ONCOTELIC THERAPEUTICS, INC.
10-Ks and 10-Qs
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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 SPECIAL
MEETING OF STOCKHOLDERS
TO BE HELD ON MARCH 18, 2011
TO BE HELD ON MARCH 18, 2011
TO OUR STOCKHOLDERS:
Please take notice that a special meeting of stockholders of
OXiGENE, Inc., a Delaware corporation (the “Company”
or “OXiGENE”), will be held on March 18, 2011, 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 approve proposed issuances of shares of our common
stock, $0.01 par value per share, to certain holders (the
“Holders”) of warrants to purchase shares of our
common stock pursuant to the Warrant Exchange Agreements, dated
January 18, 2011, by and among the Company and each of the
Holders (the “Warrant Exchange Agreements”), as
described in the attached Proxy Statement, to comply with NASDAQ
Marketplace Rule 5635(d);
2. To authorize an adjournment of the Special Meeting, if
necessary, if a quorum is present, to solicit additional proxies
if there are not sufficient votes in favor of Proposal 1;
3. To approve an amendment to our Restated Certificate of
Incorporation to decrease the authorized number of shares of our
common stock from 300,000,000 to 275,000,000; and
4. To transact such other business as may be properly
brought before the Special Meeting and any adjournments thereof.
The Board of Directors has fixed the close of business on
January 18, 2011 as the record date for the determination
of stockholders entitled to notice of and to vote at the Special
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 Special
Meeting. Whether you plan to attend the Special 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
February 18, 2011
TABLE
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Table of Contents
701
GATEWAY BOULEVARD, SUITE 210
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 635-7000
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 635-7000
PROXY
STATEMENT
SPECIAL
MEETING OF STOCKHOLDERS
MARCH 18, 2011
MARCH 18, 2011
We have sent you this Proxy Statement and the enclosed proxy
card because our Board of Directors is soliciting your proxy to
vote at a Special Meeting of stockholders and any adjournments
of the Special Meeting. This Proxy Statement summarizes the
information you need to know to vote at the Special Meeting. You
do not need to attend the Special 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 were first mailed to stockholders on or about
February 22, 2011.
Who Can Vote. Record holders of our common
stock at the close of business on the record date,
January 18, 2011, may vote at the Special Meeting. On
January 18, 2011, approximately 80 record holders held
110,244,595 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 You Can Vote. You can only vote your
shares if you are either present in person or represented by
proxy at the Special Meeting. Whether you plan to attend the
Special 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 Special 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 issuances of shares of our common stock pursuant to the
Warrant Exchange Agreements, “FOR” an
adjournment of the Special Meeting, if necessary, if a quorum is
present, to solicit additional proxies if there are not
sufficient votes in favor of Proposal 1, and
“FOR” an amendment to our Restated Certificate
of Incorporation to decrease the authorized number of shares of
our common stock from 300,000,000 to 275,000,000.
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 Special Meeting, other than
those discussed in this Proxy Statement.
Table of Contents
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 Special Meeting; | |
| • | by delivering a written notice of revocation before the Special 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; | |
| • | by timely delivering another proxy card dated after the date of the proxy card that you wish to revoke; or | |
| • | by re-voting your shares by telephone or Internet after you return your proxy card (only applicable to beneficial owners 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 2 and 3 even if it does not receive any
instructions from you.
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
Special 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 January 18, 2011, the
record date for determining who is entitled to vote.
Required Votes. The affirmative vote of a
majority of the votes cast is required for approval of
Proposals 1 and 2. The affirmative vote of a majority of
our outstanding common stock is required for approval of the
amendment to our Restated Certificate of Incorporation, set
forth as Proposal 3.
Broker
Non-Votes 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 2 and 3. 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 and 2. |
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| • | Abstentions: Abstentions are not counted towards the vote total for Proposals 1 and 2 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 Special
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,
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. |
Dissenters’ Right of Appraisal. There are
no dissenters’ rights of appraisal in connection with the
matters to be voted on at the Special Meeting.
Throughout this Proxy Statement, the terms
“OXiGENE,” “WE,” “US,”
“OUR” or “COMPANY” mean OXiGENE,
Inc.
Electronic
Delivery of Stockholder Communications
Important
Notice Regarding the Availability of Proxy Materials for the
Special Meeting of Stockholders of OXiGENE, Inc. to Be Held on
March 18, 2011.
| • | 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 Special Meeting of stockholders of OXiGENE, Inc. will be held on March 18, 2011, at 10:00 a.m., local time, at the Company’s offices at 701 Gateway Boulevard, Suite 210, South San Francisco, California 94080. |
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The Special Meeting of stockholders will be held for the
following purposes:
| 1. | To approve proposed issuances of shares of our common stock, $0.01 par value per share, to certain holders (the “Holders”) of warrants to purchase shares of our common stock pursuant to the Warrant Exchange Agreements, dated January 18, 2011, by and among the Company and each of the Holders (the “Warrant Exchange Agreements”), to comply with NASDAQ Marketplace Rule 5635(d); | |
| 2. | To authorize an adjournment of the Special Meeting, if necessary, if a quorum is present, to solicit additional proxies if there are not sufficient votes in favor of Proposal 1; and | |
| 3. | To approve an amendment to our Restated Certificate of Incorporation to decrease the authorized number of shares of our common stock from 300,000,000 to 275,000,000. |
| • | You are urged to attend the Special Meeting and vote in person, but if you are unable to attend, 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 that option is available to you. | |
| • | OXiGENE’s Board of Directors recommends voting “FOR” all of the proposals listed above. |
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officers and Symphony agreed to vote to approve the issuances of
shares pursuant to the Warrant Exchange Agreements 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
execution of the Warrant Exchange Agreements, we issued
21,938,673 shares of our common stock and warrants, as
described above, to the Holders. Pursuant to the Warrant
Exchange Agreements, subject to obtaining stockholder approval,
we are required to issue 9,150,892 additional shares of our
common stock to the Holders. Stockholder approval of the
issuance of a number of shares above 19.9% of our outstanding
shares on the date we entered into the Warrant Exchange
Agreements, at a price below the greater of the book or market
price of our common stock as of that date, is required under
applicable NASDAQ Marketplace Rules. Accordingly, we are seeking
approval of the proposed issuance of shares in excess of 19.9%
of our outstanding common stock in the transaction from our
stockholders at the Special Meeting.
Approval of the proposed issuance of shares of our common stock
in excess of 19.9% of our outstanding common stock pursuant to
the Warrant Exchange Agreements requires an affirmative vote of
a majority of the votes cast on the proposal at the Special
Meeting. Abstentions and broker non-votes will not be counted
towards, and will have no effect on, the vote total for this
proposal.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO APPROVE THE
PROPOSED ISSUANCE OF SHARES OF OUR COMMON STOCK IN EXCESS
OF 19.9% OF OUR OUTSTANDING COMMON STOCK PURSUANT TO THE WARRANT
EXCHANGE AGREEMENTS, AND PROXIES SOLICITED BY THE BOARD WILL BE
VOTED IN FAVOR OF THE ISSUANCE OF SUCH SHARES UNLESS A
STOCKHOLDER HAS INDICATED OTHERWISE ON THE PROXY.
PROPOSAL 2
THE ADJOURNMENT OF THE SPECIAL MEETING
THE ADJOURNMENT OF THE SPECIAL MEETING
Our stockholders are being asked to consider and vote upon an
adjournment of the Special Meeting, if necessary, if a quorum is
present, to solicit additional proxies if there are not
sufficient votes in favor of approval of the proposed issuance
of shares of our common stock in an amount exceeding 19.9% of
our outstanding common stock pursuant to the Warrant Exchange
Agreements as described in Proposal 1.
Approval of the adjournment of the Special Meeting requires an
affirmative vote of a majority of the votes cast on the proposal
at the Special Meeting. Abstentions and broker non-votes will
not be counted towards, and will have no effect on, the vote
total for this proposal.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO APPROVE THE
ADJOURNMENT OF THE SPECIAL MEETING, IF A QUORUM IS PRESENT, TO
SOLICIT ADDITIONAL PROXIES IF THERE ARE NOT SUFFICIENT VOTES TO
APPROVE PROPOSAL 1, AND PROXIES SOLICITED BY THE BOARD WILL
BE VOTED IN FAVOR OF THE ADJOURNMENT UNLESS A STOCKHOLDER HAS
INDICATED OTHERWISE ON THE PROXY.
PROPOSAL 3
APPROVAL OF AMENDMENT TO OUR RESTATED CERTIFICATE OF
INCORPORATION TO DECREASE THE AUTHORIZED NUMBER OF SHARES OF OUR COMMON STOCK, $0.01 PAR VALUE PER SHARE, FROM 300,000,000 to 275,000,000
APPROVAL OF AMENDMENT TO OUR RESTATED CERTIFICATE OF
INCORPORATION TO DECREASE THE AUTHORIZED NUMBER OF SHARES OF OUR COMMON STOCK, $0.01 PAR VALUE PER SHARE, FROM 300,000,000 to 275,000,000
The Board of Directors has determined that it is advisable to
decrease our authorized common stock, $0.01 par value per
share, from 300,000,000 shares to 275,000,000 shares,
subject to the implementation of the reverse stock split
described below, and has voted to recommend that the
stockholders adopt an amendment to our Restated Certificate of
Incorporation effecting the proposed decrease. The full text of
the proposed amendment to our Restated Certificate of
Incorporation is attached to this proxy statement as
Appendix B.
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As of the January 18, 2011 record date,
110,244,595 shares of our common stock were issued and
outstanding (excluding treasury shares). As of February 15,
2011, 133,906,902 shares of our common stock were issued
and outstanding (excluding treasury shares), an additional
33,905,905 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, and an additional 3,381,725 shares remain
available for issuance under our 2005 stock plan and ESPP
combined. Accordingly, of our 300,000,000 authorized common
shares, approximately 128,805,468 shares of common stock
are available for future issuance.
At a Special Meeting of Stockholders held on December 21,
2010, our stockholders approved an amendment to our Restated
Certificate of Incorporation to effect a reverse stock split of
our common stock at a ratio in the range of 1:2 to 1:20, such
ratio to be determined by the Board of Directors.
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 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.
Except as described in this Proxy Statement pursuant to the
Warrant Exchange Agreements, 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 remain available following the proposed decrease in
the number of authorized shares of our common stock. However,
the Board of Directors believes that the unissued shares that
will be available upon the implementation of the reverse stock
split will result in an excessive franchise tax liability, while
a lower number of unissued shares will provide sufficient
flexibility for corporate action in the future. Therefore, the
Board of Directors recommends that our stockholders approve a
decrease in the number of authorized shares of our common stock
from 300,000,000 to 275,000,000, subject to and following the
implementation of the reverse stock split. Even if the
stockholders approve the proposed decrease 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 Special Meeting.
We will not solicit further authorization by vote of the
stockholders for the issuance of the unissued authorized shares
of common stock, 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
generally have any preemptive right to purchase or subscribe for
any part of any new or additional issuance of our securities.
Approval of the amendment to our Restated Certificate of
Incorporation to effect the proposed decrease in our authorized
number of shares of common stock requires an affirmative vote of
a majority of the common stock outstanding and entitled to vote
at the Special Meeting. 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.
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SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following tables set forth certain information with respect
to the beneficial ownership of our common stock as of
January 7, 2011, for (a) (1) our Chief Executive
Officer, (2) our Chief Financial Officer and (3) our
next most highly compensated executive officer who earned more
than $100,000 during the fiscal year ended December 31,
2010, (b) each of our directors, (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
January 7, 2011 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 110,244,595 shares of common stock
outstanding on January 7, 2011.
|
Number of Shares |
||||||||
|
Beneficially Owned |
||||||||
|
and Nature of |
Percent of |
|||||||
| Ownership | Class % | |||||||
|
David Chaplin(1)
|
644,350 | * | ||||||
|
Roy Fickling(2)
|
202,846 | * | ||||||
|
Tamar Howson
|
75,000 | * | ||||||
|
Mark Kessel(3)
|
27,232,118 | 24.7 | % | |||||
|
Peter Langecker(4)
|
193,750 | * | ||||||
|
Jim Murphy(5)
|
403,750 | * | ||||||
|
William Schwieterman(6)
|
179,208 | * | ||||||
|
William Shiebler(7)
|
452,002 | * | ||||||
|
Alastair J.J. Wood
|
115,000 | * | ||||||
|
All current directors and executive officers as a group
(9 persons)(8)
|
29,498,024 | 26.5 | % | |||||
| * | Less than 1%. | |
| (1) | Includes options to purchase 511,250 shares of common stock, which are exercisable within 60 days of January 7, 2011 (March 8, 2011). | |
| (2) | Includes 10,000 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) | Includes 27,207,118 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. | |
| (4) | Includes options to purchase 193,750 shares of common stock, which are exercisable within 60 days of January 7, 2011 (March 8, 2011). | |
| (5) | Includes options to purchase 363,750 shares of common stock, which are exercisable within 60 days of January 7, 2011 (March 8, 2011). | |
| (6) | Includes 10,000 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. | |
| (7) | Includes options to purchase 135,000 shares of common stock, which are exercisable within 60 days of January 7, 2011 (March 8, 2011). |
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| (8) | Includes 40,000 shares of common stock subject to transfer restrictions, options to purchase 1,203,750 shares of common stock held by the directors and executive officers as a group and which are exercisable within 60 days of January 7, 2011 (March 8, 2011) and 20,000 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. |
As of January 7, 2011, the following is the only entity
known to us to be the beneficial owner of more than 5% of our
outstanding common stock.
|
Number of Shares |
||||||||
|
Beneficially Owned |
||||||||
|
and Nature of |
Percent of |
|||||||
|
Name and Address of Beneficial Owner
|
Ownership | Class | ||||||
|
Symphony ViDA Holdings LLC
|
27,207,118 | 24.7 | % | |||||
|
875 Third Avenue
18th Floor New York, NY 10022 |
||||||||
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.
