Series II Warrant
To Purchase Common Stock
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Number of
Shares of Common Stock:
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Date of
Issuance: July 15, 2009 (“ Issuance Date
”)
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OXiGENE,
Inc., a Delaware corporation (the “ Company ”),
hereby certifies that, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, [INVESTOR
NAME], 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 surrender of this
Series II Warrant to Purchase Common Stock (including any
Warrants to Purchase Common Stock issued in exchange, transfer or
replacement hereof, the “ Warrant ”), for a
period commencing on the issuance date and continuing through 5:00
p.m., New York time, on the day that is the later of (A) nine
months from the Issuance Date and (B) ten (10) Trading Days
after the earlier to occur of (i) the Company’s first
public announcement regarding the outcome of the planned interim
analysis by the Independent Data Safety Monitoring Committee of
data from the Company’s Phase II/III pivotal clinical trial
of ZYBRESTAT as a treatment for anaplastic thyroid cancer (the
“ Trial” ) or (ii) the Company’s
public announcement of the suspension, termination or abandonment
of the Trial for any reason (the “ Exercisability
Period”) , [
(
)] 1
fully paid 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 15 . This Warrant is the Warrant to purchase
Common Stock (this “ Warrant ”) issued pursuant
to (i) Section 2 of that certain Subscription Agreement
(the “ Subscription Agreement ”), dated as of
July 15, 2009 (the “ Subscription Date ”),
by and between the Company and the Holder (the “
Subscription Agreement ”) and (ii) the
Company’s Registration Statement on Form S-3 (File number
333-155371) (the “ Registration Statement
”).
(a)
Mechanics of Exercise . Subject to the terms and conditions
hereof, this Warrant may be exercised by the Holder on any day
during the Exercisability Period, in whole or in part, by
(i) delivery of a written notice, in the form attached hereto
as Exhibit A (the “ Exercise Notice
”), of the Holder’s election to exercise this Warrant
and (ii) (A) payment to the Company of an amount equal to the
applicable Exercise Price multiplied by the number of Warrant
Shares as to which this Warrant is being exercised (the “
Aggregate Exercise Price ”) in cash or by wire
transfer of immediately available funds or (B) provided the
conditions for cashless exercise set forth in
Section 1(d) are satisfied, by notifying the Company
that this
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1
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Insert a number
of shares equal to 0.45% of the number of Common Shares purchased
under the Subscription Agreement.
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Warrant is
being exercised pursuant to a Cashless Exercise (as defined in
Section 1(d) ). The Holder shall not be required to
deliver the original Warrant in order to effect an exercise
hereunder. Execution and delivery of the Exercise Notice with
respect to less than all of the Warrant Shares shall have the same
effect as cancellation of the original Warrant and issuance of a
new Warrant evidencing the right to purchase the remaining number
of Warrant Shares. On or before the first (1
st ) Business Day following the date on which the
Company has received each of the Exercise Notice and the Aggregate
Exercise Price (or notice of a Cashless Exercise) (the “
Exercise Delivery Documents ”), the Company shall
transmit by facsimile an acknowledgment of confirmation of receipt
of the Exercise Delivery Documents to the Holder and American Stock
Transfer & Trust Company (the Company’s “
Transfer Agent ”). On or before the third (3
rd ) Business Day following the date on which the
Company has received all of the Exercise Delivery Documents (the
“ Share Delivery Date ”), 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, cause such aggregate number of Warrant Shares to which the
Holder is entitled pursuant to such exercise to be credited to the
Holder’s or its designee’s balance account with DTC
through its Deposit Withdrawal Agent Commission system, or
(Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, cause the Transfer Agent to
issue and dispatch by overnight courier to the address as specified
in the Exercise Notice, a certificate, registered in the
Company’s share register in the name of the Holder or its
designee, for the number of shares of Common Stock to which the
Holder is entitled pursuant to such exercise. Upon delivery of the
Exercise Delivery Documents, 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 an
exercise, then the Company shall as soon as practicable and in no
event later than three Business Days after any exercise and at its
own expense, issue 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 so 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.
(b)
Exercise Price . For purposes of this Warrant, “
Exercise Price ” means $1.60, 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 three (3) Business Days of receipt of
properly completed Exercise Delivery Documents in compliance with
the terms of this Section 1 , a certificate for the number
of shares of Common Stock to which the Holder is entitled and to
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, and if
on or after such Trading Day 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 (a “Buy-In” ), then 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 (and to issue such Warrant Shares)
shall terminate, or (ii) promptly honor its obligation to
deliver to the Holder a certificate or certificates representing
such Warrant Shares 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 Bid Price on the date of exercise.
(d)
Cashless Exercise . Notwithstanding anything contained
herein to the contrary, if a registration statement covering the
Warrant Shares that are the subject of the Exercise Notice (the
“ Unavailable Warrant Shares ”), or an exemption
from registration , is not available for the resale
of such Unavailable Warrant Shares, 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:
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A =
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the
total number of shares with respect to which this Warrant is then
being exercised.
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B =
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the
arithmetic average of the Closing Sale Prices of the shares of
Common Stock for the five (5) consecutive Trading Days ending
on the date immediately preceding the date of the Exercise
Notice.
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C =
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the
Exercise Price then in effect for the applicable Warrant Shares at
the time of such exercise.
