Medical Officer of DURECT Corporation from May 2006 until June 2009. Prior to joining DURECT, Dr. Langecker served as Chief Medical Officer and Vice President of Clinical Affairs at Intarcia Therapeutics, Inc. from October 1999 to April 2006. Prior to that, Dr. Langecker was Vice President of Clinical Affairs at Sugen, Inc. from 1997 to 1999, Vice President, Clinical Research at Coulter Pharmaceuticals from 1995 to 1997 and Director of Clinical Research, Oncology, at Schering-Plough from 1992 to 1995. Previously, Dr. Langecker worked as a Project Physician-Central Medical Advisor, Oncology at Ciba-Geigy (now Novartis) in Basel, Switzerland. He received his M.D. degree and |
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| his doctorate in medical sciences from the Ludwig-Maximilians University in Munich. | ||
| Director Qualifications: | The Board believes that Dr. Langecker’s medical and scientific training, developed through his extensive career as a life sciences industry executive, uniquely qualify Dr. Langecker to serve as a director of the Company and led to the Board’s conclusion that Dr. Langecker should be a member of the Board of Directors. | |
| WILLIAM D. SCHWIETERMAN, M.D. | ||
| Age: | 51 | |
| Director Since: | 2007 | |
| Principal Occupation: | Dr. Schwieterman has been an independent consultant to biotech and pharmaceutical companies specializing in clinical development since July 2002. | |
| Business Experience: | Dr. Schwieterman is a board-certified internist and a rheumatologist who was formerly Chief of the Medicine Branch and Chief of the Immunology and Infectious Disease Branch in the Division of Clinical Trials at the FDA. In these capacities and others, Dr. Schwieterman spent 10 years at the FDA in the Center for Biologics overseeing a wide range of clinical development plans for a large number of different types of molecules. Dr. Schwieterman holds a B.S. and M.D. from the University of Cincinnati. | |
| Director Qualifications: | The Board believes that Dr. Schwieterman’s medical training and his expertise with regulatory matters involving the Food and Drug Administration and the clinical trials process, are invaluable skills that Dr. Schwieterman brings to his Board service, and led to the Board’s conclusion that Dr. Schwieterman should be a member of the Board of Directors. | |
| WILLIAM N. SHIEBLER | ||
| Age: | 67 | |
| Director Since: | 2002; Chairman of the Board since May 2009 | |
| Principal Occupation: | Mr. Shiebler is a principal in two family investment businesses — Tree Tops Investment LLC and Tree Tops Corporation LLC. | |
| Business Experience: | From March 2002 to March 2007, Mr. Shiebler was the Advisory Vice Chairman and CEO of the Americas of Deutsche Asset Management, the asset arm of Deutsche Bank. Prior to joining Deutsche Bank, Mr. Shiebler was the President and CEO of Putnam Mutual Funds and prior to that he was President and COO of Dean Witter’s Intercapital Division. | |
| Other Directorships: | Mr. Shiebler is a non-executive Chairman and a Director of Nextalk, Inc. (private), a director of Sallie Mae Bank in Murray Utah (a subsidiary of Sallie Mae, Inc.) and an advisory board member of several corporations. Mr. Shiebler is currently a Trustee of the U.S. Ski and Snowboard Team Foundation, among other charitable and community organizations and privately held entities. Previously, Mr. Shiebler was a trustee or director of a number of other |
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| corporate and community organizations, including the Salt Lake Olympic Committee and Kean University. Mr. Shiebler was also a member of the Presidential Commission on Medicaid. | ||
| Director Qualifications: | The Board believes that Mr. Shiebler’s financial acumen, executive leadership skills, and his extensive experience developed in the course of his career as a senior executive in the financial services industry, uniquely qualify Mr. Shiebler to serve as a director of the Company and led to the Board’s conclusion that Mr. Shiebler should be a member of the Board of Directors. | |
| ALASTAIR J.J. WOOD, M.D. | ||
| Age: | 63 | |
| Director Since: | 2008 | |
| Principal Occupation: | Dr. Wood, a Managing Director of Symphony Capital LLC, has worked with Symphony since its inception, initially as Chairman of Symphony’s Clinical Advisory Council, and joined the firm full-time in September 2006 as a Managing Director. | |
| Business Experience: | Prior to joining Symphony Capital LLC full-time, Dr. Wood completed more than 30 years at Vanderbilt University School of Medicine, most recently as Associate Dean of External Affairs, where he was also Attending Physician and Tenured Professor of Medicine and Pharmacology. Dr. Wood is currently Professor of Medicine (courtesy appointment) and Professor of Pharmacology (courtesy appointment) at Weill Cornell Medical School, appointments served in an unpaid capacity. Dr. Wood has written or co-authored more than 300 scientific papers and won numerous honors including election to the National Academy of Sciences’ Institute of Medicine. He was until 2006 the chairman of the FDA’s Nonprescription Drugs Advisory Committee, and recently chaired the FDA Advisory Committee on Cox-2 inhibitors. He previously served as a member of the Cardiovascular and Renal Advisory Committee of the FDA, and the FDA’s Nonprescription Drugs Advisory Committee. Dr. Wood has been a member of and chaired National Institutes of Health study sections, served on the editorial boards of four major journals, and between 1992 and 2004 was the Drug Therapy Editor of The New England Journal of Medicine. Most recently, he was named to the Board of the Critical Path Institute. He earned his medical degree at the University of St. Andrews. | |
| Other Directorships: | Dr. Wood is a director of Symphony Evolution, Inc. and a member of the Development Committees of Symphony Dynamo, Inc., Symphony Allegro, Inc. and Symphony Icon, Inc., all Symphony portfolio companies. | |
| Director Qualifications: | The Board believes that Dr. Wood’s medical training and expertise in drug development, combined with his prior service as a member of several advisory committees to the Food and Drug Administration, uniquely qualify Dr. Wood to serve as a director of the Company and led to the Board’s conclusion that Dr. Wood should be a member of the Board of Directors. |
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THE BOARD OF DIRECTORS RECOMMENDS THE ELECTION TO THE BOARD
OF DIRECTORS OF EACH DIRECTOR NOMINEE NAMED ABOVE, AND PROXIES
SOLICITED BY THE BOARD WILL BE VOTED IN FAVOR OF THE ELECTION
UNLESS A STOCKHOLDER INDICATES OTHERWISE ON THE PROXY.
PROPOSAL 2 —
TO APPROVE THE ISSUANCES OF SHARES OF OUR COMMON STOCK
AND WARRANTS TO PURCHASE SHARES OF OUR COMMON STOCK TO THE BUYERS PURSUANT TO THE SECURITIES PURCHASE AGREEMENT
AND WARRANTS TO PURCHASE SHARES OF OUR COMMON STOCK TO THE BUYERS PURSUANT TO THE SECURITIES PURCHASE AGREEMENT
We are asking our stockholders to approve issuances of shares of
our common stock to a group of accredited investors pursuant to
a private placement of our common stock and warrants to purchase
our common stock. On March 11, 2010, we raised
approximately $7.5 million in gross proceeds, before
deducting placement agents’ fees and other offering
expenses, in connection with the closing of a private placement
of Company securities, consisting of 6,578,945 shares of
common stock and warrants as follows:
(A) Series A Warrants to initially purchase
6,578,945 shares of common stock, which are exercisable
immediately after issuance, have a
5-year term
and a per share exercise price of $1.52;
(B) Series B Warrants to initially purchase
6,578,945 shares of common stock, which will be exercisable
at a per share exercise price of $1.14 on the earlier of the six
month anniversary of the closing date or the date on which our
stockholders approve the issuance of shares in the transaction
as required by the NASDAQ Marketplace Rules, subject to the
limitations on exercise described below, and shall expire on the
later of three months from April 29, 2010, the effective
date of the resale registration statement covering the
securities issued in the private placement and seven months from
the closing date;
(C) Series C Warrants to initially purchase
6,578,945 shares of common stock, and which would be
exercisable upon the exercise of the Series B Warrants and
on the earlier of the six month anniversary of the closing date
or the date on which our stockholders approve the issuance of
shares in the transaction as required by the NASDAQ Marketplace
Rules, subject to the limitations on exercise described below,
would expire five years after the date on which they become
exercisable, and have a per share exercise price of
$1.14; and
(D) Series D Warrants to purchase shares of our common
stock. The Series D Warrants are not immediately
exercisable as of the date of this filing and the number of
shares of common stock issuable upon exercise of such
Series D Warrants cannot be determined as of the date of
this filing. For purposes of the registration statement covering
the securities issued in the private placement, we have agreed
with the investors that we will register 6,755,157 shares
of common stock issuable upon exercise of the Series D
Warrants. The number of shares of common stock issuable upon
exercise of the Series D Warrants will be determined
following two pricing periods, each of no less than seven
trading days and no more than thirty trading days, as determined
individually by each holder of Series D Warrants. The first
of these pricing periods shall occur after the later of
(x) the date we obtain the approval of our stockholders to
the issuance of the shares in this transaction, as required by
the NASDAQ Marketplace Rules, or the Stockholder Approval Date,
and (y) April 29, 2010, the effective date of the
resale registration statement covering the securities issued in
the private placement. The second of these pricing periods shall
occur after the later of (x) the Stockholder Approval Date
and (y) the date on which the purchasers in the offering
can freely sell their common stock pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended,
without restriction, but only if the number of shares registered
under the resale registration statement and available for
issuance under the Series D Warrants is less than the
number of such shares to which the holders of such warrants are
entitled. We refer to the date the Series D Warrants
initially become exercisable into common stock as the
eligibility date. If during the applicable pricing period, the
arithmetic average of the seven lowest market prices of our
common stock (as reported
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on the NASDAQ Stock Market) is less than the purchase price in
the offering ($1.14), each holder’s Series D Warrants
shall become exercisable based on the following formula:
PP
N = [CS * ----- ] − CS
AP
N = Number of shares of common stock issuable upon exercise of
the Series D Warrants
PP = The aggregate purchase price paid by such holder of
Series D Warrants in the offering (at a per share price of
$1.14 per share)
AP = The average market price of the seven lowest trading days
of our common stock during the applicable pricing period
CS = The number of shares of common stock issued to such holder
of Series D Warrants at the closing of the offering
If the Series D Warrants become exercisable into shares of
common stock as a result of this formula, the Series D
Warrants will become immediately exercisable and will have an
exercise price of $0.001 per share.
The following is a chart showing the aggregate number of shares
of common stock that may become issuable upon exercise of the
Series D Warrants at various average market prices of our
common stock:
|
AP
|
$0.10 | $0.15 | $0.25 | $0.40 | $0.55 | $0.70 | $0.85 | $1.00 | $1.14 | $1.30 | ||||||||||
|
N
|
68,421,055 | 43,421,055 | 23,421,055 | 12,171,055 | 7,057,418 | 4,135,340 | 2,244,584 | 921,055 | 0 | 0 |
AP = The average market price of the seven lowest trading days
of our common stock during the applicable pricing period
N = Number of shares of common stock issuable upon exercise of
the applicable Series D Warrants
The common stock and warrants to purchase common stock were
offered and sold pursuant to a Securities Purchase Agreement,
dated March 10, 2010. In addition, on March 25, 2010,
we entered into Amendment and Exchange Agreements with the
Buyers. In the Amendment and Exchange Agreements, we agreed with
the Buyers upon a number of shares that we would seek to
register for their resale as a part of the resale registration
statement pursuant to the registration rights agreement
described below.