EXPENSES
OF SOLICITATION
We will bear the costs of soliciting proxies from our
stockholders. We currently estimate such costs to be
approximately $10,000. We will make this solicitation by mail,
and our directors, officers and employees may also solicit
proxies by telephone 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. 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 $15,000 in the aggregate.
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 Securities Exchange Act of 1934, as
amended (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 have been 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 Special Meeting. If any other business is
properly brought before the Special Meeting, it is intended that
proxies in the enclosed form will be voted in accordance with
the judgment of the persons voting the proxies.
South San Francisco, CA
February 18, 2011
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Appendix A
FORM OF
WARRANT EXCHANGE AGREEMENT
THIS WARRANT EXCHANGE AGREEMENT (the
“Agreement”) is dated as of January 18,
2011, by and between OXiGENE, Inc., a Delaware corporation with
offices located at 701 Gateway Blvd, Suite 210, South
San Francisco, CA 94080 (the “Company”),
and
(the “Investor”).
WHEREAS:
A. The Company, the Investor and certain other investors
(the “Other Investors” and together with the
Investor, the “Investors”) are parties to that
certain Securities Purchase Agreement, dated as of
March 10, 2010, as amended by that certain Amendment and
Exchange Agreement dated as of March 25, 2010 (the
“Existing Securities Purchase Agreement”),
pursuant to which, among other things, the Investor purchased
from the Company (i) certain shares of the Company’s
common stock, par value $0.01 per share (the “Common
Stock”), (ii) a Series A Warrant, which is
currently exercisable
into shares
of Common Stock (the “Series A Warrant”),
(iii) a Series B Warrant, which was exercisable into
shares of Common Stock and which has expired prior to the date
of this Agreement, (iv) a Series C Warrant, which is
currently exercisable
into shares
of Common Stock (the “Series C Warrant”),
and (v) a Series D Warrant, which was exercisable into
shares of Common Stock and which has expired prior to the date
of this Agreement.
B. The Company and the Investor desire to enter into this
Agreement, pursuant to which, among other things, the Company
and the Investor shall (x) at the Initial Closing (as
defined below), exchange the Series A Warrant and the
Series C Warrant currently held by the Investor for
(i) shares
of Common Stock (the “Initial Closing Shares”),
and (ii) a warrant in the form attached hereto as
Exhibit A (the “Series E
Warrant”), initially exercisable
into shares
of Common Stock (the “Series E Warrant
Shares”) and (y) subject to occurrence of the
Stockholder Approval (as defined below), at the Second Closing
(as defined below), exchange the Series E Warrant then held
by the Investor
for shares
of Common Stock (the “Second Closing Shares”),
each as described below.
C. As a closing condition to the transactions contemplated
hereby, each of the Other Investors are executing agreements
identical to this Agreement (other than proportional changes in
the numbers reflecting (x) such different number of shares
of Common Stock (the “Other Initial Closing
Shares”) and such warrants (the “Other
Series E Warrants”, and together with the
Series E Warrant, the “Series E
Warrants”) exercisable into such different number of
shares of Common Stock (the “Other Series E Warrant
Shares”) to be issued to each such Other Investor in
exchange for the Series A Warrant (as defined in the
Existing Securities Purchase Agreement) and Series C
Warrant (as defined in the Existing Securities Purchase
Agreement) of such Other Investor concurrently with the Initial
Closing and (y) such different number of shares of Common
Stock (the “Other Second Closing Shares”, and
together with the Initial Closing Shares, the Other Initial
Closing Shares and the Second Closing Shares, collectively, the
“Exchange Shares”) to be issued to each such
Other Investor in exchange for the Series E Warrant of such
Other Investor concurrently with the Second Closing, in each
case, pursuant to separate agreements dated of even date
herewith) (the “Other Agreements,” and together
with this Agreement, the “Agreements”).
D. The exchange of (x) the Series A Warrant and
the Series C Warrant for the Initial Exchange Shares and
the Series E Warrant at the Initial Closing and
(y) the Series E Warrant for the Second Closing Shares
at the Second Closing are each being made in reliance upon the
exemption from registration provided by Section 3(a)(9) of
the Securities Act of 1933, as amended (the
“1933 Act”); and
E. The Initial Closing Shares, the Other Initial Closing
Shares, the Second Closing Shares, the Other Second Closing
Shares, the Series E Warrants, the Other Series E
Warrants, the Series E Warrant Shares and the Other
Series E Warrant Shares are collectively referred to herein
as the “Securities”.
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F. Capitalized terms used but not otherwise defined herein
shall have the meanings as set forth in the Existing Securities
Purchase Agreement as amended hereby.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual covenants hereinafter contained, the parties hereto
agree as follows:
1. EXCHANGES.
1.1 Initial
Exchange. Subject to the satisfaction or
waiver of the conditions with respect to the Initial Closing set
forth in Sections 5 and 6 below, at the Initial Closing the
Investor and the Company shall, pursuant to Section 3(a)(9)
of the 1933 Act, exchange the Series A Warrant and the
Series C Warrant for the Initial Closing Shares and the
Series E Warrant, as follows (the “Initial
Exchange”):
(a) Initial Closing. The issuance
of the Initial Closing Shares and the Series E Warrant (the
“Initial Closing”) shall occur at the offices
of Greenberg Traurig, LLP, MetLife Building, 200 Park Avenue,
New York, NY 10166. The date and time of the Initial Closing
shall be 10:00 a.m., New York time, on the first (1st)
Business Day on which the conditions to the Initial Closing set
forth in Sections 5 and 6 below are satisfied or waived (or
such later date as is mutually agreed to by the Company and each
Investor).
(b) Consideration. At the Initial
Closing, the Initial Closing Shares and the Series E
Warrant shall be issued to the Investor in exchange for the
Series A Warrant and the Series C Warrant without the
payment of any additional consideration.
(c) Delivery. In exchange for the
Series A Warrant and the Series C Warrant, the Company
shall, at the Initial Closing, (i) deliver or cause to be
delivered to the Investor certificates for the Series E
Warrant and (ii) cause American Stock Transfer &
Trust Company, LLC (together with any subsequent transfer
agent, the “Transfer Agent”) through the
Depository Trust Company (“DTC”) Fast
Automated Securities Transfer Program, to credit the Initial
Closing Shares to the Investor’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at
Custodian system. The Investor shall deliver or cause to be
delivered to the Company (or its designee) the original
Series A Warrant and the original Series C Warrant, as
soon as commercially practicable following the Initial Closing.
As of the Initial Closing Date, all of the Investor’s
rights under the Series A Warrant and the Series C
Warrant shall be extinguished.
1.2 Second Exchange. Subject
to the satisfaction or waiver of the conditions with respect to
the Second Closing set forth in Sections 5 and 6 below and
the Company obtaining the Stockholder Approval (as defined
below), at the Second Closing the Investor and the Company
shall, pursuant to Section 3(a)(9) of the 1933 Act,
exchange the Series E Warrant for the Second Closing
Shares, as follows (the “Second Exchange”, and
together with the Initial Exchange, the
“Exchanges”):
(a) Special Meeting. The Company
shall use its reasonable best efforts to provide each of its
stockholders entitled to vote at a special meeting of
stockholders of the Company (the “Stockholder
Meeting”), which shall be promptly called and held not
later than February 28, 2011 (or in the event that such
proxy statement is subject to a full review by the SEC,
March 31, 2011), a proxy statement, substantially in a form
which shall have been previously reviewed by Greenberg Traurig
LLP, at the expense of the Company but in any event such expense
not to exceed $10,000 without the prior written approval of the
Company; soliciting each such stockholder’s affirmative
vote at the Stockholder Meeting for the approval of resolutions
(“Stockholder Resolutions”) providing for the
Company’s issuance of all of the Securities as described in
the Agreements in accordance with applicable law and the rules
and regulations of the Principal Market (such affirmative
approval being referred to herein as the “Stockholder
Approval”, and the date such Stockholder Approval is
obtained, the “Stockholder Approval Date”), and
the Company shall use its reasonable best efforts to solicit its
stockholders’ approval of such resolutions and to cause the
Board of Directors of the Company to recommend to the
stockholders that they approve such resolutions. The Company
shall be obligated to seek to obtain the Stockholder Approval by
the Stockholder Meeting deadline set forth above. If, despite
the Company’s reasonable best efforts the Stockholder
Approval is not obtained on or prior to such Stockholder Meeting
deadline and
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the Company’s stockholders authorize an adjournment of the
Stockholder Meeting to solicit additional proxies, then, for the
sake of economy, the Company shall so adjourn the Stockholder
Meeting and continue using its reasonable best efforts to
solicit sufficient additional proxies to obtain the Stockholder
Approval through and until the sooner of such time as the
Company obtains the Stockholder Approval or May 18, 2011.
If, however, the Company’s stockholders do not approve the
adjournment of the Stockholder Meeting, the Company shall cause
an additional Stockholder Meeting to be held once in each
subsequent calendar quarter thereafter, provided however that
the Company shall have no obligation to seek Stockholder
Approval after May 18, 2011.
(b) Second Closing. The issuance
of the Second Closing Shares (the “Second
Closing”) shall occur at the offices of Greenberg
Traurig, LLP, MetLife Building, 200 Park Avenue, New York,
NY 10166. The date and time of the Second Closing shall be
10:00 a.m., New York time, on the first (1st) Business Day
on which the conditions to the Second Closing set forth in
Sections 5 and 6 below are satisfied or waived (or such
later date as is mutually agreed to by the Company and each
Investor).
(c) Consideration. At the Second
Closing the Second Closing Shares shall be issued to the
Investor in exchange for the Series E Warrant without the
payment of any additional consideration.
(d) Delivery. In exchange for the
Series E Warrant, the Company shall, at the Second Closing,
cause the Transfer Agent through the DTC Fast Automated
Securities Transfer Program, to credit the Second Closing Shares
to the Investor’s or its designee’s balance account
with DTC through its Deposit/Withdrawal at Custodian system. The
Investor shall deliver or cause to be delivered to the Company
(or its designee) the original Series E Warrant as soon as
commercially practicable following the Initial Closing. As of
the Second Closing Date, all of the Investor’s rights under
the Series E Warrant shall be extinguished.
1.3 Other Documents. The
Company and the Investor shall execute
and/or
deliver such other documents and agreements as are reasonably
necessary to effectuate the Exchanges.
2. AMENDMENTS TO TRANSACTION DOCUMENTS.
2.1 Ratifications. Except as
otherwise expressly provided herein, the Existing Securities
Purchase Agreement and each other Transaction Document, is, and
shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects, except that on and after
the Closing Date: (i) all references in the Existing
Securities Purchase Agreement to “this Agreement”,
“hereto”, “hereof”, “hereunder” or
words of like import referring to the Existing Securities
Purchase Agreement shall mean the Existing Securities Purchase
Agreement as amended by this Agreement, and (ii) all
references in the other Transaction Documents, to the
“Securities Purchase Agreement”, “thereto”,
“thereof”, “thereunder” or words of like
import referring to the Securities Purchase Agreement shall mean
the Existing Securities Purchase Agreement as amended by this
Agreement.
2.2 Amendments to Transaction
Documents. On and after the Closing Date,
each of the Transaction Documents and
Schedule 3.2 hereof are hereby amended as
follows:
(a) The defined term “Common Shares” is hereby
amended to include “the Exchange Shares” (as defined
in the Warrant Exchange Agreements)”.
(b) The defined term “Series A Warrants” is
hereby amended to include “the Series E Warrants (as
defined in the Warrant Exchange Agreements)”.
(c) The defined term “Series A Warrant
Shares” is hereby amended to include “the
Series E Warrant Shares (as defined in the Warrant Exchange
Agreements) and the Other Series E Warrant Shares (as
defined in the Warrant Exchange Agreements)”.
(d) The defined term “Warrant Exchange
Agreements” shall mean “those certain Warrant Exchange
Agreements, dated as of January 18, 2011, each by and
between the Company and each Buyer”.
(e) The defined term “Transaction Documents” is
hereby amended to include the Warrant Exchange Agreements.
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2.3 Amendment to Existing Securities Purchase
Agreement. On and after the Closing Date, the
Existing Securities Purchase Agreement is hereby amended as
follows:
(a) Section 4(o)(i) is hereby amended such that:
(i) the reference to “five (5) Trading Days”
is hereby replaced by “three (3) Trading Days”;
(ii) the reference to “three (3) Trading
Days” is hereby replaced by “two (2) Trading
Days”; and
(iii) the reference to “two (2) Trading
Days” is hereby replaced by “one (1) Trading
Day”.
(b) Section 4(o)(ii) is hereby amended such that:
(i) the reference to the “third (3 rd) Business
Day” is hereby replaced by the “second (2 nd) Business
Day”; and
(ii) the reference to the “fifth (5 th) Business
Day” is hereby replaced by the “second (2 nd) Business
Day”.
3. REPRESENTATIONS AND WARRANTIES
3.1 Investor Bring Down. The
Investor hereby represents and warrants to the Company with
respect to itself only as set forth in Section 2 of the
Existing Securities Purchase Agreement (as amended hereby) as to
this Agreement as if such representations and warranties were
made as of the date hereof and set forth in their entirety in
this Agreement. Such representations and warranties to the
transactions thereunder and the securities issued pursuant
thereto are hereby deemed for purposes of this Agreement to be
references to the transactions hereunder and the issuance of the
securities pursuant hereto.
