e8vk

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, INK5YMT4LxfvTIsFZwEZnttznnR/jo4pdlW9fPpTpH5mokMQ4ghIClFORWDIm/xq t6KuWYsALWoNE+7bvBYQYA== 0000950123-09-020492.txt : 20090707 0000950123-09-020492.hdr.sgml : 20090707 20090707145508 ACCESSION NUMBER: 0000950123-09-020492 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20090702 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20090707 DATE AS OF CHANGE: 20090707 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OXIGENE INC CENTRAL INDEX KEY: 0000908259 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 133679168 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-21990 FILM NUMBER: 09933188 BUSINESS ADDRESS: STREET 1: 701 GATEWAY BLVD. CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 BUSINESS PHONE: 650-635-7000 MAIL ADDRESS: STREET 1: 701 GATEWAY BLVD. CITY: SOUTH SAN FRANCISCO STATE: CA ZIP: 94080 8-K 1 b76150oie8vk.htm OXIGENE, INC. e8vk

United States
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): July 2, 2009

OXiGENE, INC.

(Exact name of registrant as specified in its charter)


Delaware	0-21990	13-3679168
(State or other	(Commission File	(I.R.S. Employer
jurisdiction of	Number)	Identification No.)
incorporation)

701 Gateway Blvd., South San Francisco, CA 94080
(Address of principal executive offices)

Registrant’s telephone number, including area code: (781) 547-5900

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the obligation of the registrant under any of the following provisions:

o		Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o		Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o		Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o		Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

TABLE OF CONTENTS


ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
	ITEM 3.02. UNREGISTERED SALES OF EQUITY SECURITIES.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
SIGNATURE
Ex-10.1 Amended and Restated Purchase Option Agreement
Ex-10.2 Amended and Restated Registration Rights Agreement
Ex-10.3 Termination Agreement
Ex-99.1 Press Release dated July 6, 2009

ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.

On July 2, 2009, OXiGENE, Inc. (“OXiGENE” or the “Company”), Symphony ViDA Holdings LLC (“Holdings”) and Symphony ViDA, Inc. (“ViDA”) entered into a series of related agreements pursuant to which such parties agreed to amend the terms of the Purchase Option (defined below), as set forth in an amended and restated purchase option agreement (the “Amended Purchase Option Agreement”). In connection with such amendment, OXiGENE and Holdings also entered into an amended and restated registration rights agreement (the “Amended Registration Rights Agreement” and together with the Amended Purchase Option Agreement, the “Transaction Documents”).

Under the Amended Purchase Option Agreement, upon the closing of the Purchase Option, OXiGENE will acquire all of the equity of ViDA in exchange for six million newly-issued shares of OXiGENE common stock, subject to adjustment as described below. Based upon a price of $2.08 per share, the closing market price of OXiGENE common stock on July 2, 2009, the stock has a value of approximately $12.5 million. Under the Transaction Documents, the Company will re-acquire all of the rights to the ZYBRESTAT for ophthalmology and OXi4503 programs that had been licensed to ViDA. In addition, the approximately $12.5 million in cash currently held by ViDA will become available for use for OXiGENE’s general corporate purposes.

In the event that OXiGENE issues additional securities prior to January 2, 2010 at a price lower than $2.08 per share, Symphony Capital LLC (“Symphony”) will have the right to receive additional securities in an amount reflecting the difference in value of the securities at the time of such subsequent issuance and $2.08 per share. The two members of the Company’s Board of Directors appointed by Symphony, Mr. Mark Kessel and Dr. Alastair Wood, will remain on the Board, and the Company expects to maintain its advisory relationships with Symphony and RRD International LLC. The Additional Funding Agreement, dated October 1, 2008, has been terminated in connection with the execution of the Transaction Documents pursuant to the Termination Agreement dated July 2, 2009. The closing of the transaction is expected to occur within thirty days.

Concurrently with the execution of the Transaction Documents, OXiGENE notified Holdings and ViDA of its exercise of the Purchase Option, pursuant to the Amended Purchase Option Agreement.

On October 1, 2008, OXiGENE entered into a series of related agreements with Symphony, ViDA, Holdings and related entities, pursuant to which Holdings formed and capitalized ViDA in order (a) to hold certain intellectual property related to two of OXiGENE’s product candidates, ZYBRESTAT for use in ophthalmologic indications and OXi4503 (the “Programs”), which were exclusively licensed to ViDA under a technology license agreement and (b) to fund commitments in the amount of up to $40 million. The funding supported pre-clinical and clinical development by OXiGENE, on behalf of ViDA, of the Programs. In connection with such transaction, OXiGENE, Holdings and ViDA entered into a purchase option agreement that provided for the exclusive right, but not the obligation, of OXiGENE to repurchase both Programs at specified points in the future (the “Purchase Option”). OXiGENE issued to Holdings an aggregate of 17,117,118 shares of OXiGENE common stock, including 3,603,604 shares of common stock as consideration for the Purchase Option, pursuant to these agreements.

On July 6, 2009, OXiGENE issued a press release describing the transactions described herein. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.

ITEM 3.02. UNREGISTERED SALES OF EQUITY SECURITIES.

The securities to be issued to Holdings pursuant to the Amended Purchase Option Agreement will be issued in reliance upon the exemption from the registration requirements under the Securities Act of 1933, as amended, pursuant to Section 4(2) thereof. In agreeing to issue the securities to Holdings, the Company relied upon the representations and warranties of Holdings, including its agreement with respect to restrictions on resale, in support of the satisfaction of the conditions of Section 4(2).

ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS.

(d) Exhibits:


Exhibit Number		Description

10.1		Amended and Restated Purchase Option Agreement, dated July 2, 2009, by and among OXiGENE, Inc., Symphony ViDA Holdings LLC and Symphony ViDA, Inc.

10.2		Amended and Restated Registration Rights Agreement, dated July 2, 2009, between OXiGENE, Inc. and Symphony ViDA Holdings LLC.

10.3		Termination Agreement, dated July 2, 2009, by and among OXiGENE, Inc., Symphony ViDA Holdings LLC, Symphony ViDA Investors LLC and Symphony ViDA, Inc.

99.1		Press Release dated July 6, 2009.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


Date: July 7, 2009	OXiGENE, Inc.
	By:	/s/ John A. Kollins
		John A. Kollins
		Chief Executive Officer

EXHIBITS


Exhibit Number		Description

10.1		Amended and Restated Purchase Option Agreement, dated July 2, 2009, by and among OXiGENE, Inc., Symphony ViDA Holdings LLC and Symphony ViDA, Inc.

10.2		Amended and Restated Registration Rights Agreement, dated July 2, 2009, between OXiGENE, Inc. and Symphony ViDA Holdings LLC.

10.3		Termination Agreement, dated July 2, 2009, by and among OXiGENE, Inc., Symphony ViDA Holdings LLC, Symphony ViDA Investors LLC and Symphony ViDA, Inc.

99.1		Press Release dated July 6, 2009.

EX-10.1 2 b76150oiexv10w1.htm EX-10.1 AMENDED AND RESTATED PURCHASE OPTION AGREEMENT exv10w1

Exhibit 10.1

EXECUTION COPY

AMENDED AND RESTATED
PURCHASE OPTION AGREEMENT

by and among

OXiGENE, INC.

SYMPHONY ViDA HOLDINGS LLC

and

SYMPHONY ViDA, INC.

Dated as of July 2, 2009

TABLE OF CONTENTS


	Page
Section 1. Grant of Purchase Option		2

Section 2. Exercise of Purchase Option		3

Section 3. Company Representations, Warranties and Covenants		7

Section 4. Holdings Representations, Warranties and Covenants		11

Section 5. Symphony Collaboration Representations, Warranties and Covenants		14

Section 6. Notice of Material Event		23

Section 7. Assignment; Transfers; Legend		23

Section 8. Costs and Expenses; Payments		24

Section 9. Expiration; Termination of Agreement		24

Section 10. Survival; Indemnification		25

Section 11. No Petition		28

Section 12. Third-Party Beneficiary		28

Section 13. Notices		28

Section 14. Governing Law; Consent to Jurisdiction and Service of Process		29

Section 15. Waiver of Jury Trial		30

Section 16. Entire Agreement		30

Section 17. Amendment; Successors; Counterparts		30

Section 18. Specific Performance		31

Section 19. Severability		31

Section 20. Tax Reporting		31

Section 21. Original Agreement		32

Section 22. Amendment to Annex A		32


		Page
Annex A Certain Definitions
Exhibit 1 Purchase Exercise Notice

AMENDED AND RESTATED
PURCHASE OPTION AGREEMENT

This AMENDED AND RESTATED PURCHASE OPTION AGREEMENT (this “Agreement”) is entered into as of July 2, 2009 (the “Closing Date”), by and among OXiGENE, INC., a Delaware corporation (the “Company”), SYMPHONY ViDA HOLDINGS LLC, a Delaware limited liability company (“Holdings”), and SYMPHONY ViDA, INC., a Delaware corporation (the “Symphony Collaboration”). Capitalized terms used herein and not defined herein shall have the meanings assigned to such terms in Annex A attached hereto.

PRELIMINARY STATEMENT

WHEREAS, the Company, Holdings and the Symphony Collaboration entered into that certain Purchase Option Agreement dated as of October 1, 2008 (the “Original Agreement”), pursuant to which Holdings granted the Company an option to purchase all of the Common Stock of the Symphony Collaboration and any other Equity Securities issued by the Symphony Collaboration (together, the “Symphony Collaboration Equity Securities”) owned, or thereafter acquired, by Holdings on the terms described therein;

WHEREAS, institutional investors invested $30,000,000 in Holdings (the “Financing”) in exchange for (i) membership interests in Holdings, (ii) shares of the Company Common Stock having a market value of up to $15,000,000 issued to Holdings (the “Direct Investment Shares”), (iii) a warrant to purchase Company Common Stock issued to Holdings (the “Warrant Shares”) having a market value of up to $15,000,000 less the value of the Direct Investment Shares (the “Direct Investment Warrant”), (iv) shares of the Company Common Stock having a market value of $4,000,000 (the “Option Premium Shares”), and (v) other consideration as contemplated by the terms of the Additional Funding Agreement, and Holdings contributed $15,000,000 of the proceeds of the Financing to the Symphony Collaboration and paid $15,000,000 of the proceeds of the Financing to the Company;

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;

WHEREAS, contemporaneously with the execution of this Agreement, the Company has exercised the Purchase Option (as defined below) by delivering the Purchase Option Exercise Notice (as defined below) to Holdings and the Symphony Collaboration;

WHEREAS, on the Purchase Option Closing Date, the Company will issue to Holdings, subject to the satisfaction of certain conditions, the Company Closing Shares (as defined below); and

WHEREAS, the Company, the Symphony Collaboration and Holdings have determined that it is in each of its best interest to perform and comply with certain agreements and covenants relating to each of its ongoing operations contained in this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto (the “Parties”) agree as follows:

Section 1. Grant of Purchase Option.