The Series A, Series B and Series C warrants
contain anti-dilution protection upon the issuance of any common
stock, securities convertible into common stock, or certain
other issuances at a price below the then-existing exercise
price of the warrants, with certain exceptions. As of the date
of this document, no such dilutive issuances have occurred. The
warrants contain limitations that prevent the holder of any
warrants from acquiring shares upon exercise of a warrant that
would result in the number of shares beneficially owned by it
and its affiliates exceeding 4.9% of the total number of shares
of our common stock then issued and outstanding, which limit may
be raised to 9.9% upon the request of the holder. Further, we
are prohibited from issuing shares upon exercise of the warrants
if that issuance would cause us to exceed the number of shares
that we are permitted to issue under the NASDAQ Marketplace
Rules described below prior to our obtaining stockholder
approval, as required by those rules, of the issuance of shares
in the offering. Those rules prohibit us from issuing more than
19.9% of our common stock outstanding on the date we entered
into the Purchase Agreement, or 12,526,652 shares, without
receipt of stockholder approval, and so the exercise of the
warrants is also subject to those limitations. As a result of
this limit, we can issue no more than 5,947,707 shares of
common stock upon the exercise of the warrants issued in the
offering prior to receipt of stockholder approval. In addition,
upon certain changes in control of OXiGENE, the holder of a
Series A, Series B or Series C warrant can elect
to receive, subject to certain limitations and assumptions, cash
equal to the Black-Scholes value of the outstanding warrants.
In connection with the offering, we also entered into a
registration rights agreement with the Buyers. Pursuant to the
terms of the registration rights agreement, we granted to the
Buyers certain registration rights related to the shares of
common stock sold in the private placement, including the shares
to be acquired upon
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exercise of the warrants, and the warrants. We may incur
liquidated damages if we do not meet our registration
obligations under the registration rights agreement. We also
agreed to other customary obligations regarding registration,
including indemnification and maintenance of the registration
statement.
We also entered into a voting agreement with Symphony ViDA
Holdings LLC, holder of approximately 39% of the outstanding
shares of our common stock (taking into account the common stock
and warrants to purchase common stock issued pursuant to the
Securities Purchase Agreement dated March 10, 2010). Under
the voting agreement, Symphony agreed to vote to approve the
issuance of shares in the offering at any stockholder meeting to
be called to approve the transaction.
Approval of Issuance of Shares in Excess of 19.9% at
Below-Market Price is Required by NASDAQ
Rules. As a result of our listing on The NASDAQ
Global Market, issuances of our common stock are subject to the
NASDAQ Marketplace Rules, including Rule 5635(d). Upon the
closing of the transaction, we issued 6,578,945 shares of
our common stock and warrants, as described above, to the
Buyers. Upon the exercise of the warrants, we would be required
to issue additional shares of our common stock to the Buyers.
Stockholder approval of the transaction is required under
applicable NASDAQ Marketplace Rules because the issuance of
shares of our common stock upon exercise of warrants will result
in the aggregate number of shares being issued in the
transaction exceeding 19.9% of our common stock outstanding on
the date we entered into the Purchase Agreement at a price below
the greater of the book or market price of our common stock as
of that date. Accordingly, we are seeking approval of the
issuance of shares in the transaction from our stockholders at
the annual meeting of our stockholders. As noted above, the
warrants contain limitations that prevent the holder of any
warrants from acquiring shares upon exercise of a warrant that
would result in the number of shares issued in this offering
exceeding 19.9% of our common stock outstanding on the date we
entered into the Purchase Agreement prior to such stockholder
approval being obtained.
Approval of the issuances of shares of our common stock and
warrants to purchase shares of our common stock to the Buyers
pursuant to the Securities Purchase Agreement requires an
affirmative vote of a majority of the votes cast on the proposal
at the annual meeting. Abstentions and broker non-votes will
have no effect on, and will not be counted towards the vote
total for, this proposal.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO APPROVE THE
ISSUANCES OF SHARES OF OUR COMMON STOCK AND WARRANTS TO
PURCHASE SHARES OF OUR COMMON STOCK TO THE BUYERS PURSUANT
TO THE SECURITIES PURCHASE AGREEMENT.
PROPOSAL 3 —
APPROVAL OF AMENDMENT TO OUR RESTATED CERTIFICATE OF
INCORPORATION TO INCREASE THE AUTHORIZED NUMBER OF SHARES OF OUR COMMON STOCK, $0.01 PAR VALUE PER SHARE, FROM 175,000,000 to 300,000,000
INCORPORATION TO INCREASE THE AUTHORIZED NUMBER OF SHARES OF OUR COMMON STOCK, $0.01 PAR VALUE PER SHARE, FROM 175,000,000 to 300,000,000
The Board of Directors has determined that it is advisable for
general corporate purposes to increase our authorized common
stock, $0.01 par value per share, from
175,000,000 shares to 300,000,000 shares and has voted
to recommend that the stockholders adopt an amendment to our
Restated Certificate of Incorporation affecting the proposed
increase. The full text of the proposed amendment to our
Restated Certificate of Incorporation is attached to this proxy
statement as Appendix A.
As of May 14, 2010, approximately 69,664,000 shares of
our common stock were issued and outstanding (excluding treasury
shares) and approximately an additional 50,730,363 shares
were reserved for issuance upon the conversion of existing
securities and exercise of options or warrants granted under our
various stock-based plans and certain agreements. Accordingly,
approximately 54,605,637 shares of common stock are
available for future issuance. In observation of its obligations
under the Securities Purchase Agreement dated March 10,
2010, the Company tallied the number of common shares reserved
for issuance by calculating 150% of the sum of the common shares
registered for resale pursuant to the
Form S-3
filed by the Company and declared effective on April 29,
2010. These common shares are issuable upon the exercise of the
Series A-D
warrants issued to certain Buyers pursuant to the Securities
Purchase Agreement dated March 10, 2010.
The Board of Directors believes it continues to be in the best
interest of OXiGENE and its stockholders to have sufficient
additional authorized but unissued shares of common stock
available in order to provide
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flexibility for corporate action in the future. Management
believes that the availability of additional authorized shares
for issuance from time to time in the Board of Directors’
discretion in connection with future financings, possible
acquisitions of other companies, investment opportunities or for
other corporate purposes is desirable in order to avoid repeated
separate amendments to our Restated Certificate of Incorporation
and the delay and expense incurred in holding special meetings
of the stockholders to approve such amendments. We currently
have no specific understandings, arrangements, agreements or
other plans to issue, in connection with future acquisitions,
financings or otherwise, any of the additional authorized but
unissued shares that would be available as a result of the
proposed increase in the number of authorized shares of our
common stock. However, the Board of Directors believes that the
currently available unissued shares do not provide sufficient
flexibility for corporate action in the future. Even if the
stockholders approve an increase in the number of OXiGENE’s
authorized shares, OXiGENE reserves the right not to amend the
Restated Certificate of Incorporation if the Board does not deem
such amendment to be in the best interest of OXiGENE and its
stockholders following the annual meeting.
We will not solicit further authorization by vote of the
stockholders for the issuance of the additional shares of common
stock proposed to be authorized, except as required by law,
regulatory authorities or rules of the NASDAQ Stock Market or
any other stock exchange on which our shares may then be listed.
The issuance of additional shares of common stock could have the
effect of diluting existing stockholder earnings per share, book
value per share and voting power. Our stockholders do not have
any preemptive right to purchase or subscribe for any part of
any new or additional issuance of our securities.
The affirmative vote of a majority of the common stock
outstanding and entitled to vote at the Annual Meeting is
required to approve the amendment to our Restated Certificate of
Incorporation to affect the proposed increase in our authorized
shares of common stock. Abstentions and broker non-votes will be
counted towards the vote total for this proposal and will have
the same effect as “against” votes.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO APPROVE THE
AMENDMENT TO OUR RESTATED CERTIFICATE OF INCORPORATION, AND
PROXIES SOLICITED BY THE BOARD WILL BE VOTED IN FAVOR OF THE
AMENDMENT UNLESS A STOCKHOLDER INDICATES OTHERWISE ON THE
PROXY.
PROPOSAL 4 —
RATIFICATION OF APPOINTMENT OF INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
REGISTERED PUBLIC ACCOUNTING FIRM
The Audit Committee has appointed Ernst & Young LLP,
independent registered public accounting firm, to audit our
consolidated financial statements and the effectiveness of
internal control over financial reporting for the year ending
December 31, 2010. Ernst & Young LLP was our
independent registered public accounting firm for the year ended
December 31, 2009. Our Board of Directors recommends that
our stockholders vote for ratification of such appointment. A
representative of Ernst & Young LLP will be present at
the annual meeting and will be available to respond to
appropriate stockholders’ questions and to make a statement
if he or she desires to do so.
Approval of the ratification of appointment of our independent
registered public accounting firm requires an affirmative vote
of a majority of the votes cast on the proposal at the annual
meeting. Abstentions and broker non-votes will have no effect
on, and will not be counted towards the vote total for, this
proposal.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO APPROVE THE
RATIFICATION OF APPOINTMENT OF OUR INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM.
The submission of this matter to our stockholders at the annual
meeting is not required by law or by our Amended and Restated
By-laws. The Board of Directors is nevertheless submitting it to
the stockholders to ascertain their views. If this proposal is
not approved at the annual meeting by the affirmative vote of
holders of a majority of the votes cast on the proposal at the
meeting, the Audit Committee intends to reconsider its
appointment of Ernst & Young LLP as the Company’s
independent registered public accounting firm.
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BOARD AND
COMMITTEE MEETINGS
During 2009, the Board of Directors held fifteen meetings. In
addition, the Board of Directors has established three
committees whose functions and current members are noted below.
The Audit Committee, the Compensation Committee and the
Nominating and Governance Committee (collectively, the
“Board Committees”) are committees of the Board of
Directors and consist solely of members of the Board of
Directors. The Board Committees met a total of six times in
2009. Each incumbent director attended 75% or more of the
aggregate number of meetings of the Board of Directors and Board
Committees on which he served during 2009. The Board has also
adopted a policy under which each member of the Board is
required to make every effort to attend each annual meeting of
our stockholders. All of our directors, except for
Mr. Laffer and Mr. Schwieterman, attended our annual
meeting of stockholders in 2009.
Our Board has determined that the following members of the Board
qualify as independent under the definition promulgated by the
NASDAQ Stock Market (“NASDAQ”): Ms. Howson (from
the date of her appointment to the Board of Directors on
April 2, 2010) and Messrs. Roy H. Fickling,
Arthur B. Laffer (for fiscal 2009 through his departure from the
Board of Directors on March 11, 2010), William D.
Schwieterman and William N. Shiebler.
Audit Committee. During 2009, the Audit
Committee consisted of Messrs. Arthur B. Laffer (Chairman),
Roy H. Fickling and William N. Shiebler. During 2009, the Audit
Committee held five meetings. Mr. Laffer was a member of
the Audit Committee for fiscal 2009 until his departure from the
Board of Directors on March 11, 2010. Currently, the Audit
Committee consists of William N. Shiebler (Chairman), Roy H.
Fickling and Tamar D. Howson. Our Audit Committee has the
authority to retain and terminate the services of our
independent registered public accounting firm, review annual
financial statements, consider matters relating to accounting
policy and internal controls and review the scope of annual
audits. The Board has determined that Dr. Laffer is an
“audit committee financial expert” for fiscal 2009
through his departure from the Board of Directors on
March 11, 2010, and that Mr. Shiebler is an
“audit committee financial expert” for fiscal 2010, as
the Securities and Exchange Commission has defined that term in
Item 407 of
Regulation S-K.
The Board of Directors has adopted a charter for the Audit
Committee, which is reviewed and reassessed annually by the
Audit Committee. A copy of the Audit Committee’s written
charter is publicly available on our website at
www.oxigene.com .
Securities and Exchange Commission rules require that we
disclose our compliance with NASDAQ listing standards regarding
the independence of our Audit Committee members and inclusion in
the Audit Committee of any non-independent director. Currently,
all of our Audit Committee members are independent as defined
under NASDAQ listing standards.
