AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT between OXiGENE, INC. and SYMPHONY ViDA HOLDINGS LLC Dated as of July 2, 2009
Exhibit 10.2
EXECUTION COPY
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
between
OXiGENE, INC.
and
SYMPHONY ViDA HOLDINGS LLC
Dated as of July 2, 2009
Table of Contents
| Section | Page | |||||
Section 1.
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Definitions | 1 | ||||
Section 2.
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Registration | 3 | ||||
Section 3.
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Related Obligations | 5 | ||||
Section 4.
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Obligations of the Investor(s) | 9 | ||||
Section 5.
|
Expenses of Registration | 10 | ||||
Section 6.
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Indemnification | 10 | ||||
Section 7.
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Contribution | 15 | ||||
Section 8.
|
Reports Under The Exchange Act | 15 | ||||
Section 9.
|
Assignment of Registration Rights | 15 | ||||
Section 10.
|
Amendment | 16 | ||||
Section 11.
|
Miscellaneous | 16 | ||||
Exhibit A — Form of Selling Stockholder Questionnaire
i
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of
July 2, 2009, by and between OXiGENE, INC., a Delaware corporation (the “Company”), and
SYMPHONY ViDA HOLDINGS LLC, a Delaware limited liability company (together with its permitted
successors, assigns and transferees, “Holdings”).
RECITALS:
WHEREAS, in connection with the exercise by the Company of the Purchase Option under the
Amended and Restated Purchase Option Agreement, by and among the Company, Holdings and Symphony
ViDA, Inc., a Delaware corporation (the “Symphony Collaboration”), of even date herewith
(the “Purchase Option Agreement”), the Company will issue (a) shares of the Company’s
common stock, par value $0.01 per share (“Company Common Stock”) (all such shares of
Company Common Stock, when and if issued, the “Purchase Option Shares”) or (b) the
Alternate Closing Securities (as defined in the Purchase Option Agreement) (all such Alternate
Closing Securities, when and if issued, the “Purchase Option Alternate Closing
Securities”), to Holdings as payment of the Purchase Price in accordance with the terms of the
Purchase Option Agreement;
WHEREAS, pursuant to a post-closing adjustment set forth in Section 2B(a) of the
Purchase Agreement, the Company may issue Alternate Securities (as defined in the Purchase Option
Agreement) (all such Alternate Securities, when and if issued, the “Purchase Option Adjustment
Securities”) to Holdings;
WHEREAS, the Company and Holdings are party to that certain Registration Rights Agreement
dated as of October 1, 2008 (the “Original Agreement”), pursuant to which the Company has
agreed to provide certain registration rights under the Securities Act of 1933, as amended (the
“Securities Act”), and applicable state securities laws with respect to the shares of
Company Common Stock to be issued to Holdings; and
WHEREAS, the parties to the Original Agreement desire to amend and restate the Original
Agreement and accept the rights and covenants hereof in lieu of their rights and covenants under
the Original Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Holdings (the “Parties”) hereby agree as follows:
Section 1. Definitions.
(a) Capitalized terms used but not defined herein are used as defined in the Purchase Option
Agreement (including Annex A thereto).
(b) As used in this Agreement, the following terms shall have the following meanings:
(i) “Additional Registrable Securities” means (i) the Additional Investment Shares,
and (ii) any Company Common Stock issued with respect to the Additional Investment Shares as a
result of any stock split, stock dividend, recapitalization, exchange or similar event or
otherwise.
(ii) “Company Warrants” has the meaning set forth in Section 2.02 of the
Holdings LLC Agreement.
(iii) “Effective Registration Date” means the date that the Registration Statement (as
defined below) is first declared effective by the SEC.
(iv) “Investor(s)” means Holdings, any transferee or assignee thereof to whom Holdings
assigns its rights under this Agreement and who agrees to become bound by the provisions of this
Agreement in accordance with Section 9 and any transferee or assignee thereof to whom a
transferee or assignee assigns its rights under this Agreement and who agrees to become bound by
the provisions of this Agreement in accordance with Section 9.
(v) “Non-IV Registrable Securities” means (i) the Non-IV Shares, and (ii) any Company
Common Stock issued with respect to the Non-IV Shares as a result of any stock split, stock
dividend, recapitalization, exchange or similar event or otherwise.
(vi) “Purchase Option Related Registrable Securities” means (i) the Purchase Option
Shares, (ii) any Company Common Stock issued with respect to the Purchase Option Shares as a result
of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, (iii)
the Purchase Option Alternate Closing Securities, and (iv) the Purchase Option Adjustment
Securities.
(vii) “register,” “registered,” and “registration” refer to a
registration effected by preparing and filing one or more Registration Statements in compliance
with the Securities Act and pursuant to Rule 415, and the declaration or ordering of effectiveness
of such Registration Statement(s) by the SEC.
(viii) “Registrable Securities” means, collectively, the Share Purchase Related
Registrable Securities, the Purchase Option Related Registrable Securities, the Additional
Registrable Securities, the Non-IV Registrable Securities and the Warrant Related Registrable
Securities; provided, however, that such securities will cease to be Registrable Securities
on the earlier of (A) the date as of which the Investor(s) may sell such securities without
restriction pursuant to Rule 144(b) (or successor thereto) promulgated under the Securities Act, or
(B) the date on which the Investor(s) shall have sold all such securities.
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(ix) “Registration Statement” means a registration statement or registration
statements of the Company filed under the Securities Act covering the Registrable Securities.
(x) “Rule 144” has the meaning set forth in Section 8 of this Agreement.
(xi) “Rule 415” means Rule 415 under the Securities Act or any successor rule
providing for offering securities on a continuous or delayed basis.
(xii) “Share Purchase Related Registrable Securities” means (i) the Direct Investment
Shares, (ii) the Option Premium Shares, and (iii) any shares of capital stock issued or issuable
with respect to the Direct Investment Shares or Option Premium Shares as a result of any stock
split, stock dividend, recapitalization, exchange or similar event or otherwise.
(x) “Warrant Related Registrable Securities” means (i) the Warrant Shares, (ii) the
shares issuable upon exercise of the Additional Investment Warrant, (iii) the shares issuable upon
exercise of the Non-IV Warrant and (iv) any shares of capital stock issued or issuable with respect
to the foregoing as a result of any stock split, stock dividend, recapitalization, exchange or
similar event or otherwise.