3.2 Company Bring
Down. Except as set forth on
Schedule 3.2 attached hereto, the Company
represents and warrants to the Investor as set forth in
Section 3 of the Existing Securities Purchase Agreement (as
amended hereby) as if such representations and warranties were
made as of the date hereof and set forth in their entirety in
this Agreement (other than Sections 3(a), 3(c), 3(e), 3(n)
and 3(r) of the Existing Securities Purchase Agreement, which
shall be deemed to be amended and restated in the form attached
hereto on Schedule 3.2 (as amended by
Section 2.2 hereof)). Such representations and warranties
to the transactions thereunder and the securities issued
pursuant thereto are hereby deemed for purposes of this
Agreement to be references to the transactions hereunder and the
issuance of the securities pursuant hereto, references therein
to “Closing Date” being deemed references to the
Initial Closing Date or the Second Closing Date, as applicable,
and references to “the date hereof” being deemed
references to the date of this Agreement.
4. COVENANTS.
4.1 Reasonable Best
Efforts. The Company shall use its reasonable
best efforts to timely satisfy each of the conditions to be
satisfied by it as provided in Section 6 of this Agreement.
The Investor shall use its reasonable best efforts to timely
satisfy each of the conditions to be satisfied by it as provided
in Section 5 of this Agreement.
4.2 Disclosure of Transactions and Other
Material Information. On or before
9:30 a.m., New York time, on the first (1st) Business Day
following the date of this Agreement, the Company shall file a
Current Report on
Form 8-K
describing all the material terms of the transactions
contemplated by the Agreement in the form required by the
Securities Exchange Act of 1934, as amended, and attaching this
Agreement and the form of the Series E Warrant thereto as
exhibits (including all attachments, the
“8-K
Filing”). From and after the issuance of the
8-K Filing,
the Company shall have disclosed all material, non-public
information (if any) delivered to any of the Investors by the
Company or any of its Subsidiaries, or any of their respective
officers, directors, employees or agents in connection with the
transactions contemplated by this Agreement. On or before
9:30 a.m., New York time, on the Initial Closing Date, the
Company shall file a Current Report on
Form 8-K
certifying that the Initial Exchange has been consummated. On or
before 9:30 a.m., New York time, on the Second Closing
Date, the Company shall file a Current Report on
Form 8-K
certifying that the Second Exchange has been consummated.
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4.3 Fees. The Company shall
reimburse Greenberg Traurig, LLP (counsel to the lead Investor),
on demand, for all reasonable, documented costs and expenses
incurred by it in connection with preparing and delivering this
Agreement (including, without limitation, all reasonable,
documented legal fees and disbursements in connection therewith,
and due diligence in connection with the transactions
contemplated thereby), provided, however, that the amount
payable by the Company to Greenberg Traurig, LLP in connection
with this Agreement shall not exceed $15,000 in the aggregate
unless previously agreed to in writing by the Company.
4.4 Holding Period. For the
purposes of Rule 144, the Company acknowledges that the
holding period of (x) the Initial Closing Shares, the
Series E Warrants and the Series E Warrant Shares (if
acquired using a Cashless Exercise (as defined in the
Series E Warrant)) may be tacked onto the holding period of
the Series A Warrants and the Series C Warrants and
(y) the Second Closing Shares may be tacked onto the
holding period of the Series E Warrants, and the Company
agrees not to take a position contrary to this Section 4.4.
4.5 No Ability to Vote Shares Issued at
First Closing. As required by the rules and
regulations of the Principal Market, the Investor covenants and
agrees not vote its Initial Closing Shares at the Special
Meeting.
4.6 No Waiver of Voting
Agreements. The Company shall not amend,
waive or modify any provision of the Voting Agreements (as
defined below).
5. CONDITIONS TO COMPANY’S OBLIGATIONS
HEREUNDER.
The obligations of the Company to the Investor hereunder are
subject to the satisfaction of each of the following conditions
(except to the extent such condition is expressly conditional to
a specific closing, in which case such condition shall only
apply to such specific closing), provided that these conditions
are for the Company’s sole benefit and may be waived by the
Company at any time in its sole discretion by providing the
Investor with prior written notice thereof:
5.1 The Investor shall have duly executed this Agreement
and delivered the same to the Company.
5.2 Each of the Other Investors shall have duly executed
the Other Agreement of such Other Investor and delivered the
same to the Company.
5.3 The representations and warranties of the Investor
shall be true and correct in all material respects as of the
date when made and as of each Closing Date as though made at
that time (except for representations and warranties that speak
as of a specific date which shall be true and correct as of such
specified date), and the Investor shall have performed,
satisfied and complied in all material respects with the
covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by the Investor at
or prior to each Closing Date.
5.4 With respect to the Second Closing only, the
Stockholder Approval shall have occurred.
6. CONDITIONS TO INVESTOR’S OBLIGATIONS
HEREUNDER.
The obligations of the Investor hereunder are subject to the
satisfaction of each of the following conditions (except to the
extent such condition is expressly conditional to a specific
closing, in which case such condition shall only apply to such
specific closing), provided that these conditions are for the
Investor’s sole benefit and may be waived by the Investor
at any time in its sole discretion by providing the Company with
prior written notice thereof:
6.1 The Company shall have duly executed and delivered this
Agreement to the Investor.
6.2 At the Initial Closing, the Company shall have duly
executed and delivered (or caused to be delivered) to the
Investor the certificate with respect to the Series E
Warrant and electronically delivered to the Investor (or its
designee) through DTC the Initial Closing Shares. At the Second
Closing, the Company shall have electronically delivered to the
Investor (or its designee) through DTC the Second Closing Shares.
6.3 The Company shall have delivered to the Investor a copy
of each Other Agreement, duly executed and delivered by the
Company and each Other Investor party thereto.
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6.4 The Investor shall have received the opinion of Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., the
Company’s counsel, dated as of the applicable Closing Date,
in the form reasonably acceptable to the Investor.
6.5 The Company shall have delivered to the Investor a copy
of the Amended and Restated Irrevocable Transfer Agent
Instructions, in the form acceptable to the Investor, which
instructions shall have been delivered to and acknowledged in
writing by the Company’s transfer agent.
6.6 The Company shall have delivered to the Investor a
certificate, in the form acceptable to the Investor, duly
executed by the Secretary of the Company and dated as of each
Closing Date, as to (i) the resolutions authorizing the
transactions contemplated hereby as adopted by the
Company’s board of directors, in a form reasonably
acceptable to the Investor, (ii) the Certificate of
Incorporation of the Company and (iii) the Bylaws of the
Company, each as in effect at each Closing.
6.7 Each and every representation and warranty of the
Company shall be true and correct in all material respects as of
the date when made and as of each Closing Date as though
originally made at that time (except for representations and
warranties that speak as of a specific date, which shall be true
and correct as of such date) and the Company shall have
performed, satisfied and complied in all material respects with
the covenants, agreements and conditions required to be
performed, satisfied or complied with by the Company at or prior
to each Closing Date. The Investor shall have received a
certificate, duly executed by the Chief Executive Officer of the
Company, dated as of each Closing Date, to the foregoing effect
and as to such other matters as may be reasonably requested by
the Investor in the form acceptable to the Investor.
6.8 The Company shall have obtained all governmental,
regulatory or third party consents and approvals, if any,
necessary for the transactions contemplated by this Agreement,
including without limitation, those required by the Principal
Market, except for the Stockholder Approval.
6.9 No statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any court or governmental authority
of competent jurisdiction that prohibits the consummation of any
of the transactions contemplated by this Agreement.
6.10 The Company and its Subsidiaries shall have delivered
to the Investor such other documents relating to the
transactions contemplated by this Agreement as the Investor or
its counsel may reasonably request.
6.11 The Company shall have duly executed and delivered to
such Investor voting agreements in the form of
Exhibit B hereto (the “Voting
Agreements”), by and between the Company and each of
its executive officers, directors and Symphony Capital LLC (the
“Principal Stockholders”) and the Principal
Stockholders shall have duly executed and delivered to such
Investor the Voting Agreements.
6.12 With respect to the Second Closing only, the
Stockholder Approval shall have occurred prior to May 18,
2011.
7. TERMINATION.
In the event that the First Closing does not occur on or before
five (5) Business Days from the date hereof due to the
Company’s or the Investor’s failure to satisfy the
conditions set forth in Sections 5 and 6 hereof (and the
nonbreaching party’s failure to waive such unsatisfied
conditions(s)), the nonbreaching party shall have the option to
terminate this Agreement with respect to such breaching party at
the close of business on such date without liability of any
party to any other party. Upon such termination, the terms
hereof shall be null and void and the parties shall continue to
comply with all terms and conditions of the Transaction
Documents, as in effect prior to the execution of this
Agreement; provided further that no such termination shall
affect any obligation of the Company under this Agreement to
reimburse Greenberg Traurig LLP for the expenses described in
Section 4.3 above.
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8. MISCELLANEOUS.
8.1 Miscellaneous
Provisions. Section 9 of the Existing
Securities Purchase Agreement is hereby incorporated by
reference herein, mutatis mutandis.
8.2 Legends. No restrictive
legends shall be placed on the certificates representing the
Securities.
8.3 Most Favored Nation. The
Company hereby represents and warrants as of the date hereof and
covenants and agrees from and after the date hereof that none of
the terms offered to any Person with respect to any consent,
release, amendment, settlement or waiver relating to the terms,
conditions and transactions contemplated hereby (each a
“Settlement Document”), is or will be more
favorable to such Person than those of the Investor and this
Agreement. If, and whenever on or after the date hereof, the
Company enters into a Settlement Document, then (i) the
Company shall provide notice thereof to the Investor immediately
following the occurrence thereof and (ii) the terms and
conditions of this Agreement, the other Exchange Documents and
the Securities (other than any limitations on conversion or
exercise set forth therein) shall be, without any further action
by the Investor or the Company, automatically amended and
modified in an economically and legally equivalent manner such
that the Investor shall receive the benefit of the more
favorable terms
and/or
conditions (as the case may be) set forth in such Settlement
Document, provided that upon written notice to the Company at
any time the Investor may elect not to accept the benefit of any
such amended or modified term or condition, in which event the
term or condition contained in this Agreement or the Securities
(as the case may be) shall apply to the Investor as it was in
effect immediately prior to such amendment or modification as if
such amendment or modification never occurred with respect to
the Investor. The provisions of this Section 8.3 shall
apply similarly and equally to each Settlement Document.
8.4 No Commissions. Neither
the Company nor the Investor has paid or given, or will pay or
give, to any person, any commission or other remuneration,
directly or indirectly, in connection with the transactions
contemplated by this Agreement.
8.5 No Registration or
Listing. Notwithstanding anything set forth
herein or in the Transaction Documents as amended hereby, the
Investor hereby acknowledges and agrees that the Company shall
have no obligation to register the Series E Warrant Shares
with the Securities and Exchange Commission, nor shall the
Company have any obligation to cause the Series E Warrants
to be listed on the OTC Bulletin Board.
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IN WITNESS WHEREOF, the Investor and the Company have
caused their respective signature pages to this Agreement to be
duly executed as of the date first written above.
COMPANY:
OXIGENE, INC.
| By: |
|
Name: Dr. Peter J. Langecker
Title: Chief Executive Officer
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IN WITNESS WHEREOF, the Investor and the Company have
caused their respective signature pages to this Agreement to be
duly executed as of the date first written above.
INVESTOR:
| By: |
|
Name:
Title:
o Notwithstanding
anything contained in this Agreement to the contrary, by
checking this box (i) the obligations of the above-signed
to exchange the Series A warrants and the Series C
warrants of the above-signed for the Initial Closing Shares and
the Series E warrant to be issued to the above-signed at
the Initial Closing in accordance herewith, and the obligations
of the Company to issue such Initial Closing Shares and such
Series E warrant to the above-signed in exchange for such
Series A warrants and such Series C warrants of the
above-signed, shall be unconditional and all conditions to the
Initial Closing shall be disregarded, (ii) the Initial
Closing shall occur no later than the third (3rd) Trading Day
following the date of this Agreement and (iii) any
condition to the Initial Closing contemplated by this Agreement
(but prior to being disregarded by clause (i) above) that
required delivery by the Company or the above-signed of any
agreement, instrument, certificate or the like, shall no longer
be a condition and shall instead be an unconditional obligation
of the Company or the above-signed (as applicable) to deliver
such agreement, instrument, certificate or the like to such
other party on the First Closing Date.
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Schedule 2.2:
3(a): Organization and Qualification. Each of
the Company and each of its Subsidiaries are entities duly
organized and validly existing and in good standing under the
laws of the jurisdiction in which they are formed, and have the
requisite power and authorization to own their properties and to
carry on their business as now being conducted and as presently
proposed to be conducted. With the exception of the
Company’s “forfeited” status in the State of
California, each of the Company and each of its Subsidiaries is
duly qualified as a foreign entity to do business and is in good
standing in every jurisdiction in which its ownership of
property or the nature of the business conducted by it makes
such qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not have
a Material Adverse Effect. As used in this Agreement,
“Material Adverse Effect” means any material
adverse effect on (i) the business, properties, assets,
liabilities, operations (including results thereof), condition
(financial or otherwise) or prospects of the Company or any
Subsidiary, individually or taken as a whole, (ii) the
transactions contemplated hereby or in any of the other
Transaction Documents or (iii) the authority or ability of
the Company or any of its Subsidiaries to perform any of their
respective obligations under any of the Transaction Documents
(as defined below). The Company has no Subsidiaries.
“Subsidiaries” means any Person in which the
Company, directly or indirectly, (I) owns at least fifty
percent (50% of the outstanding capital stock or holds at least
fifty percent (50%) of the equity or similar interest of such
Person or (II) controls or operates all or any part of the
business, operations or administration of such Person, and each
of the foregoing, is individually referred to herein as a
“Subsidiary.”