Compensation Committee. During 2009, the
Compensation Committee consisted of Messrs. Arthur B.
Laffer (Chairman), Roy H. Fickling, William D.
Schwieterman, M.D. and William N. Shiebler. Mr. Laffer
was a member of the Compensation Committee for fiscal 2009 until
his departure from the Board of Directors on March 11,
2010. During 2009, the Compensation Committee held one meeting.
The Compensation Committee makes recommendations to the Board of
Directors regarding the compensation philosophy and compensation
guidelines for our executives, the role and performance of our
executive officers, appropriate compensation levels for our
Chief Executive Officer, which are determined without the Chief
Executive Officer present, and other executives based on a
comparative review of compensation practices of similarly
situated businesses. The Compensation Committee also administers
our 2005 Stock Plan and 2009 Employee Stock Purchase Plan and
makes recommendations to the Board regarding the design and
implementation of our compensation plans and the establishment
of criteria and the approval of performance results relative to
our incentive plans. The Compensation Committee has adopted the
following processes and procedures for the consideration and
determination of executive and director compensation. Each year,
the Compensation Committee reviews and assesses the three main
components of each named executive officer’s compensation:
base salary, incentive compensation and equity compensation.
Adjustments to base salary are generally only made when there
has been a change in the scope of the responsibilities of the
named executive officer or when, based on a review of the base
salary component of executive officers in companies of a similar
size and stage of development, the Committee members believe
that an adjustment is warranted in order to remain competitive.
Each year, the
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executive management of the Company determines and agrees with
the Compensation Committee on its corporate goals and objectives
for the ensuing year. At the end of each year, the attainment of
each objective is assessed and incentive awards are made to each
executive based on his contribution to achieving the objectives
and at a percentage of base salary outlined in the
executive’s employment agreement. In addition, equity
compensation is reviewed annually. Awards are made based on
either provisions of an executive’s employment agreement,
or an assessment of each executive’s equity compensation
position relative to the Company’s other executives. All
members of the Compensation Committee qualify as independent
under the definition promulgated by NASDAQ. A copy of the
Compensation Committee’s written charter is publicly
available on our website at www.oxigene.com .
Compensation Committee Interlocks and Insider
Participation. Our Compensation Committee
currently consists of Messrs. Roy H. Fickling (Chairman)
and William N. Shiebler. Except for Mr. Shiebler, none of
these directors are or have been employed by us.
Nominating and Governance Committee. During
2009, the Nominating and Governance Committee consisted of
Messrs. William N. Shiebler (Chairman), Roy H. Fickling and
Arthur B. Laffer. Mr. Laffer was a member of the Nominating
and Governance Committee for fiscal 2009 until his departure
from the Board of Directors on March 11, 2010. During 2009,
the Nominating and Governance Committee did not meet. Currently,
the Nominating and Governance Committee consists of William D.
Schwieterman (Chairman), Tamar D. Howson and William N.
Shiebler. This committee’s role is to make recommendations
to the full Board as to the size and composition of the Board
and to make recommendations as to particular nominees. All
members of the Nominating and Governance Committee qualify as
independent under the definition promulgated by NASDAQ. The
Nominating and Governance Committee may consider candidates
recommended by stockholders, as well as from other sources, such
as current directors or officers, third-party search firms or
other appropriate sources. For all potential candidates, the
Nominating and Governance Committee may consider all factors it
deems relevant, such as a candidate’s personal integrity
and sound judgment, business and professional skills and
experience, independence, knowledge of the biotechnology
industry, possible conflicts of interest, diversity with regard
to field of specialty, level of experience, perspective and
other traits that contribute to a well rounded, knowledgeable
and experienced board, the extent to which the candidate would
fill a present need on the Board, and concern for the long-term
interests of the stockholders. The foregoing policies encourage
an assessment of the strengths and weaknesses in the
Board’s overall ability to guide the Company, which in turn
suggests the varied characteristics a director nominee should
possesses to best enhance the Board’s overall efficacy.
In general, persons recommended by stockholders will be
considered on the same basis as candidates from other sources.
If a stockholder wishes to nominate a candidate to be considered
for election as a director at the 2011 annual meeting of
stockholders using the procedures set forth in the
Company’s by-laws, it must follow the procedures described
below in “Stockholder Proposals and Nominations for
Director.” If a stockholder wishes simply to propose a
candidate for consideration as a nominee by the Nominating and
Governance Committee, it should submit any pertinent information
regarding the candidate to the Chairman of the Nominating and
Governance Committee by mail at OXiGENE, Inc., 701 Gateway
Boulevard, Suite 210, South San Francisco, CA 94080.
The Nominating and Governance Committee considers issues of
diversity among its members in identifying and considering
nominees for director, and strives where appropriate to achieve
a diverse balance of backgrounds, perspectives, experience, age,
gender, ethnicity and country of citizenship of the Board and
its committees. A copy of the Nominating and Governance
Committee’s written charter is publicly available on our
website at www.oxigene.com.
Board
of Directors Leadership Structure
The Board does not have a policy regarding the separation of the
roles of Chief Executive Officer and Chairman of the Board, as
the Board believes it is in the best interests of the Company to
make that determination based on the position and direction of
the Company and the membership of the Board. The Board has
determined that having a non-employee director serve as Chairman
is in the best interest of the Company’s stockholders at
this time. The Board believes this leadership structure enhances
the Board’s oversight of, and independence from, Company
management, the ability of the Board to carry out its roles and
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responsibilities on behalf of our stockholders, and our overall
corporate governance compared to a combined Chairman/Chief
Executive Officer leadership structure.
Mr. Shiebler has served as non-executive Chairman of the
Board of Directors since 2009. The Chairman of the Board of
Directors provides leadership to the Board and works with the
Board to define its activities and the calendar for fulfillment
of its responsibilities. The Chairman of the Board of Directors
approves the meeting agendas after input from management,
facilitates communication among members of the Board and
presides at meetings of our Board and stockholders.
The Chairman of the Board of Directors, the Chairman of the
Audit Committee, the Chief Executive Officer and the other
members of the Board work in concert to provide oversight of our
management and affairs. The leadership of Mr. Shiebler
fosters a culture of open discussion and deliberation, with a
thoughtful evaluation of risk, to support our decision-making.
Our Board encourages communication among its members and between
management and the Board to facilitate productive working
relationships. Working with the other members of the Board,
Mr. Shiebler also works to ensure that there is an
appropriate balance and focus among key board responsibilities
such as strategic development, review of operations and risk
oversight.
The
Board of Directors’ Role in Risk Oversight
The Board plays an important role in risk oversight through
direct decision-making authority with respect to significant
matters and the oversight of management by the Board and its
committees. In particular, the Board administers its risk
oversight function through (1) the review and discussion of
regular periodic reports to the Board and its committees on
topics relating to the risks that we face, (2) the required
approval by the Board (or a committee of the Board) of
significant transactions and other decisions, (3) the
direct oversight of specific areas of our business by the Audit
and Compensation committees, and (4) regular periodic
reports from our auditors and outside advisors regarding various
areas of potential risk, including, among others, those relating
to our internal control over financial reporting. The Board also
relies on management to bring significant matters impacting us
to the Board’s attention.
Pursuant to the Audit Committee’s charter, the Audit
Committee is responsible for discussing the guidelines and
policies that govern the process by which our exposure to risk
is assessed and managed by management. As part of this process,
the Audit Committee discusses our major financial risk exposures
and steps that management has taken to monitor and control such
exposure. In addition, we, under the supervision of the Audit
Committee, have established procedures available to all
employees for the anonymous and confidential submission of
complaints relating to any matter to encourage employees to
report questionable activities directly to our senior management
and the Audit Committee.
Because of the role of the Board in risk oversight, the Board
believes that any leadership structure that it adopts must allow
it to effectively oversee the management of the risks relating
to our operations. The Board recognizes that there are different
leadership structures that could allow it to effectively oversee
the management of the risks relating to our operations. The
Board believes its current leadership structure enables it to
effectively provide oversight with respect to such risks.
Stockholder
Communications to the Board
Generally, stockholders who have questions or concerns should
contact our Investor Relations department at
650-635-7000.
However, any stockholders who wish to address questions
regarding our business directly with the Board of Directors, or
any individual director, should submit his or her questions to
the appropriate director using the contact information and
instructions for this purpose set forth on the Company’s
website at www.oxigene.com . Communications will be
distributed to the Board, or to any individual director or
directors
16
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as appropriate, depending on the facts and circumstances
outlined in the communications. Items that are unrelated to the
duties and responsibilities of the Board may be excluded, such
as:
| • | junk mail and mass mailings | |
| • | resumes and other forms of job inquiries | |
| • | surveys | |
| • | solicitations or advertisements. |
In addition, any material that is unduly hostile, threatening,
or illegal in nature may be excluded, provided that any
communication that is filtered out will be made available to any
outside director upon request.
SECTION 16(a)
BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) requires our directors
and executive officers, and persons who own more than 10% of our
common stock to file with the Securities and Exchange Commission
and us initial reports of beneficial ownership and reports of
changes in beneficial ownership of common stock and other of our
equity securities. For these purposes, the term “other
equity securities” would include options granted under our
2005 Stock Plan. To our knowledge, based solely on a review of
the forms and written representations received by us from our
Section 16 reporting persons, during the fiscal year ended
December 31, 2009, all Section 16(a) filing
requirements applicable to the reporting persons were properly
and timely satisfied, except for the late filing of one
Form 4 reporting 13 transactions and one Form 4
reporting one transaction by Mr. Fickling, one Form 4
reporting 12 transactions and one Form 4 reporting one
transaction by Dr. Laffer, one Form 4 reporting ten
transactions and one Form 4 reporting one transaction by
Dr. Schwieterman, and one Form 4 reporting ten
transactions by Mr. Shiebler.
EXECUTIVE
OFFICERS OF THE COMPANY
See Proposal 1 above for the biography of our Chief
Executive Officer, Peter J. Langecker.
David Chaplin, Ph.D., 54, has served as our Chief
Scientific Officer and Head of Research and Development since
July 2000. From 1999 to 2000, Dr. Chaplin served as Vice
President of Oncology at Aventis Pharma in Paris. Prior to the
merger of Rhone Poulenc Rorer (“RPR”) with Hoechst
Marion Roussell, Dr. Chaplin was Senior Director of
Oncology at RPR from 1998 to 1999. From 1992 to 1998,
Dr. Chaplin headed up the Cancer Research Campaign’s
(“CRC”) Tumor Microcirculation Group, based at the
Gray Laboratory Cancer Research Trust, Mount Vernon Hospital,
London. During this time, he was also a member of the CRC Phase
I/ II clinical trials committee. Dr. Chaplin also served as
Section Head of Cancer Biology at Xenova in the U.K. from 1990
to 1992, and held a senior staff appointment at the British
Columbia Cancer Research Centre from 1982 to 1990.
James B. Murphy, 53, was appointed as our Vice President
and Chief Financial Officer in March 2004. From 2001 until May
2003, Mr. Murphy was Vice President of Finance for Whatman
Inc., of Marlborough, Massachusetts, a subsidiary of U.K.-based
Whatman plc (LSE: WHM), a publicly traded manufacturer of
filtration and separation products for the pharmaceutical
industry. From 1994 through 2001, Mr. Murphy worked at
HemaSure (NASDAQ: HMSR), a spin-off of Sepracor, Inc., serving
as the company’s Senior Vice President of Finance and
Administration, and later as Senior Vice President and Chief
Financial Officer. From 1990 to 1994, he was Corporate
Controller at Sepracor (NASDAQ: SEPR), a diversified
pharmaceutical, medical device and biotechnology products
company based in Marlborough, Massachusetts. Mr. Murphy
holds a B.A. in economics and accounting from the College of the
Holy Cross and is registered as a Certified Public Accountant.