(a) Holdings hereby grants to the Company an exclusive irrevocable option (the “Purchase Option”) to purchase all, but not less than all, of the outstanding Symphony Collaboration Equity Securities owned or hereafter acquired by Holdings, in accordance with the terms of this Agreement.

(b) The Symphony Collaboration hereby covenants and agrees that all Symphony Collaboration Equity Securities issued by the Symphony Collaboration at any time prior to the expiration of the Term (including to Holdings, on, prior to, or after the date hereof or to any other Person at any time whatsoever, in all cases prior to the expiration of the Term) shall be subject to the Purchase Option and all of the other terms and conditions of this Agreement without any additional action on the part of the Company or Holdings. For the avoidance of doubt, to the extent the Symphony Collaboration shall issue any Symphony Collaboration Equity Securities (including any issuance in respect of a transfer of Symphony Collaboration Equity Securities by any holder thereof, including Holdings) after the date hereof to any Person (including Holdings) (any issuance of such Symphony Collaboration Equity Securities being subject to the prior written consent of the Company as set forth in Sections 5(c) and 7(b) hereof, as applicable), the Symphony Collaboration hereby covenants and agrees that it shall cause such Symphony Collaboration Equity Securities to be subject to the Purchase Option without the payment of, or any obligation to pay, any additional consideration in respect of such Symphony Collaboration Equity Securities by the Company, the Symphony Collaboration or any Symphony Collaboration Subsidiary to the Person(s) acquiring such subsequently issued Symphony Collaboration Equity Securities, the Parties acknowledging and agreeing that the sole consideration payable by the Company pursuant to this Agreement for all of the outstanding Symphony Collaboration Equity Securities now or hereinafter owned by any Person shall be the Purchase Price (as defined in Section 2(b) hereof).

(i) The Purchase Option may only be exercised for the purchase of all, and not less than all, of the Symphony Collaboration Equity Securities;

(ii) The Purchase Option may only be exercised a single time; and

(iii) The Purchase Option may be exercised only on the date hereof.

Section 2. Exercise of Purchase Option.

(a) Exercise Notice. The Company may exercise the Purchase Option only by delivery of a notice in the form attached hereto as Exhibit 1 (the “Purchase Option Exercise Notice”) on the date hereof. The Purchase Option Exercise Notice shall be delivered to Holdings and the Symphony Collaboration and shall be irrevocable once delivered. The date on which the Purchase Option Exercise Notice is first delivered to Holdings and the Symphony Collaboration is referred to as the “Purchase Option Exercise Date.” The Purchase Option Exercise Notice shall contain an estimated date for the settlement of the Purchase Option (the “Purchase Option Closing”), which date shall be estimated in accordance with this Section 2(a). If, during the period following the delivery of the Purchase Option Exercise Notice, the working capital held by the Symphony Collaboration is less than or equal to the Balance Sheet Deficiency Threshold, then the Symphony Collaboration shall cease payment of any amounts owed to the Company in respect of its activities pursuant to the Amended and Restated Research and Development Agreement, but shall continue to pay amounts owed to all other Persons. All cash and cash equivalents on the Symphony Collaboration’s balance sheet on the date of the Purchase Option Closing (the “Purchase Option Closing Date”) will not be transferred or distributed to Holdings and shall be retained by the Symphony Collaboration. The Purchase Option Closing Date shall be the date that is the latest of:

(i) thirty (30) days following the Purchase Option Exercise Date; and

(ii) five (5) Business Days following the date that the Company receives the necessary Government Approvals related to its HSR Filings (if any) related to the exercise of the Purchase Option; provided, however, that the Company and Holdings shall make all necessary HSR Filings within five (5) Business Days following the Purchase Option Exercise Date and shall promptly and diligently pursue the related regulatory process.

(b) Purchase Price. Subject to the post-closing adjustment pursuant to Section 2B and the following sentence, as consideration for the sale to the Company by Holdings of its Symphony Collaboration Equity Securities, on the Purchase Option Closing Date, the Company shall issue to Holdings an aggregate of 6,000,000 shares of Company Common Stock (the “Company Closing Shares”) for an equivalent value of $12,480,000 (such value, the “Purchase Price”). If, after the date hereof and prior to the Purchase Option Closing, (A) the number of outstanding shares of Company Common Stock has been increased, decreased, changed into or exchanged for a different number or kind of shares or securities as a result of a reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar change in capitalization, an appropriate and proportionate adjustment shall be made to the number of Company Closing Shares to be issued at the Purchase Option Closing, or (B) there has been a Specified Company Issuance (as defined below), the consideration to be paid by the Company at the Purchase Option Closing may be adjusted in accordance with Section 2A.

(d) Surrender of Symphony Collaboration Equity Securities; Symphony Collaboration Board. Subject to the terms and conditions of this Agreement, on the Purchase Option Closing Date, Holdings shall surrender to the Company its certificates representing its Symphony Collaboration Equity Securities, and shall convey good title to such Symphony Collaboration Equity Securities, free from any Encumbrances and from any and all restrictions that any sale, assignment or other transfer of such Symphony Collaboration Equity Securities be consented to or approved by any Person. On or prior to the Purchase Option Closing Date, Holdings shall remove all directors serving on the Symphony Collaboration Board, other than the Company Director (as defined in Section 4(b)(v) hereof), as of the Purchase Option Closing Date.

(e) Valuation of Company Stock. The value per share of the Company Closing Shares as of the date hereof has been determined by the Parties to equal $2.08 (the “Company Common Stock Valuation”).

(f) Share Certificates. Any stock certificate(s) issued by the Company for Company Common Stock pursuant to this Section 2 may contain a legend (the “33 Act Legend”) substantially as follows:

THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE, AND THE SAME HAVE BEEN ISSUED IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH LAWS. SUCH SHARES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER SUCH SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.

This legend shall be removed by the Company, subject to, and in accordance with, the terms of Section 3(b)(iii) hereof.

(g) Government Approvals. On or prior to the Purchase Option Closing Date, each of the Company, the Symphony Collaboration and Holdings shall have taken all necessary action to cause all required Governmental Approvals with respect to such Party (including, without limitation, the preparing and filing of any pre-merger notification and report forms required under the HSR Filings) in connection with the transactions contemplated by this Agreement to be in effect; provided, however, that with respect to Government Approvals required by a Governmental Authority other than the United States federal government and its various branches and agencies, the Parties’ obligations under this Section 2(g) shall be limited to causing to be in effect only those Government Approvals, the failure of which to be in effect would, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on any of the Parties. Each of the Symphony Collaboration and the Company shall pay its own costs

associated with taking such action. The Symphony Collaboration shall pay any costs of Holdings associated with obtaining Government Approvals required in connection with the exercise of the Purchase Option. All other costs and expenses of Holdings shall be paid by Holdings pursuant to Section 8 hereof, including any costs arising from any error in Holdings’ initial valuation of its investment in the Symphony Collaboration.

(h) Transfer of Title. Transfer of title to the Company of all of the Symphony Collaboration Equity Securities shall be deemed to occur automatically on the Purchase Option Closing Date, subject to the issuance by the Company on such date of the Company Closing Shares or Alternate Closing Securities, as applicable, comprising the Purchase Price and its performance of its other obligations herein required to be performed, and under the Registration Rights Agreement, as applicable, on or prior to the Purchase Option Closing Date to the reasonable satisfaction of Holdings, and thereafter the Symphony Collaboration shall treat the Company as the sole holder of all Symphony Collaboration Equity Securities, notwithstanding any failure of Holdings to tender certificates representing such shares to the Company in accordance with Section 2(d) hereof. After the Purchase Option Closing Date, Holdings shall have no rights in connection with such Symphony Collaboration Equity Securities other than the right to receive the Purchase Price; provided, however, that nothing in this Section 2(h) shall affect the survivability of any indemnification provision in this Agreement upon termination of this Agreement.

(i) Consents and Authorizations. On or prior to the Purchase Option Closing Date, the Company shall have obtained all consents and authorizations necessary from stockholders and/or its board of directors for the consummation of the exercise and closing of the Purchase Option, as may be required under the organizational documents of the Company, any prior stockholders or board resolution, any stock exchange or similar rules or any applicable law.

Section 2A. Purchase Option Closing Date Adjustment. If at any time or from time to time from and after the date hereof through the Purchase Option Closing Date, the Company has issued Additional Company Securities (any such issuance of Additional Company Securities, a “Specified Company Issuance”), Holdings may elect (in accordance with the procedures set forth in Section 2B) to be paid the Purchase Price in the form of the Alternate Securities specified in the Specified Issuance Notice (each as defined below) (such Alternate Securities paid to Holdings at the Purchase Option Closing, the “Alternate Closing Securities”).

Section 2B. Post-Closing Adjustment.

(a) If at any time and from time to time from and after the Purchase Option Closing Date through the date occurring six (6) months from the Purchase Option Closing Date (or if such date is not a Business Day, the first Business Day thereafter) (such date, the “Final Adjustment Date”), there is a Specified Company Issuance, as soon as practicable, but in no event later than five (5) Business Days after the delivery to the Company of a Holdings Election Notice (as defined below) (such date, the

“Adjusted Securities Payment Date”), (i) the Company shall issue to Holdings such Alternate Securities in the form specified in the Specified Issuance Notice, and (ii) Holdings shall deliver to the Company such Company Closing Shares, Alternate Closing Securities, or other securities of the Company issued pursuant to this Agreement, or other consideration transferred to Holdings, as applicable, such that on the Adjusted Securities Payment Date Holdings shall own Alternate Securities, together with all other securities of the Company issued, or other consideration transferred, to Holdings pursuant to this Agreement, to which Holdings is entitled in consideration of the transfer to the Company of the Symphony Collaboration Equity Securities. The foregoing described transactions between the Company and Holdings shall be settled on a net basis. For the avoidance of doubt, the parties hereby acknowledge and agree that Holdings may exercise its rights under this Section 2B(a) following each Specified Company Issuance that occurs after the date of this Agreement and on or prior to the Final Adjustment Date.