Section 2. Registration.
(a) Right to Registration.
(i) Purchase Option Related Registration. The Company shall prepare and, as soon as
practicable but in no event later than ten (10) Business Days after the Purchase Option Closing
Date and each Adjusted Securities Payment Date (as defined in the Purchase Option Agreement), file
with the SEC a Registration Statement on Form S-3 covering the resale of the then unregistered
Purchase Option Related Registrable Securities (the obligations of the Company under this
subsection (a)(i) being subject to Section 2(b) below). Each Registration Statement prepared
pursuant hereto shall register for resale that number of shares of Company Common Stock equal to
(A) the number of the then unregistered Purchase Option Related Registrable Securities constituting
Company Common Stock, plus (B) the maximum number of shares of Company Common Stock
issuable upon the exercise, conversion or exchange (as set forth in the instrument relating
thereto, assuming the satisfaction of any conditions to exercisability, convertibility or
exchangeability but without regard to any provision contained therein for a subsequent adjustment
of such number) of the then unregistered Purchase Option Related Registrable Securities (other than
the Purchase Option Related Registrable Securities constituting Company Common Stock), in each
case, as of the trading day immediately preceding the date such Registration Statement is initially
filed with the SEC, subject to adjustment as provided in Sections 2(c) and 2(d).
The Company shall use commercially reasonable efforts to have each such Registration Statement
declared effective by the SEC as soon as practicable
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(and in any event within 120 days) following the Purchase Option Closing Date or Adjusted
Securities Payment Date, as applicable.
(ii) Share Purchase Related Registration. The Company has filed with the SEC a
Registration Statement on Form S-3 (Reg. No. 333-155372) covering the resale of all of the Share
Purchase Related Registrable Securities (the obligations of the Company under this subsection
(a)(ii) being subject to Section 2(b) below). Such Registration Statement was declared effective
on December 1, 2008 and is effective as of the date hereof. The Registration Statement prepared
pursuant hereto registers for resale at least that number of shares of Company Common Stock equal
to the number of Share Purchase Related Registrable Securities as of the trading day immediately
preceding the date the Registration Statement is initially filed with the SEC, subject to
adjustment as provided in Sections 2(c) and 2(d).
(iii) Warrant Related Registration. The Company has filed with the SEC a Registration
Statement on Form S-3 (Reg. No. 333-155372) covering the resale of all of the Warrant Related
Registrable Securities (the obligations of the Company under this subsection (a)(iii) being subject
to Section 2(b) below). Such Registration Statement was declared effective on December 1, 2008 and
is effective as of the date hereof. The Registration Statement prepared pursuant hereto registers
for resale at least that number of shares of Company Common Stock equal to the number of Warrant
Related Registrable Securities as of the trading day immediately preceding the date the
Registration Statement is initially filed with the SEC, subject to adjustment as provided in
Sections 2(c) and 2(d).
(iv) Additional Share Related Registration. The Company shall prepare, and, as soon
as practicable but in no event later than forty-five (45) days after the Additional Closing Date,
file with the SEC a Registration Statement on Form S-3 covering the resale of all of the Additional
Registrable Securities (the obligations of the Company under this subsection (a)(iv) being subject
to Section 2(b) below). The Registration Statement prepared pursuant hereto shall register for
resale at least that number of shares of Company Common Stock equal to the number of Additional
Registrable Securities as of the trading day immediately preceding the date the Registration
Statement is initially filed with the SEC, subject to adjustment as provided in Sections
2(c) and 2(d). The Company shall use commercially reasonable efforts to have the
Registration Statement declared effective by the SEC as soon as practicable (and in any event
within 120 days) following the Additional Closing Date.
(v) Non-IV Share Related Registration. The Company shall prepare, and, as soon as
practicable but in no event later than forty-five (45) days after the Non-IV Closing Date, file
with the SEC a Registration Statement on Form S-3 covering the resale of all of the Non-IV
Registrable Securities (the obligations of the Company under this subsection (a)(v) being subject
to Section 2(b) below). The Registration Statement prepared pursuant hereto shall register for
resale at least that number of shares of Company Common Stock equal to the number of Non-IV
Registrable Securities as of the trading day immediately preceding the date the Registration
Statement is initially filed with the SEC, subject to adjustment as provided in
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Sections 2(c) and 2(d). The Company shall use commercially reasonable efforts
to have the Registration Statement declared effective by the SEC as soon as practicable (and in any
event within 120 days) following the Non-IV Closing Date.
(b) Ineligibility for Form S-3. In the event that Form S-3 is not available for the
registration of the resale of Registrable Securities hereunder, the Company shall (i) register the
resale of the Registrable Securities on another appropriate form reasonably acceptable to Holdings
(which acceptable forms shall include Form S-1); and (ii) undertake to register the Registrable
Securities on Form S-3 as soon as such form is available; provided that the Company shall
maintain the effectiveness of the Registration Statement then in effect until such time as a
Registration Statement on Form S-3 covering the Registrable Securities has been declared effective
by the SEC.
(c) Sufficient Number of Shares Registered. In the event the number of shares
available under a Registration Statement filed pursuant to Section 2(a) is insufficient to
cover all of the Registrable Securities required to be covered by such Registration Statement, the
Company shall amend the applicable Registration Statement, or file a new Registration Statement (on
the short form available therefor, if applicable), or both, so as to cover at least 100% of the
number of such Registrable Securities as of the trading day immediately preceding the date of the
filing of such amendment or new Registration Statement (subject to adjustment as provided in
Section 2(d)), in each case, as soon as practicable, but in any event not later than thirty
(30) days after the Company becomes aware of the necessity therefor. The Company shall use
commercially reasonable efforts to cause such amendment and/or new Registration Statement to become
effective as soon as practicable following the filing thereof. For purposes of the foregoing
provision, the number of shares available under a Registration Statement shall be deemed
“insufficient to cover all of the Registrable Securities” if at any time the number of shares of
Company Common Stock available for resale under such Registration Statement is less than the number
of Registrable Securities. The calculation set forth in the foregoing sentence shall be made
without regard to any limitations on the exercise of the Company Warrants and such calculation
shall assume that the Company Warrants are then exercisable into shares of Company Common Stock
(d) No Deemed Breach. The Company shall not be deemed to have breached its obligations
under this Agreement to have any Registration Statement required by this Agreement declared
effective by the SEC within a particular time frame in the event that the failure to have such
Registration Statement declared effective within a particular time frame results from the SEC
characterizing the offering of the shares of Company Common Stock under such Registration Statement
by the Investor(s) as a primary issuance of such shares by the Company rather than a secondary
offering pursuant to a resale prospectus; provided that, no such time frame shall be extended to
more than 240 days from its original starting date.