17
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AUDIT
FEES
The following table presents fees for professional audit
services rendered by Ernst & Young LLP for the audit
of the Company’s annual financial statements for the years
ended December 31, 2009 and December 31, 2008, and
fees billed for other services rendered by Ernst &
Young LLP during those periods. We expect that representatives
of Ernst & Young LLP will be present at the annual
meeting and available to respond to appropriate questions.
| 2009 | 2008 | |||||||
|
Audit fees:(1)
|
$ | 503,900 | $ | 263,700 | ||||
|
Audit related:(2)
|
43,500 | 1,500 | ||||||
|
Tax Fees:(3)
|
17,200 | 31,500 | ||||||
|
All other fees:(4)
|
— | — | ||||||
|
Total
|
$ | 564,600 | $ | 296,700 | ||||
| (1) | Audit fees consisted of audit work performed in the preparation and audit of the annual financial statements, fees for the audit of the Company’s system of internal control over financial reporting, as well as the audit of management’s assessment of the effectiveness thereof, review of quarterly financial statements, as well as work that generally only the independent auditor can reasonably be expected to provide, such as the provision of consents and comfort letters in connection with the filing of registration statements and statutory audits. | |
| (2) | Audit-related fees in 2009 consisted of fees for due diligence services in connection with our attempted merger with VaxGen Inc. as well as fees for access to technical accounting information. Audit-related fees in 2008 consisted of fees for access to technical accounting information. | |
| (3) | Tax fees consisted principally of assistance with tax compliance and reporting, as well as certain tax planning consultations. | |
| (4) | There were no fees incurred in this category in either 2009 or 2008. |
Policy on
Audit Committee Pre-Approval of Audit and Permissible
Non-audit Services of Independent Registered Public Accounting Firm
Non-audit Services of Independent Registered Public Accounting Firm
Consistent with SEC policies regarding auditor independence, the
Audit Committee has responsibility for appointing, setting
compensation and overseeing the work of the independent
registered public accounting firm. In recognition of this
responsibility, the Audit Committee has established a policy to
pre-approve all audit and permissible non-audit services
provided by the independent registered public accounting firm.
Prior to engagement of the independent registered public
accounting firm for the next year’s audit, management will
submit an aggregate of services expected to be rendered during
that year for each of four categories of services to the Audit
Committee for approval.
1. Audit services include audit work
performed in the preparation and audit of the annual financial
statements, fees for the audit of the effectiveness of the
Company’s system of internal control over financial
reporting, as well as the audit of management’s assessment
of the effectiveness thereof, review of quarterly financial
statements, as well as work that generally only the independent
auditor can reasonably be expected to provide, such as the
provision of consents and comfort letters in connection with the
filing of registration statements.
2. Audit-related services are for assurance
and related services that are traditionally performed by an
independent public accountant, including due diligence related
to mergers and acquisitions, employee benefit plan audits, and
special procedures required to meet certain regulatory
requirements.
3. Tax services consist principally of
assistance with tax compliance and reporting, as well as certain
tax planning consultations.
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Table of Contents
4. Other Fees are those associated with
services not captured in the other categories. The Company
generally does not request such services from an independent
public accountant.
Prior to engagement, the Audit Committee pre-approves these
services by category of service. The fees are budgeted, and the
Audit Committee requires the independent registered public
accounting firm and management to report actual fees versus the
budget periodically throughout the year by category of service.
During the year, circumstances may arise when it may become
necessary to engage the independent registered public accounting
firm for additional services not contemplated in the original
pre-approval. In those instances, the Audit Committee requires
specific pre-approval before engaging the independent registered
public accounting firm.
The Audit Committee may delegate pre-approval authority to one
or more of its members. The member to whom such authority is
delegated must report, for informational purposes only, any
pre-approval decisions to the Audit Committee at its next
scheduled meeting.
AUDIT
COMMITTEE REPORT
The members of the Audit Committee, which is comprised of three
directors, have been appointed by the Board of Directors. The
current members of the Committee are Messrs. William N.
Shiebler (Chairman), Roy H. Fickling and Ms. Tamar D.
Howson. All members of our Audit Committee meet the independence
and experience requirements of the NASDAQ Stock Market. The
Audit Committee is governed by a charter that has been adopted
by the Board of Directors and is reviewed and reassessed
annually by the Audit Committee. This charter is publicly
available on our website at www.oxigene.com.
This Audit Committee Report does not constitute soliciting
material and shall not be deemed filed or incorporated by
reference into any other filings of ours under the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934,
as amended, or subject to Regulation 14A or 14C under the
Exchange Act, except as specifically provided under the Exchange
Act, or subject to the liabilities of Section 18 of the Exchange
Act, except to the extent that we specifically request that this
Audit Committee Report be treated as soliciting material or
specifically incorporates this Audit Committee Report by
reference therein.
The Audit Committee reviews the scope and timing of the
independent registered public accounting firm’s audit and
other services, and their report on our financial statements
following completion of their audits. The Audit Committee also
makes annual recommendations to the Board of Directors regarding
the appointment of independent registered public accounting
firms for the ensuing year.
Management is responsible for the preparation of our financial
statements and the independent registered public accounting firm
has the responsibility for the examination of those statements.
The Audit Committee reviewed our audited financial statements
for the year ended December 31, 2009 and met with both
management and our external accountants to discuss those
financial statements. Management and the independent registered
public accounting firm have represented to the Audit Committee
that the financial statements were prepared in accordance with
generally accepted accounting principles. The Audit Committee
also considered taxation matters and other areas of oversight
relating to the financial reporting and audit process that the
Audit Committee deemed appropriate.
The Audit Committee has received from the independent registered
public accounting firm their written disclosure and letter
regarding their independence from us as required by applicable
requirements of the Public Company Accounting Oversight Board,
and has discussed with the independent registered public
accounting firm their independence. The Audit Committee also
discussed with the independent registered public accounting firm
any matters required to be discussed by Statement on Auditing
Standards No. 61, as amended, as adopted by the Public
Company Accounting Oversight Board in Rule 3200T, as may be
modified or supplemented.
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Table of Contents
Based upon the reviews and discussions described in this Audit
Committee Report, the Audit Committee has recommended to the
Board of Directors that the audited financial statements be
included in our Annual Report on
Form 10-K
for the year ended December 31, 2009 for filing with the
Securities and Exchange Commission.
RESPECTFULLY SUBMITTED,
THE AUDIT COMMITTEE
William N. Shiebler, Chairman
Roy H. Fickling
Tamar D. Howson
Roy H. Fickling
Tamar D. Howson
20
Table of Contents
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information with respect
to the beneficial ownership of our common stock as of
March 15, 2010, for (a) each of the executive officers
named in the Summary Compensation Table on page 22 of this
proxy statement, (b) each of our directors and director
nominees, (c) all of our current directors and executive
officers as a group and (d) each stockholder known by us to
own beneficially more than 5% of our common stock. Beneficial
ownership is determined in accordance with the rules of the
Securities and Exchange Commission and includes voting or
investment power with respect to the securities. We deem shares
of common stock that may be acquired by an individual or group
within 60 days of March 15, 2010 pursuant to the
exercise of options or warrants to be outstanding for the
purpose of computing the percentage ownership of such individual
or group, but such shares are not deemed to be outstanding for
the purpose of computing the percentage ownership of any other
person shown in the tables. Except as indicated in footnotes to
these tables, we believe that the stockholders named in these
tables have sole voting and investment power with respect to all
shares of common stock shown to be beneficially owned by them
based on information provided to us by these stockholders.
Percentage of ownership is based on 69,609,750 shares of
common stock outstanding on March 15, 2010.
|
Number of Shares |
||||||||
|
Beneficially Owned |
||||||||
|
and Nature of |
Percent of |
|||||||
| Ownership | Class % | |||||||
|
David Chaplin(1)
|
476,850 | * | ||||||
|
Roy Fickling(2)
|
152,846 | * | ||||||
|
Tamar Howson(3)
|
— | * | ||||||
|
Mark Kessel(4)
|
27,182,118 | 39.0 | % | |||||
|
John Kollins(5)
|
— | * | ||||||
|
Arthur Laffer(6)
|
519,232 | * | ||||||
|
Peter Langecker
|
— | * | ||||||
|
Jim Murphy(7)
|
222,500 | * | ||||||
|
William Schwieterman(8)
|
129,208 | * | ||||||
|
William Shiebler(9)
|
377,002 | * | ||||||
|
Alastair J.J. Wood
|
65,000 | * | ||||||
|
All current directors and executive officers as a group
(9 persons) (10)
|
29,124,756 | 41.4 | % | |||||
| * | Less than 1%. | |
| (1) | Includes options to purchase 343,750 shares of common stock, which are exercisable within 60 days of March 15, 2010 (May 14, 2010). | |
| (2) | Includes 20,000 shares of unvested restricted common stock granted in 2007, which vest in equal annual installments over a four-year period, all of which are subject to transfer and forfeiture restrictions. | |
| (3) | Ms. Howson was appointed to the Board of Directors of the Company on April 2, 2010; she did not own any of the Company’s equity securities prior to this time. | |
| (4) | Includes 27,117,118 shares of common stock held by Symphony ViDA Holdings LLC. Mark Kessel is a Managing Member of Symphony GP LLC, which is the general partner of Symphony Capital GP, L.P., which is the general partner of Symphony Capital Partners, L.P., which is the manager of Symphony ViDA Holdings LLC. | |
| (5) | Pursuant to Mr. Kollins’ stock option agreement, all of Mr. Kollins’ unvested options were forfeited on the effective date of his termination and his vested options, to the extent not exercised, were forfeited as of January 8, 2010. | |
| (6) | Includes options to purchase 110,000 shares of common stock, which are exercisable within 60 days of March 15, 2010 (May 14, 2010). |
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Table of Contents
| (7) | Includes options to purchase 182,500 shares of common stock, which are exercisable within 60 days of March 15, 2010 (May 14, 2010). | |
| (8) | Includes 20,000 shares of unvested restricted common stock granted in 2007, which vest in equal annual installments over a four-year period, all of which are subject to transfer and forfeiture restrictions. | |
| (9) | Includes options to purchase 110,000 shares of common stock, which are exercisable within 60 days of March 15, 2010 (May 14, 2010). | |
| (10) | Includes 40,000 shares of common stock subject to transfer restrictions, options to purchase 746,250 shares of common stock held by the directors and executive officers as a group and which are exercisable within 60 days of March 15, 2010 (May 14, 2010) and 40,000 shares of unvested restricted common stock, all of which were granted in 2007, which vest in equal annual installments over a four-year period, and which are subject to transfer and forfeiture restrictions. |
|
Number of Shares |
||||||||
|
Beneficially Owned |
||||||||
|
and Nature of |
Percent of |
|||||||
|
Name and Address of Beneficial Owner
|
Ownership | Class | ||||||
|
Symphony ViDA Holdings LLC
875 Third Avenue 18th Floor New York, NY 10022 |
27,182,118 | 39.0 | % | |||||
The determination that there were no other persons, entities or
groups known to us to beneficially own more than 5% of our
outstanding common stock was based on a review of all statements
filed with respect to us since the beginning of the past fiscal
year with the Securities and Exchange Commission pursuant to
Section 13(d) or 13(g) of the Exchange Act.