3(c): Issuance of
Securities. The Common Shares, when
issued, will be validly issued, fully paid and nonassessable and
free from all preemptive or similar rights, taxes, liens,
charges and other encumbrances with respect to the issue
thereof, with the holders being entitled to all rights accorded
to a holder of Common Stock. The Warrants are duly authorized
and upon issuance in accordance with the terms of the
Transaction Documents shall be validly issued, fully paid and
non-assessable and free from all preemptive or similar rights,
taxes, liens, charges and other encumbrances with respect to the
issue thereof. As of the Closing, the Company shall have
reserved from its duly authorized capital stock not less than
100% of the maximum number of Warrant Shares issuable upon
exercise of the Warrants as of such date (without taking into
account any possible adjustments pursuant to the anti-dilution
rights attendant thereto or any limitations on the exercise of
the Warrants set forth therein). Upon exercise in accordance
with the Warrants, the Warrant Shares, when issued, will be
validly issued, fully paid and nonassessable and free from all
preemptive or similar rights, taxes, liens, charges and other
encumbrances with respect to the issue thereof, with the holders
being entitled to all rights accorded to a holder of Common
Stock. Subject to the accuracy of the representations and
warranties of the Buyers in this Agreement, the offer and
issuance by the Company of the Securities is exempt from
registration under the 1933 Act.
3(e): Consents. Other than the
Stockholder Approval (as defined in the Warrant Exchange
Agreements), neither the Company nor any Subsidiary is required
to obtain any consent from, authorization or order of, or make
any filing or registration with (other than the filing with the
SEC of one or more Registration Statements in accordance with
the requirements of the Registration Rights Agreement, a
Form D with the SEC and any other filings as may be
required by any state securities agencies), any court,
governmental agency or any regulatory or self-regulatory
agency or any other Person in order for it to execute, deliver
or perform any of its respective obligations under or
contemplated by the Transaction Documents, in each case, in
accordance with the terms hereof or thereof. Other than the
Stockholder Approval, all consents, authorizations, orders,
filings and registrations which the Company or any Subsidiary is
required to obtain pursuant to the preceding sentence have been
obtained or effected on or prior to the Closing Date, and
neither the Company nor any of its Subsidiaries are aware of any
facts or circumstances which might prevent the Company or any
Subsidiary from obtaining or effecting any of the registration,
application or filings contemplated by the Transaction
Documents. Except as set forth in the SEC Documents, the Company
is not in violation of the requirements of the Principal Market
and has no knowledge of any facts or circumstances which could
reasonably lead to delisting or suspension of the Common Stock
in the foreseeable future.
3(n): Conduct of Business; Regulatory
Permits. Neither the Company nor any
of its Subsidiaries is in violation of any term of or in default
under its Certificate of Incorporation, Bylaws, any certificate
of
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designation, preferences or rights of any other outstanding
series of preferred stock of the Company or any of its
Subsidiaries or their organizational charter, certificate of
formation or certificate of incorporation or bylaws,
respectively. Neither the Company nor any of its Subsidiaries is
in violation of any judgment, decree or order or any statute,
ordinance, rule or regulation applicable to the Company or any
of its Subsidiaries, and neither the Company nor any of its
Subsidiaries will conduct its business in violation of any of
the foregoing, except in all cases for possible violations which
could not, individually or in the aggregate, have a Material
Adverse Effect. Without limiting the generality of the
foregoing, other than as set forth in the SEC Documents, the
Company is not in violation of any of the rules, regulations or
requirements of the Principal Market and has no knowledge of any
facts or circumstances that could reasonably lead to delisting
or suspension of the Common Stock by the Principal Market in the
foreseeable future. Since January 1, 2008, other than as
set forth in the SEC Documents, (i) the Common Stock has
been listed or designated for quotation on the Principal Market,
(ii) trading in the Common Stock has not been suspended by
the SEC or the Principal Market and (iii) the Company has
received no communication, written or oral, from the SEC or the
Principal Market regarding the suspension or delisting of the
Common Stock from the Principal Market. The Company and each of
its Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate regulatory authorities
necessary to conduct their respective businesses, except where
the failure to possess such certificates, authorizations or
permits would not have, individually or in the aggregate, a
Material Adverse Effect, and neither the Company nor any such
Subsidiary has received any notice of proceedings relating to
the revocation or modification of any such certificate,
authorization or permit.
3(r): Equity Capitalization. As
of the date hereof, the authorized capital stock of the Company
consists of (i) 300,000,000 shares of Common Stock, of
which, subject to Schedule 3(r), 110,244,595 are
issued and outstanding and 64,861,822 shares are reserved
for issuance pursuant to securities (other than the Warrants)
exercisable or exchangeable for, or convertible into, shares of
Common Stock and (ii) 15,000,000 shares of Preferred
Stock, $0.01 par value, of which none are outstanding. No
shares of Common Stock are held in treasury. All of such
outstanding shares are duly authorized and have been, or upon
issuance will be, validly issued and are fully paid and
nonassessable. 28,294,274 shares of the Company’s
issued and outstanding Common Stock on the date hereof are as of
the date hereof owned by Persons who are “affiliates”
(as defined in Rule 405 of the 1933 Act and calculated
based on the assumption that only officers, directors and
holders of at least 10% of the Company’s issued and
outstanding Common Stock are “affiliates” without
conceding that any such Persons are “affiliates” for
purposes of federal securities laws) of the Company or any of
its Subsidiaries. To the Company’s knowledge, as of the
date hereof, except as set forth in the SEC Documents, no Person
owns 10% or more of the Company’s issued and outstanding
shares of Common Stock (calculated based on the assumption that
all Equivalents, whether or not presently exercisable or
convertible, have been fully exercised or converted (as the case
may be) taking account of any limitations on exercise or
conversion (including “blockers”) contained therein
without conceding that such identified Person is a 10%
stockholder for purposes of federal securities laws). Except as
disclosed in the SEC Documents: (i) none of the
Company’s or any Subsidiary’s capital stock is subject
to preemptive rights or any other similar rights or any liens or
encumbrances suffered or permitted by the Company or any
Subsidiary; (ii) there are no outstanding options,
warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any
capital stock of the Company or any of its Subsidiaries, or
contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or may become bound to
issue additional capital stock of the Company or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating
to, or securities or rights convertible into, or exercisable or
exchangeable for, any capital stock of the Company or any of its
Subsidiaries; (iii) there are no outstanding debt
securities, notes, credit agreements, credit facilities or other
agreements, documents or instruments evidencing Indebtedness of
the Company or any of its Subsidiaries or by which the Company
or any of its Subsidiaries is or may become bound;
(iv) there are no financing statements securing obligations
in any amounts filed in connection with the Company or any of
its Subsidiaries; (v) there are no agreements or
arrangements under which the Company or any of its Subsidiaries
is obligated to register the sale of any of their securities
under the 1933 Act (except pursuant to the Registration
Rights Agreement); (vi) there are no outstanding securities
or instruments of the Company or any of its Subsidiaries which
contain any redemption or similar provisions, and there are no
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contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or may become bound to
redeem a security of the Company or any of its Subsidiaries;
(vii) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by
the issuance of the Securities; (viii) neither the Company
nor any Subsidiary has any stock appreciation rights or
“phantom stock” plans or agreements or any similar
plan or agreement; and (ix) neither the Company nor any of
its Subsidiaries have any liabilities or obligations required to
be disclosed in the SEC Documents which are not so disclosed in
the SEC Documents, other than those incurred in the ordinary
course of the Company’s or its Subsidiaries’
respective businesses and which, individually or in the
aggregate, do not or could not have a Material Adverse Effect.
The Company has made available to the Buyers true, correct and
complete copies of the Company’s Certificate of
Incorporation, as amended and as in effect on the date hereof
(the “Certificate of Incorporation”), the
Company’s bylaws, as amended and as in effect on the date
hereof (the “Bylaws”), and the terms of all
securities convertible into, or exercisable or exchangeable for,
shares of Common Stock and the material rights of the holders
thereof in respect thereto that have not been disclosed in the
SEC Documents.
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Exhibit A —
Form of Series E Warrant
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FORM OF
SERIES E WARRANT
OXiGENE, Inc.
Series E Warrant
To Purchase Common Stock
Series E Warrant No.:
[ ]
Exchange Date: January , 2011
Date of Issuance: March 11, 2010 (“Issuance
Date”)
OXiGENE, Inc., a Delaware corporation (the
“Company”), hereby certifies that, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, [HUDSON BAY MASTER FUND LTD.], [OTHER
BUYERS], the registered holder hereof or its permitted assigns
(the “Holder”), is entitled, subject to the
terms set forth below, to purchase from the Company, at the
Exercise Price (as defined below) then in effect, upon exercise
of this Warrant to Purchase Common Stock (including any Warrants
to Purchase Common Stock issued in exchange, transfer or
replacement hereof, the “Warrant”), at any time
or times on or after the six month anniversary of the Exchange
Date (the “Initial Exercise Date”), but not
after 11:59 p.m., New York time, on the Expiration Date (as
defined below), 899,122 (subject to adjustment as provided
herein) fully paid and nonassessable shares of Common Stock (as
defined below) (the “Warrant Shares”). Except
as otherwise defined herein, capitalized terms in this Warrant
shall have the meanings set forth in Section 16. This
Warrant is one of the Warrants to Purchase Common Stock issued
in exchange for a Series A Warrant to Purchase Common Stock
of the Company, dated as of this Issuance Date, initially
exercisable into [ ] shares of
Common Stock and exercisable into
[ ] shares of Common Stock as
of the Exchange Date and a Series C Warrant to Purchase
Common Stock of the Company, dated as of this Issuance Date,
initially exercisable into
[ ] shares of Common Stock and
exercisable into [ ] shares of
Common Stock as of the Exchange Date (collectively, the
“Existing Warrant” and together with such other
outstanding Series A Warrants to Purchase Common Stock of
the Company and Series C Warrants to Purchase Common Stock
of the Company, the “Existing Warrants”),
issued pursuant to the Securities Purchase Agreement (as defined
below), but shall not, except as set forth herein or in the
Exchange Agreements (as defined below), constitute a release of
any claim under any Transaction Document (as defined in the
Securities Purchase Agreement). This Warrant to Purchase Common
Stock (including all Warrants issued in exchange, transfer or
replacement hereof, this “Warrant”) is one of
an issue of Warrants to Purchase Common Stock (collectively, the
“SPA Warrants” and such other SPA Warrants, the
“Other SPA Warrants”) issued in exchange for
the Existing Warrants pursuant to those certain Exchange
Agreements, dated as of January 18, 2011 (the
“Exchange Date”), each by and between the
holder of Existing Warrants as of the Exchange Date and the
Company (the “Exchange Agreements”). This
Warrant is subject to the terms and conditions of the Exchange
Agreements, including but not limited to the provisions set
forth therein relating to the Exchanges (as defined in the
Exchange Agreements).
1. EXERCISE OF WARRANT.
(a) Mechanics of Exercise. Subject
to the terms and conditions hereof (including, without
limitation, the limitations set forth in Section 1(f)),
this Warrant may be exercised by the Holder on any day on or
after the Initial Exercise Date, in whole or in part, by
delivery (whether via facsimile or otherwise) of a written
notice, in the form attached hereto as Exhibit A
(the “Exercise Notice”), of the Holder’s
election to exercise this Warrant. Within one (1) Trading
Day following an exercise of this Warrant as aforesaid, the
Holder shall deliver payment to the Company of an amount equal
to the Exercise Price in effect on the date of such exercise
multiplied by the number of Warrant Shares as to which this
Warrant was so exercised (the “Aggregate Exercise
Price”) in cash or via wire transfer of immediately
available funds if the Holder did not notify the Company in such
Exercise Notice that such exercise was made pursuant to a
Cashless Exercise (as defined in Section 1(d)). The Holder
shall not be required to deliver the original of this Warrant in
order to effect an exercise hereunder. Execution and delivery of
an Exercise Notice with respect to less than all of the Warrant
Shares shall have the same effect as cancellation of the
original of this Warrant and issuance of a new Warrant
evidencing the right to purchase the remaining number of Warrant
Shares. Execution and delivery of an Exercise Notice for all of
the then-remaining Warrant Shares shall have the same effect as
cancellation of the original of this Warrant after delivery of
the Warrant Shares in accordance with the terms hereof. On or
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before the first
(1st)
Trading Day following the date on which the Company has received
an Exercise Notice, the Company shall transmit by facsimile an
acknowledgment of confirmation of receipt of such Exercise
Notice to the Holder and the Company’s transfer agent (the
“Transfer Agent”). On or before the third
(3rd)
Trading Day following the date on which the Company has received
such Exercise Notice, the Company shall (X) provided that
the Transfer Agent is participating in The Depository
Trust Company (“DTC”) Fast Automated
Securities Transfer Program, upon the request of the Holder,
credit such aggregate number of shares of Common Stock to which
the Holder is entitled pursuant to such exercise to the
Holder’s or its designee’s balance account with DTC
through its Deposit/Withdrawal at Custodian system, or
(Y) if the Transfer Agent is not participating in the DTC
Fast Automated Securities Transfer Program, issue and deliver to
the Holder or, at the Holder’s instruction pursuant to the
Exercise Notice, the Holder’s agent or designee, in each
case, sent by reputable overnight courier to the address as
specified in the applicable Exercise Notice, a certificate,
registered in the Company’s share register in the name of
the Holder or its designee (as indicated in the applicable
Exercise Notice), for the number of shares of Common Stock to
which the Holder is entitled pursuant to such exercise. Upon
delivery of an Exercise Notice, the Holder shall be deemed for
all corporate purposes to have become the holder of record of
the Warrant Shares with respect to which this Warrant has been
exercised, irrespective of the date such Warrant Shares are
credited to the Holder’s DTC account or the date of
delivery of the certificates evidencing such Warrant Shares (as
the case may be). If this Warrant is submitted in connection
with any exercise pursuant to this Section 1(a) and the
number of Warrant Shares represented by this Warrant submitted
for exercise is greater than the number of Warrant Shares being
acquired upon such exercise, then, at the request of the Holder,
the Company shall as soon as practicable and in no event later
than three (3) Business Days after any exercise and at its
own expense, issue and deliver to the Holder (or its designee) a
new Warrant (in accordance with Section 7(d)) representing
the right to purchase the number of Warrant Shares purchasable
immediately prior to such exercise under this Warrant, less the
number of Warrant Shares with respect to which this Warrant is
exercised. No fractional shares of Common Stock are to be issued
upon the exercise of this Warrant, but rather the number of
shares of Common Stock to be issued shall be rounded up to the
nearest whole number. The Company shall pay any and all taxes
which may be payable with respect to the issuance and delivery
of Warrant Shares upon exercise of this Warrant. Notwithstanding
the foregoing, except in the case where an exercise of this
Warrant is validly made pursuant to a Cashless Exercise (as
defined in Section 1(d)), the Company’s failure to
deliver Warrant Shares to the Holder on or prior to the second
(2nd)
Trading Day after the Company’s receipt of the Aggregate
Exercise Price shall not be deemed to be a breach of this
Warrant.