Section 3. Related Obligations. At such time as the Company is obligated to file a
Registration Statement with the SEC pursuant to Section 2(a), (b) or (c),
the Company will use commercially reasonable efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and,
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pursuant thereto (except at such times as the Company may be required to suspend the use of a
prospectus forming a part of the Registration Statement pursuant to Section 3(1), at which
time the Company’s obligations under Sections 3(a), (b), (c), (d),
(i) and (k) may also be suspended, as required), the Company shall have the
following obligations:
(a) The Company shall keep each Registration Statement effective pursuant to Rule 415 at all
times until the earlier of (i) the date as of which the Investor(s) may sell all of the Registrable
Securities covered by such Registration Statement without restriction pursuant to Rule 144(b) (or
successor thereto) promulgated under the Securities Act, or (ii) the date on which the Investor(s)
shall have sold all the Registrable Securities covered by such Registration Statement, but in no
event for a period of less than one year from the Closing Date (the “Registration Period”).
(b) The Company shall prepare and file with the SEC such amendments (including post-effective
amendments) and supplements to a Registration Statement and the prospectus used in connection with
such Registration Statement as may be necessary to keep such Registration Statement effective at
all times during the Registration Period, and, during such period, comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities of the Company
covered by such Registration Statement until such time as all of such Registrable Securities shall
have been disposed of in accordance with the intended methods of disposition by the seller or
sellers thereof as set forth in such Registration Statement. In the case of amendments and
supplements to a Registration Statement which are required to be filed pursuant to this Agreement
(including pursuant to this Section 3(b)) by reason of the Company filing a report on Form
10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act, the Company shall have
incorporated such report by reference into such Registration Statement, if applicable, or shall
file such amendments or supplements with the SEC on the same day on which the Exchange Act report
is filed which created the requirement for the Company to amend or supplement such Registration
Statement.
(c) The Company shall furnish to each Investor whose Registrable Securities are included in
any Registration Statement, without charge, (i) promptly after the same is prepared and filed with
the SEC, at least one (1) copy of such Registration Statement and any amendment(s) thereto,
including financial statements and schedules, and each preliminary prospectus; (ii) upon the
effectiveness of any Registration Statement, ten (10) copies of the prospectus included in such
Registration Statement and all amendments and supplements thereto (or such other number of copies
as such Investor may reasonably request); and (iii) such other documents, including copies of any
preliminary or final prospectus, as such Investor may reasonably request from time to time in order
to facilitate the disposition of the Registrable Securities owned by such Investor.
(d) The Company shall use commercially reasonable efforts to (i) register and qualify, unless
an exemption from registration and qualification applies, the resale by Investor(s) of the
Registrable Securities covered by a Registration Statement under such other securities or “blue
sky” laws of such jurisdictions in the United States as
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Investor(s) reasonably request; (ii) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements to such registrations and qualifications as
may be necessary to maintain the effectiveness thereof during the Registration Period; and (iii)
take such other actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period; provided, however, that the
Company shall not be required in connection therewith or as a condition thereto to (x) qualify to
do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file
a general consent to service of process in any such jurisdiction. The Company shall promptly
notify each Investor who holds Registrable Securities of the receipt by the Company of any
notification with respect to the suspension of the registration or qualification of any of the
Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the
United States or its receipt of actual notice of the initiation or threatening of any proceeding
for such purpose.
(e) The Company shall notify each Investor in writing of the happening of any event, as
promptly as practicable after becoming aware of such event, as a result of which the prospectus
included in a Registration Statement, as then in effect, includes an untrue statement of a material
fact or omission to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading,
and, subject to Section 3(l) hereof, promptly prepare a supplement or amendment to such
Registration Statement to correct such untrue statement or omission. The Company shall also
promptly notify each Investor in writing when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and when a Registration Statement or any post-effective
amendment has become effective.
(f) The Company shall use commercially reasonable efforts to prevent the issuance of any stop
order or other suspension of effectiveness of a Registration Statement, or the suspension of the
qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an
order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest
possible moment.
(g) In the event that any Investor is deemed to be an “underwriter” with respect to the
Registrable Securities, upon the written request of such Investor in connection with such
Investor’s due diligence requirements, if any, the Company shall make available for inspection
during normal business hours by (i) such Investor, and (ii) any legal counsel, accountants or other
agents retained by the Investor (collectively, “Inspectors”), all pertinent financial and
other records, and pertinent corporate documents and properties of the Company (collectively,
“Records”), as shall be reasonably deemed necessary by each Inspector, and cause the
Company’s officers, directors and employees to supply all information which any Inspector may
reasonably request; provided, however, that each Inspector and such Investor shall
agree in writing to hold in strict confidence and shall not make any disclosure (except with
respect to an Inspector, to the relevant Investor) or use of any Record or other information which
the Company determines in good faith to be confidential, and of which determination the
A&R Registration Rights Agreement
7
Inspectors are so notified, unless the release of such Records is ordered pursuant to a final,
non-appealable subpoena or order from a court or government body of competent jurisdiction. Each
Investor agrees that it shall, upon learning that disclosure of such Records is required or is
sought in or by a court or governmental body of competent jurisdiction or through other means, give
prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential.
Nothing herein (or in any other confidentiality agreement between the Company and any Investor)
shall be deemed to limit the Investor(s)’ ability to sell Registrable Securities in a manner which
is otherwise consistent with applicable laws and regulations.