EXECUTIVE
COMPENSATION
SUMMARY
COMPENSATION TABLE
The following table shows the total compensation paid or accrued
during the fiscal years ended December 31, 2009 and
December 31, 2008 to (1) our current Chief Executive
Officer, (2) our Chief Financial Officer, (3) our
former Chief Executive Officer and (4) our two next most
highly compensated executive officers who earned more than
$100,000 during the fiscal year ended December 31, 2009.
|
All Other |
||||||||||||||||||||||||||||
|
Stock |
Option |
Compensation |
||||||||||||||||||||||||||
|
Name
|
Year | Salary ($) | Bonus ($) | Awards ($)(1) | Awards ($)(1) | ($)(2) | Total ($) | |||||||||||||||||||||
|
David Chaplin(3)
|
2009 | $ | 282,220 | $ | — | $ | 74,298 | $ | 27,530 | $ | — | $ | 384,048 | |||||||||||||||
|
Vice President and
|
2008 | $ | 334,409 | $ | — | $ | 98,327 | $ | 45,884 | $ | — | $ | 478,620 | |||||||||||||||
|
Chief Scientific Officer
|
||||||||||||||||||||||||||||
|
Peter Langecker(4)
|
2009 | $ | 236,923 | $ | — | $ | — | $ | 41,926 | $ | 464 | $ | 279,313 | |||||||||||||||
|
Chief Executive Officer
|
2008 | $ | — | $ | — | $ | — | $ | — | $ | — | $ | — | |||||||||||||||
|
James Murphy
|
2009 | $ | 245,000 | $ | — | $ | 37,151 | $ | 63,244 | $ | 663 | $ | 346,058 | |||||||||||||||
|
Vice President and Chief
|
2008 | $ | 245,000 | $ | — | $ | 49,158 | $ | 64,923 | $ | 2,327 | $ | 361,408 | |||||||||||||||
|
Financial Officer
|
||||||||||||||||||||||||||||
|
John Kollins(5)
|
2009 | $ | 222,767 | $ | — | $ | — | $ | 38,340 | $ | 148,340 | $ | 409,447 | |||||||||||||||
|
Former Chief Executive
|
2008 | $ | 272,085 | $ | — | $ | — | $ | 84,687 | $ | 360 | $ | 357,132 | |||||||||||||||
|
Officer
|
||||||||||||||||||||||||||||
| (1) | See Note 1 to our Condensed Consolidated Financial Statements reported in our Annual Report on Form 10-K for our fiscal year ended December 31, 2009 for details as to the assumptions used to determine the fair value of each of the stock awards and option awards set forth in this table, and Note 3 describing all forfeitures during fiscal year 2009. See also our discussion of stock-based compensation in our Form 10-K under “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Critical Accounting Policies and Estimates.” |
22
Table of Contents
| (2) | Other Compensation in 2008 for Mr. Murphy includes the reimbursement of fees and costs associated with providing corrected wage and earnings statements for prior years related to restricted stock compensation reporting. | |
| (3) | Dr. Chaplin’s employment agreement provides that his salary be paid in British Pounds. The salary amounts presented above represent his annual salary of £180,257 converted into U.S. dollars at the average monthly conversion rate for the year presented. | |
| (4) | Dr. Langecker commenced employment in June 2009 as Executive Vice President and Chief Development Officer. In October 2009 he was appointed as Chief Executive Officer. | |
| (5) | Mr. Kollins terminated his employment with OXiGENE effective October 7, 2009. His separation agreement provides for a severance payment of $350,000, payable over one year in 26 equal installments. As of December 31, 2009, $148,077 of Mr. Kollins’ severance has been paid and is included in Other Compensation for him in 2009. |
Narrative
Disclosure to Summary Compensation Table
Employment Agreement with David Chaplin. In
July 2000, we entered into an employment agreement with
Dr. Chaplin, our Chief Scientific Officer and Head of
Research and Development. Effective in January 2007,
Dr. Chaplin’s employment agreement was amended such
that he currently receives an annual base salary of
£180,257 per year (or $290,666, using January 1, 2010
exchange rates). In 2009, Dr. Chaplin’s employment
agreement was further amended to (1) set the period for
which Dr. Chaplin would be paid in the event of his
termination of employment other than for cause of with good
reason at sixteen (16) months and (2) provide for the
immediate vesting of all stock options, stock appreciation
rights, restricted stock and other incentive compensation
granted to him in the event of a change in control. We may
terminate the employment agreement on six months’ prior
notice, and Dr. Chaplin may terminate the agreement on six
months’ prior notice. OXiGENE may also terminate the
agreement without prior notice for “cause,” as defined
in the agreement. If Dr. Chaplin’s employment is
terminated by OXiGENE other than for cause, or in a case of a
“termination with good reason,” as defined in the
agreement, Dr. Chaplin will be entitled to receive a
payment of sixteen (16) months of his then-current base
salary, and all stock options and other incentive compensation
granted to Dr. Chaplin by OXiGENE shall, to the extent
vested, remain exercisable in accordance with the 2005 Stock
Plan and any related agreements. In the event of a termination
other than for “cause” of Dr. Chaplin’s
employment or a “termination with good reason” within
one year following a change in control of OXiGENE, as such term
is defined in the agreement, Dr. Chaplin will be entitled
to receive a payment of twelve months’ then-current base
salary plus any salary owed to him but unpaid as of the date of
termination. In addition, all of Mr. Chaplin’s
unvested equity compensation outstanding on the date of
termination shall vest and remain exercisable in accordance with
the terms of the applicable plan and related agreements and all
stock options and other incentive compensation granted to
Dr. Chaplin by OXiGENE shall, to the extent vested, remain
exercisable in accordance with the 2005 Stock Plan and any
related agreements.
Employment Agreement with Dr. Peter J.
Langecker. In June 2009, we entered into an
employment agreement with Dr. Langecker with respect to his
service as its Executive Vice President and Chief Development
Officer. In October 2009, Dr. Langecker was appointed our
Chief Executive Officer. Pursuant to his agreement,
Dr. Langecker currently receives an annual base salary of
$350,000 per year. In addition, Dr. Langecker may be
awarded an annual bonus of up to 40% of his then-current annual
base salary, at the sole discretion of OXiGENE, based on our
assessment of his and OXiGENE’s performance. Pursuant to
his employment agreement, on June 29, 2009, we granted to
Dr. Langecker, options to purchase 250,000 shares on
each date of the Company’s common stock at an exercise
price of $2.32 per share. The options shall vest in equal annual
installments over four years beginning one year from the date of
grant.
Dr. Langecker may terminate the agreement upon written
notice to us. We may also terminate the agreement without prior
written notice for cause, as defined in the agreement, as long
as, in certain circumstances, it gives Dr. Langecker a
minimum period of 30 days to cure the act or omission
constituting cause (if reasonably subject to cure), as described
in the agreement. If Dr. Langecker’s employment is
terminated by us for cause, or by Dr. Langecker without
good reason (as defined in the agreement), we will pay to
Dr. Langecker the amount of accrued obligations as of the
date of such termination, consisting of
23
Table of Contents
accrued and unpaid salary, value of accrued vacation days,
annual bonus related to the most recently completed calendar
year if not already paid and amount of unreimbursed and incurred
expenses. If Dr. Langecker’s employment is terminated
by us other than for cause or Dr. Langecker’
disability, we will pay to Dr. Langecker the accrued
obligations, as described above, an amount equal to
12 months of his then-current base salary, the annual bonus
related to the most recently completed calendar year, if not
already paid, and will also pay COBRA premiums, should
Dr. Langecker timely elect and be eligible for COBRA
coverage, for Dr. Langecker and his immediate family for
12 months (provided that OXiGENE shall have no obligation
to provide such coverage if Dr. Langecker becomes eligible
for medical and dental coverage with another employer).
If Dr. Langecker’ employment is terminated by us
(other than for cause or Dr. Langecker’ disability)
within one year following a change in control of the Company (as
defined in the agreement), or by Dr. Langecker with good
reason within one year following a change in control of the
Company, we will pay to Dr. Langecker the accrued
obligations, as described above, an amount equal to
12 months of his then-current base salary, the annual bonus
related to the most recently completed calendar year, if not
already paid, and will also pay COBRA premiums for a period of
12 months on the same conditions as described above. In
addition, all of Dr. Langecker’ unvested equity
compensation outstanding on the date of termination shall vest
and remain exercisable in accordance with the terms of the
applicable plan and related agreements. Dr. Langecker has
also agreed not to engage in activities competitive with the
Company during his employment and for a 12 month period
following the termination of his employment. All payments made
and benefits available to Dr. Langecker in connection with
his employment agreement will comply with Internal Revenue Code
Section 409A in accordance with the terms of his employment
agreement.
Employment Agreement with James B. Murphy. In
February 2004, we entered into an employment agreement with
Mr. Murphy, our Vice President and Chief Financial Officer
and amended the agreement in January 2009. Pursuant to the
agreement as amended, Mr. Murphy currently receives a base
salary of $245,000 per year. We may terminate the agreement on
thirty days’ prior notice, and Mr. Murphy may also
terminate the agreement on thirty days’ prior notice. We
may also terminate the agreement prior to the end of its term
for “cause” as defined in the agreement. If
Mr. Murphy’s employment is terminated by OXiGENE other
than for cause, or in a case of a “termination with good
reason,” as defined in the agreement, Mr. Murphy will
be entitled to receive a payment of twelve months’
then-current base salary and the Company will also pay COBRA
premiums, should Mr. Murphy timely elect and be eligible
for COBRA coverage, for Mr. Murphy and his immediate family
for 12 months (provided that OXiGENE shall have no
obligation to provide such coverage if Mr. Murphy becomes
eligible for medical and dental coverage with another employer).
In addition, all stock options and other incentive compensation
granted to Mr. Murphy by OXiGENE shall, to the extent
vested, remain exercisable in accordance with the 2005 Stock
Plan and any related agreements.
In the event of a termination other than for “cause”
of Mr. Murphy’s employment or a “termination with
good reason” within one year following a change in control
of OXiGENE, as such term is defined in the agreement,
Mr. Murphy will be entitled to receive a payment of twelve
months’ then-current base salary plus any salary owed to
him but unpaid as of the date of termination and the Company
will also pay COBRA premiums, should Mr. Murphy timely
elect and be eligible for COBRA coverage, for Mr. Murphy
and his immediate family for 12 months (provided that
OXiGENE shall have no obligation to provide such coverage if
Mr. Murphy becomes eligible for medical and dental coverage
with another employer). In addition, all of
Mr. Murphy’s unvested equity compensation outstanding
on the date of termination shall vest and remain exercisable in
accordance with the terms of the applicable plan and related
agreements and all stock options and other incentive
compensation granted to Mr. Murphy by OXiGENE shall, to the
extent vested, remain exercisable in accordance with the 2005
Stock Plan and any related agreements. All payments made and
benefits available to Mr. Murphy in connection with his
employment agreement will comply with Internal Revenue Code
Section 409A in accordance with the terms of his employment
agreement.
Employment and Separation Agreements with John A.
Kollins. In February 2007, we entered into an
employment agreement with Mr. Kollins with respect to his
service as its Senior Vice President and Chief Business Officer.
In December 2008, in connection with the appointment of
Mr. Kollins as our Chief Executive Officer, we amended the
agreement. Pursuant to the amended agreement, Mr. Kollins
received an annual base
24
Table of Contents
salary of $350,000 per year. In addition, Mr. Kollins was
eligible to receive an annual bonus of 30% to 40% of his
then-current annual base salary, at our sole discretion, based
on our assessment of his and OXiGENE’s performance.
We entered into a separation agreement with Mr. Kollins on
October 28, 2009. In accordance with Mr. Kollins’
employment agreement with us, dated February 28, 2007, as
amended, and the separation agreement, Mr. Kollins will
(i) receive a severance payment of $350,000, payable over
one year in 26 equal installments, (ii) be reimbursed for
premiums paid to continue group health coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, or
COBRA, through the earlier of October 27, 2011, or the date
on which Mr. Kollins becomes eligible for medical and
dental coverage with another employer, and (iii) receive a
one-time payment of $20,000 to cover legal fees
and/or
outplacement services. The separation agreement also provides
for, among other things, specified ongoing obligations on
Mr. Kollins’ part relating to maintenance of our
confidential information.