(b) Exercise Price. For purposes
of this Warrant, “Exercise Price” means $0.23,
subject to adjustment as provided herein.
(c) Company’s Failure to Timely Deliver
Securities. If the Company shall fail, for
any reason or for no reason, to issue to the Holder within the
later of (i) three (3) Trading Days after receipt of
the applicable Exercise Notice and (ii) two
(2) Trading Days after the Company’s receipt of the
Aggregate Exercise Price (or valid notice of a Cashless
Exercise) (such later date, the “Share Delivery
Deadline”), a certificate for the number of shares of
Common Stock to which the Holder is entitled and register such
shares of Common Stock on the Company’s share register or
to credit the Holder’s balance account with DTC for such
number of shares of Common Stock to which the Holder is entitled
upon the Holder’s exercise of this Warrant (as the case may
be), and if on or after such Share Delivery Deadline the Holder
purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Holder
of shares of Common Stock issuable upon such exercise that the
Holder anticipated receiving from the Company, then, in addition
to all other remedies available to the Holder, the Company
shall, within three (3) Business Days after the
Holder’s request and in the Holder’s discretion,
either (i) pay cash to the Holder in an amount equal to the
Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
(the “Buy-In Price”), at which point the
Company’s obligation to deliver such certificate or credit
the Holder’s balance account with DTC for the number of
shares of Common Stock to which the Holder is entitled upon the
Holder’s exercise hereunder (as the case may be) (and to
issue such shares of Common Stock) shall terminate, or
(ii) promptly honor its obligation to deliver to the Holder
a certificate or certificates representing such shares of Common
Stock or credit the Holder’s balance account with DTC for
the number of shares of Common Stock to which the Holder is
entitled upon the Holder’s exercise hereunder (as the case
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may be) and pay cash to the Holder in an amount equal to the
excess (if any) of the Buy-In Price over the product of
(A) such number of shares of Common Stock times
(B) the Closing Sale Price of the Common Stock on the
Trading Day immediately preceding the date of the applicable
Exercise Notice.
(d) Cashless
Exercise. Notwithstanding anything contained
herein to the contrary (other than Section 1(f) below), if
at the time of exercise hereof a Registration Statement (as
defined in the Registration Rights Agreement (as defined in the
Securities Purchase Agreement)) is not effective (or the
prospectus contained therein is not available for use) for the
resale by the Holder of all of the Warrant Shares, then the
Holder may, in its sole discretion, exercise this Warrant in
whole or in part and, in lieu of making the cash payment
otherwise contemplated to be made to the Company upon such
exercise in payment of the Aggregate Exercise Price, elect
instead to receive upon such exercise the “Net Number”
of shares of Common Stock determined according to the following
formula (a “Cashless Exercise”):
|
Net Number
|
= | (A x B) | - | (A x C) | ||||||
| B | ||||||||||
For purposes of the foregoing formula:
A= the total number of shares with respect to which this
Warrant is then being exercised.
B= as applicable: (i) the Closing Sale Price of the Common
Stock on the Trading Day immediately preceding the date of the
applicable Exercise Notice if such Exercise Notice is
(1) both executed and delivered pursuant to
Section 1(a) hereof on a day that is not a Trading Day or
(2) both executed and delivered pursuant to
Section 1(a) hereof on a Trading Day prior to the opening
of “regular trading hours” (as defined in
Rule 600(b)(64) of Regulation NMS promulgated under
the federal securities laws) on such Trading Day, (ii) the
Bid Price of the Common Stock as of the time of the
Holder’s execution of the applicable Exercise Notice if
such Exercise Notice is executed during “regular trading
hours” on a Trading Day and is delivered within two
(2) hours thereafter pursuant to Section 1(a) hereof
and (iii) the Closing Sale Price of the Common Stock on the
date of the applicable Exercise Notice if the date of such
Exercise Notice is a Trading Day and such Exercise Notice is
both executed and delivered pursuant to Section 1(a) hereof
after the close of “regular trading hours” on such
Trading Day.
C= the Exercise Price then in effect for the applicable
Warrant Shares at the time of such exercise.
(e) Disputes. In the case of a
dispute as to the determination of the Exercise Price or the
arithmetic calculation of the number of Warrant Shares to be
issued pursuant to the terms hereof, the Company shall promptly
issue to the Holder the number of Warrant Shares that are not
disputed and resolve such dispute in accordance with
Section 13.
(f) Limitations on
Exercises. Notwithstanding anything to the
contrary contained in this Warrant, this Warrant shall not be
exercisable by the Holder hereof to the extent (but only to the
extent) that the Holder together with any of its affiliates
would beneficially own in excess of 4.99% (the “Maximum
Percentage”) of the Common Stock after giving effect to
such exercise. To the extent the above limitation applies, the
determination of whether this Warrant shall be exercisable
(vis-à-vis other convertible, exercisable or exchangeable
securities owned by the Holder or any of its affiliates) and of
which such securities shall be exercisable (as among all such
securities owned by the Holder) shall, subject to such Maximum
Percentage limitation, be determined on the basis of the first
submission to the Company for conversion, exercise or exchange
(as the case may be). No prior inability to exercise this
Warrant pursuant to this paragraph shall have any effect on the
applicability of the provisions of this paragraph with respect
to any subsequent determination of exercisability. For the
purposes of this paragraph, beneficial ownership and all
determinations and calculations (including, without limitation,
with respect to calculations of percentage ownership) shall be
determined in accordance with Section 13(d) of the
1934 Act (as defined in the Securities Purchase Agreement)
and the rules and regulations promulgated thereunder. The
provisions of this paragraph shall be implemented in a manner
otherwise than in strict conformity with the terms of this
paragraph to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Maximum
Percentage beneficial ownership limitation herein contained or
to make changes or supplements necessary or desirable to
properly give effect to such Maximum Percentage limitation. The
limitations contained in this
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paragraph shall apply to a successor Holder of this Warrant. The
holders of Common Stock shall be third party beneficiaries of
this paragraph and the Company may not waive this paragraph
without the consent of holders of a majority of its Common
Stock. For any reason at any time, upon the written or oral
request of the Holder, the Company shall within one
(1) Business Day confirm orally and in writing to the
Holder the number of shares of Common Stock then outstanding,
including by virtue of any prior conversion or exercise of
convertible or exercisable securities into Common Stock,
including, without limitation, pursuant to this Warrant or
securities issued pursuant to the Securities Purchase Agreement.
By written notice to the Company, any Holder may increase or
decrease the Maximum Percentage to any other percentage not in
excess of 9.99% specified in such notice; provided that
(i) any such increase will not be effective until the
61st day after such notice is delivered to the Company, and
(ii) any such increase or decrease will apply only to the
Holder sending such notice and not to any other holder of SPA
Warrants.
(g) Insufficient Authorized
Shares. The Company shall at all times keep
reserved for issuance under this Warrant a number of shares of
Common Stock as shall be necessary to satisfy the Company’s
obligation to issue shares of Common Stock hereunder (without
regard to any limitation otherwise contained herein with respect
to the number of shares of Common Stock that may be acquirable
upon exercise of this Warrant). If, notwithstanding the
foregoing, and not in limitation thereof, at any time while any
of the SPA Warrants remain outstanding the Company does not have
a sufficient number of authorized and unreserved shares of
Common Stock to satisfy its obligation to reserve for issuance
upon exercise of the SPA Warrants at least a number of shares of
Common Stock equal to the number of shares of Common Stock as
shall from time to time be necessary to effect the exercise of
all of the SPA Warrants then outstanding (the “Required
Reserve Amount”) (an “Authorized Share
Failure”), then the Company shall promptly take all
action necessary to increase the Company’s authorized
shares of Common Stock to an amount sufficient to allow the
Company to reserve the Required Reserve Amount for all the SPA
Warrants then outstanding. Without limiting the generality of
the foregoing sentence, as soon as practicable after the date of
the occurrence of an Authorized Share Failure, but in no event
later than ninety (90) days after the occurrence of such
Authorized Share Failure, the Company shall hold a meeting of
its stockholders for the approval of an increase in the number
of authorized shares of Common Stock. In connection with such
meeting, the Company shall provide each stockholder with a proxy
statement and shall use its reasonable best efforts to solicit
its stockholders’ approval of such increase in authorized
shares of Common Stock and to cause its board of directors to
recommend to the stockholders that they approve such proposal.
2. ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF
WARRANT SHARES. The Exercise Price and number
of Warrant Shares issuable upon exercise of this Warrant are
subject to adjustment from time to time as set forth in this
Section 2.
(a) Stock Dividends and
Splits. Without limiting any provision of
Section 4, if the Company, at any time on or after the date
of the Securities Purchase Agreement, (i) pays a stock
dividend on one or more classes of its then outstanding shares
of Common Stock or otherwise makes a distribution on any class
of capital stock that is payable in shares of Common Stock,
(ii) subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its then
outstanding shares of Common Stock into a larger number of
shares or (iii) combines (by combination, reverse stock
split or otherwise) one or more classes of its then outstanding
shares of Common Stock into a smaller number of shares, then in
each such case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of
Common Stock outstanding immediately before such event and of
which the denominator shall be the number of shares of Common
Stock outstanding immediately after such event. Any adjustment
made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the
determination of stockholders entitled to receive such dividend
or distribution, and any adjustment pursuant to clause (ii)
or (iii) of this paragraph shall become effective
immediately after the effective date of such subdivision or
combination. If any event requiring an adjustment under this
paragraph occurs during the period that an Exercise Price is
used in any calculation hereunder, then in such calculation such
Exercise Price shall be adjusted appropriately to reflect such
event.
(b) Number of Warrant
Shares. Simultaneously with any adjustment to
the Exercise Price pursuant to paragraphs (a) of this
Section 2, the number of Warrant Shares that may be
purchased upon exercise of this
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Warrant shall be increased or decreased proportionately, so that
after such adjustment the aggregate Exercise Price payable
hereunder for the adjusted number of Warrant Shares shall be the
same as the aggregate Exercise Price in effect immediately prior
to such adjustment (without regard to any limitations on
exercise contained herein).
(c) Calculations. All calculations
under this Section 2 shall be made by rounding to the
nearest cent or the nearest 1/100th of a share, as
applicable. The number of shares of Common Stock outstanding at
any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such
shares shall be considered an issue or sale of Common Stock.
3. RIGHTS UPON DISTRIBUTION OF
ASSETS. Except with respect to such dividends
or other distributions in which an adjustment has been made to
the Exercise Price pursuant to Section 2(a) above, if the
Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of
shares of Common Stock, by way of return of capital or otherwise
(including, without limitation, any distribution of cash, stock
or other securities, property or options by way of a dividend,
spin off, reclassification, corporate rearrangement, scheme of
arrangement or other similar transaction) (a
“Distribution”), at any time after the issuance
of this Warrant, then, in each such case, the Holder shall be
entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder
had held the number of shares of Common Stock acquirable upon a
complete exercise of this Warrant (without regard to any
limitations on exercise hereof, including without limitation,
the Maximum Percentage) immediately before the date on which a
record is taken for such Distribution, or, if no such record is
taken, the date as of which the record holders of shares of
Common Stock are to be determined for the participation in such
Distribution (provided, however, to the extent that the
Holder’s right to participate in any such Distributions
would result in the Holder exceeding the Maximum Percentage,
then the Holder shall not be entitled to participate in such
Distribution to such extent (or the beneficial ownership of any
such shares of Common Stock as a result of such Distribution to
such extent) and such Distribution to such extent shall be held
in abeyance for the benefit of the Holder until such time, if
ever, as its right thereto would not result in the Holder
exceeding the Maximum Percentage).
4. PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS.
(a) Purchase Rights. In addition
to any adjustments pursuant to Section 2 above, if at any
time the Company grants, issues or sells any Options,
Convertible Securities or rights to purchase stock, warrants,
securities or other property pro rata to the record holders of
any class of shares of Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate
Purchase Rights which the Holder could have acquired if the
Holder had held the number of shares of Common Stock acquirable
upon a complete exercise of this Warrant (without regard to any
limitations on exercise hereof, including without limitation,
the Maximum Percentage) immediately before the date on which a
record is taken for the grant, issuance or sale of such Purchase
Rights, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined
for the grant, issue or sale of such Purchase Rights (provided,
however, to the extent that the Holder’s right to
participate in any such Purchase Right would result in the
Holder exceeding the Maximum Percentage, then the Holder shall
not be entitled to participate in such Purchase Rights to such
extent (or beneficial ownership of such shares of Common Stock
as a result of such Purchase Rights to such extent) and such
Purchase Right to such extent shall be held in abeyance for the
Holder until such time, if ever, as its right thereto would not
result in the Holder exceeding the Maximum Percentage).