(b) Not later than five (5) Business Days prior to the consummation of a Specified Company Issuance, the Company shall, in accordance with Section 13, deliver to Holdings a notice (a “Specified Issuance Notice”) setting forth in reasonable detail: (i) a description of the form and terms of the Additional Company Securities to be issued pursuant to the Specified Company Issuance (such Additional Company Securities, the “Alternate Securities”); (ii) the price at which the Alternate Securities will be issued pursuant to the Specified Company Issuance; (iii) the estimated date of issuance of such Alternate Securities; and (iv) the amount and form of Alternate Securities that would be issued to an investor participating in the Specified Company Issuance upon payment to the Company of an amount equal to the Purchase Price. If Holdings elects to exercise its rights under Section 2B(a) with respect to a Specified Company Issuance, Holdings, in accordance with Section 13, shall deliver to the Company a notice of such election not later than one (1) Business Day prior to the consummation of such Specified Company Issuance (the “Holdings Election Notice”). The failure of Holdings to notify the Company pursuant to this Section 2B(b) shall be deemed to constitute the waiver by Holdings of its rights under Section 2B(a) with respect to such Specified Company Issuance.

(c) “Additional Company Securities” shall mean all shares of Company Common Stock, Options, Convertible Securities, notes, bonds, or any other securities issued by the Company, or cash or other consideration paid or delivered by or on behalf of the Company, other than the following (collectively, “Exempted Securities”):

(i) rights, options or warrants to subscribe for, purchase or otherwise acquire Company Common Stock (“Options”), or shares of restricted stock or stock appreciation rights, issued to employees or directors of, or consultants or advisors to, the Company or any of its subsidiaries pursuant to a plan, agreement or arrangement approved by the board of directors of the Company;

(ii) (1) shares of Company Common Stock actually issued upon the exercise of Options or (2) shares of Company Common Stock actually issued upon the conversion or exchange of any evidences of indebtedness, shares or other

securities directly or indirectly convertible into or exchangeable for Company Common Stock, but excluding Options (“Convertible Securities”), in each case provided such issuance is pursuant to the terms of such Option or Convertible Security;

(iii) shares of Company Common Stock, Options or Convertible Securities issued by reason of a dividend on the outstanding Company Common Stock, stock split of the outstanding Company Common Stock, split-up of the outstanding Company Common Stock or other distribution on shares of Company Common Stock; or

(iv) shares of Company Common Stock issued pursuant to the Company’s Committed Equity Financing Facility with Kingsbridge Capital Limited, in an amount not to exceed 5,000,000 shares.

Section 2C. In the event that the approval of the stockholders of the Company is required under applicable Laws or the NASDAQ Rules to issue shares of Company Common Stock to Holdings pursuant to this Agreement (including through the exercise of warrants or other convertible securities), the aggregate number of shares of Company Common Stock issued to Holdings pursuant to this Agreement (including through the exercise of warrants or other convertible securities) shall be limited to 10,000,000 (ten million) (the “Share Limitation”), unless otherwise agreed by the Company. In the event that Holdings would be entitled (but for the Share Limitation) to a number of shares of Company Common Stock pursuant to this Agreement in excess of the Share Limitation, then in exercising its rights under Sections 2A and/or 2B, Holdings may determine, in its sole discretion, such combination of shares of Company Common Stock and, if any, Alternate Securities as would, in Holdings’ sole determination, provide value to Holdings at the time of determination not in excess of the Purchase Price (the “Alternate Consideration”). The Company shall then transfer the Alternate Consideration to Holdings in satisfaction of its obligations under Sections 2A and/or 2B.

Section 3. Company Representations, Warranties and Covenants.

(a) As of the date hereof, the Company hereby represents and warrants, and, except to the extent that any of the following representations and warranties are limited to the date of this Agreement or otherwise limited, on the Purchase Option Closing Date and each Adjusted Securities Payment Date, shall be deemed to have represented and warranted, to Holdings and the Symphony Collaboration that:

(i) Organization. The Company is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware.

(ii) Authority and Validity. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action required on the part of the Company, and no other

proceedings on the part of the Company, including Stockholder Approval, are necessary to authorize this Agreement or for the Company to perform its obligations under this Agreement. This Agreement constitutes the lawful, valid and legally binding obligation of the Company, enforceable in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity.

(iii) No Violation or Conflict. The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not (A) violate, conflict with or result in the breach of any provision of the Organizational Documents of the Company, (B) conflict with or violate any law or Governmental Order applicable to the Company or any of its assets, properties or businesses, or (C) conflict with, result in any breach of, constitute a default (or event that with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Encumbrance on any of the assets or properties of the Company, pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which the Company is a party except, in the case of clauses (B) and (C), to the extent that such conflicts, breaches, defaults or other matters would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company.

(iv) Governmental Consents and Approvals. All HSR Filings which, if such HSR Filings are required pursuant to Section 2(a) hereof, have been obtained on or prior to the Purchase Option Closing Date, the execution, delivery and performance of this Agreement by the Company do not, and the consummation of the transactions contemplated hereby do not and will not, require any Governmental Approval which has not already been obtained, effected or provided, except with respect to which the failure to so obtain, effect or provide would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company.

(v) Litigation. As of (A) the date of this Agreement, except as disclosed in any Company Public Filings available as of the date hereof, and (B) the Purchase Option Closing Date, there are no actions by or against the Company pending before any Governmental Authority or, to the knowledge of the Company, threatened to be brought by or before any Governmental Authority, that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. There are no pending or, to the knowledge of the Company, threatened actions, to which the Company is a party (or is threatened to be named as a party) to set aside, restrain, enjoin or prevent the execution, delivery or performance of this Agreement or the Operative Documents or the consummation of the transactions contemplated hereby or thereby by any party hereto or thereto. The Company is not subject to any Governmental Order (nor, to the knowledge of the Company, is there any such Governmental Order threatened to be imposed by any Governmental Authority) that

would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company.

(vi) Information. All information provided or otherwise made available by the Company or its representatives in connection with the Programs and the underlying intellectual property, this Agreement, the Operative Documents and the transactions contemplated thereby, when taken as a whole, is complete and correct in all material respects and does not contain any untrue statement of material fact or, to the Company’s Knowledge, omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which such statements are made, not misleading.

(vii) Option Premium Shares. The Company will treat the Option Premium Shares, with a value of $4,000,000, and the Additional Investment Shares, with a value of up to $1,000,000, for federal, state and local income tax purposes as an option premium paid in return for the grant of the Purchase Option and the Additional Holdings Funding, as applicable.

(b) The Company hereby covenants and agrees with Holdings as follows:

(i) Immediately prior to the Purchase Option Closing Date, the Company shall have sufficient authorized but unissued, freely transferable and nonassessable Company Common Stock or Alternate Closing Securities, as applicable, available, to satisfy its obligation to deliver the Company Closing Shares or Alternate Closing Securities, as applicable. Immediately prior to each Adjusted Securities Payment Date, the Company shall have sufficient authorized but unissued, freely transferable and nonassessable Alternate Securities available to satisfy its obligation to deliver such Alternate Securities as required pursuant to Section 2B(a). The Company shall deliver to Holdings on or before the Purchase Option Closing Date, a legal opinion from the Company’s legal counsel, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., or such other counsel as the Company and Holdings shall mutually agree, which opinion shall be, in form and substance, reasonably acceptable to Holdings and shall contain, with respect to the Company Closing Shares or Alternate Closing Securities, as applicable, substantially the same opinions rendered by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., in paragraphs 4, 5 and 7 of the opinion delivered to Holdings on the Closing Date, along with customary assumptions and limitations. If Alternate Securities are to be issued pursuant to Section 2B(a), the Company shall deliver to Holdings on or before each Adjusted Securities Payment Date, a legal opinion from the Company’s legal counsel, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., or such other counsel as the Company and Holdings shall mutually agree, which opinion shall be, in form and substance, reasonably acceptable to Holdings and shall contain, with respect to the Alternate Securities, substantially the same opinions rendered by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., in paragraphs 4, 5 and 7 of the opinion delivered to Holdings on the Closing Date, along with customary assumptions and limitations.

(ii) The Company, on the Purchase Option Closing Date, shall convey good and marketable title to the Company Closing Shares or Alternate Closing Securities, as applicable, free from any Encumbrances and any and all other restrictions requiring that any issuance, sale, assignment or other transfer of the Company Closing Shares or Alternate Closing Securities, as applicable, be consented to or approved by any Person. The Company, on each Adjusted Securities Payment Date, shall convey good and marketable title to the Alternate Securities issued pursuant to Section 2B(a), free from any Encumbrances and any and all other restrictions requiring that any issuance, sale, assignment or other transfer of such Alternate Securities be consented to or approved by any Person.

(iii) If the share certificates representing the Company Closing Shares or Alternate Closing Securities, as applicable, and any Alternate Securities issued pursuant to Section 2B(a), include the 33 Act Legend (as set forth in Section 2(f) hereof), the Company shall, within two (2) Business Days of receiving a request from Holdings or any Investor (as defined in the Registration Rights Agreement), remove or cause to be removed the 33 Act Legend from such share certificates as Holdings or such Investor shall designate, so long as (x) the Company Closing Shares or Alternate Closing Securities or such Alternate Securities, as applicable, represented by such share certificates has been transferred to a third party in compliance with (A) the registration requirements of the Securities Act or (B) Rule 144 under the Securities Act, and the Company receives a certification from Holdings, such Investor or a securities broker designated by Holdings or such Investor to the effect that the sale of such Company Closing Shares or Alternate Closing Securities or such Alternate Securities, as applicable, was made under a Registration Statement and accompanied by the delivery of a current prospectus or pursuant to Rule 144.

(iv) Upon the expiration of the Purchase Option or the termination of this Agreement pursuant to Section 9 hereof, or as soon thereafter as is practical, the Company shall (A) in accordance with and pursuant to Sections 2.7 and 2.8 of the Novated and Restated Technology License Agreement, deliver to the Symphony Collaboration all Regulatory Files and Tangible Materials, and (B) in accordance with and pursuant to Section 2.11 of the Novated and Restated Technology License Agreement, provide and supply, or cause to be provided and supplied, finished dosage form of Products.

(v) [Reserved.]

(vi) Prior to each Adjusted Securities Payment Date, the Company shall take all such actions (at the Company’s sole cost and expense) as are necessary to permit the Company to issue the Alternate Securities to Holdings in accordance with Section 2B(a).

(vii) The Company shall take all such actions (at the Company’s sole cost and expense) as are necessary or advisable to cause (A) the issuance of any Alternate Securities by the Company to Holdings or (B) the transfer of any securities of the Company by Holdings to the Company, in each case pursuant to Section

2B(a), to be exempted from Section 16(b) of the Exchange Act, provided that Holdings shall notify the Company promptly of any transactions by it involving Company Common Stock that could implicate Section 16(b) of the Exchange Act.