Outstanding
Equity Awards at Fiscal Year-End
The following table shows grants of stock options and grants of
unvested stock awards outstanding on the last day of the fiscal
year ended December 31, 2009, including both awards subject
to performance conditions and non-performance-based awards, to
each of the executive officers named in the Summary Compensation
Table.
| Option Awards(1) | Stock Awards | |||||||||||||||||||||||
|
Number of |
Number of |
Market Value |
||||||||||||||||||||||
|
Securities |
Securities |
Number of |
of Shares or |
|||||||||||||||||||||
|
Underlying |
Underlying |
Option |
Shares or |
Units of Stock |
||||||||||||||||||||
|
Unexercised |
Unexercised |
Exercise |
Option |
Units of Stock |
That Have Not |
|||||||||||||||||||
|
Options |
Options |
Price |
Expiration |
That Have Not |
Vested(2) |
|||||||||||||||||||
|
Name
|
Exerciseable # | Unexerciseable # | $ | Date | Vested # | $ | ||||||||||||||||||
|
David Chaplin
|
45,000 | — | $ | 5.06 | 7/12/2010 | 20,000 | $ | 22,800 | ||||||||||||||||
|
Vice President and Chief
|
100,000 | — | $ | 2.24 | 3/15/2012 | |||||||||||||||||||
|
Scientific Officer
|
100,000 | — | $ | 7.94 | 7/24/2013 | |||||||||||||||||||
| 50,000 | — | $ | 5.03 | 7/28/2014 | ||||||||||||||||||||
| 12,500 | 12,500 | $ | 4.18 | 1/25/2017 | ||||||||||||||||||||
| — | 120,000 | $ | 0.65 | 1/20/2019 | ||||||||||||||||||||
|
Peter Langecker
|
— | 250,000 | $ | 2.32 | 6/29/2019 | — | $ | — | ||||||||||||||||
|
Chief Executive Officer
|
||||||||||||||||||||||||
|
James Murphy
|
75,000 | — | $ | 9.05 | 2/23/2014 | 10,000 | $ | 11,400 | ||||||||||||||||
|
Vice President and Chief
|
20,000 | — | $ | 5.03 | 7/28/2014 | |||||||||||||||||||
|
Financial Officer
|
18,750 | 6,250 | $ | 3.51 | 6/14/2016 | |||||||||||||||||||
| 25,000 | 25,000 | $ | 4.18 | 1/25/2017 | ||||||||||||||||||||
| — | 125,000 | $ | 0.65 | 1/20/2019 | ||||||||||||||||||||
|
John Kollins(3)
|
50,000 | — | $ | 4.69 | 1/7/2010 | — | $ | — | ||||||||||||||||
|
Former Chief Executive Officer
|
||||||||||||||||||||||||
| (1) | Option awards vest in equal annual installments over four years beginning on the first anniversary of the date of grant and the exercise price is the closing price of the Company’s common stock as quoted on the NASDAQ Global Market on the date of grant. | |
| (2) | The market value of the stock awards is determined by multiplying the number of shares times $1.14, the closing price of our common stock on the NASDAQ Global Market on December 31, 2009, the last day of our fiscal year. | |
| (3) | Mr. Kollins’ employment with us terminated effective October 7, 2009. Pursuant to Mr. Kollins’ separation agreement, he had until January 8, 2010 to exercise all vested options. Mr. Kollins did not exercise these options and such options were therefore forfeited. |
25
Table of Contents
Potential
Payments Upon Termination or
Change-In-Control
The Company has entered into certain agreements and maintains
certain plans that may require the Company to make certain
payments
and/or
provide certain benefits to named executive officers of the
Company in the event of a termination of employment or a change
of control of the Company. The following tables summarize the
potential payments to each named executive officer assuming that
one of the described termination events occurs. The tables
assume that the event occurred on December 31, 2009, the
last day of our fiscal year. On December 31, 2009, the last
trading day of 2009, the closing price of our common stock as
listed on the NASDAQ Global Market was $1.14 per share.
David
Chaplin, Ph.D.
|
Involuntary Not for |
||||||||||||||||
|
Cause Termination |
||||||||||||||||
|
Executive Benefits and |
Termination within |
Voluntary |
or Termination by |
|||||||||||||
|
Payments |
12 Months Following |
Termination by |
Executive with Good |
For Cause |
||||||||||||
|
Upon Termination
|
Change in Control | Executive or Death | Reason | Termination | ||||||||||||
|
Base Salary
|
$270,669 | $— | $360,891 | $— | ||||||||||||
|
Annual Bonus (x% of Base Salary)
|
N/A | N/A | N/A | N/A | ||||||||||||
|
Acceleration of Vesting of Equity
|
100 | % | 0 | % | 0 | % | 0 | % | ||||||||
|
Number of Stock Options and
Value upon Termination |
440,000 | 307,500 | 307,500 | 307,500 | ||||||||||||
| $501,600 | $350,550 | $350,550 | $350,550 | |||||||||||||
|
Number of Shares of Vested
Stock Received and Value upon Termination |
125,000 | 125,000 | 125,000 | 125,000 | ||||||||||||
| $142,500 | $142,500 | $142,500 | $142,500 | |||||||||||||
|
Relocation Reimbursement
|
N/A | N/A | N/A | N/A | ||||||||||||
|
Deferred Compensation Payout
|
N/A | N/A | N/A | N/A | ||||||||||||
|
Post-Term Health Care
|
N/A | N/A | N/A | N/A | ||||||||||||
|
Excise Tax Gross Up
|
N/A | N/A | N/A | N/A | ||||||||||||
The information set forth above is described in more detail in
the narrative following the Summary Compensation table.
Dr. Chaplin’s employment agreement references the
definition of a “Change in Control” in our 1996 Stock
Incentive Plan. For this purpose, “Change in Control”
means the occurrence of either of the following events:
(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.
Dr. Chaplin will be entitled to certain benefits as
described in the table above if his employment is terminated by
the Company for reasons other than cause or by him with good
reason. “Cause” shall mean any of the following:
(a) the (i) continued failure by the executive to
perform substantially his duties on behalf of OXIGENE if the
executive fails to remedy that breach within ten (10) days
of OXiGENE’s written notice to the executive of such
breach; or (ii) material breach of any other provision of
Dr. Chaplin’s
26
Table of Contents
employment agreement by the executive, if the executive fails to
remedy that breach within ten (10) days of OXiGENE’s
written notice to the executive of such breach; or
(b) any act of fraud, material misrepresentation or
material omission, misappropriation, dishonesty, embezzlement or
similar conduct against OXiGENE or any affiliate, or conviction
of executive for a felony or any crime involving moral turpitude.
“Termination with Good Reason” shall mean termination
following a material breach of Dr. Chaplin’s
employment agreement by the Company, which breach remains
uncured ten (10) days after written notice thereof is
received by the Company.
Peter J.
Langecker
|
Involuntary Not for |
||||||||||||
|
Cause Termination |
||||||||||||
|
Executive Benefits and |
Termination within |
Voluntary |
or Termination by |
|||||||||
|
Payments |
12 Months Following |
Termination by |
Executive with Good |
For Cause |
||||||||
|
Upon Termination
|
Change in Control | Executive or Death | Reason | Termination | Disability | |||||||
|
Base Salary
|
$350,000 | $— | $350,000 | $— | $— | |||||||
|
Annual Bonus (x% of Base Salary)
|
Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | N/A | Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | |||||||
|
Acceleration of Vesting of Equity
|
100% | 0% | 0% | 0% | 0% | |||||||
|
Stock Options:
|
||||||||||||
|
Number of Stock Options
|
250,000 | — | — | — | — | |||||||
|
Value upon Termination
|
$285,000 | $— | $— | $— | $— | |||||||
|
Vested Stock Received:
|
||||||||||||
|
Number of Shares
|
— | — | — | — | — | |||||||
|
Value upon Termination
|
$— | $— | $— | $— | $— | |||||||
|
Relocation Reimbursement
|
N/A | N/A | N/A | N/A | N/A | |||||||
|
Deferred Compensation Payout
|
N/A | N/A | N/A | N/A | N/A | |||||||
|
Post-Term Health Care
|
Up to 12 months for Executive and family | N/A | Up to 12 months for Executive and family | |||||||||
| $27,048 | $— | $27,048 | $— | $— | ||||||||
|
Excise Tax Gross Up
|
N/A | N/A | N/A | N/A | N/A | |||||||
The information set forth above is described in more detail in
the narrative following the Summary Compensation table.
A “Change in Control” as defined in
Dr. Langecker’s employment agreement shall mean the
occurrence during the term of his employment of the following:
(i) Ownership. Any “Person” (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) becomes the “Beneficial Owner”
(as defined in
Rule 13d-3
under said Act), directly or indirectly, of securities of
OXiGENE representing 50% or more of the total voting power
represented by OXiGENE’s then outstanding voting securities
(excluding for this purpose any such voting securities held by
OXiGENE or its affiliates or by any employee benefit plan of
OXiGENE) pursuant to a transaction or a series of related
transaction which the Board of Directors does not
approve; or
(ii) Merger/Sale of Assets. (A) A merger or
consolidation of OXiGENE whether or not approved by the Board of
Directors, other than a merger or consolidation which would
result in the voting securities of OXiGENE outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity or the parent of such
corporation) at least 50% of the total voting power represented
by the voting securities of OXiGENE or such surviving entity or
parent of such corporation, as the case may be, outstanding
immediately after such merger or consolidation; or (B) the
stockholders of OXiGENE approve an agreement for the sale or
disposition by OXiGENE of all or substantially all of
OXiGENE’s assets; or
27
Table of Contents
(iii) Change in Board Composition. A change in the
composition of the Board of Directors, as a result of which
fewer than a majority of the directors are Incumbent Directors.
“Incumbent Directors” shall mean directors who either
(A) are directors of OXiGENE as of the date of this
Agreement, or (B) are elected, or nominated for election,
to the Board of Directors with the affirmative votes of at least
a majority of the Incumbent Directors at the time of such
election or nomination (but shall not include an individual
whose election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors
to OXiGENE).
Dr. Langecker will be entitled to certain benefits as
described in the table above if his employment is terminated by
the Company for reasons other than cause or by him with good
reason. “Cause” shall mean any of the following:
(a) the Executive’s substantial failure to perform any
of her duties hereunder or to follow reasonable, lawful
directions of the Board or any officer to whom the Executive
reports;
(b) the Executive’s willful misconduct or willful
malfeasance in connection with her employment;
(c) the Executive’s conviction of, or plea of nolo
contendre to, any crime constituting a felony under the laws of
the United States or any state thereof, or any other crime
involving moral turpitude;
(d) the Executive’s material breach of any of the
provisions of this Agreement, OXiGENE’s bylaws or any other
agreement with OXiGENE; or
(e) the Executive’s engaging in misconduct which has
caused significant injury to OXiGENE, financial or otherwise, or
to OXiGENE’s reputation; or
(f) any act, omission or circumstance constituting cause
under the law governing this Agreement.
“Termination with Good Reason” shall mean:
(i) without the Executive’s express written consent,
any material reduction in Executive’s title, or
responsibilities compared to those prior to a Change in Control
(as such term is defined in the employment agreement);
(ii) relocation of more than 60 miles;
(iii) without the Executive’s express written consent,
a material reduction by OXiGENE in the Executive’s total
compensation as in effect on the date hereof or as the same may
be increased from time to time, provided that it shall not be
deemed a material reduction if (a) the amount of
Executive’s Annual Bonus is less than the amount of any
previously awarded Annual Bonuses or (b) a benefit is
amended and such amendment affects all eligible executive
participants; or
(iv) OXiGENE breaches a material term of this Agreement and
such breach has remained uncured for a minimum of thirty
(30) days after Executive has notified OXiGENE of breach.