(b) Fundamental Transactions. The
Company shall not enter into or be party to a Fundamental
Transaction unless the Successor Entity assumes in writing all
of the obligations of the Company under this Warrant and the
other Transaction Documents (as defined in the Securities
Purchase Agreement) in accordance with the provisions of this
Section 4(b) pursuant to written agreements in form and
substance reasonably satisfactory to the Holder and approved by
the Holder prior to such Fundamental Transaction, ensuring that
such agreements shall effect the delivery to the Holder in
exchange for this Warrant of a security of the Successor Entity
evidenced by a written instrument substantially similar in form
and substance to this Warrant, including, without limitation,
which is exercisable for a corresponding number of shares of
capital stock
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equivalent to the shares of Common Stock acquirable and
receivable upon exercise of this Warrant (without regard to any
limitations on the exercise of this Warrant) prior to such
Fundamental Transaction, and with an exercise price which
applies the exercise price hereunder to such shares of capital
stock (but taking into account the relative value of the shares
of Common Stock pursuant to such Fundamental Transaction and the
value of such shares of capital stock, such adjustments to the
number of shares of capital stock and such exercise price being
for the purpose of protecting the economic value of this Warrant
immediately prior to the consummation of such Fundamental
Transaction). Upon the consummation of each Fundamental
Transaction, the Successor Entity shall succeed to, and be
substituted for (so that from and after the date of the
applicable Fundamental Transaction, the provisions of this
Warrant and the other Transaction Documents referring to the
“Company” shall refer instead to the Successor
Entity), and may exercise every right and power of the Company
and shall assume all of the obligations of the Company under
this Warrant and the other Transaction Documents with the same
effect as if such Successor Entity had been named as the Company
herein. Upon consummation of each Fundamental Transaction, the
Successor Entity shall deliver to the Holder confirmation that
there shall be issued upon exercise of this Warrant at any time
after the consummation of the applicable Fundamental
Transaction, in lieu of the shares of Common Stock (or other
securities, cash, assets or other property (except such items
still issuable under Sections 3 and 4(a) above, which shall
continue to be receivable thereafter)) issuable upon the
exercise of this Warrant prior to the applicable Fundamental
Transaction, such shares of publicly traded common stock (or its
equivalent) of the Successor Entity (including its Parent
Entity) which the Holder would have been entitled to receive
upon the happening of the applicable Fundamental Transaction had
this Warrant been exercised immediately prior to the applicable
Fundamental Transaction (without regard to any limitations on
the exercise of this Warrant), as adjusted in accordance with
the provisions of this Warrant. Notwithstanding the foregoing,
the Holder may elect, at its sole option, by delivery of written
notice to the Company to waive this Section 4(b) to permit
the Fundamental Transaction without the assumption of this
Warrant. In addition to and not in substitution for any other
rights hereunder, prior to the consummation of each Fundamental
Transaction pursuant to which holders of shares of Common Stock
are entitled to receive securities or other assets with respect
to or in exchange for shares of Common Stock (a
“Corporate Event”), the Company shall make
appropriate provision to insure that the Holder will thereafter
have the right to receive upon an exercise of this Warrant at
any time after the consummation of the applicable Fundamental
Transaction but prior to the Expiration Date, in lieu of the
shares of the Common Stock (or other securities, cash, assets or
other property (except such items still issuable under
Sections 3 and 4(a) above, which shall continue to be
receivable thereafter)) issuable upon the exercise of the
Warrant prior to such Fundamental Transaction, such shares of
stock, securities, cash, assets or any other property whatsoever
(including warrants or other purchase or subscription rights)
which the Holder would have been entitled to receive upon the
happening of the applicable Fundamental Transaction had this
Warrant been exercised immediately prior to the applicable
Fundamental Transaction (without regard to any limitations on
the exercise of this Warrant). Provision made pursuant to the
preceding sentence shall be in a form and substance reasonably
satisfactory to the Holder.
(c) Black Scholes
Value. Notwithstanding the foregoing and the
provisions of Section 4(b) above, at the request of the
Holder delivered at any time commencing on the earliest to occur
of (x) the public disclosure of any Change of Control,
(y) the consummation of any Change of Control and
(z) the Holder first becoming aware of any Change of
Control (including, without limitation, a Change of Control that
is publicly disclosed, consummated or of which the Holder first
becomes aware (as the case may be) prior to the Initial Exercise
Date) through the date that is ninety (90) days after the
public disclosure of the consummation of such Change of Control
by the Company pursuant to a Current Report on
Form 8-K
filed with the SEC, the Company or the Successor Entity (as the
case may be) shall purchase this Warrant from the Holder on the
date of such request by paying to the Holder cash in an amount
equal to the Black Scholes Value.
(d) Application. The provisions of
this Section 4 shall apply similarly and equally to
successive Fundamental Transactions and Corporate Events and
shall be applied as if this Warrant (and any such subsequent
warrants) were fully exercisable and without regard to any
limitations on the exercise of this Warrant (provided that the
Holder shall continue to be entitled to the benefit of the
Maximum Percentage, applied however with respect to shares of
capital stock registered under the 1934 Act and thereafter
receivable upon exercise of this Warrant (or any such other
warrant)).
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5. NONCIRCUMVENTION. The
Company hereby covenants and agrees that the Company will not,
by amendment of its Articles of Incorporation (as defined in the
Securities Purchase Agreement), Bylaws (as defined in the
Securities Purchase Agreement) or through any reorganization,
transfer of assets, consolidation, merger, scheme of
arrangement, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Warrant, and will at all
times in good faith carry out all the provisions of this Warrant
and take all action as may be required to protect the rights of
the Holder. Without limiting the generality of the foregoing,
the Company (i) shall not increase the par value of any
shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, (ii) shall
take all such actions as may be reasonably necessary or
appropriate in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock upon
the exercise of this Warrant, and (iii) shall, so long as
any of the SPA Warrants are outstanding, take all action
necessary to reserve and keep available out of its authorized
and unissued shares of Common Stock, solely for the purpose of
effecting the exercise of the SPA Warrants, the maximum number
of shares of Common Stock as shall from time to time be
necessary to effect the exercise of the SPA Warrants then
outstanding (without regard to any limitations on exercise).
6. WARRANT HOLDER NOT DEEMED A
STOCKHOLDER. Except as otherwise specifically
provided herein, the Holder, solely in its capacity as a holder
of this Warrant, shall not be entitled to vote or receive
dividends or be deemed the holder of share capital of the
Company for any purpose, nor shall anything contained in this
Warrant be construed to confer upon the Holder, solely in its
capacity as the Holder of this Warrant, any of the rights of a
stockholder of the Company or any right to vote, give or
withhold consent to any corporate action (whether any
reorganization, issue of stock, reclassification of stock,
consolidation, merger, conveyance or otherwise), receive notice
of meetings, receive dividends or subscription rights, or
otherwise, prior to the issuance to the Holder of the Warrant
Shares which it is then entitled to receive upon the due
exercise of this Warrant. In addition, nothing contained in this
Warrant shall be construed as imposing any liabilities on the
Holder to purchase any securities (upon exercise of this Warrant
or otherwise) or as a stockholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the
Company. Notwithstanding this Section 6, the Company shall
provide the Holder with copies of the same notices and other
information given to the stockholders of the Company generally,
contemporaneously with the giving thereof to the stockholders.
7. REISSUANCE OF WARRANTS.
(a) Transfer of Warrant. If this
Warrant is to be transferred, the Holder shall surrender this
Warrant to the Company, whereupon the Company will forthwith
issue and deliver upon the order of the Holder a new Warrant (in
accordance with Section 7(d)), registered as the Holder may
request, representing the right to purchase the number of
Warrant Shares being transferred by the Holder and, if less than
the total number of Warrant Shares then underlying this Warrant
is being transferred, a new Warrant (in accordance with
Section 7(d)) to the Holder representing the right to
purchase the number of Warrant Shares not being transferred.
(b) Lost, Stolen or Mutilated
Warrant. Upon receipt by the Company of
evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant (as to which a
written certification and the indemnification contemplated below
shall suffice as such evidence), and, in the case of loss, theft
or destruction, of any indemnification undertaking by the Holder
to the Company in customary and reasonable form and, in the case
of mutilation, upon surrender and cancellation of this Warrant,
the Company shall execute and deliver to the Holder a new
Warrant (in accordance with Section 7(d)) representing the
right to purchase the Warrant Shares then underlying this
Warrant.
(c) Exchangeable for Multiple
Warrants. This Warrant is exchangeable, upon
the surrender hereof by the Holder at the principal office of
the Company, for a new Warrant or Warrants (in accordance with
Section 7(d)) representing in the aggregate the right to
purchase the number of Warrant Shares then underlying this
Warrant, and each such new Warrant will represent the right to
purchase such portion of such Warrant Shares as is designated by
the Holder at the time of such surrender; provided, however, no
warrants for fractional shares of Common Stock shall be given.
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(d) Issuance of New
Warrants. Whenever the Company is required to
issue a new Warrant pursuant to the terms of this Warrant, such
new Warrant (i) shall be of like tenor with this Warrant,
(ii) shall represent, as indicated on the face of such new
Warrant, the right to purchase the Warrant Shares then
underlying this Warrant (or in the case of a new Warrant being
issued pursuant to Sections 7(a) or 7(c), the Warrant
Shares designated by the Holder which, when added to the number
of shares of Common Stock underlying the other new Warrants
issued in connection with such issuance, does not exceed the
number of Warrant Shares then underlying this Warrant),
(iii) shall have an issuance date, as indicated on the face
of such new Warrant which is the same as the Issuance Date, and
(iv) shall have the same rights and conditions as this
Warrant.
8. NOTICES. Whenever notice
is required to be given under this Warrant, unless otherwise
provided herein, such notice shall be given in accordance with
Section 9(f) of the Securities Purchase Agreement. The
Company shall provide the Holder with prompt written notice of
all actions taken pursuant to this Warrant, including in
reasonable detail a description of such action and the reason
therefor. Without limiting the generality of the foregoing, the
Company will give written notice to the Holder
(i) immediately upon each adjustment of the Exercise Price
and the number of Warrant Shares, setting forth in reasonable
detail, and certifying, the calculation of such adjustment(s)
and (ii) at least fifteen (15) days prior to the date
on which the Company closes its books or takes a record
(A) with respect to any dividend or distribution upon the
shares of Common Stock, (B) with respect to any grants,
issuances or sales of any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property
to holders of shares of Common Stock or (C) for determining
rights to vote with respect to any Fundamental Transaction,
dissolution or liquidation, provided in each case that such
information shall be made known to the public prior to or in
conjunction with such notice being provided to the Holder and
(iii) at least ten (10) Trading Days prior to the
consummation of any Fundamental Transaction. To the extent that
any notice provided hereunder constitutes, or contains,
material, non-public information regarding the Company or any of
its subsidiaries, the Company shall simultaneously file such
notice with the SEC (as defined in the Securities Purchase
Agreement) pursuant to a Current Report on
Form 8-K.
It is expressly understood and agreed that the time of execution
specified by the Holder in each Exercise Notice shall be
definitive and may not be disputed or challenged by the Company.
9. AMENDMENT AND
WAIVER. Except as otherwise provided herein,
the provisions of this Warrant (other than Section 1(f))
may be amended and the Company may take any action herein
prohibited, or omit to perform any act herein required to be
performed by it, only if the Company has obtained the written
consent of the Holder. No consideration shall be offered or paid
to the Holder to amend or consent to a waiver or modification of
any provision of this Warrant unless the same consideration is
also offered to all of the holders of the other SPA Warrants. No
waiver shall be effective unless it is in writing and signed by
an authorized representative of the waiving party.
10. SEVERABILITY. If any
provision of this Warrant is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of
competent jurisdiction, the provision that would otherwise be
prohibited, invalid or unenforceable shall be deemed amended to
apply to the broadest extent that it would be valid and
enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining
provisions of this Warrant so long as this Warrant as so
modified continues to express, without material change, the
original intentions of the parties as to the subject matter
hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair
the respective expectations or reciprocal obligations of the
parties or the practical realization of the benefits that would
otherwise be conferred upon the parties. The parties will
endeavor in good faith negotiations to replace the prohibited,
invalid or unenforceable provision(s) with a valid provision(s),
the effect of which comes as close as possible to that of the
prohibited, invalid or unenforceable provision(s).
11. GOVERNING LAW. This
Warrant shall be governed by and construed and enforced in
accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Warrant shall
be governed by, the internal laws of the State of New York,
without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of
any jurisdictions other than the State of New York.
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12. CONSTRUCTION;
HEADINGS. The headings of this Warrant are
for convenience of reference and shall not form part of, or
affect the interpretation of, this Warrant. Terms used in this
Warrant but defined in the other Transaction Documents shall
have the meanings ascribed to such terms on the Closing Date (as
defined in the Securities Purchase Agreement) in such other
Transaction Documents unless otherwise consented to in writing
by the Holder.