Section 4. Holdings Representations, Warranties and Covenants.

(a) As of the date hereof, Holdings hereby represents and warrants, and, except to the extent that any of the following representations and warranties are limited to the date of this Agreement or otherwise limited, on the Purchase Option Closing Date and each Adjusted Securities Payment Date, shall be deemed to have represented and warranted, to the Company and the Symphony Collaboration that:

(i) Organization. Holdings is a limited liability company, duly formed, validly existing and in good standing under the laws of the State of Delaware.

(ii) Authority and Validity. Holdings has all requisite limited liability company power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by Holdings of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action required on the part of Holdings, and no other proceedings on the part of Holdings are necessary to authorize this Agreement or for Holdings to perform its obligations under this Agreement. This Agreement constitutes the lawful, valid and legally binding obligation of Holdings, enforceable in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity.

(iii) No Violation or Conflict. The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not (A) violate, conflict with or result in the breach of any provision of the Organizational Documents of Holdings, (B) conflict with or violate any law or Governmental Order applicable to Holdings or any of its assets, properties or businesses, or (C) conflict with, result in any breach of, constitute a default (or event that with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Encumbrance on any of the assets or properties of Holdings, pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which Holdings is a party except, in the case of clauses (B) and (C), to the extent that such conflicts, breaches, defaults or other matters would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Holdings.

(iv) Governmental Consents and Approvals. The execution, delivery and performance of this Agreement by Holdings do not, and the

consummation of the transactions contemplated hereby do not and will not, require any Governmental Approval which has not already been obtained, effected or provided, except with respect to which the failure to so obtain, effect or provide would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Holdings.

(v) Litigation. As of the date of this Agreement, there are no actions by or against Holdings pending before any Governmental Authority or, to the knowledge of Holdings, threatened to be brought by or before any Governmental Authority, that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Holdings. There are no pending or, to the knowledge of Holdings, threatened actions to which Holdings is a party (or is threatened to be named as a party) to set aside, restrain, enjoin or prevent the execution, delivery or performance of this Agreement or the Operative Documents or the consummation of the transactions contemplated hereby or thereby by any party hereto or thereto. As of the date of this Agreement, Holdings is not subject to any Governmental Order (nor, to the knowledge of Holdings, is there any such Governmental Order threatened to be imposed by any Governmental Authority) that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Holdings.

(vi) Stock Ownership. All of the Symphony Collaboration’s issued and outstanding Symphony Collaboration Equity Securities are owned beneficially and of record by Holdings, free and clear of any and all encumbrances.

(vii) Interim Operations. Holdings was formed solely for the purpose of engaging in the transactions contemplated by the Operative Documents, has engaged in no other business activities and has conducted its operations only as contemplated by the Operative Documents.

(viii) Accredited Investor.

(A) Holdings is and will remain at all relevant times an Accredited Investor.

(B) Holdings has relied completely on the advice of, or has consulted with or has had the opportunity to consult with, its own personal tax, investment, legal or other advisors and has not relied on the Company or any of its Affiliates, representatives or advisors for advice. Holdings acknowledges that investing in the Company Securities and, if issued, the Alternate Securities involves certain risks. Holdings acknowledges that it has had a reasonable opportunity to conduct its own due diligence with respect to the Products, the Programs, the Symphony Collaboration, the Company and the transactions contemplated by the Operative Documents.

(C) Holdings has been advised and understands that the offer and sale of the Company Securities and, if issued, the Alternate

Securities have not been registered under the Securities Act. Holdings is able to bear the economic risk of such investment for an indefinite period and to afford a complete loss thereof.

(D) Holdings is and will be, as applicable, acquiring the Company Securities and, if issued, the Alternate Securities solely for Holdings’ own account for investment purposes as a principal and not with a view to the resale of all or any part thereof; provided, that Holdings may transfer the Company Securities and, if issued, the Alternate Securities as set forth in Section 6.01 of the Stock and Warrant Purchase Agreement. Holdings agrees that the Company Securities and, if issued, the Alternate Securities may not be resold (1) without registration thereof under the Securities Act (unless an exemption from such registration is available), or (2) in violation of any Law. Holdings is not and will not be an underwriter within the meaning of Section 2(11) of the Securities Act with respect to the Company Securities and, if issued, the Alternate Securities.

(E) No person or entity acting on behalf of, or under the authority of, Holdings is or will be entitled to any broker’s, finder’s, or similar fees or commission payable by the Company or any of its Affiliates.

(F) Holdings acknowledges and agrees to treat the Option Premium Shares, with a value of $4,000,000, and the Additional Investment Shares, with a value of up to $1,000,000, for federal, state and local income tax purposes as an option premium paid in return for the grant and maintenance of the Purchase Option and the Additional Holdings Funding, as applicable.

(b) Holdings hereby covenants and agrees with the Company as follows:

(i) [Reserved.]

(ii) [Reserved.]

(iii) Encumbrance. Holdings will not, and will not permit any of its Subsidiaries to, create, assume or suffer to exist any Encumbrance on any of its Symphony Collaboration Equity Securities except with the prior written consent of the Company.

(iv) Transfer and Amendment. Commencing upon the date hereof and ending upon the earlier to occur of (x) the Purchase Option Closing Date, and (y) the termination of this Agreement pursuant to Sections 9(a)(i) or (ii) (such period, the “Term”), the manager of Holdings shall not (A) transfer, or permit the transfer of, any Membership Interest without the prior written consent of the Company or (B) amend, or permit the amendment of, any provisions relating to the transfer of Membership Interests, as set forth in Section 7.02 of the Holdings LLC Agreement, to the extent such

amendment would adversely affect the Company’s right of consent set forth in Sections 7.02(b)(i) and 7.02(c) of the Holdings LLC Agreement.

(v) Symphony Collaboration Directors. During the Term, Holdings agrees to vote all of its Symphony Collaboration Equity Securities (or to exercise its right with respect to such Symphony Collaboration Equity Securities to consent to action in writing without a meeting) in favor of, as applicable, the election, removal and replacement of one director of the Symphony Collaboration Board, and any successor thereto, designated by the Company (the “Company Director”) as directed by the Company. In furtherance and not in limitation of the foregoing, Holdings hereby grants to the Company an irrevocable proxy, with respect to all Symphony Collaboration Equity Securities now owned or hereafter acquired by Holdings, to vote such Symphony Collaboration Equity Securities or to exercise the right to consent to action in writing without a meeting with respect to such Symphony Collaboration Equity Securities, such irrevocable proxy to be exercised solely for the limited purpose of electing, removing and replacing the Company Director in the event of the failure or refusal of Holdings to elect, remove or replace such Company Director, as directed by the Company. Additionally, Holdings agrees, during the Term, to elect two (2) independent directors to the Symphony Collaboration Board, and any successors thereto, as shall be selected by mutual agreement of the Company and Holdings.

(vi) Symphony Collaboration Board. During the Term, Holdings shall not vote any of its Symphony Collaboration Equity Securities (or exercise its rights with respect to such Symphony Collaboration Equity Securities by written consent without a meeting) to increase the size of the Symphony Collaboration Board to more than five (5) members without the prior written consent of the Company.

(vii) Symphony Collaboration Charter. During the Term, Holdings shall not approve or permit any amendment to Article IV, Paragraphs (1) and (3); Article VI; Article VII; Article VIII; Article X; Article XI or Article XIII of the Symphony Collaboration Charter without the prior written consent of the Company.

Section 5. Symphony Collaboration Representations, Warranties and Covenants.

(a) As of the date hereof, the Symphony Collaboration hereby represents and warrants, and, except to the extent that any of the following representations and warranties are limited to the date of this Agreement or otherwise limited, on the Purchase Option Closing Date, shall be deemed to have represented and warranted, to the Company and Holdings that:

(i) Organization. The Symphony Collaboration is a corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware.

(ii) Authority and Validity. The Symphony Collaboration has all requisite corporate power and authority to execute, deliver and

perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Symphony Collaboration of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary action required on the part of the Symphony Collaboration, and no other proceedings on the part of the Symphony Collaboration are necessary to authorize this Agreement or for the Symphony Collaboration to perform its obligations under this Agreement. This Agreement constitutes the lawful, valid and legally binding obligation of the Symphony Collaboration, enforceable in accordance with its terms, except as the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity.

(iii) No Violation or Conflict. The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not (A) violate, conflict with or result in the breach of any provision of the Organizational Documents of the Symphony Collaboration, (B) conflict with or violate any law or Governmental Order applicable to the Symphony Collaboration or any of its assets, properties or businesses, or (C) conflict with, result in any breach of, constitute a default (or event that with the giving of notice or lapse of time, or both, would become a default) under, require any consent under, or give to others any rights of termination, amendment, acceleration, suspension, revocation or cancellation of, or result in the creation of any Encumbrance on any of the assets or properties of the Symphony Collaboration, pursuant to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license, permit, franchise or other instrument or arrangement to which the Symphony Collaboration is a party except, in the case of clauses (B) and (C), to the extent that such conflicts, breaches, defaults or other matters would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Symphony Collaboration.

(iv) Governmental Consents and Approvals. The execution, delivery and performance of this Agreement by the Symphony Collaboration do not, and the consummation of the transactions contemplated hereby do not and will not, require any Governmental Approval which has not already been obtained, effected or provided, except with respect to which the failure to so obtain, effect or provide would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Symphony Collaboration.

(v) Litigation. There are no actions by or against the Symphony Collaboration pending before any Governmental Authority or, to the knowledge of the Symphony Collaboration, threatened to be brought by or before any Governmental Authority that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Symphony Collaboration. There are no pending or, to the knowledge of the Symphony Collaboration, threatened actions to which the Symphony Collaboration is a party (or is threatened to be named as a party) to set aside, restrain, enjoin or prevent the execution, delivery or performance of this

Agreement or the Operative Documents or the consummation of the transactions contemplated hereby or thereby by any party hereto or thereto. The Symphony Collaboration is not subject to any Governmental Order (nor, to the knowledge of the Symphony Collaboration, is there any such Governmental Order threatened to be imposed by any Governmental Authority) that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Symphony Collaboration.