(h) The Company shall hold in confidence and not make any disclosure of information concerning
an Investor provided to the Company unless (i) disclosure of such information is necessary to
comply with federal or state securities laws or the rules of any securities exchange or trading
market on which the Company Common Stock is listed or traded, (ii) the disclosure of such
information is necessary to avoid or correct a misstatement or omission in any Registration
Statement, or (iii) the release of such information is ordered pursuant to a subpoena or other
final, non-appealable order from a court or governmental body of competent jurisdiction. The
Company agrees that it shall, upon learning that disclosure of such information concerning an
Investor is sought in or by a court or governmental body of competent jurisdiction or through other
means, give prompt written notice to such Investor and allow such Investor, at the Investor’s
expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
(i) The Company shall use commercially reasonable efforts either to (i) cause all the
Registrable Securities covered by a Registration Statement to be listed on each securities exchange
on which securities of the same class or series issued by the Company are then listed, if any, if
the listing of such Registrable Securities is then permitted under the rules of such exchange, or
(ii) secure designation and quotation of all the Registrable Securities covered by a Registration
Statement on the NASDAQ Global Market. The Company shall pay all fees and expenses in connection
with satisfying its obligation under this Section 3(i).
(j) The Company shall cooperate with the Investor(s) who hold Registrable Securities being
offered and, to the extent applicable, facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be offered pursuant to a Registration
Statement and enable such certificates to be in such denominations or amounts, as the case may be,
as the Investor(s) may reasonably request and registered in such names as the Investor(s) may
request.
(k) If requested by an Investor, the Company shall (i) as soon as practicable incorporate in a
prospectus supplement or post-effective amendment such information as an Investor reasonably
requests to be included therein relating to the sale and distribution of Registrable Securities,
including, without limitation, information with respect to the number of Registrable Securities
being offered or sold, the purchase price being paid therefor and any other terms of the offering
of the Registrable Securities to be
A&R Registration Rights Agreement
8
sold in such offering and (ii) as soon as practicable make all required filings of such
prospectus supplement or post-effective amendment after being notified of the matters to be
incorporated in such prospectus supplement or post-effective amendment.
(l) Notwithstanding anything to the contrary herein, at any time after the Registration
Statement has been declared effective by the SEC, the Company may delay or suspend the
effectiveness of any Registration Statement or the use of any prospectus forming a part of the
Registration Statement due to the non-disclosure of material, non-public information concerning the
Company the disclosure of which at the time is not, in the good faith opinion of the Company, in
the best interest of the Company (a “Grace Period”); provided, that the Company
shall promptly notify the Investor(s) in writing of the existence of a Grace Period in conformity
with the provisions of this Section 3(l) and the date on which the Grace Period will begin
(such notice, a “Commencement Notice”); and, provided further, that no Grace Period
shall exceed thirty (30) consecutive days, and such Grace Periods shall not exceed an aggregate
total of ninety (90) days during any three hundred sixty five (365) day period. For purposes of
determining the length of a Grace Period above, the Grace Period shall begin on and include the
date specified by the Company in the Commencement Notice and shall end on and include the date the
Investor(s) receive written notice of the termination of the Grace Period by the Company (which
notice may be contained in the Commencement Notice). The provisions of Section 3(e) hereof
shall not be applicable during any Grace Period. Upon expiration of the Grace Period, the Company
shall again be bound by the first sentence of Section 3(e) with respect to the information
giving rise thereto unless such material, non-public information is no longer applicable.
Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver
unlegended shares of Company Common Stock to a transferee of an Investor in accordance with the
terms of the Stock and Warrant Purchase Agreement in connection with any sale of Registrable
Securities with respect to which an Investor has entered into a contract for sale, and delivered a
copy of the prospectus included as part of the applicable Registration Statement, prior to the
Investor’s receipt of the notice of a Grace Period and for which the Investor has not yet settled.
Section 4. Obligations of the Investor(s).
(a) At least seven (7) Business Days prior to the first anticipated filing date of a
Registration Statement, the Company shall notify each Investor in writing of the information the
Company requires from each such Investor if such Investor elects to have any of such Investor’s
Registrable Securities included in such Registration Statement and provide each such Investor with
a copy of the Company’s then-current selling stockholder questionnaire (a copy of which is attached
as Exhibit A hereto, a “Selling Stockholder Questionnaire”). It shall be a
condition precedent to the obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of a particular Investor that such Investor
shall furnish to the Company a completed Selling Stockholder Questionnaire, along with such other
information regarding itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as may reasonably be required to effect the
effectiveness of the registration of such Registrable Securities, and
A&R Registration Rights Agreement
9
shall execute other such documents in connection with such registration as the Company may
reasonably request. Notwithstanding anything to the contrary contained herein, the Company shall
not be required to file any such Registration Statement until the third Business Day after the day
on which it receives all Selling Stockholder Questionnaires.
(b) Each Investor, by such Investor’s acceptance of the Registrable Securities, agrees to
cooperate with the Company as reasonably requested by the Company in connection with the
preparation and filing of any Registration Statement hereunder, unless such Investor has notified
the Company in writing of such Investor’s election to exclude all of such Investor’s Registrable
Securities from such Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 3(f) or the first sentence of Section
3(e), such Investor will immediately discontinue disposition of Registrable Securities pursuant
to any Registration Statement(s) covering such Registrable Securities until such Investor’s receipt
of the copies of the supplemented or amended prospectus contemplated by the second sentence of
Section 3(e) or receipt of notice that no supplement or amendment is required.
(d) Each Investor covenants and agrees that it will comply with any applicable prospectus
delivery requirements of the Securities Act as applicable to it in connection with sales of
Registrable Securities pursuant to a Registration Statement.
Section 5. Expenses of Registration. All reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3 hereof, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees, and fees and
disbursements of counsel for the Company shall be paid by the Company. All underwriting discounts
and selling commissions applicable to the sale of the Registrable Securities shall be paid by the
Investor(s), provided, however, that the Company shall reimburse the Investor(s) for the reasonable
actual fees and disbursements of one legal counsel designated by the holders of at least a majority
of the Registrable Securities in connection with registration, filing or qualification pursuant to
Sections 2 and 3 of this Agreement, which amount shall be limited to $25,000 in
total over the term of this Agreement.