13. DISPUTE RESOLUTION. In
the case of a dispute as to the determination of the Exercise
Price, the Closing Bid Price, the Closing Sale Price, the Bid
Price or fair market value or the arithmetic calculation of the
Warrant Shares (as the case may be), the Company or the Holder
(as the case may be) shall submit the disputed determinations or
arithmetic calculations (as the case may be) via facsimile
(i) within two (2) Business Days after receipt of the
applicable notice giving rise to such dispute to the Company or
the Holder (as the case may be) or (ii) if no notice gave
rise to such dispute, at any time after the Holder learned of
the circumstances giving rise to such dispute (including,
without limitation, as to whether any issuance or sale or deemed
issuance or sale was an issuance or sale or deemed issuance or
sale of Excluded Securities). If the Holder and the Company are
unable to agree upon such determination or calculation (as the
case may be) of the Exercise Price, the Closing Bid Price, the
Closing Sale Price, the Bid Price or fair market value or the
number of Warrant Shares (as the case may be) within three
(3) Business Days of such disputed determination or
arithmetic calculation being submitted to the Company or the
Holder (as the case may be), then the Company shall, within two
(2) Business Days submit via facsimile (a) the
disputed determination of the Exercise Price, the Closing Bid
Price, the Closing Sale Price, the Bid Price or fair market
value (as the case may be) to an independent, reputable
investment bank selected by the Company and approved by the
Holder or (b) the disputed arithmetic calculation of the
Warrant Shares to the Company’s independent, outside
accountant. The Company shall cause at its expense the
investment bank or the accountant (as the case may be) to
perform the determinations or calculations (as the case may be)
and notify the Company and the Holder of the results no later
than ten (10) Business Days from the time it receives such
disputed determinations or calculations (as the case may be).
Such investment bank’s or accountant’s determination
or calculation (as the case may be) shall be binding upon all
parties absent demonstrable error.
14. REMEDIES, CHARACTERIZATION, OTHER
OBLIGATIONS, BREACHES AND INJUNCTIVE
RELIEF. The remedies provided in this Warrant
shall be cumulative and in addition to all other remedies
available under this Warrant and the other Transaction
Documents, at law or in equity (including a decree of specific
performance
and/or other
injunctive relief), and nothing herein shall limit the right of
the Holder to pursue actual damages for any failure by the
Company to comply with the terms of this Warrant. The Company
covenants to the Holder that there shall be no characterization
concerning this instrument other than as expressly provided
herein. Amounts set forth or provided for herein with respect to
payments, exercises and the like (and the computation thereof)
shall be the amounts to be received by the Holder and shall not,
except as expressly provided herein, be subject to any other
obligation of the Company (or the performance thereof). The
Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Holder and that the
remedy at law for any such breach may be inadequate. The Company
therefore agrees that, in the event of any such breach or
threatened breach, the holder of this Warrant shall be entitled,
in addition to all other available remedies, to an injunction
restraining any breach, without the necessity of showing
economic loss and without any bond or other security being
required. The Company shall provide all information and
documentation to the Holder that is requested by the Holder to
enable the Holder to confirm the Company’s compliance with
the terms and conditions of this Warrant (including, without
limitation, compliance with Section 2 hereof). The issuance
of shares and certificates for shares as contemplated hereby
upon the exercise of this Warrant shall be made without charge
to the Holder or such shares for any issuance tax or other costs
in respect thereof, provided that the Company shall not be
required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any
certificate in a name other than the Holder or its agent on its
behalf.
15. TRANSFER. This Warrant
may be offered for sale, sold, transferred or assigned without
the consent of the Company, except as may otherwise be required
by Section 2(g) of the Securities Purchase Agreement.
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16. CERTAIN DEFINITIONS. For
purposes of this Warrant, the following terms shall have the
following meanings:
(a) “Bid Price” means, for any security as
of the particular time of determination, the bid price for such
security on the Principal Market as reported by Bloomberg as of
such time of determination, or, if the Principal Market is not
the principal securities exchange or trading market for such
security, the bid price of such security on the principal
securities exchange or trading market where such security is
listed or traded as reported by Bloomberg as of such time of
determination, or if the foregoing does not apply, the bid price
of such security in the over-the-counter market on the
electronic bulletin board for such security as reported by
Bloomberg as of such time of determination, or, if no bid price
is reported for such security by Bloomberg as of such time of
determination, the average of the bid prices of any market
makers for such security as reported in the “pink
sheets” by Pink Sheets LLC (formerly the National Quotation
Bureau, Inc.) as of such time of determination. If the Bid Price
cannot be calculated for a security as of the particular time of
determination on any of the foregoing bases, the Bid Price of
such security as of such time of determination shall be the fair
market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon
the fair market value of such security, then such dispute shall
be resolved in accordance with the procedures in
Section 13. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination
or other similar transaction during such period.
(b) “Black Scholes Value” means the value
of this Warrant based on the Black Scholes Option Pricing Model
obtained from the “OV” function on Bloomberg
determined as of the day of consummation of the applicable
Fundamental Transaction for pricing purposes and reflecting
(i) a risk-free interest rate corresponding to the
U.S. Treasury rate for a period equal to the remaining term
of this Warrant as of the date of the Holder’s request
pursuant to Section 4(c), (ii) an expected volatility
equal to the 100 day volatility obtained from the HVT
function on Bloomberg as of the Trading Day immediately
following the public announcement of the applicable Fundamental
Transaction (using 360 as the input for the annualization factor
and the Rogers-Satchell volatility estimator model), which
volatility shall in no event be more than 150% or less than 80%,
and, if applicable, (iii) the underlying price per share
used in such calculation shall be the sum of the price per share
being offered in cash, if any, plus the value of any non-cash
consideration, if any, being offered in the applicable
Fundamental Transaction.
(c) “Bloomberg” means Bloomberg, L.P.
(d) “Business Day” means any day other
than Saturday, Sunday or other day on which commercial banks in
The City of New York are authorized or required by law to remain
closed.
(e) “Change of Control” means any
Fundamental Transaction other than (A) any merger of the
Company or any of its direct or indirect wholly-owned
Subsidiaries with or into any of the foregoing Persons,
(B) any reorganization, recapitalization or
reclassification of the Common Stock, in which holders of the
Company’s voting power immediately prior to such
reorganization, recapitalization or reclassification continue
after such reorganization, recapitalization or reclassification
to hold publicly traded securities and, directly or indirectly,
the voting power of the surviving entity or entities necessary
to elect a majority of the members of the board of directors (or
their equivalent if other than a corporation) of such entity or
entities, (C) pursuant to a migratory merger effected
solely for the purpose of changing the jurisdiction of
incorporation of the Company or (D) a merger in connection
with a bona fide acquisition by the Company of any Person in
which (x) the gross consideration paid, directly or
indirectly, by the Company (as calculated in accordance with
Section 2(b)(iv) of the Existing Warrant, but treating any
assumption of indebtedness, directly or indirectly, by the
Company as an increase in the consideration paid on a
dollar-for-dollar basis) in such acquisition is not greater than
20% of the Company’s market capitalization as calculated on
each of (1) the date of the public announcement of such
merger and (2) the date of the consummation of such merger
and (y) such merger does not contemplate any change to the
identity of the board of directors of the Company or any of the
members of the senior management of the Company, including,
without limitation, the chief executive officer and the chief
financial officer of the Company.
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(f) “Closing Bid Price” and
“Closing Sale Price” means, for any security as
of any date, the last closing bid price and last closing trade
price, respectively, for such security on the Principal Market,
as reported by Bloomberg, or, if the Principal Market begins to
operate on an extended hours basis and does not designate the
closing bid price or the closing trade price (as the case may
be) then the last bid price or last trade price, respectively,
of such security prior to 4:00:00 p.m., New York time, as
reported by Bloomberg, or, if the Principal Market is not the
principal securities exchange or trading market for such
security, the last closing bid price or last trade price,
respectively, of such security on the principal securities
exchange or trading market where such security is listed or
traded as reported by Bloomberg, or if the foregoing do not
apply, the last closing bid price or last trade price,
respectively, of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by
Bloomberg, or, if no closing bid price or last trade price,
respectively, is reported for such security by Bloomberg, the
average of the bid prices, or the ask prices, respectively, of
any market makers for such security as reported in the
“pink sheets” by Pink Sheets LLC (formerly the
National Quotation Bureau, Inc.). If the Closing Bid Price or
the Closing Sale Price cannot be calculated for a security on a
particular date on any of the foregoing bases, the Closing Bid
Price or the Closing Sale Price (as the case may be) of such
security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the
Holder are unable to agree upon the fair market value of such
security, then such dispute shall be resolved in accordance with
the procedures in Section 13. All such determinations shall
be appropriately adjusted for any stock dividend, stock split,
stock combination or other similar transaction during such
period.
(g) “Common Stock” means (i) the
Company’s shares of common stock, $0.01 par value per
share, and (ii) any capital stock into which such common
stock shall have been changed or any share capital resulting
from a reclassification of such common stock.
(h) “Convertible Securities” means any
stock or other security (other than Options) that is at any time
and under any circumstances, directly or indirectly, convertible
into, exercisable or exchangeable for, or which otherwise
entitles the holder thereof to acquire, any shares of Common
Stock.
(i) “Eligible Market” means The New York
Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market,
the Nasdaq Capital Market or the Principal Market.
(j) “Expiration Date” means the date that
is the fifth (5th) anniversary of the Issuance Date or, if such
date falls on a day other than a Business Day or on which
trading does not take place on the Principal Market (a
“Holiday”), the next date that is not a Holiday.
(k) “Fundamental Transaction” means that
(i) the Company or any of its Subsidiaries shall, directly
or indirectly, in one or more related transactions,
(1) consolidate or merge with or into (whether or not the
Company or any of its Subsidiaries is the surviving corporation)
any other Person, or (2) sell, lease, license, assign,
transfer, convey or otherwise dispose of all or substantially
all of its respective properties or assets to any other Person,
or (3) allow any other Person to make a purchase, tender or
exchange offer that is accepted by the holders of more than 50%
of the outstanding shares of Voting Stock of the Company (not
including any shares of Voting Stock of the Company held by the
Person or Persons making or party to, or associated or
affiliated with the Persons making or party to, such purchase,
tender or exchange offer), or (4) consummate a stock or
share purchase agreement or other business combination
(including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with any
other Person whereby such other Person acquires more than 50% of
the outstanding shares of Voting Stock of the Company (not
including any shares of Voting Stock of the Company held by the
other Person or other Persons making or party to, or associated
or affiliated with the other Persons making or party to, such
stock or share purchase agreement or other business
combination), or (5) reorganize, recapitalize or reclassify
the Common Stock, or (ii) any “person” or
“group” (as these terms are used for purposes of
Sections 13(d) and 14(d) of the 1934 Act and the rules
and regulations promulgated thereunder) is or shall become the
“beneficial owner” (as defined in
Rule 13d-3
under the 1934 Act), directly or indirectly, of 50% of the
aggregate ordinary voting power represented by issued and
outstanding Voting Stock of the Company.
A-25
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(l) “Options” means any rights, warrants
or options to subscribe for or purchase shares of Common Stock
or Convertible Securities.
(m) “Parent Entity” of a Person means an
entity that, directly or indirectly, controls the applicable
Person and whose common stock or equivalent equity security is
quoted or listed on an Eligible Market, or, if there is more
than one such Person or Parent Entity, the Person or Parent
Entity with the largest public market capitalization as of the
date of consummation of the Fundamental Transaction.
(n) “Person” means an individual, a
limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other
entity or a government or any department or agency thereof.
(o) “Principal Market” means the Nasdaq
Global Market.
(p) Securities Purchase Agreement” means that
certain securities purchase agreement, dated as of the
Subscription Date, by and among the Company and the initial
holders of the Existing Warrants, as may be amended from time to
time.
(q) “Successor Entity” means the Person
(or, if so elected by the Holder, the Parent Entity) formed by,
resulting from or surviving any Fundamental Transaction or the
Person (or, if so elected by the Holder, the Parent Entity) with
which such Fundamental Transaction shall have been entered into.
(r) “Trading Day” means any day on which
the Common Stock is traded on the Principal Market, or, if the
Principal Market is not the principal trading market for the
Common Stock, then on the principal securities exchange or
securities market on which the Common Stock is then traded,
provided that “Trading Day” shall not include any day
on which the Common Stock is scheduled to trade on such exchange
or market for less than 4.5 hours or any day that the
Common Stock is suspended from trading during the final hour of
trading on such exchange or market (or if such exchange or
market does not designate in advance the closing time of trading
on such exchange or market, then during the hour ending at
4:00:00 p.m., New York time) unless such day is otherwise
designated as a Trading Day in writing by the Holder.
(s) “Voting Stock” of a Person means
capital stock of such Person of the class or classes pursuant to
which the holders thereof have the general voting power to
elect, or the general power to appoint, at least a majority of
the board of directors, managers or trustees of such Person
(irrespective of whether or not at the time capital stock of any
other class or classes shall have or might have voting power by
reason of the happening of any contingency).
(t) “VWAP” means, for any security as of
any date, the dollar volume-weighted average price for such
security on the Principal Market (or, if the Principal Market is
not the principal trading market for such security, then on the
principal securities exchange or securities market on which such
security is then traded) during the period beginning at
9:30:01 a.m., New York time, and ending at
4:00:00 p.m., New York time, as reported by Bloomberg
through its “Volume at Price” function or, if the
foregoing does not apply, the dollar volume-weighted average
price of such security in the over-the-counter market on the
electronic bulletin board for such security during the period
beginning at 9:30:01 a.m., New York time, and ending at
4:00:00 p.m., New York time, as reported by Bloomberg, or,
if no dollar volume-weighted average price is reported for such
security by Bloomberg for such hours, the average of the highest
closing bid price and the lowest closing ask price of any of the
market makers for such security as reported in the “pink
sheets” by Pink Sheets LLC (formerly the National Quotation
Bureau, Inc.). If VWAP cannot be calculated for such security on
such date on any of the foregoing bases, the VWAP of such
security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the
Holder are unable to agree upon the fair market value of such
security, then such dispute shall be resolved in accordance with
the procedures in Section 13. All such determinations shall
be appropriately adjusted for any stock dividend, stock split,
stock combination or other similar transaction during such
period.
[signature
page follows]
A-26
Table of Contents
IN WITNESS WHEREOF, the Company has caused this Warrant
to Purchase Common Stock to be duly executed as of the Exchange
Date set out above.