(vi) Capitalization. Holdings is the beneficial and record owner of all issued and outstanding Symphony Collaboration Equity Securities. No shares of the Symphony Collaboration capital stock are held in treasury by the Symphony Collaboration or any Symphony Collaboration Subsidiary. All of the issued and outstanding Symphony Collaboration Equity Securities (A) have been duly authorized and validly issued and are fully paid and nonassessable, (B) were issued in compliance with all applicable state and federal securities laws, and (C) were not issued in violation of any preemptive rights or rights of first refusal. No preemptive rights or rights of first refusal exist with respect to any Symphony Collaboration Equity Securities and no such rights will arise by virtue of or in connection with the transactions contemplated hereby (other than for the Purchase Option). Other than the Purchase Option, there are no outstanding options, warrants, call rights, commitments or agreements of any character to acquire any Symphony Collaboration Equity Securities. There are no outstanding stock appreciation, phantom stock, profit participation or other similar rights with respect to the Symphony Collaboration. The Symphony Collaboration is not obligated to redeem or otherwise acquire any of its outstanding Symphony Collaboration Equity Securities.

(vii) Interim Operations. The Symphony Collaboration was formed solely for the purpose of engaging in the transactions contemplated by the Operative Documents, has engaged in no other business activities and has conducted its operations only as contemplated by the Operative Documents.

(viii) Investment Company. The Symphony Collaboration is not, and after giving effect to the transactions contemplated by the Operative Documents will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.

(b) The Symphony Collaboration covenants and agrees that:

(i) The Symphony Collaboration will comply with all laws, ordinances or governmental rules or regulations to which it is subject and will obtain and maintain in effect all licenses, certificates, permits, franchises and other Governmental Approvals necessary to the ownership of its properties or to the conduct of its business, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other Governmental Approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Symphony Collaboration.

(ii) The Symphony Collaboration will file (or cause to be filed) all material tax returns required to be filed by it and pay all taxes shown to be due and payable on such returns and all other taxes imposed on it or its assets to the extent such taxes have become due and payable and before they have become delinquent and shall pay all claims for which sums have become due and payable that have or might become attached to the assets of the Symphony Collaboration; provided, that the Symphony Collaboration need not file any such tax returns or pay any such tax or claims if (A) the amount, applicability or validity thereof is contested by the Symphony Collaboration on a timely basis in good faith and in appropriate proceedings, and the Symphony Collaboration has established adequate reserves therefor in accordance with GAAP on the books of the Symphony Collaboration or (B) the failure to file such tax returns or the nonpayment of such taxes and assessments, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect on the Symphony Collaboration.

(iii) The Symphony Collaboration will at all times preserve and keep in full force and effect its corporate existence.

(iv) The Symphony Collaboration will keep complete, proper and separate books of record and account, including a record of all costs and expenses incurred, all charges made, all credits made and received, and all income derived in connection with the operation of the business of the Symphony Collaboration, all in accordance with GAAP (which GAAP shall be conformed to those used by the Company to the extent practicable), in each case to the extent necessary to enable the Symphony Collaboration to comply with the periodic reporting requirements of this Agreement, and will promptly notify the Company if it adopts or changes any accounting principle pursuant to a change in GAAP or applicable Law.

(v) The Symphony Collaboration will perform and observe in all material respects all of the terms and provisions of each Operative Document to be performed or observed by it, maintain each such Operative Document to which it is a party, promptly enforce in all material respects each such Operative Document in accordance with its terms, take all such action to such end as may be from time to time reasonably requested by Holdings or the Company and make to each other party to each such Operative Document such demands and requests for information and reports or for action as the Symphony Collaboration is entitled to make under such Operative Document.

(vi) The Symphony Collaboration shall permit the representatives of Holdings (including Holdings’ members and their respective representatives), each Symphony Fund and the Company, at each of their own expense and upon reasonable prior notice to the Symphony Collaboration, to visit the principal executive office of the Symphony Collaboration, to discuss the affairs, finances and accounts of the Symphony Collaboration with the Symphony Collaboration’s officers and (with the consent of the Symphony Collaboration, which consent will not be unreasonably withheld) its Auditors, all at such reasonable times and as often as may be reasonably requested in writing.

(vii) The Symphony Collaboration shall permit each Symphony Fund, at its own expense and upon reasonable prior notice to the Symphony Collaboration, to inspect and copy the Symphony Collaboration’s books and records and inspect the Symphony Collaboration’s properties at reasonable times.

(viii) The Symphony Collaboration shall allow the Company or its designated representatives to have reasonable visitation and inspection rights with regard to the Programs and materials, documents and other information relating thereto.

(ix) The Symphony Collaboration shall permit each Symphony Fund to consult with and advise the management of the Symphony Collaboration on matters relating to the research and development of the Programs in order to develop the Product in accordance with the terms or provisions of the Amended and Restated Research and Development Agreement.

(x) On the Purchase Option Closing Date, or as soon thereafter as is practical, the Symphony Collaboration shall deliver to the Company all materials, documents, files and other information relating to the Programs (or, where necessary, copies thereof).

(xi) During the Term, the Company shall have the right to consent to any increase in the size of the Symphony Collaboration Board to more than five (5) directors.

(xii) During the Term, the Company shall have the right to designate, remove and replace one (1) director of the Symphony Collaboration Board, including any successor thereto, as contemplated by Section 4(b)(v).

(xiii) The Symphony Collaboration shall indemnify the directors and officers of the Symphony Collaboration against liability incurred by reason of the fact that such Person is or was a director or officer of the Symphony Collaboration, as permitted by Article VIII of the Symphony Collaboration Charter and Section 9.01 of the Symphony Collaboration By-laws, as set forth in, and on the terms of, the Indemnification Agreement and the RRD Services Agreement, respectively.

(xiv) During the Term, the Symphony Collaboration shall comply with, and cause any Persons acting for it to comply with, the terms of the Investment Policy with respect to the investment of any funds held by it.

(xv) On or prior to the Purchase Option Closing Date, the Symphony Collaboration shall pay for non-cancelable run-off insurance policies covering claims made or reported for a period of six (6) years after the Purchase Option Closing Date to provide insurance coverage for events, acts or omissions occurring on or prior to the Purchase Option Closing Date for all persons or business entities who were covered as insured parties by the applicable insurance policies on or prior to the Purchase Option Closing Date.

(c) The Symphony Collaboration covenants and agrees that, until the expiration of the Term, it shall not, and shall cause its Subsidiaries (if any) not to, without the Company’s prior written consent:

(i) issue any Symphony Collaboration Equity Securities or any Equity Securities of any Subsidiary thereof (other than any issuances of Equity Securities by the Symphony Collaboration made in accordance with Section 1(b) hereof to Holdings so long as the Symphony Collaboration is a wholly owned subsidiary of Holdings, or by a Subsidiary of the Symphony Collaboration to the Symphony Collaboration or to another wholly owned Subsidiary of the Symphony Collaboration); provided, however, that in any event any such Symphony Collaboration Equity Securities shall be issued subject to the Purchase Option;

(ii) redeem, repurchase or otherwise acquire, directly or indirectly, any Symphony Collaboration Equity Securities or the Equity Securities of any Subsidiary of the Symphony Collaboration;

(iii) create, incur, assume or permit to exist Debt other than any Debt owing to parties not affiliated with the Symphony Collaboration incurred pursuant to the Operative Documents and the Development Budget (including payables incurred in the ordinary course of business) (“Excepted Debt”); provided, however, that the aggregate outstanding principal amount of all Excepted Debt for borrowed money shall not exceed $1,000,000 at any time;

(iv) declare or pay dividends or other distributions on any Symphony Collaboration Equity Securities other than any dividend declared out of funds released by the Development Committee pursuant to Section 8.1(b) of the Amended and Restated Research and Development Agreement in respect of Discontinued Funds or from the proceeds of (x) the exercise of a Discontinuation Option, or (y) a sale or license of a discontinued Program to a third party, in each case in respect of which the Symphony Collaboration shall be entitled to pay (subject to the existence of lawfully available funds) a dividend equal to the net amount (such net amount calculated as the gross proceeds received less amounts required to be paid in respect of any and all corporate taxes owed by the Symphony Collaboration as a result of the receipt of such gross amounts) of such Discontinuation Price or the amounts received from such third party, as the case may be;

(v) enter into any transaction of merger or consolidation, or liquidate, wind up or dissolve itself, or convey, transfer, license, lease or otherwise dispose of all, or a material portion of, its properties, assets or business;

(vi) other than in respect of the Programs, engage in the development of products for any other company or engage or participate in the development of products or engage in any other material line of business;

(vii) other than entering into, and performing its obligations under, the Operative Documents and participating in the Programs, engage in any action that negates or is inconsistent with any rights of the Company set forth herein;

(viii) (A) other than as contemplated by the RRD Services Agreement and Section 6.2 of the Amended and Restated Research and Development Agreement, hire, retain or contract for the services of, any employees until the termination of such agreements, or (B) appoint, dismiss or change any RRD Investment Personnel;

(ix) incur any financial commitments in respect of the development of the Programs other than those set forth in the Development Plan and the Development Budget, or those approved by the Development Committee and, if so required by the terms of Paragraph 11 of the Development Committee Charter, the Symphony Collaboration Board in accordance with the Operative Documents;

(x) other than any transaction contemplated by the Operative Documents, enter into or engage in any Conflict Transactions without the prior approval of a majority of the Disinterested Directors of the Symphony Collaboration Board;

(xi) waive, alter, modify, amend or supplement in any manner whatsoever any material terms and conditions of the RRD Services Agreement, the Subscription Agreement, the Additional Funding Agreement, or Articles 4 and 6 of the Amended and Restated Research and Development Agreement, except in compliance with the terms of the Operative Documents; or

(xii) enter into any alliance or partnership arrangement for the commercialization or marketing of any Products under the Programs.