To be effective, such notice must be in writing and set forth
the specific alleged Good Reason for termination and the factual
basis supporting the alleged Good Reason.
All payments made and benefits available to Dr. Langecker
in connection with his employment agreement will comply with
Internal Revenue Code Section 409A in accordance with the
terms of his employment agreement.
28
Table of Contents
James B.
Murphy
|
Involuntary Not for |
||||||||||||||||
|
Cause Termination |
||||||||||||||||
|
Executive Benefits and |
Termination within |
Voluntary |
or Termination by |
|||||||||||||
|
Payments |
12 Months Following |
Termination by |
Executive with Good |
For Cause |
||||||||||||
|
Upon Termination
|
Change in Control | Executive or Death | Reason | Termination | ||||||||||||
|
Base Salary
|
$245,000 | $— | $245,000 | $— | ||||||||||||
|
Annual Bonus (x% of Base Salary)
|
N/A | N/A | N/A | N/A | ||||||||||||
|
Acceleration of Vesting of Equity
|
100 | % | 0 | % | 0 | % | 0 | % | ||||||||
|
Number of Stock Options and Value upon Termination
|
295,000 | 138,750 | 138,750 | 138,750 | ||||||||||||
| $336,300 | $158,175 | $158,175 | $158,175 | |||||||||||||
|
Number of Shares of Vested Stock Received and Value upon
Termination
|
40,000 | 40,000 | 40,000 | 40,000 | ||||||||||||
| $45,600 | $45,600 | $45,600 | $45,600 | |||||||||||||
|
Relocation Reimbursement
|
N/A | N/A | N/A | N/A | ||||||||||||
|
Deferred Compensation Payout
|
N/A | N/A | N/A | N/A | ||||||||||||
|
Post-Term Health Care
|
Up to 12 months for Executive and family | N/A | Up to 12 months for Executive and family | N/A | ||||||||||||
| $21,996 | $— | $21,996 | $— | |||||||||||||
|
Excise Tax Gross Up
|
N/A | N/A | N/A | N/A | ||||||||||||
The information set forth above is described in more detail in
the narrative following the Summary Compensation table.
Mr. Murphy’s employment agreement references the
definition of a “Change in Control” in our 1996 Stock
Incentive Plan. A “Change in Control” means the
occurrence 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.
Mr. Murphy will be entitled to certain benefits as
described in the table above if his employment is terminated by
the Company for reasons other than cause or by him with good
reason. “Cause” shall mean any of the following:
(a) the (i) continued failure by the executive to
perform substantially his duties on behalf of OXIGENE if the
executive fails to remedy that breach within ten (10) days
of OXiGENE’s written notice to the executive of such
breach; or (ii) material breach of any other provision of
Mr. Murphy’s employment agreement by the executive, if
the executive fails to remedy that breach within ten
(10) days of OXiGENE’s written notice to the executive
of such breach; or
(b) any act of fraud, material misrepresentation or
material omission, misappropriation, dishonesty, embezzlement or
similar conduct against OXiGENE or any affiliate, or conviction
of executive for a felony or any crime involving moral turpitude.
“Termination with Good Reason” shall mean termination
following a material breach of Mr. Murphy’s employment
agreement by the Company, which breach remains uncured thirty
(30) days after written notice thereof is received by the
Company.
29
Table of Contents
All payments made and benefits available to Mr. Murphy in
connection with his employment agreement will comply with
Internal Revenue Code Section 409A in accordance with the
terms of his employment agreement.
John A.
Kollins
We entered into a separation agreement with Mr. Kollins on
October 28, 2009. In accordance with Mr. Kollins’
employment agreement with us, dated February 28, 2007, as
amended, and the separation agreement, Mr. Kollins will
(i) receive a severance payment of $350,000, payable over
one year in 26 equal installments, (ii) be reimbursed for
premiums paid to continue group health coverage pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, or
COBRA, through the earlier of October 27, 2011, or the date
on which Mr. Kollins becomes eligible for medical and
dental coverage with another employer, and (iii) receive a
one-time payment of $20,000 to cover legal fees
and/or
outplacement services. The separation agreement also provides
for, among other things, specified ongoing obligations on
Mr. Kollins’ part relating to maintenance of our
confidential information.
Director
Compensation
The following table shows the total compensation paid or accrued
during the fiscal year ended December 31, 2009 to each of
our directors.
|
Fees Earned or |
Stock |
Option |
All Other |
|||||||||||||||||
|
Paid in Cash |
Awards |
Awards |
Compensation |
Total |
||||||||||||||||
|
Name
|
($) | ($)(1) | ($) | ($) | ($) | |||||||||||||||
|
Joel-Tomas Citron(2)
|
$ | 33,333 | $ | — | $ | — | $ | — | $ | 33,333 | ||||||||||
|
Roy H. Fickling
|
$ | 5,625 | $ | 63,443 | $ | — | $ | — | $ | 69,068 | ||||||||||
|
Mark Kessel
|
$ | — | $ | 34,200 | $ | — | $ | — | $ | 34,200 | ||||||||||
|
Arthur Laffer(3)
|
$ | 7,937 | $ | 70,193 | $ | — | $ | — | $ | 78,130 | ||||||||||
|
William D. Schwieterman
|
$ | 6,281 | $ | 60,194 | $ | — | $ | — | $ | 66,475 | ||||||||||
|
William Shiebler
|
$ | 175,181 | $ | 47,755 | $ | — | $ | — | $ | 222,936 | ||||||||||
|
Per-Olof Söderberg(2)
|
$ | 4,625 | $ | 10,750 | $ | — | $ | — | $ | 15,375 | ||||||||||
|
Alastair J.J. Wood
|
$ | — | $ | 34,200 | $ | — | $ | — | $ | 34,200 | ||||||||||
| (1) | See Note 1 to our Consolidated Financial Statements reported in our Annual Report on Form 10-K for our fiscal year ended December 31, 2009 for details as to the assumptions used to determine the fair value of each of the stock awards set forth in this table, and Note 3 describing all forfeitures during fiscal year 2009. See also our discussion of stock-based compensation under “Management’s Discussion and Analysis of Financial Condition and Results of Operations — Critical Accounting Policies and Estimates.” | |
| (2) | Messrs. Citron and Söderberg did not seek reelection to the Board of Directors at the 2009 annual meeting. | |
| (3) | Effective March 11, 2010, Mr. Laffer resigned as a member of the Company’s Board of Directors. |
The following is a description of the standard compensation
arrangements under which our non-employee directors are
compensated for their service as directors, including as members
of the various Committees of our Board.
Fees. Prior to fiscal 2003, directors received
no cash compensation for serving on our Board of Directors or
committees thereof. In July 2003, our directors adopted a
director compensation plan. This plan was amended in October
2008. Under this plan, as amended, non-employee directors
receive an annual retainer of $15,000 plus $750 for attendance
at each Board meeting. In addition, each Board Committee
chairman receives an annual retainer of $3,750, and each
Committee member receives $500 for attendance at each Committee
meeting. This amended director compensation plan also provides
that, effective January 1, 2009, each Board member may
elect to receive their fees in common stock of the Company in
lieu of cash upon notice of their intent to do so.
30
Table of Contents
The Board of Directors adopted an amended and restated director
compensation policy, effective January 1, 2010. In
accordance with the policy, prior to the commencement of each
calendar year, the Board of Directors establishes the number of
shares of our common stock to be granted as the annual retainer
for the upcoming calendar year for all outside directors. The
annual retainer is paid in the form of semi-annual grants, under
the OXiGENE, Inc. 2005 Stock Plan (the “Stock Plan”),
of fully-vested shares of our common stock in the amount
established by the Board of Directors for such calendar year.
Shares of common stock to be issued to each outside director on
the date of grant are automatically granted without further
action by the Board of Directors or the Compensation Committee
semi-annually on and as of January 2 and July 1, or the
first business day thereafter. Shares granted pursuant to the
policy have a purchase price equal to the par value of our
common sock on the date of grant and are subject to the terms
and conditions of the Stock Plan.
During an interim period beginning in May 2009 and ending on
January 31, 2010, following his assumption of the duties of
Chairman, Mr. Shiebler received: $40,000 in cash for the
first month of service; $20,000 in cash for each month
thereafter during such interim period; $1,200 per month for
secretarial expenses to be incurred by him; and an option to
purchase 100,000 shares of our common stock, vesting in
equal amounts over four years, starting one year from the date
of grant, at an exercise price of $2.23 per share.
Mr. Shiebler received these amounts in connection with the
services he provided as Chairman, and in recognition of the
level of services he provided in that capacity.
Mr. Shiebler did not receive any separate compensation
under the director compensation policy in addition to these
amounts. Effective February 2010, Mr. Shiebler’s cash
compensation was reduced to $10,000 per month.
Equity Incentives. Under the terms of our 2005
Stock Plan, directors may be granted shares of common stock,
stock-based awards
and/or stock
options to purchase shares of common stock. For fiscal 2009, the
following awards were granted to non-employee directors.
Equity
Compensation Plan Information
The following table provides certain aggregate information with
respect to all of the Company’s equity compensation plans
in effect as of December 31, 2009.
|
Number of Securities |
||||||||||||
|
Number of Securities |
Remaining Available |
|||||||||||
|
to be Issued |
Weighted-Average |
for Future Issuance |
||||||||||
|
Upon Exercise of |
Exercise Price of |
Under Equity Compensation |
||||||||||
|
Outstanding Options, |
Outstanding Options, |
Plans (Excluding Securities |
||||||||||
|
Plan Category
|
Warrants and Rights | Warrants and Rights | Reflected in Column (a)) | |||||||||
|
Equity compensation plans approved by security holders (the 1996
Stock Incentive Plan)
|
626,000 | $ | 7.20 | — | ||||||||
|
Equity compensation plans approved by security holders (the 2005
Stock Plan)
|
1,272,750 | $ | 1.82 | 6,072,070 | ||||||||
|
Equity compensation plans not approved by security holders
|
— | — | — | |||||||||
|
Total
|
1,898,750 | $ | 3.60 | 6,072,070 | ||||||||
CERTAIN
RELATIONSHIPS AND RELATED PERSON TRANSACTIONS
Our Audit Committee reviews and approves in advance all
related-person transactions.
Symphony
Transaction
In October 2008, OXiGENE announced a strategic collaboration
with Symphony Capital Partners, L.P. (Symphony), a
private-equity firm, under which Symphony agreed to provide up
to $40 million in funding to support the advancement of
ZYBRESTAT for oncology, ZYBRESTAT for ophthalmology and OXi4503.
In connection with the collaboration, OXiGENE granted Symphony
ViDA, Inc., a newly- created drug development company, exclusive
licenses to ZYBRESTAT for use in ophthalmologic indications and
OXi4503. As
31
Table of Contents
part of this transaction, OXiGENE maintained the exclusive
purchase option, but not the obligation, to purchase all of the
equity of Symphony ViDA (Purchase Option) at any time between
October 2, 2009 and March 31, 2012 for an amount equal
to two times the amount of capital actually invested by Holdings
in Symphony ViDA, less certain amounts.
Under the collaboration, OXiGENE entered into a series of
related agreements with Symphony Capital LLC, Symphony ViDA,
Symphony ViDA Holdings LLC (Holdings) and related entities,
including a Purchase Option Agreement, a Research and
Development Agreement, a Technology License Agreement and an
Additional Funding Agreement. In addition, OXiGENE entered into
a series of related agreements with Holdings, including a Stock
and Warrant Purchase Agreement and a Registration Rights
Agreement.