Section 6. Indemnification. In the event any Registrable Securities are included in a
Registration Statement under this Agreement:
(a) To the fullest extent permitted by applicable Law, the Company will, and hereby does,
indemnify and hold harmless each Investor, the directors, officers, partners, members, employees,
agents, representatives of, and each Person, if any, who controls any Investor within the meaning
of the Securities Act or the Exchange Act (each, an “Investor Indemnified Person”), against
any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, reasonable
attorneys’ fees, amounts paid in settlement or expenses, joint or several with an aggregate value
of
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at least $10,000, (as determined by the applicable Indemnified Party acting in good faith),
(collectively, “Claims”), incurred in investigating, preparing or defending any action,
claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any
court or governmental, administrative or other regulatory agency, body or the SEC, whether pending
or threatened, whether or not an Indemnified Person is or may be a party thereto (“Indemnified
Damages”), to which any of them may become subject to the extent that such Claims (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration
Statement or any post-effective amendment thereto or in any filing made in connection with the
qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in
which Registrable Securities are offered (“Blue Sky Filing”), or the omission or alleged
omission to state a material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus if used prior to the Effective Registration Date of such
Registration Statement, or contained in the final prospectus (as amended or supplemented, if the
Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the statements made therein, in the
light of the circumstances under which the statements therein were made, not misleading; (iii) any
violation or alleged violation by the Company of any federal, state or common law, rule or
regulation applicable to the Company in connection with any Registration Statement, prospectus or
any preliminary prospectus, any amendment or supplement thereto, or the issuance of any Registrable
Securities to Holdings; or (iv) any material violation of this Agreement (the matters in the
foregoing clauses (i) through (iv) being, collectively, “Violations”).
Subject to Section 6(c), the Company shall reimburse the Investor Indemnified Persons,
promptly as such expenses are incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the indemnification agreement contained
in this Section 6(a): (A) shall not apply to a Claim by an Investor Indemnified Person
arising out of or based upon a Violation that occurs in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any Investor Indemnified Person
expressly for use in connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto; (B) with respect to any preliminary prospectus, shall not
inure to the benefit of any such Person from whom the Person asserting any such Claim purchased the
Registrable Securities that are the subject thereof (or to the benefit of any Person controlling
such Person) if the untrue statement or omission of material fact contained in the preliminary
prospectus was corrected in the prospectus, as then amended or supplemented, if such prospectus was
timely made available by the Company pursuant to Section 3(d), and the Investor Indemnified
Person was promptly advised in writing not to use the incorrect prospectus prior to the use giving
rise to a violation and such Investor Indemnified Person, notwithstanding such advice, used it or
failed to deliver the correct prospectus as required by the Securities Act and such correct
prospectus was timely made available pursuant to Section 3(d); (C)
shall not be available
to the extent such Claim is based on a failure of the Investor Indemnified Person to deliver or to
cause to be
A&R Registration Rights Agreement
11
delivered the prospectus made available by the Company, including a corrected prospectus, if
such prospectus or corrected prospectus was timely made available by the Company pursuant to
Section 3(d); and (D) along with the agreement with respect to contribution contained in
Section 7, shall not apply to amounts paid in settlement of any Claim if such settlement is
effected without the prior written consent of the Company, which consent shall not be unreasonably
withheld or delayed. Such indemnity shall remain full force and effect regardless of any
investigation made by or on behalf of the Investor Indemnified Person and shall survive the
transfer of the Registrable Securities by the Investor(s) pursuant to Section 9.
(b) In connection with any Registration Statement in which an Investor is participating, each
such Investor agrees to severally and not jointly indemnify, and hold harmless, to the same extent
and in the same manner as is set forth in Section 6(a), the Company, each of its directors,
each of its officers who signs the Registration Statement, each Person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, and the Company’s general
counsel to the extent that such counsel delivers one or more legal opinions in conjunction with the
preparation and filing of the Registration Statement (each, a “Company Indemnified
Person”), against any Claim or Indemnified Damages to which any of them may become subject,
under the Securities Act, the Exchange Act or otherwise, insofar as such Claim or Indemnified
Damages arise out of or are based upon any Violation, in each case to the extent, and only to the
extent, that such Violation occurs in reliance upon and in conformity with written information
furnished to the Company by such Investor expressly for use in connection with such Registration
Statement; and, subject to Section 6(d), such Investor will reimburse, promptly as such
expenses are incurred and are due and payable, any legal or other expenses reasonably incurred by a
Company Indemnified Person in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section
6(b) and the agreement with respect to contribution contained in Section 7 shall not
apply to amounts paid in settlement of any Claim if such settlement is effected without the prior
written consent of such Investor, which consent shall not be unreasonably withheld or delayed;
provided, further, however, that an Investor shall be liable under this Section 6(b) for
only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such
Investor as a result of the sale of Registrable Securities pursuant to such Registration Statement.
Such indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of such Company Indemnified Person and shall survive the transfer of the Registrable
Securities by the Investor(s) pursuant to Section 9. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this Section 6(b)
with respect to any preliminary prospectus shall not inure to the benefit of any Company
Indemnified Person if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) If either an Investor Indemnified Person or a Company Indemnified Person (an
“Indemnified Person”) proposes to assert a right to be indemnified under this Section
6, such Indemnified Person shall notify either the Company or the relevant Investor(s), as
applicable (the “Indemnifying Person”),
A&R Registration Rights Agreement
12
promptly after receipt of notice of commencement of any action, suit or proceeding against
such Indemnified Person (an “Indemnified Proceeding”) in respect of which a Claim is to be
made under this Section 6, or the incurrence or realization of any Indemnified Damages in
respect of which a Claim is to be made under this Section 6, of the commencement of such
Indemnified Proceeding or of such incurrence or realization, enclosing a copy of all relevant
documents, including all papers served and claims made, but the omission to so notify the
applicable Indemnifying Person promptly of any such Indemnified Proceeding or incurrence or
realization shall not relieve (x) such Indemnifying Person from any liability that it may have to
such Indemnified Person under this Section 6 or otherwise, except, as to such Indemnifying
Person’s liability under this Section 6, to the extent, but only to the extent, that such
Indemnifying Person shall have been prejudiced by such omission, or (y) any other Indemnifying
Person from liability that it may have to any Indemnified Person under the Operative Documents.