(d) The Symphony Collaboration covenants and agrees to deliver, cause to be delivered, and provide access thereto, to each other Party, each Symphony Fund, and such Auditors as the Company may designate, so long as such Auditors shall (x) be subject to confidentiality requirements at least as stringent as the Confidentiality Agreement or (y) be the Company Accounting Advisor retained pursuant to an agreement which incorporates confidentiality provisions substantially the same as the ones incorporated in the agreements in effect between the Company and such Company Accounting Advisor as of the date hereof:

(i) upon request, copies of the then current Development Plan for each quarter, on or before March 31, June 30, September 30, and December 31 of each year;

(ii) upon request, copies of the then current Development Budget for each quarter, including a report setting forth in reasonable detail the projected expenditures by the Symphony Collaboration pursuant to the Development Budget, on or before March 31, June 30, September 30, and December 31 of each year;

(iii) prior to the close of each fiscal year, the Symphony Collaboration shall cause the Manager to seek to obtain from the Symphony Collaboration Auditors schedules of certain financial information to be provided to the Company’s Auditors in connection with the Symphony Collaboration Auditors’ audit of the Symphony Collaboration. Within fifteen (15) Business Days after the close of each fiscal year, the Symphony Collaboration (or the Manager acting on its behalf) will provide the Company’s Auditors with the Client Schedules. If the Symphony Collaboration Auditors deliver the notice or listing of required Client Schedules after the end of the fiscal year, the Symphony Collaboration (or the Manager acting on its behalf) will provide the completed Client Schedules to the Company’s Auditors within fifteen (15) Business Days of such receipt. Following the Company’s Auditors’ review of the Client Schedules, the Symphony Collaboration (or the Manager acting on its behalf) will promptly provide the Company’s Auditors with any reasonably requested back-up information related to the Client Schedules;

(iv) upon the Company’s Auditors’ request, the Company’s Chief Financial Officer, the Symphony Collaboration Auditors, the Company’s Auditors and the Symphony Collaboration (or the Manager acting on its behalf) shall agree to a completion schedule that will include (A) the provision by the Symphony Collaboration to the Company of the financial information reasonably necessary for the Company to consolidate the financial results of the Symphony Collaboration and (B) the following financial statements, including the related notes thereto, audited and certified by the Symphony Collaboration Auditors: (1) a balance sheet of the Symphony Collaboration as of the close of such fiscal year, (2) a statement of operations for such fiscal year, and (3) a statement of cash flows for such fiscal year. Such audited annual financial statements shall set forth in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and the Symphony Collaboration (or the Manager acting on its behalf) shall, to the extent that the Symphony Collaboration (or the Manager acting on its behalf) can procure such an opinion using commercially reasonable means, be accompanied by an opinion thereon of the Symphony Collaboration Auditors to the effect that such financial statements present fairly, in all material respects, the financial position of the Symphony Collaboration and its results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances;

(v) within seven (7) Business Days following each calendar month and receipt from the Company of its monthly invoice to the Symphony Collaboration, current accrued monthly vendor expenses and prepaid expenses, the Symphony Collaboration (or the Manager acting on its behalf) will provide to the Company: (A) the unaudited balance sheet of the Symphony Collaboration for the previous calendar month; (B) the unaudited statement of operations for such previous calendar month; (C) the trial balance schedule for such previous calendar month; and (D) related account reconciliations for such previous calendar month (collectively, “Unaudited Financial Information”);

(vi) within five (5) Business Days following its filing, a copy of each income tax return so filed by the Symphony Collaboration with any foreign, federal, state or local taxing authority (including all supporting schedules thereto);

(vii) any other documents, materials or other information pertaining to the Programs or the Symphony Collaboration as the Company may reasonably request, including preliminary financial information and information and documentation of internal controls and reporting;

(viii) promptly, and in any event within five (5) Business Days of receipt thereof, copies of any notice to the Symphony Collaboration from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that would reasonably be expected to have a Material Adverse Effect on the Symphony Collaboration;

(ix) promptly upon receipt thereof, notice of all actions, suits, investigations, litigation and proceedings before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Symphony Collaboration;

(x) promptly upon receipt thereof, copies of any other notices, requests, reports, financial statements and other information and documents received by the Symphony Collaboration under or pursuant to any other Operative Document, including, without limitation, any notices of breach or termination of any subcontracts or licenses entered into or permitted pursuant to the Operative Documents; and

(xi) with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Symphony Collaboration or relating to the ability of the Symphony Collaboration to perform its obligations hereunder and under the Operative Documents as from time to time may be reasonably requested by the Company and/or Holdings;

provided, that neither the Symphony Collaboration, nor the Manager acting on behalf of the Symphony Collaboration, shall have any liability to the Company for the failure to deliver financial documents or other materials hereunder, if such failure was caused by a failure of the Company to provide, in a timely manner, data required to prepare such financial documents or other materials to the Symphony Collaboration in a timely manner.

(e) The Symphony Collaboration will use commercially reasonable efforts, at its own expense (as set forth in the Development Budget), to cooperate with the Company in meeting the Company’s government compliance, disclosure, and financial reporting obligations, including without limitation under the Sarbanes-Oxley Act of 2002, as amended, and any rules and regulations promulgated thereunder, under FASB Interpretation No. 46 (Revised) and under the Exchange Act. Without limiting the foregoing, the Symphony Collaboration further covenants, until the

completion of all the reporting, accounting and other obligations set forth therein with respect to the fiscal year in which this Agreement shall terminate, expire and end, that (w) if requested by the Symphony Collaboration Auditors, the principal executive officer and the principal financial officer of the Symphony Collaboration, or persons performing similar functions, shall provide certifications to the Company corresponding to those required with respect to public companies for which a class of securities is registered under the Exchange Act (“Public Companies”) under Sections 302 and 906 of the Sarbanes-Oxley Act of 2002, as amended; (x) the Symphony Collaboration shall maintain a system of disclosure controls and internal controls (as defined under the Exchange Act) as required under the Exchange Act for Public Companies, if required by the Company’s Auditors in connection with their audit of the Company; (y) the Symphony Collaboration shall provide to the Company an attestation report of the Symphony Collaboration Auditors with respect to the Symphony Collaboration management’s assessment of the Symphony Collaboration’s internal controls as required under the Exchange Act for Public Companies, if required by the Company’s Auditors in connection with their audit of the Company; and (z) the Symphony Collaboration will maintain, or cause to have maintained, such sufficient evidentiary support for management’s assessment of the effectiveness of the Symphony Collaboration’s internal controls as required under the Exchange Act for Public Companies.

Section 6. Notice of Material Event. Each Party covenants and agrees that, upon its acquiring Knowledge of (a) any breach by it of any representation, warranty, covenant or any other term or condition of this Agreement or (b) any other event or development, in each case that is, or is reasonably expected to be, materially adverse to the other Party with respect to any Program or the transactions contemplated hereby, such Party shall promptly notify the other Party in writing within three (3) Business Days of acquiring such Knowledge; provided, that neither the provision of nor the failure to provide such notice shall impair or otherwise be deemed a waiver of any rights any Party may have arising from such breach, event or development and that notice under this Section 6 shall not be deemed an admission by the Party providing such notice of any breach of any of the Operative Documents.

Section 7. Assignment; Transfers; Legend.

(a) Assignment by Company and Symphony Collaboration. Neither the Company nor the Symphony Collaboration may assign, delegate, transfer, sell or otherwise dispose of (collectively, “Transfer”), in whole or in part, any or all of their rights or obligations hereunder to any Person (a “Transferee”) without the prior written approval of each of the other Parties; provided, however, that the Company, without the prior approval of each of the other Parties, may make such Transfer to any Person which acquires all or substantially all of the Company’s assets or business (or assets or business related to the Programs) or which is the surviving or resulting Person in a merger, consolidation or other reorganization with the Company.

(b) Assignment and Transfers by Holdings. Prior to the expiration of the Term, Holdings may not Transfer, in whole or in part, any or all of its Symphony Collaboration Equity Securities or any or all of its rights or obligations

hereunder to any Person (other than the Company) without the prior written consent of the Company. In addition, any Transfer of Symphony Collaboration Equity Securities by Holdings or any other Person to any Person other than the Company shall be conditioned upon, and no effect shall be given to any such Transfer unless such transferee shall agree in writing in form and substance satisfactory to the Company to be bound by, all of the terms and conditions hereunder, including the Purchase Option, as if such transferee were originally designated as “Holdings” hereunder.

(c) Legend. Any certificates evidencing Symphony Collaboration Equity Securities shall bear a legend in substantially the following form:

THE SECURITIES OF SYMPHONY ViDA, INC., EVIDENCED HEREBY ARE SUBJECT TO AN OPTION, HELD BY OXiGENE, INC., AS DESCRIBED IN AN AMENDED AND RESTATED PURCHASE OPTION AGREEMENT (THE “PURCHASE OPTION AGREEMENT”) DATED AS OF JULY 2, 2009, BY AND AMONG OXiGENE, INC. AND THE OTHER PARTIES THERETO, TO PURCHASE SUCH SECURITIES AT A PURCHASE PRICE DETERMINED PURSUANT TO SECTION 2 OF THE PURCHASE OPTION AGREEMENT, EXERCISABLE BY WRITTEN NOTICE AT ANY TIME DURING THE PERIOD SET FORTH THEREIN. COPIES OF THE PURCHASE OPTION AGREEMENT ARE AVAILABLE AT THE PRINCIPAL PLACE OF BUSINESS OF SYMPHONY ViDA, INC. AT 7361 CALHOUN PLACE, SUITE 325, ROCKVILLE, MARYLAND 20855, AND WILL BE FURNISHED TO THE HOLDER HEREOF UPON WRITTEN REQUEST WITHOUT COST

Section 8. Costs and Expenses; Payments. Except as otherwise specified in Section 2(g) hereof, each Party shall pay its own costs and expenses incurred in connection with the exercise of the Purchase Option; provided, however, that the Company shall pay any filing fees incurred in connection with any HSR Filings or other Governmental Approvals made pursuant to this Agreement.

Section 9. Expiration; Termination of Agreement.

(a) Termination.

(i) This Agreement shall terminate upon the mutual written consent of all of the Parties.

(ii) Each of Holdings and the Symphony Collaboration may terminate this Agreement in the event that the Symphony Collaboration terminates

the Amended and Restated Research and Development Agreement in accordance with its terms.

(iii) Holdings may terminate this Agreement in the event that the Purchase Option Closing shall not have occurred by September 1, 2009.

Section 10. Survival; Indemnification.

(a) Survival of Representations and Warranties; Expiration of Certain Covenants.

(i) The representations and warranties of the Parties contained in this Agreement shall survive for a period of one year from the making of such representations, except for representations and warranties contained in Sections 3(a)(i) and (ii), 4(a)(i) and (ii) and 5(a)(i) and (ii) hereof which shall survive indefinitely. The liability of the Parties related to their respective representations and warranties hereunder shall not be reduced by any investigation made at any time by or on behalf of Holdings, the Symphony Collaboration or the Company, as applicable.

(ii) For the avoidance of doubt, the covenants and agreements set forth in Sections 4(b), 5(b)(i), 5(b)(v), 5(b)(vii)-(ix), 5(b)(xi)-(xiv), 5(c), 5(d)(i), 5(d)(ii) and 5(d)(viii)-(xi) shall, upon the expiration of the Term, expire and end without any further obligation by the Symphony Collaboration or Holdings thereunder.

