FORM OF AMENDMENT AND EXCHANGE
AGREEMENT
AMENDMENT AND EXCHANGE AGREEMENT (the “
Agreement ”) dated as of March 25, 2010, 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
[ ] (the “
Investor ”).
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 (the
“ Existing Securities Purchase Agreement ”),
pursuant to which, among other things, the Investor purchased from
the Company (i) certain shares (the “ Existing Common
Shares ”) of the Company’s common stock, par value
$0.01 per share (the “ Common Stock ”),
(ii) a Series D Warrant (the “ Existing
Series D Warrant ”), which is exercisable into
shares of Common Stock (the “ Existing Series D
Warrant Shares ”); and (iii) certain other warrants
to purchase Common Stock of the Company.
B.
In connection with the execution and delivery of the Existing
Securities Purchase Agreement, the Company entered into that
certain Registration Rights Agreement, dated as of March 10, 2010
(the “ Existing Registration Rights Agreement
”), by and between the Company and the Investors, pursuant to
which the Company agreed to provide certain registration rights
with respect to the Registrable Securities (as defined in the
Existing Registration Rights Agreement) under the Securities Act of
1933, as amended (the “ 1933 Act ”), and the
rules and regulations promulgated thereunder, and applicable state
securities laws.
C.
The Company and the Investor desire to enter into this Agreement,
pursuant to which, among other things, (i) the Company and the
Investor shall amend certain of the Transaction Documents (as
defined in the Existing Securities Purchase Agreement) to provide
for (x) a reduction of the number of shares of Common Stock
required to be initially registered by the Company with the
Securities and Exchange Commission pursuant to the Existing
Registration Rights Agreement and (y) an extension of the
filing and effectiveness deadlines with respect to such
registration and (ii) the Company and the Investor shall
exchange the Existing Series D Warrant of the Investor for a
warrant in the form attached hereto as Exhibit A (the
“ Exchanged Series D Warrant ”), with a
face amount of
shares of Common Stock (the “ Exchanged Series D
Warrant Shares ”).
D.
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 the different face amount of warrants (the “
Other Exchanged Series D Warrants ”, and together
with the Exchanged Series D Warrant, the “ Exchanged
Series D Warrants ”) being issued to such Other
Investor in exchange for the Series D Warrants (as defined in
the Securities Purchase Agreement) of such Other Investors) (the
“ Other Agreements ”, and together with this
Agreement, the “ Agreements ”).
E.
The exchange of the Existing Series D Warrant for the
Exchanged Series D Warrant is being made in reliance upon the
exemption from registration provided by Section 3(a)(9) of the
1933 Act; and
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.
Exchange . Subject to the satisfaction (or waiver) of the
conditions set forth in Sections 5 and 6 below, the Investor
shall, and the Company shall, pursuant to Section 3(a)(9) of
the 1933 Act, exchange the Existing Series D Warrant for the
Exchanged Series D Warrant. At the Closing (as defined below),
the following transactions shall occur (such transactions in this
Section 1, the “ Exchange ”):
1.1
Delivery . In exchange for the Existing Series D
Warrant, the Company shall deliver or cause to be delivered to the
Investor the Exchanged Series D Warrant. The Investor shall
deliver or cause to be delivered to the Company (or its designee)
the Existing Series D Warrant, as soon as commercially
practicable following the Closing. As of the Closing Date, all of
the Investor’s rights under the Existing Series D
Warrant shall be extinguished.
1.2
Other Documents . The Company and the Investor shall execute
and/or deliver such other documents and agreements as are customary
and reasonably necessary to effectuate the Exchange.
1.3
Purchase Price . The Exchanged Series D Warrant shall
be issued to the Investor in exchange for the Existing
Series D Warrant and without the payment of any additional
consideration.
1.4
Closing . Upon confirmation that the conditions to closing
specified in this Agreement have been satisfied or duly waived by
the Investor or the Company, as applicable, the closing of the
Exchange (the “ Closing ”) shall occur on
March 26, 2010 or such other date as is mutually acceptable to
the Investor and the Company (the “ Closing Date
”).
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,
(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, (iii) all references in the Existing Registration
Rights Agreement to “this Agreement”,
“hereto”, “hereof”, “hereunder”
or words of like import referring
2
to the Existing
Registration Rights Agreement shall mean the Existing Registration
Rights Agreement as amended by this Agreement, and (iv) all
references in the other Transaction Documents to the
“Registration Rights Agreement”, “thereto”,
“thereof”, “thereunder” or words of like
import referring to the Registration Rights Agreement shall mean
the Registration Rights Agreement as amended by this
Agreement.
2.2
Amendments to Existing Registration Rights Agreement . On
and after the Closing Date, the Existing Registration Rights
Agreement is hereby amended as follows:
(a) The
defined term “Filing Deadline” is hereby amended by
replacing “10 th Business Day” with “15
th Business Day”.
(b) The
defined term “Effectiveness Deadline” is hereby amended
by replacing both references to “40 th calendar day” with “50
th calendar day” and by replacing both
references to “70 th calendar day” with “80
th calendar day”.
(c) The
defined term “Required Registration Amount” is hereby
amended by adding the following:
“Notwithstanding the foregoing, with
respect to the initial Registration Statement filed hereunder, the
Required Registration Amount shall mean the sum of (i) the
number of Common Shares issued pursuant to the Securities Purchase
Agreement and (ii) 6,755,157 Warrant Shares issuable pursuant
to the Warrants (subject to the occurrence of certain events, all
of which may become issuable pursuant to the Series D
Warrants). The Buyers acknowledge that the number of shares of
Common Stock to be included in the initial Registration Statement
with respect to the Series D Warrants is a number negotiated
by the parties hereto and is not intended to provide any guidance
with respect to the Company’s view of the market price of its
Common Stock as of any Adjustment Time (as defined in the
Series D Warrants). The parties hereto agree that the
foregoing adjustment shall be deemed to be a reduction in the
amount of Registrable Securities permitted to be resold pursuant to
the initial Registration Statement by the SEC for purposes of
Section 2(f) below for which no Registration Delay Payments shall
apply. The Buyers further acknowledge that notwithstanding anything
to the contrary in the Transaction Documents, in no event shall the
Company be required to file a Registration Statement, and no
Registration Delay Payments shall apply, if su
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