(d) In case any Indemnified Proceeding shall be brought against any Indemnified Person and it
shall notify the applicable Indemnifying Person of the commencement thereof as provided by
Section 6(c) and such Indemnifying Person shall be entitled to participate in, and provided
such Indemnified Proceeding involves a claim solely for money damages and does not seek an
injunction or other equitable relief against the Indemnified Person and is not a criminal or
regulatory action, to assume the defense of, such Indemnified Proceeding with counsel reasonably
satisfactory to such Indemnified Person, and after notice from such Indemnifying Person to such
Indemnified Person of such Indemnifying Person’s election so to assume the defense thereof and the
failure by such Indemnified Person to object to such counsel within ten (10) Business Days
following its receipt of such notice, such Indemnifying Person shall not be liable to such
Indemnified Person for legal or other expenses related to such Indemnified Proceedings incurred
after such notice of election to assume such defense except as provided below and except for the
reasonable costs of investigating, monitoring or cooperating in such defense subsequently incurred
by such Indemnified Person reasonably necessary in connection with the defense thereof. Such
Indemnified Person shall have the right to employ its counsel in any such Indemnified Proceeding,
but the reasonable fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless:
(i) the employment of counsel by such Indemnified Person at the expense of the applicable
Indemnifying Person has been authorized in writing by such Indemnifying Person;
(ii) such Indemnified Person shall have reasonably concluded in its good faith (which
conclusion shall be determinative unless a court determines that such conclusion was not reached
reasonably and in good faith) that there is or may be a conflict of interest between the applicable
Indemnifying Person and such Indemnified Person in the conduct of the defense of such Indemnified
Proceeding or that there are or may be one or more different or additional defenses, claims,
counterclaims, or causes of action available to such Indemnified Person (it being agreed that in
any case referred to in this clause (ii) such Indemnifying Person shall not have the right
to direct the defense of such Indemnified Proceeding on behalf of the Indemnified Person);
A&R Registration Rights Agreement
13
(iii) the applicable Indemnifying Person shall not have employed counsel reasonably acceptable
to the Indemnified Person, to assume the defense of such Indemnified Proceeding within a reasonable
time after notice of the commencement thereof; provided, however, that (A) this
clause (iii) shall not be deemed to constitute a waiver of any conflict of interest that
may arise with respect to any such counsel, and (B) an Indemnified Person may not invoke this
clause (iii) if such Indemnified Person failed to timely object to such counsel pursuant to
the first paragraph of this Section 6(d) above (it being agreed that in any case referred
to in this clause (iii) such Indemnifying Party shall not have the right to direct the
defense of such Indemnified Proceeding on behalf of the Indemnified Party); or
(iv) any counsel employed by the applicable Indemnifying Person shall fail to timely commence
or reasonably conduct the defense of such Indemnified Proceeding, and such failure has prejudiced
(or is in immediate danger of prejudicing) the outcome of such Indemnified Proceeding (it being
agreed that in any case referred to in this clause (iv) such Indemnifying Party shall not
have the right to direct the defense of such Indemnified Proceeding on behalf of the Indemnified
Party);
in each of which cases the reasonable fees and expenses of counsel for such Indemnified Person
shall be at the expense of such Indemnifying Person. The Indemnifying Person shall be responsible
for the reasonable fees and expenses of only one counsel retained by all Indemnified Persons with
respect to any Indemnified Proceeding, and any additional counsel shall be retained at the expense
of such Indemnified Person, unless counsel for any Indemnified Person reasonably concludes in good
faith (which conclusion shall be determinative unless a court determines that such conclusion was
not reached reasonably and in good faith) that there is or may be a conflict of interest between
such Indemnified Person and one or more other Indemnified Persons in the conduct of the defense of
such Indemnified, in which case the Indemnifying Person shall be responsible for the reasonable
fees and expenses of such additional counsel.
(e) Without the prior written consent of such Indemnified Person, such Indemnifying Person
shall not settle or compromise, or consent to the entry of any judgment in, any pending or
threatened Indemnified Proceeding, unless such settlement, compromise, consent or related judgment
(i) includes an unconditional release of such Indemnified Person from all liability for Losses
arising out of such claim, action, investigation, suit or other legal proceeding, (ii) provides for
the payment of money damages as the sole relief for the claimant (whether at law or in equity),
(iii) involves no admission of fact adverse to such Indemnified Person or finding or admission of
any violation of law or the rights of any Person by the Indemnified Person, and (iv) is not in the
nature of a criminal or regulatory action. No Indemnified Person shall or compromise, or consent
to the entry of any judgment in, any pending or threatened Indemnified Proceeding (A) in respect of
which any payment would result hereunder or under any other Operative Document, (B) which includes
an injunction that will adversely affect any Indemnifying Person, (C) which involves an admission
of fact adverse to any Indemnifying Person or finding or admission of any violation of law or the
rights of any Person by the Indemnifying Person, or (D) which is in the nature of a
A&R Registration Rights Agreement
14
criminal or regulatory action, without the prior written consent of the Indemnifying Person,
such consent not to be unreasonably conditioned, withheld or delayed.
(f) The indemnification required by this Section 6 shall be made by periodic payments
of the amount of Claims during the course of the investigation or defense, as and when Indemnified
Damages are incurred.
Section 7. Contribution. To the extent any indemnification by an Indemnifying Person
is prohibited or limited by law, such Indemnifying Person agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under Section 6 to the
fullest extent permitted by law; provided, however, that: (i) no Person involved in
the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within
the meaning Section 11(f) of the Securities Act) in connection with such sale shall be entitled to
contribution from any Person involved in such sale of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (ii) contribution by any seller of Registrable Securities shall
be limited in amount to the net amount of proceeds received by such seller from the sale of such
Registrable Securities pursuant to such Registration Statement.
Section 8. Reports Under The Exchange Act. With a view to making available to the
Investor(s) the benefits of Rule 144 promulgated under the Securities Act or any other similar rule
or regulation of the SEC that may at any time permit the Investor(s) to sell securities of the
Company to the public without registration (“Rule 144”), the Company agrees to use
commercially reasonable efforts to:
(a) make and keep public information available, as those terms are understood and defined in
Rule 144;
(b) file with the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act so long as the Company remains subject to
such requirements and the filing of such reports and other documents is required for the applicable
provisions of Rule 144; and
(c) furnish to each Investor so long as such Investor owns Registrable Securities, promptly
upon request, (i) a written statement by the Company, if true, that it has complied with the
reporting requirements of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested to permit the
Investor(s) to sell such securities pursuant to Rule 144 without registration.