(iii) For the avoidance of doubt, the covenants and agreements set forth in Sections 5(b)(ii)-(iv), 5(b)(vi), 5(b)(x), 5(d)(iii)-(vii) and 5(e) shall, upon the completion of all the reporting, accounting and other obligations set forth therein with respect to the fiscal year in which this Agreement shall terminate, expire and end without any further obligation by the Symphony Collaboration or Holdings thereunder.

(b) Indemnification. To the greatest extent permitted by applicable law, the Company shall indemnify and hold harmless the Symphony Collaboration and Holdings, and the Symphony Collaboration and Holdings shall indemnify and hold harmless the Company, and each of their respective Affiliates, officers, directors, employees, agents, partners, members, successors, assigns, representatives of, and each Person, if any (including any officers, directors, employees, agents, partners, members of such Person) who controls Holdings, the Symphony Collaboration and the Company, as applicable, within the meaning of the Securities Act or the Exchange Act (each, an “Indemnified Party”), from and against any and all actions, causes of action, suits, claims, losses, costs, interest, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnified Party is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (hereinafter, a “Loss”), incurred by any Indemnified Party to the extent resulting from, arising out of, or relating to: (i) in the case of the Company being the Indemnifying Party, (A) any breach of any representation or warranty made by the Company herein or in Section 5.1 of the Novated and Restated

Technology License Agreement, or (B) any breach of any covenant, agreement or obligation of the Company contained herein, and (ii) in the case of Holdings being the Indemnifying Party, (A) any breach of any representation or warranty made by Holdings or the Symphony Collaboration herein, or (B) any breach of any covenant, agreement or obligation of Holdings or the Symphony Collaboration contained herein. To the extent that the foregoing undertaking by the Company or Holdings may be unenforceable for any reason, such Party shall make the maximum contribution to the payment and satisfaction of any Loss that is permissible under applicable law.

(c) Notice of Claims. Any Indemnified Party that proposes to assert a right to be indemnified under this Section 10 shall notify the Company or Holdings, as applicable (the “Indemnifying Party”), promptly after receipt of notice of commencement of any action, suit or proceeding against such Indemnified Party (an “Indemnified Proceeding”) in respect of which a claim is to be made under this Section 10, or the incurrence or realization of any Loss in respect of which a claim is to be made under this Section 10, 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 Party promptly of any such Indemnified Proceeding or incurrence or realization shall not relieve (x) such Indemnifying Party from any liability that it may have to such Indemnified Party under this Section 10 or otherwise, except, as to such Indemnifying Party’s liability under this Section 10, to the extent, but only to the extent, that such Indemnifying Party shall have been prejudiced by such omission, or (y) any other indemnitor from liability that it may have to any Indemnified Party under the Operative Documents.

(d) Defense of Proceedings. In case any Indemnified Proceeding shall be brought against any Indemnified Party, it shall notify the applicable Indemnifying Party of the commencement thereof as provided in Section 10(c), and such Indemnifying Party 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 Party and is not a criminal or regulatory action, to assume the defense of, such Indemnified Proceeding with counsel reasonably satisfactory to such Indemnified Party. After notice from such Indemnifying Party to such Indemnified Party of such Indemnifying Party’s election so to assume the defense thereof and the failure by such Indemnified Party to object to such counsel within five (5) Business Days following its receipt of such notice, such Indemnifying Party shall not be liable to such Indemnified Party 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 Party reasonably necessary in connection with the defense thereof. Such Indemnified Party shall have the right to employ its own counsel in any such Indemnified Proceeding, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless:

(i) the employment of counsel by such Indemnified Party at the expense of the applicable Indemnifying Party has been authorized in writing by such Indemnifying Party;

(ii) such Indemnified Party 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 Party and such Indemnified Party 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 Party (it being agreed that in any case referred to in this clause (ii) such Indemnifying Party shall not have the right to direct the defense of such Indemnified Proceeding on behalf of the Indemnified Party);

(iii) the applicable Indemnifying Party shall not have employed counsel reasonably acceptable to the Indemnified Party, 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 Party may not invoke this clause (iii) if such Indemnified Party failed to timely object to such counsel pursuant to the first paragraph of this Section 10(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 Party 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 Party shall be at the expense of such Indemnifying Party. The Indemnifying Person shall be responsible for the reasonable fees and expenses of only one counsel retained by all Indemnified Parties with respect to any Indemnified Proceeding, and any additional counsel shall be retained at the expense of such Indemnified Party, unless counsel for any Indemnified Party 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 Party and one or more other Indemnified Parties in the conduct of the defense of such Indemnified, in which case the Indemnifying Party shall be responsible for the reasonable fees and expenses of such additional counsel.

(e) Settlement. Without the prior written consent of such Indemnified Party, such Indemnifying Party 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 Party 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 the Indemnified Party or finding or admission of any violation of law or the rights of any Person by the Indemnified Party, and (iv) is not in the nature of a criminal or regulatory action. No Indemnified Party shall settle 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 Party, (C) which involves an admission of fact adverse to the Indemnifying Party or a finding or admission of any violation of law or the rights of any Person by the Indemnifying Party, or (D) which is in the nature of a criminal or regulatory action, without the prior written consent of the Indemnifying Party, such consent not to be unreasonably conditioned, withheld or delayed.

Section 11. No Petition. Each of the Company and Holdings covenants and agrees that, prior to March 31, 2011, it will not institute or join in the institution of any bankruptcy, insolvency, reorganization or similar proceeding against the Symphony Collaboration. The provisions of this Section 11 shall survive the termination of this Agreement.

Section 12. Third-Party Beneficiary. Each of the Parties agrees that each Symphony Fund shall be a third-party beneficiary of this Agreement.

Section 13. Notices. 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 13), 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 a return receipt:

The Company:

OXiGENE, Inc.
701 Gateway Boulevard
South San Francisco, CA 94080
Attn: Chief Executive Officer
Facsimile: (650) 635-7001

The Symphony Collaboration:

Symphony ViDA, Inc.
7361 Calhoun Place, Suite 325
Rockville, MD 20855
Attn: Charles W. Finn, Ph.D.
Facsimile: (301) 762-6154

Holdings:

Symphony ViDA Holdings LLC
7361 Calhoun Place, Suite 325
Rockville, MD 20855
Attn: Robert L. Smith, Jr.
Facsimile: (301) 762-6154

with copies to:

Symphony Capital Partners, L.P.
875 Third Avenue, 18th Floor
New York, NY 10022
Attn: Mark Kessel
Facsimile: (212) 632-5401

and

Symphony Strategic Partners, LLC
875 Third Avenue, 18th Floor
New York, NY 10022
Attn: Mark Kessel
Facsimile: (212) 632-5401

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.

Section 14. Governing Law; Consent to Jurisdiction and Service of Process.

(a) 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 the Company, the Symphony Collaboration or Holdings, and to such extent this Agreement shall be governed and construed in accordance with the laws of the State of Delaware.

(b) Each of the Parties hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court and Delaware State court or federal court of the United States of America

sitting in The City of New York, Borough of Manhattan 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 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 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 may otherwise have to bring any action or proceeding relating to this Agreement.

(c) Each of the Parties 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 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 consents to service of process by mail.

Section 15. 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.

Section 16. Entire Agreement. This Agreement (including any Annexes, Schedules, Exhibits or other attachments hereto) constitutes the entire agreement between the Parties with respect to the matters covered hereby and supersedes all prior and contemporaneous agreements, correspondence, discussion, and understanding with respect to such matters between the Parties, excluding the Operative Documents.

Section 17. Amendment; Successors; Counterparts.

(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 the Parties.

(b) Except as set forth in Section 12, nothing expressed or implied herein is intended or shall be construed to confer upon or to give to any Person, other than the Parties, 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 and their successors and permitted assigns.

(c) 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.

Section 18. Specific Performance. The Parties acknowledge that irreparable damage would result if this Agreement were not specifically enforced, and they therefore agree that the rights and obligations of the Parties under this Agreement may be enforced by a decree of specific performance issued by a court of competent jurisdiction. Such a remedy shall, however, not be exclusive, and shall be in addition to any other remedies which any Party may have under this Agreement or otherwise. The Parties further acknowledge and agree that a decree of specific performance may not be an available remedy in all circumstances.

Section 19. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in a manner materially adverse to either party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.

Section 20. Tax Reporting. The Parties acknowledge and agree that, for all federal and state income tax purposes:

(a) (i) Holdings shall be treated as the owner of all the Equity Securities of the Symphony Collaboration prior to the consummation of the Purchase Option; (ii) the Purchase Option shall be treated as an option to acquire all the Equity Securities of the Symphony Collaboration; (iii) the Option Premium Shares shall be treated as an option premium payable in respect of the grant and exercise of the Purchase Option; and (iv) the Symphony Collaboration shall be treated as the owner of all the Licensed Intellectual Property and shall be entitled to all deductions claimed under Section 174 of the Code in respect of the Licensed Intellectual Property to the extent of the amounts funded by the Symphony Collaboration (which, for the avoidance of doubt, shall not preclude the Company from claiming deductions under Section 174 of the Code to which the Company is otherwise entitled); and

(b) No Party shall take any tax position inconsistent with any position described in Section 20(a) above, except (i) in the event of a “determination” (as defined in Section 1313 of the Code) to the contrary, or (ii) in the event either of the Parties receives an opinion of counsel to the effect that there is no reasonable basis in law for such a position or that a tax return cannot be prepared based on such a position without being subject to substantial understatement penalties; provided, however, that in the case of the Company, such counsel shall be reasonably satisfactory to Holdings.

Section 21. Original Agreement.

(a) 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. 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.

(b) Defined terms in the Operative Documents (other than this Agreement) that refer to definitions in this Agreement shall be deemed to refer to the definitions in the Original Agreement, except where the context requires otherwise.

Section 22. Amendment to Annex A. The definition of “Purchase Option Agreement” in Annex A is hereby amended to read, “means the Purchase Option Agreement dated as of the Closing Date, among the Company, Holdings and the Symphony Collaboration, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.”

[SIGNATURES FOLLOW ON NEXT PAGE]

IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of the day and year first above written.


		OXiGENE, INC.

		By:		/s/ John A. Kollins
				Name: John A. Kollins
				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/ Mark Kessel
				Name: Mark Kessel
				Title: Managing Member

		SYMPHONY ViDA, INC.

		By:		/s/ Mark Kessel
				Name: Mark Kessel
				Title: Chairman of the Board

[Signature Page to Amended and Restated Purchase Option Agreement]

ANNEX A

CERTAIN DEFINITIONS

See attached.