Pursuant to these agreements, Holdings formed and capitalized
Symphony ViDA in order (a) to hold certain intellectual
property related to the programs which were exclusively licensed
to Symphony ViDA under the Technology License Agreement and
(b) to fund commitments of up to $25 million. The
funding was intended to support preclinical and clinical
development by OXiGENE, on behalf of Symphony ViDA, of the
programs.
OXiGENE issued to Holdings, pursuant to the Stock and Warrant
Purchase Agreement, an aggregate of 13,513,514 shares of
its common stock and warrants at a price of $1.11 per share,
which was the closing price of its common stock on the NASDAQ
Global Market on September 30, 2008, the day before OXiGENE
entered into the Symphony transaction. In addition, pursuant to
the Purchase Option Agreement, OXiGENE issued to Holdings an
aggregate of 3,603,604 shares of OXiGENE’s common
stock with a fair value of $4 million as consideration for
the Purchase Option.
On July 2, 2009, OXiGENE, Holdings and Symphony ViDA
entered into a series of related agreements pursuant to which
OXiGENE exercised the Purchase Option under terms set forth in
an amended and restated purchase option agreement (the Amended
Purchase Option Agreement), and OXiGENE and Holdings also
entered into an amended and restated registration rights
agreement.
OXiGENE closed on the amended Purchase Option on July 20,
2009 and issued 10 million shares of its common stock to
Holdings at the closing in exchange for all of the equity of
Symphony ViDA, subject to further adjustment under the rights
described in the paragraph above. In addition, upon the closing
of the Purchase Option, OXiGENE re-acquired all of the rights to
the programs, and the approximately $12,400,000 in cash held by
Symphony ViDA at the time of the closing became available for
use for OXiGENE’s general corporate purposes.
For as long as Symphony Capital LLC owns at least 10% of
OXiGENE’s common stock, it has the right to appoint two
members to OXiGENE’s Board of Directors, and has appointed
Mr. Mark Kessel and Dr. Alastair Wood to serve as
Directors pursuant to this right. OXiGENE also maintains its
advisory relationships with Symphony and RRD International LLC.
The Additional Funding Agreement, dated October 1, 2008,
has been terminated.
EXPENSES
OF SOLICITATION
We will bear the costs of soliciting proxies from our
stockholders. We will make this solicitation by mail, and our
directors, officers and employees may also solicit proxies by
telephone, fax,
e-mail or in
person, for which they will receive no compensation other than
their regular compensation as directors, officers or employees.
Arrangements will also be made with brokerage houses and other
custodians, nominees and fiduciaries to send proxies and proxy
materials to beneficial owners of our voting securities. We will
reimburse these brokerage firms, custodians, nominees and
fiduciaries for reasonable
out-of-pocket
expenses that are incurred by them. In addition, we have engaged
The Proxy Advisory Group, LLC, to assist in the solicitation of
proxies and provide related advice and informational support,
for a services fee and the reimbursement of customary
disbursements that are not expected to exceed $17,000 in the
aggregate.
32
Table of Contents
CODE OF
CONDUCT AND ETHICS
We have adopted a code of conduct and ethics that applies to all
of our employees, including our Chief Executive Officer and
Chief Financial Officer. The text of the code of conduct and
ethics has been filed as an exhibit to our Annual Report on
Form 10-K.
Disclosure regarding any amendments to, or waivers from
provisions of the code of conduct and ethics that apply to our
directors, principal executive and financial officers will be
included in a Current Report on
Form 8-K
within four business days following the date of the amendment or
waiver, unless website posting of such amendments or waivers is
then permitted by the rules of the NASDAQ Stock Market.
STOCKHOLDER
PROPOSALS AND NOMINATIONS FOR DIRECTOR
Your eligibility as a stockholder to submit proposals and
director nominations, the proper subjects of such proposals and
other issues governing stockholder proposals and director
nominations are regulated by the rules adopted under
Section 14 of the Exchange Act. To be considered for
inclusion in the proxy statement relating to our annual meeting
of stockholders to be held in 2011 stockholder proposals and
nominations must be received no later than February 2,
2011. If we do not receive notice of any matter to be considered
for presentation at the annual meeting, although not to be
included in the Proxy Statement, between March 19, 2011 and
April 18, 2011 management proxies may confer discretionary
authority to vote on the matters presented at the annual meeting
by a stockholder in accordance with
Rule 14a-4
under the Exchange Act. All stockholder proposals should be
marked for the attention of The Secretary, OXiGENE, INC., 701
GATEWAY BOULEVARD, SUITE 210, SOUTH SAN FRANCISCO,
CALIFORNIA 94080.
OTHER
MATTERS
The Board of Directors knows of no other business that will be
presented at the Annual Meeting. If any other business is
properly brought before the Annual Meeting, it is intended that
proxies in the enclosed form will be voted in accordance with
the judgment of the persons voting the proxies.
ANNUAL
REPORT
Our Annual Report on
Form 10-K,
which includes our financial statements, for the fiscal year
ended December 31, 2009, and which provides additional
information about us can be found on the website of the
Securities and Exchange Commission at www.sec.gov. It is
also available on our website at www.oxigene.com. You may
obtain a printed copy of our Annual Report on
Form 10-K,
including our financial statements, free of charge, from us by
sending a written request to: OXiGENE, Inc., 701 GATEWAY
BOULEVARD, SUITE 210, SOUTH SAN FRANCISCO, CALIFORNIA
94080, Attention: Investor Relations.
South San Francisco, CA
May 28, 2010
33
Table of Contents
Appendix A
CERTIFICATE
OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
OXiGENE, INC.
RESTATED CERTIFICATE OF INCORPORATION OF
OXiGENE, INC.
It is hereby certified that:
| FIRST: | The name of the corporation is OXiGENE, Inc. (the “Corporation”). | |
| SECOND: | The Restated Certificate of Incorporation of the Corporation, as amended to date, is hereby further amended by striking out Article Fourth in its entirety and by substituting in lieu of the following: |
“FOURTH: The aggregate number of shares of all classes of
stock which the Corporation is authorized to issue is Three
Hundred Fifteen Million (315,000,000) shares, of which Three
Hundred Million (300,000,000) shares are designated Common
Stock, of the par value of One Cent ($0.01) per share, and
Fifteen Million (15,000,000) shares are designated Preferred
Stock, of the par value of One Cent ($0.01) per share.”
| THIRD: | The amendment of the Restated Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 228 and Section 242 of the General Corporation Law of the State of Delaware. |
EXECUTED, effective as of this day
of 2010.
OXiGENE, Inc.
| By: |
|
James B. Murphy
Vice President and Chief Financial Officer
Vice President and Chief Financial Officer
A-1
Table of Contents
Appendix B
ANNUAL MEETING OF STOCKHOLDERS OF
OXiGENE, INC.
701 Gateway Boulevard, Suite 210
South San Francisco, CA 94080
South San Francisco, CA 94080
June 30, 2010
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIAL:
The Notice of Meeting, Proxy Statement and 2009 Annual Report
are available at www.oxigene.com
Please date, sign and mail
your proxy card in the
envelope provided as soon
as possible.
your proxy card in the
envelope provided as soon
as possible.
ê Please detach along perforated line and mail in the envelope provided. ê
| THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF EACH DIRECTOR NOMINEE AND “FOR” PROPOSALS NO. 2, 3 AND 4. PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE | |||
| IN BLUE OR BLACK INK AS SHOWN HERE x | |||
1.
|
Election of Directors: | |||||
| NOMINEES: | ||||||
o
|
FOR ALL NOMINEES | O | Roy Hampton Fickling | |||
| O | Tamar D. Howson | |||||
o
|
WITHHOLD AUTHORITY FOR ALL NOMINEES |
O | Mark Kessel | |||
| O | Peter J. Langecker, M.D., Ph.D. | |||||
| O | William D. Schwieterman, M.D. | |||||
o
|
FOR ALL EXCEPT | O | William N. Shiebler | |||
| (See instructions below) | O | Alastair J.J. Wood, M.D. | ||||
| FOR | AGAINST | ABSTAIN | ||||
2. To
approve the issuances of shares of our common stock and warrants to purchase shares of our common stock to certain
accredited investors (the “Buyers”) pursuant to the Securities Purchase Agreement, dated as of March 10, 2010,
by and between the Company and the Buyers, to comply with NASDAQ Marketplace Rule 5635(d).
|
o | o | o | |||
3. To approve
an amendment to our Restated Certificate of Incorporation to increase the number of authorized shares of common stock, $0.01 par value per share, from 175,000,000 to 300,000,000.
|
||||||
4. To ratify the
appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2010.
|
o | o | o | |||
| INSTRUCTION: To withhold authority to vote for any individual nominee(s), mark “FOR ALL EXCEPT” and fill in the circle next to each nominee you wish to withhold, as shown here: l |
To change the address on your account, please check the box at right and indicate your new
address in the address space above. Please note that changes to the registered name(s) on
the account may not be submitted via this method. |
o |
|
Signature of Stockholder |
|
Date: |
|
Signature of Stockholder |
|
Date: |
|
|||||||||
| Note: |
Please sign exactly as your name or names appear on this Proxy. When shares are held jointly,
each holder should sign. When signing as executor, administrator, attorney, trustee or guardian,
please give full title as such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If the signer is a partnership, please sign in
partnership name by authorized person. |
||||||
B-1
Table of Contents
OXiGENE, INC.
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS FOR THE ANNUAL MEETING
OF STOCKHOLDERS TO BE HELD ON JUNE 30, 2010
OF STOCKHOLDERS TO BE HELD ON JUNE 30, 2010
The undersigned hereby appoints Peter J. Langecker and James B. Murphy, and
each of them (with full power to act alone), proxies, with full power of substitution,
to vote all shares of common stock of OXiGENE, Inc., a Delaware
corporation (the “Company”),
owned by the undersigned at the 2010 Annual Meeting of Stockholders of the Company to be held
at the Company’s offices located at 701 Gateway Boulevard, Suite 210 South San Francisco, California 94080 on June 30, 2010, at 10:00 a.m., local time, and at any and all adjournments or postponements thereof.
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 DIRECTOR NOMINEES AND FOR PROPOSALS NO. 2, 3 and 4. IN THEIR DISCRETION,
THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE
MEETING OR ANY ADJOURNMENTS OR POSTPONEMENTS OF THE MEETING.
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 SPECIFIED HEREIN.
(Continued and to be signed on reverse side.)
B-2
TABLE OF CONTENTS
GENERAL INFORMATION ABOUT THE ANNUAL MEETINGPROPOSAL 1 ELECTION OF DIRECTORSPROPOSAL 2 APPROVAL OF THE ISSUANCES OF SHARES OF OUR COMMON STOCK AND WARRANTS TO PURCHASE SHARES OF OUR COMMON STOCK TO THE BUYERS PURSUANT TO THE SECURITIES PURCHASE AGREEMENTPROPOSAL 3 APPROVAL OF AMENDMENT TO OUR RESTATED CERTIFICATE OF INCORPORATION TO INCREASE THE AUTHORIZED NUMBER OF SHARES OF OUR COMMON STOCKPROPOSAL 4 RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRMBOARD AND COMMITTEE MEETINGSSECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCEEXECUTIVE OFFICERS OF THE COMPANYAUDIT FEESAUDIT COMMITTEE REPORTSECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTEXECUTIVE COMPENSATIONCERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONSEXPENSES OF SOLICITATIONCODE OF CONDUCT AND ETHICSSTOCKHOLDER PROPOSALS AND NOMINATIONS FOR DIRECTOROTHER MATTERSANNUAL REPORTAPPENDIX A PROPOSED CERTIFICATE OF AMENDMENT TO RESTATED CERTIFICATE OF INCORPORATION A-1