Section 9. Assignment of Registration Rights. The rights under this Agreement with
respect to the Share Purchase Related Registrable Securities shall be automatically assignable in
full or in part by the Investor(s) to any transferee of all or at least 30,000 of such Investor’s
Share Purchase Related Registrable Securities (or, if an Investor then holds 30,000 shares, a
transfer of all such Investor’s Share Purchase Related Registrable Securities), if: (i) the
Investor agrees in writing with the transferee or
A&R Registration Rights Agreement
15
assignee to assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment; (ii) the Company is, within a reasonable time after
such transfer or assignment, furnished with written notice of (A) the name and address of such
transferee or assignee, and (B) the securities with respect to which such registration rights are
being transferred or assigned; (iii) immediately following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted under the Securities Act
and applicable state securities laws; (iv) at or before the time the Company receives the written
notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in
writing with the Company to be bound by all of the provisions contained herein, including the
obligation to provide the Company with a completed Selling Stockholder Questionnaire, as
applicable; and (v) such transfer shall have been made in accordance with the applicable transfer
requirements set forth in Article VI of the Stock and Warrant Purchase Agreement.
Section 10. Amendment.
(a) The terms of this Agreement shall not be altered, modified, amended, waived or
supplemented in any manner whatsoever except by a written instrument signed by each of (i) the
Company and (ii) Investor(s) holding a majority of the Registrable Securities (other than in the
case of any alteration, modification, amendment, waiver or supplement which affects any individual
Investor in a manner that is less favorable or more detrimental to such Investor than to the other
Investor(s) solely based on the face of such alteration, modification, amendment, waiver or
supplement and without regard to the number of Registrable Securities held by such Investor, in
which case, such alteration, modification, amendment, waiver or supplement must also be approved by
such less favorably or more detrimentally treated Investor).
(b) Notwithstanding Section 10(a), any party hereto may waive, solely with respect to
itself, any one or more of its rights hereunder without the consent of any other party hereto;
provided that no such waiver shall be effective unless set forth in a written instrument
executed by the party against whom such waiver is to be effective.
Section 11. Miscellaneous.
(a) A Person is deemed to be a holder of Registrable Securities whenever such Person owns or
is deemed to own of record such Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or election received from
the such record owner of such Registrable Securities.
(b) Any notice, request, demand, waiver, consent, approval or other communication which is
required or permitted to be given to any Party shall be in writing addressed to the Party at its
address set forth below and shall be deemed given (i) when delivered to the Party personally, (ii)
if sent to the Party by facsimile transmission (promptly followed by a hard-copy delivered in
accordance with this Section 11(b)),
A&R Registration Rights Agreement
16
when the transmitting Party obtains written proof of transmission and receipt; provided,
however, that notwithstanding the foregoing, any communication sent by facsimile transmission after
5:00 PM (receiving Party’s time) or not on a Business Day shall not be deemed received until the
next Business Day, (iii) when delivered by next Business Day delivery by a nationally recognized
courier service, or (iv) if sent by registered or certified mail, when received, provided postage
and registration or certification fees are prepaid and delivery is confirmed by return receipt:
If to the Company:
OXiGENE, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Holdings:
Symphony ViDA Holdings LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Symphony Capital Partners, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Symphony Strategic Partners, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as such party may from time to time specify by notice given in the manner
provided herein to each other party entitled to receive notice hereunder.
(c) This Agreement shall be governed by, and construed in accordance with, the laws of the
State of New York; except to the extent that this Agreement pertains to the internal
governance of Holdings or the Company and to such
A&R Registration Rights Agreement
17
extent this Agreement shall be governed and construed in accordance with the laws of the State
of Delaware.
(d) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court, any Delaware State
court or federal court of the United States of America sitting in New York County in the State of
New York or Wilmington, Delaware, and any appellate court from any jurisdiction thereof, in any
action or proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
any such New York State court, any such Delaware State court or, to the fullest extent permitted by
law, in such federal court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right
that any party hereto may otherwise have to bring any action or proceeding relating to this
Agreement.
(e) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement in any New
York State or federal court, or any Delaware State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court. Each of the parties
hereby consent to service of process by mail.
(f) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(g) Entire Agreement. This Agreement (including any Annexes, Schedules, Exhibits or
other attachments hereto) constitutes the entire agreement between the parties hereto with respect
to the matters covered hereby and supersedes all prior and contemporaneous agreements,
correspondence, discussion and understandings with respect to such matters between the parties
hereto, excluding the Operative Documents.
(h) Successors; Assignment; Counterparts.
(i) Nothing expressed or implied herein is intended or shall be construed to confer upon or to
give to any Person, other than the parties hereto, any right, remedy or claim under or by reason of
this Agreement or of any term, covenant or condition hereof, and all the terms, covenants,
conditions, promises and agreements contained herein shall be for the sole and exclusive benefit of
the parties hereto and their
A&R Registration Rights Agreement
18
successors and permitted assigns provided, however, that, subject to the
requirements of Section 9, this Agreement shall inure to the benefit of and be binding upon
the permitted successors and assigns of each of the parties hereto.
(ii) This Agreement may be executed in one or more counterparts, each of which, when executed,
shall be deemed an original but all of which taken together shall constitute one and the same
Agreement.
(i) Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and
documents, as any other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(j) All consents and other determinations required to be made by the Investor(s) pursuant to
this Agreement shall be made, unless otherwise specified in this Agreement, by Investor(s) holding
at least a majority of the Registrable Securities.
Section 12. Original Agreement. The Original Agreement is hereby amended and
superseded in its entirety and restated herein. Such amendment and restatement is effective upon
execution of this Agreement by the parties hereto. Upon such execution, all provisions of, rights
granted and covenants made in the Original Agreement are hereby superseded in their entirety by the
provisions hereof and shall have no further force or effect.