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(e)
Rule 144 . For purposes of Rule 144(d) promulgated
under the Securities Act, as in effect on the date hereof, it is
intended that the Warrant Shares issued in a Cashless Exercise
shall be deemed to have been acquired by the Holder, and the
holding period for the Warrant Shares shall be deemed to have
commenced, on the date this Warrant was originally issued pursuant
to the Subscription Agreement.
(f)
Disputes . In the case of a dispute as to the determination
of the Exercise Price or the arithmetic calculation of the Warrant
Shares, the Company shall promptly issue to the Holder the number
of Warrant Shares that are not disputed.
(g)
Beneficial Ownership . The Company shall not effect the
exercise of this Warrant, and the Holder shall not have the right
to exercise this Warrant, to the extent that after giving effect to
such exercise, such Person (together with such Person’s
affiliates) would beneficially own in excess of [4.99]% (the
“ Maximum Percentage ”) of the shares of Common
Stock outstanding immediately after giving effect to such exercise.
For purposes of the foregoing sentence, the aggregate number of
shares of Common Stock beneficially owned by such Person and its
affiliates shall include the number of shares of Common Stock
issuable upon exercise of this Warrant with respect to which the
determination of such sentence is being made, but shall exclude
shares of Common Stock which would be issuable upon
(i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by such Person and its affiliates and
(ii) exercise or conversion of the unexercised or unconverted
portion of any other securities of the Company beneficially owned
by such Person and its affiliates (including, without limitation,
any convertible notes or convertible preferred stock or warrants)
subject to a limitation on conversion or exercise analogous to the
limitation contained herein. Except as set forth in the preceding
sentence, for purposes of this paragraph, beneficial ownership
shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended. For purposes of this
Warrant, in determining the number of outstanding shares of Common
Stock, the Holder may rely on the number of outstanding shares of
Common Stock as reflected in (1) the Company’s most
recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other
public filing with the Securities and Exchange Commission, as the
case may be, (2) a more recent public announcement by the
Company or (3) any other notice by the Company or the Transfer
Agent setting forth the number of shares of Common Stock
outstanding. For any reason at any time, upon the written or oral
request of the Holder, the Company shall within two
(2) Business Days confirm orally and in writing to the Holder
the number of shares of Common Stock then outstanding. In any case,
the number of outstanding shares of Common Stock shall be
determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by the Holder
and its affiliates since the date as of which such number of
outstanding shares of Common Stock was reported. By written notice
to the Company, the Holder may from time to time 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
sixty-first (61 st )
day after such notice is delivered to the Company, and
(ii) any such increase or decrease will apply only to the
Holder. The provisions of this paragraph shall be construed and
implemented in a manner otherwise than in strict conformity with
the terms of this Section 1(h) to correct this
paragraph (or any portion hereof) which may be defective or
inconsistent with the intended beneficial ownership limitation
herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation.
2.
ADJUSTMENT OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES .
The Exercise Price and the number of Warrant Shares shall be
adjusted from time to time as follows:
(a)
Adjustment upon Subdivision or Combination of Common Stock .
If the Company at any time on or after the Subscription Date
subdivides (by any stock split, stock dividend, recapitalization,
reorganization, scheme, arrangement or otherwise) one or more
classes of its outstanding shares of Common Stock into a greater
number of shares, the Exercise Price in effect immediately prior to
such subdivision will be proportionately reduced and the
number of
Warrant Shares will be proportionately increased. If the Company at
any time on or after the Subscription Date combines (by any stock
split, stock dividend, recapitalization, reorganization, scheme,
arrangement or otherwise) one or more classes of its outstanding
shares of Common Stock into a smaller number of shares, the
Exercise Price in effect immediately prior to such combination will
be proportionately increased and the number of Warrant Shares will
be proportionately decreased. Any adjustment under this
Section 2(a) shall become effective at the close of
business on the date the subdivision or combination becomes
effective.
(b)
Other Events . If any event occurs of the type contemplated
by the provisions of this Section 2 but not expressly
provided for by such provisions (including, without limitation, the
granting of stock appreciation rights, phantom stock rights or
other rights with equity features), then the Company’s Board
of Directors will make an appropriate adjustment in the Exercise
Price and the number of Warrant Shares so as to protect the rights
of the Holder; provided that no such adjustment pursuant to this
Section 2(b) will increase the Exercise Price or
decrease the number of Warrant Shares as otherwise determined
pursuant to this Section 2 .
3.
RIGHTS UPON DISTRIBUTION OF ASSETS .
(a) If
at any time or from time to time the holders of Common Stock of the
Company (or any shares of stock or other securities at the time
receivable upon the exercise of this Warrant) shall have received
or become entitled to receive, without payment therefor:
(i)
Common Stock or any shares of stock or other securities which are
at any time directly or indirectly convertible into or exchangeable
for Common Stock, or any rights or options to subscribe for,
purchase or otherwise acquire any of the foregoing by way of
dividend or other distribution (other than a dividend or
distribution covered in Section 2(a) above);
(ii)
any cash paid or payable otherwise than as a cash dividend;
or
(iii)
Common Stock or additional stock or other securities or property
(including cash) by way of spinoff, split-up, reclassification,
combination of shares or similar corporate rearrangement (other
than shares of Common Stock pursuant to Section 2(a)
above), then and in each such case, the Holder hereof will, upon
the exercise of this Warrant, be entitled to receive, in addition
to the number of shares of Common Stock receivable thereupon, and
without payment of any additi
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