OXIGENE, INC.
| By: |
|
Name:
| Title: |
A-27
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EXHIBIT A
EXERCISE
NOTICE
TO BE
EXECUTED BY THE REGISTERED HOLDER TO EXERCISE THIS
WARRANT
TO PURCHASE COMMON STOCK
OXIGENE,
INC.
The undersigned holder hereby exercises the right to
purchase
of the shares of Common Stock (“Warrant
Shares”) of OXiGENE, Inc., a Delaware corporation (the
“Company”), evidenced by Series E Warrant
No.
(the “Warrant”). Capitalized terms used herein
and not otherwise defined shall have the respective meanings set
forth in the Warrant.
1. Form of Exercise Price. The Holder intends
that payment of the Exercise Price shall be made as:
a
“Cash Exercise” with respect
to
Warrant Shares; and/or
a
“Cashless Exercise” with respect
to
Warrant Shares.
In the event that the Holder has elected a Cashless Exercise
with respect to some or all of the Warrant Shares to be issued
pursuant hereto, the Holder hereby represents and warrants that
(i) this Exercise Notice was executed by the Holder
at
[a.m.][p.m.] on the date set forth below and (ii) if
applicable, the Bid Price as of such time of execution of this
Exercise Notice was
$ .
2. Payment of Exercise
Price. In the event that the Holder has
elected a Cash Exercise with respect to some or all of the
Warrant Shares to be issued pursuant hereto, the Holder shall
pay the Aggregate Exercise Price in the sum of
$ to the Company in accordance
with the terms of the Warrant.
3. Delivery of Warrant
Shares. The Company shall deliver to Holder,
or its designee or agent as specified
below,
Warrant Shares in accordance with the terms of the Warrant.
Delivery shall be made to Holder, or for its benefit, to the
following address:
Date: ,
Name of Registered Holder
| By: |
|
Name:
| Title: |
A-28
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ACKNOWLEDGMENT
The Company hereby acknowledges this Exercise Notice and hereby
directs
to issue the above indicated number of shares of Common Stock in
accordance with the Transfer Agent Instructions dated
March , 2010, from the Company and acknowledged
and agreed to
by .
OXiGENE, Inc.
| By: |
|
Name:
| Title: |
A-29
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Exhibit B —
Form of Voting Agreement
A-30
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FORM OF
VOTING AGREEMENT
VOTING AGREEMENT, dated as of January , 2011
(this “Agreement”), by and among OXiGENE, Inc.,
a Delaware corporation with offices located at 701 Gateway Blvd,
Suite 210, South San Francisco, CA 94080 (the
“Company”) and [Symphony ViDA Holdings LLC, a
Delaware limited liability company with offices located at 875
Third Avenue,
18th Floor,
New York, NY 10022] (the “Stockholder”).
WHEREAS, the Company and certain investors (each, an
“Investor”, and collectively, the
“Investors”) have entered into a Warrant
Exchange Agreement, dated as of the date hereof (the
“Warrant Exchange Agreement”), pursuant to
which, among other things, the Company and the Investors have,
severally but not jointly, agreed to exchange the
Investors’ Series A Warrants and Series C
Warrants to purchase shares of the Company’s common stock,
$0.01 par value per share (the “Common
Stock”), for shares of Common Stock and Series E
Warrants, on the terms and subject to the conditions set forth
in the Warrant Exchange Agreement;
WHEREAS, as of the date hereof, the Stockholder owns shares of
Common Stock, which represents
(i) approximately % of the
total issued and outstanding Common Stock of the Company, and
(ii) approximately % of the
total voting power of the Company; and
WHEREAS, as a condition to the willingness of the Investors to
enter into the Warrant Exchange Agreement and to consummate the
transactions contemplated thereby (collectively, the
“Transaction”), the Investors have required
that the Stockholder agree, and in order to induce the Investors
to enter into the Warrant Exchange Agreement, the Stockholder
has agreed, to enter into this Agreement with respect to all the
Common Stock now owned and which may hereafter be acquired by
the Stockholder and any other securities, if any, which
Stockholder is currently entitled to vote, or after the date
hereof becomes entitled to vote, at any meeting of the
stockholders of the Company (the “Other
Securities”).
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING
AGREEMENT OF THE STOCKHOLDER
Section 1.01. Voting
Agreement. Subject to the last sentence of
this Section 1.01, the Stockholder hereby agrees that at
any meeting of the stockholders of the Company, however called,
and in any action by written consent of the Company’s
stockholders, the Stockholder shall vote the Common Stock and
the Other Securities: (a) in favor of the Stockholder
Approval (as defined in the Warrant Exchange Agreement), as
described in Section 1.2 of the Warrant Exchange Agreement;
and (b) against any proposal or any other corporate action
or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement
of the Company under the Warrant Exchange Agreement or which
could result in any of the conditions to the Company’s
obligations under the Warrant Exchange Agreement not being
fulfilled. The Stockholder acknowledges receipt and review of a
copy of the Warrant Exchange Agreement. The obligations of the
Stockholder under this Section 1.01 shall terminate
(i) immediately following the occurrence of the Stockholder
Approval or (ii) upon the termination of the Warrant
Exchange Agreement pursuant to its terms.
ARTICLE II
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company
and each of the Investors as follows:
Section 2.01. Authority
Relative to this Agreement. The Stockholder
has all requisite power and authority to execute, deliver and
perform its obligations under this Agreement. This Agreement has
been duly executed and delivered by the Stockholder and
constitutes a legal, valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance
with its terms, except (a) as such enforceability
A-31
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may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws now or hereafter in effect relating to, or affecting
generally, the enforcement of creditors’ and other
obligees’ rights and (b) where the remedy of specific
performance or other forms of equitable relief may be subject to
certain equitable defenses and principles and to the discretion
of the court before which the proceeding may be brought.
Section 2.02. No
Conflict. (a) The execution and delivery
of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder shall not,
(i) conflict with or violate any federal, state or local
law, statute, ordinance, rule, regulation, order, judgment or
decree applicable to the Stockholder or by which the Common
Stock or the Other Securities owned by the Stockholder are bound
or affected or (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or encumbrance on any of the
Common Stock or the Other Securities owned by the Stockholder
pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument
or obligation to which the Stockholder is a party or by which
the Stockholder or the Common Stock or Other Securities owned by
the Stockholder is bound.
(b) The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by
the Stockholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to,
any governmental entity by the Stockholder.
Section 2.03. Title
to the Stock. As of the date hereof, the
Stockholder is the owner
of shares
of Common Stock, entitled to vote, without restriction, on all
matters brought before holders of capital stock of the Company,
which Common Stock represents on the date hereof
approximately % of the outstanding
stock and approximately % of the
voting power of the Company. Such Common Stock represents all of
the securities of the Company owned, either of record or
beneficially, by the Stockholder. Such Common Stock is owned
free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements,
limitations on the Stockholder’s voting rights, charges and
other encumbrances of any nature whatsoever. The Stockholder has
not appointed or granted any proxy, which appointment or grant
is still effective, with respect to the Common Stock or Other
Securities owned by the Stockholder.
ARTICLE III
COVENANTS
Section 3.01. No
Disposition or Encumbrance of Stock. The
Stockholder hereby covenants and agrees that, until the
termination of this Agreement, the Stockholder shall not offer
or agree to sell, transfer, tender, assign, hypothecate or
otherwise dispose of, grant a proxy or power of attorney with
respect to, or create or permit to exist any security interest,
lien, claim, pledge, option, right of first refusal, agreement,
limitation on Stockholders’ voting rights, charge or other
encumbrance of any nature whatsoever
(“Encumbrance”) with respect to the Common
Stock or Other Securities, directly or indirectly, or initiate,
solicit or encourage any person to take actions which could
reasonably be expected to lead to the occurrence of any of the
foregoing.
Section 3.02. Company
Cooperation. The Company hereby covenants and
agrees that it will not, and the Stockholder irrevocably and
unconditionally acknowledges and agrees that the Company will
not (and waives any rights against the Company in relation
thereto), recognize any Encumbrance on any of the Common Stock
or Other Securities subject to this Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.01. Further
Assurances. The Stockholder shall execute and
deliver such further documents and instruments and take all
further action as may be reasonably necessary in order to
consummate the transactions contemplated hereby.
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Table of Contents
Section 4.02. Specific
Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of
this Agreement was not performed in accordance with the terms
hereof and that any Investor (without being joined by any other
Investor) shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or in equity. Any
Investor shall be entitled to its reasonable attorneys’
fees in any action brought to enforce this Agreement in which it
is the prevailing party.
Section 4.03. Entire
Agreement. This Agreement constitutes the
entire agreement among the Company and the Stockholder (other
than the Warrant Exchange Agreement) with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the Company and the
Stockholder with respect to the subject matter hereof.
Section 4.04. Amendment. This
Agreement may not be amended except by an instrument in writing
signed by the parties hereto.
Section 4.05. Severability. If
any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of this Agreement is not
affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest
extent possible.
Section 4.06. Governing
Law. All questions concerning the
construction, validity, enforcement and interpretation of this
Agreement shall be governed by the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict
of law provision or rule (whether of the State of Delaware or
any other jurisdictions) that would cause the application of the
laws of any jurisdictions other than the State of Delaware. The
parties hereby agree that all actions or proceedings arising
directly or indirectly from or in connection with this Agreement
shall be litigated only in the Supreme Court of the State of New
York or the United States District Court for the Southern
District of New York located in New York County, New York. The
parties consent to the jurisdiction and venue of the foregoing
courts and consent that any process or notice of motion or other
application to any of said courts or a judge thereof may be
served inside or outside the State of New York or the Southern
District of New York by registered mail, return receipt
requested, directed to the party being served at its address set
forth on the signature ages to this Agreement (and service so
made shall be deemed complete three (3) days after the same
has been posted as aforesaid) or by personal service or in such
other manner as may be permissible under the rules of said
courts. Each of the Company and the Stockholder irrevocably
waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of
any such suit, action, or proceeding brought in such a court and
any claim that suit, action, or proceeding has been brought in
an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL
FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
Section 4.07. Termination. This
Agreement shall terminate (i) immediately following the
occurrence of the Stockholder Approval or (ii) upon the
termination of the Warrant Exchange Agreement pursuant to its
terms.
[The remainder of the page is intentionally left blank]
A-33
Table of Contents
IN WITNESS WHEREOF, the Stockholder and the Company has duly
executed this Agreement.
THE COMPANY:
OXIGENE, INC.
| By: |
|
Name: Peter Langecker
| Title: | Chief Executive Officer | |
| Address: | OXiGENE, Inc. |
701 Gateway Blvd
Suite 210
South San Francisco, CA 94080
STOCKHOLDER:
A-34
Table of Contents
Appendix B
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 Section A of Article Fourth in its entirety and by substituting in lieu of the following: |
“A. Designation and Number of Shares.
The aggregate number of shares of all classes of stock which the
Corporation is authorized to issue is Two Hundred Ninety Million
(290,000,000) shares, of which Two Hundred Seventy-Five Million
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 242 of the General Corporation Law of the State of Delaware. |
EXECUTED, effective as of this day
of
20[ ].
OXiGENE, Inc.
| By: |
|
James B. Murphy
Vice President and Chief Financial Officer
B-1
Table of Contents
Appendix C
0 n
OXiGENE,
INC.
THIS
PROXY IS SOLICITED BY THE BOARD OF DIRECTORS FOR THE SPECIAL
MEETING
OF
STOCKHOLDERS TO BE HELD ON MARCH 18, 2011
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 Special
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
March 18, 2011, 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 PROPOSALS 1, 2 AND 3. 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
SPECIAL 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.)
| n | 14475 n |
C-1
Table of Contents
SPECIAL MEETING OF STOCKHOLDERS OF
OXiGENE, INC.
701 Gateway Boulevard, Suite 210
South San Francisco, CA 94080
South San Francisco, CA 94080
March
18, 2011
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
| n 20700000000000000000 1 | 061307 |
| THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSALS 1, 2 AND 3. PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE | ||||
| IN BLUE OR BLACK INK AS SHOWN HERE x | ||||
1. Approval of the proposed issuances
of shares of our
common stock
pursuant to the
Warrant Exchange
Agreements, dated
January 18, 2011,
by and among the
Company and certain
warrant holders, to
comply with NASDAQ
Marketplace Rule
5635(d).
|
FOR | AGAINST | ABSTAIN | ||||
| o | o | o | |||||
2. Approval of an
adjournment of the
Special Meeting, if
necessary, if a
quorum is present,
to solicit
additional proxies
if there are not
sufficient votes in
favor of Proposal
1.
|
o | o | o | ||||
3. Approval of an
amendment to our
Restated
Certificate of
Incorporation to
decrease the number
of authorized
shares of common
stock from
300,000,000 to
275,000,000.
|
o | o | o | ||||
| THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS DIRECTED. IF NO DIRECTION IS GIVEN WITH RESPECT TO A PARTICULAR PROPOSAL, THIS PROXY WILL BE VOTED FOR SUCH PROPOSAL. | |||||||
| PLEASE MARK, DATE, SIGN, AND RETURN THIS PROXY CARD PROMPTLY, USING THE ENCLOSED ENVELOPE. NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED STATES. | |||||||
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 signer is a partnership, please sign in partnership name by authorized person. |
C-2
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NOTICE OF SPECIAL MEETING OF STOCKHOLDERSPROXY STATEMENTPROPOSAL 1PROPOSAL 2PROPOSAL 3SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTEXPENSES OF SOLICITATIONSTOCKHOLDER PROPOSALS AND NOMINATIONS FOR DIRECTOROTHER MATTERSAPPENDIX A FORM OF WARRANT EXCHANGE AGREEMENT A-1APPENDIX B PROPOSED CERTIFICATE OF AMENDMENT TO RESTATED CERTIFICATE OF INCORPORATION B-1APPENDIX C PROXY CARD C-1