[SIGNATURES FOLLOW ON NEXT PAGE]
A&R Registration Rights Agreement
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers or other representatives thereunto duly authorized, as of the date first above
written.
| OXiGENE, INC. | ||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Chief Executive Officer |
||
| SYMPHONY ViDA HOLDINGS LLC | ||
| By: | Symphony Capital Partners, L.P., its Manager |
|
| By: | Symphony Capital GP, L.P., its general partner |
|
| By: | Symphony GP, LLC, its general partner |
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Member |
||
[Signature Page to Amended and Restated Registration Rights Agreement]
EXHIBIT A
FORM OF SELLING STOCKHOLDER QUESTIONNAIRE
NOTICE
The undersigned beneficial owner (the “Selling Securityholder”) of Registrable
Securities hereby gives notice to OXiGENE, Inc. (the “Company”) of its intention to sell
or otherwise dispose of Registrable Securities beneficially owned by it and listed below in
Item 3 (unless otherwise specified under such Item 3) pursuant to the Registration
Statement, pursuant to the terms of the Amended and Restated Registration Rights Agreement (the
“Registration Rights Agreement”) dated as of [___], 2009, by and between the
Company and Symphony ViDA Holdings LLC (“Holdings”). Capitalized terms used but not
defined herein are used as defined in Registration Rights Agreement.
The undersigned hereby gives notice to the Company of its intention to sell the Registrable
Securities listed in Item 3 below, pursuant to the Registration Statement and, provides the
following information to the Company and represents and warrants that such information is accurate
and complete:
QUESTIONNAIRE
| 1. | Full legal name of Selling Securityholder: |
| (a) | Full legal name of registered holder of the Registrable Securities (if not the same as (1) above) through which Registrable Securities listed in Item 3 below are held: | ||
| (b) | Full legal name of DTC participant (if applicable and if not the same as (1) above) through which Registrable Securities listed in Item 3 below are held: | ||
| (c) | Status (yes/no) of Selling Securityholder as a registered broker-dealer or an affiliate of a registered broker-dealer (please describe to the extent applicable): |
| 2. | Address for notices to Selling Securityholder: | |
| Telephone: | ||
| Fax: | ||
| Contact Person: |
| 3. | Beneficial Ownership of Registrable Securities: |
| (a) | Type and number of Registrable Securities beneficially owned: |
||
| (b) | CUSIP No(s). of such Registrable Securities beneficially owned: |
Exhibit A to the
A&R Registration Rights Agreement
A&R Registration Rights Agreement
| 4. | Beneficial ownership of other securities of the Company owned by the Selling Securityholder. |
Except as set forth below in this Item 4, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable Securities listed
above in Item 3.
| (a) | Type and amount of other securities beneficially owned by the Selling Securityholder: | ||
| (b) | CUSIP No(s). of such other securities beneficially owned: |
| 5. | Relationships with the Company: |
Except as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% or more of the equity securities of the
undersigned) has held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
| 6. | Plan of Distribution: |
Except as set forth below, the undersigned (including its donees, distributees or pledgees)
intends to distribute the Registrable Securities listed above in Item 3 pursuant to the
Registration Statement only as follows (if at all). Such Registrable Securities may be sold from
time to time directly by the undersigned or, alternatively, through underwriters, broker-dealers or
agents. If the Registrable Securities are sold through underwriters, broker-dealers or agents, the
Selling Securityholder will be responsible for any related underwriting discounts or commissions or
agents’ commissions. Such Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices determined at the time
of sale or at negotiated prices. The selling stockholders may sell their shares by one or more of
or a combination of the following methods: (i) purchases by a broker-dealer as principal and resale
by such broker-dealer for its own account pursuant to this prospectus; (ii) ordinary brokerage
transactions and transactions in which the broker solicits purchasers; (iii) block trades in which
the broker-dealer so engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction; (iv) an over-the-counter
distribution in accordance with the rules of the Nasdaq Global Market; (v) in privately negotiated
transactions; and (vi) in options transactions. The undersigned may also sell Registrable
Securities short and
Exhibit A to the
A&R Registration Rights Agreement
A&R Registration Rights Agreement
2
deliver Registrable Securities to close out short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event will such method(s) of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the Company.
The undersigned acknowledges its obligation to comply with the provisions of the Exchange Act
and the rules thereunder relating to stock manipulation, particularly Regulation M thereunder (or
any successor rules or regulations), in connection with any offering of Registrable Securities
pursuant to the Registration Rights Agreement. The undersigned agrees that neither it nor any
person acting on its behalf will engage in any transaction in violation of such provisions.
In the event that the Selling Securityholder transfers all or a portion of the Registrable
Securities listed in Item 3 above after the date on which such information is provided to
the Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the
transfer of its rights and obligations under this Questionnaire and the Registration Rights
Agreement.
The Selling Securityholder hereby acknowledges its obligations under the Registration Rights
Agreement to indemnify and hold harmless certain persons as set forth therein.
Pursuant to the Registration Rights Agreement, the Company has agreed under certain
circumstances to indemnify the Selling Securityholder against certain liabilities.
In accordance with the undersigned’s obligation under the Registration Rights Agreement to
provide such information as may be required by law for inclusion in the Registration Statement, the
undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while the Registration
Statement remains effective, including, without limitation, any change in the undersigned’s
beneficial ownership of Registrable Securities.
All notices hereunder and pursuant to the Registration Rights Agreement shall be made in
writing to the Selling Securityholder at the address set forth in Section 2 above, and to
the Company at the address set forth below.
By signing below, the undersigned consents to the disclosure of the information contained
herein in its answers to Items 1 through 6 above and the inclusion of such
Exhibit A to the
A&R Registration Rights Agreement
A&R Registration Rights Agreement
3
information in the Registration Statement and the related prospectus. The undersigned
understands that such information will be relied upon by the Company in connection with the
preparation or amendment of the Registration Statement and the related prospectus.
Once this Questionnaire is executed by the Selling Securityholder and delivered to the
Company, the terms of this Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives and assigns of the Company and the Selling
Securityholder (with respect to the Registrable Securities beneficially owned by such Selling
Securityholder and listed in Item 3 above). This Agreement shall be governed in all
respects by the laws of the State of New York.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Questionnaire to
be executed and delivered either in person or by its duly authorized agent.
Dated:
|
Beneficial Owner: | |
| By: | ||
| Name: | ||
| Title: |
PLEASE RETURN THE COMPLETED AND EXECUTED QUESTIONNAIRE TO OXIGENE, INC. AT:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit A to the
A&R Registration Rights Agreement
A&R Registration Rights Agreement
4