B-1

EXHIBIT 1

PURCHASE OPTION EXERCISE NOTICE

, 20__

Attention:

Ladies and Gentlemen:

Reference is hereby made to that certain Amended and Restated Purchase Option Agreement dated as of [ ___], 2009 (the “Purchase Option Agreement”), by and among OXiGENE, Inc., a Delaware corporation (the “Company”), Symphony ViDA Holdings LLC, a Delaware limited liability company, and Symphony ViDA, Inc., a Delaware corporation. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned thereto in the Purchase Option Agreement.

Pursuant to Section 2(a) of the Purchase Option Agreement, the Company hereby irrevocably notifies you that it hereby exercises the Purchase Option.

Subject to the terms set forth therein, the Company hereby affirms the representations and warranties set forth in Section 3(a) of the Purchase Option Agreement, as of the date hereof.

The Company estimates that the Purchase Option Closing Date will be , 20___.


	Very truly yours, OXiGENE, INC.
	By:
		Name:
		Title:

EX-10.2 3 b76150oiexv10w2.htm EX-10.2 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT exv10w2

Exhibit 10.2

EXECUTION COPY

AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT

between

OXiGENE, INC.

and

SYMPHONY ViDA HOLDINGS LLC

Dated as of July 2, 2009

Table of Contents


Section		Page
Section 1.	Definitions		1

Section 2.	Registration		3

Section 3.	Related Obligations		5

Section 4.	Obligations of the Investor(s)		9

Section 5.	Expenses of Registration		10

Section 6.	Indemnification		10

Section 7.	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

AMENDED AND RESTATED
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).

A&R Registration Rights Agreement

(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.

A&R Registration Rights Agreement

(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

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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

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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

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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

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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”),

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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);

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(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

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

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

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.
701 Gateway Boulevard

South San Francisco, CA 94080
Attn: Chief Executive Officer
Fax: (650) 635-7001

If to Holdings:

Symphony ViDA Holdings LLC
7361 Calhoun Place, Suite 325
Rockville, MD 20855
Attn: Robert L. Smith, Jr.
Fax: (301) 762-6154

with a copy to:

Symphony Capital Partners, L.P.
875 Third Avenue, 18th Floor
New York, NY 10022
Attn: Mark Kessel
Fax: (212) 632-5401

and

Symphony Strategic Partners, LLC
875 Third Avenue, 18th Floor
New York, NY 10022
Attn: Mark Kessel
Fax: (212) 632-5401

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

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

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

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/ John A. Kollins

	Name: John A. Kollins 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/ Mark Kessel

	Name: Mark Kessel 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

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:

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

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:

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:

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

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

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:

230 Third Avenue
Waltham, MA 02451
Attn: Chief Financial Officer
Facsimile: (781) 547-6800

Exhibit A to the
A&R Registration Rights Agreement

EX-10.3 4 b76150oiexv10w3.htm EX-10.3 TERMINATION AGREEMENT exv10w3

Exhibit 10.3

EXECUTION COPY

TERMINATION AGREEMENT

This TERMINATION AGREEMENT (this “Agreement”), is entered into as of July 2, 2009, by and among OXiGENE, INC., a Delaware corporation (the “Company”), SYMPHONY ViDA HOLDINGS LLC, a Delaware limited liability company (“Holdings”), SYMPHONY ViDA INVESTORS LLC, a Delaware limited liability company (“Investors”), and SYMPHONY ViDA, INC., a Delaware corporation (the “Symphony Collaboration”).

WHEREAS, the parties hereto entered into that that certain Additional Funding Agreement, dated as of October 1, 2008 (the “Funding Agreement”);

WHEREAS, simultaneously with the execution of this Agreement, the Company has exercised the Purchase Option (as defined in that certain Amended and Restated Purchase Option Agreement, dated as of the date hereof, by and among the Company, Holdings and the Symphony Collaboration (the “Purchase Option Agreement”)); and

WHEREAS, the parties hereto wish to terminate the Funding Agreement simultaneously with the Purchase Option Closing (as defined in the Purchase Option Agreement).

NOW THEREFORE, in consideration of the payment of the Purchase Price (as defined in the Purchase Option Agreement) by the Company to Holdings and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

1. Simultaneously with the Purchase Option Closing, the Funding Agreement shall be terminated and all obligations of the parties thereunder will thereafter be discharged and forever released; provided, however, that if the Purchase Option Agreement is terminated in accordance with its terms prior to the Purchase Option Closing, this Agreement shall terminate and become null and void ab initio.

2. This Agreement and any claim or controversy related hereto shall be governed by and construed in accordance with the law of the State of New York without giving effect to the principles of conflict of laws thereof.

3. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts together shall constitute one and the same instrument. Each counterpart may consist of a number of copies hereof each signed by less than all, but together signed by all, of the parties hereto. The delivery of an executed counterpart of this Agreement by facsimile or electronic transmission shall be deemed to be valid delivery thereof.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.


		OXiGENE, INC.

		By:		/s/ John A. Kollins
				Name: John A. Kollins
				Title: Chief Executive Officer

		SYMPHONY ViDA, INC.

		By:		/s/ Mark Kessel
				Name: Mark Kessel
				Title: Chairman of the Board

[Signature Page to Termination Agreement]


		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/ Mark Kessel
				Name: Mark Kessel
				Title: Managing Member

		SYMPHONY ViDA INVESTORS 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/ Mark Kessel
				Name: Mark Kessel
				Title: Managing Member

[Signature Page to Termination Agreement]

EX-99.1 5 b76150oiexv99w1.htm EX-99.1 PRESS RELEASE DATED JULY 6, 2009 exv99w1

Exhibit 99.1

Investor and Media Contact:
Michelle Edwards, Investor Relations
medwards@oxigene.com
650-635-7006

OXiGENE Announces Agreement to Acquire Symphony ViDA, Including More
Than $12 Million in Unrestricted Cash and All Rights to OXi4503 and
ZYBRESTAT for Ophthalmology

South San Francisco, California — July 6, 2009 — OXiGENE, Inc., a clinical-stage biopharmaceutical company developing novel therapeutics to treat cancer and eye diseases, announced that the Company exercised its option to acquire all of the equity of Symphony ViDA, Inc. in exchange for six million newly-issued shares of OXiGENE common stock, subject to adjustment as described below. Based upon a price of $2.08 per share, the closing market price of OXiGENE common stock on July 2, 2009, the stock has a value of approximately $12.5 million. Upon closing of the transaction, which is expected to occur within thirty days, Symphony Capital will own approximately 44% of the total OXiGENE Common Stock outstanding.

OXiGENE and Symphony have negotiated new terms for the Purchase Option Agreement entered into on October 1, 2008 to satisfy the purchase price for OXiGENE’s option to acquire Symphony ViDA. Under the terms of the new Amended and Restated Purchase Option Agreement, the Company will re-acquire all rights to the ZYBRESTAT™ for ophthalmology and OXi4503 programs that are currently licensed to Symphony ViDA. In addition, the approximately $12.5 million in cash currently held by Symphony ViDA will become available for use for OXiGENE’s general corporate purposes, including funding development of the company’s pivotal trial-stage drug candidate, ZYBRESTAT for oncology. In the event that OXiGENE issues additional securities prior to January 2, 2010 at a price lower than $2.08 per share, Symphony will have the right to receive additional securities in an amount reflecting the difference in value of the securities at the time of such subsequent issuance and $2.08 per share.

“We expect this important step in our strategic partnership with Symphony Capital to drive value for all shareholders by enabling us to more efficiently allocate our capital resources across all of our drug development programs,” commented John A. Kollins, OXiGENE’s Chief Executive Officer. “At the same time, we regain rights to the ZYBRESTAT for ophthalmology and OXi4503 programs and eliminate OXiGENE’s future funding obligations of up to $15 million to Symphony ViDA. We anticipate continuing the strong and supportive working relationship we’ve established with Symphony Capital, which we believe has facilitated significant progress in our drug

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OXGN Exercises Purchase Option Agreement
July 6, 2009
Page 2 of 4

development programs and associated business initiatives since the beginning of our collaboration last year.”

The two members of the Company’s Board of Directors appointed by Symphony, Mr. Mark Kessel and Dr. Alastair Wood, will remain on the Board, and the Company expects to maintain its advisory relationships with Symphony and RRD International LLC.

“The additional investment we’re making in OXiGENE under this agreement reflects our continued confidence in the Company, its management, and its prospects for success in developing novel and valuable anti-vascular therapeutics for cancer and eye diseases,” said Mark Kessel, founder and Managing Director of Symphony Capital.

Conference Call Today

Members of OXiGENE’s management team will discuss the restructured relationship with Symphony Capital via a webcast and conference call today at 1:00 p.m. EDT (10 a.m. PDT). To listen to a live or an archived version of the audio webcast, please log on to the Company’s website, www.oxigene.com. Under the “Investors” tab, select the link to “Events and Presentations.”

OXiGENE’s conference call can also be heard live by dialing 800-239-9838 in the United States and Canada, and 913-312-1266 for international callers, five minutes prior to the beginning of the call. A replay will be available starting at 4:00 p.m. EDT (1:00 p.m. PDT) on July 6, 2009 and ending at midnight EDT (9:00 p.m. PDT) on July 20, 2009. To access the replay, please dial 888-203-1112 if calling from the United States or Canada, or 719-457-0820 from international locations. Please refer to replay pass code 1649423.

About ZYBRESTAT

ZYBRESTAT is currently being evaluated in a pivotal registration study in anaplastic thyroid cancer (ATC) under a Special Protocol Assessment agreement with the U.S. Food and Drug Administration (FDA). OXiGENE believes that ZYBRESTAT is poised to become the first therapeutic product in a novel class of small-molecule drug candidates called vascular disrupting agents (VDAs). Through interaction with vascular endothelial cell cytoskeletal proteins, ZYBRESTAT selectively targets and collapses tumor vasculature, thereby depriving the tumor of oxygen and causing death of tumor cells. In clinical studies in solid tumors, ZYBRESTAT has demonstrated potent and selective activity against tumor vasculature, as well as clinical activity against ATC, ovarian cancer and various other solid tumors. In clinical studies in patients with forms of macular degeneration, intravenously-administered ZYBRESTAT has demonstrated activity, and the Company’s objective is to develop a topical formulation of ZYBRESTAT for ophthalmological indications.

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OXGN Exercises Purchase Option Agreement
July 6, 2009
Page 3 of 4

About OXi4503

OXi4503 (combretastatin A1 di-phosphate / CA1P) is a dual-mechanism vascular disrupting agent (VDA) that is being developed in clinical studies for the treatment of solid tumors. Like its structural analog, ZYBRESTAT (fosbretabulin / CA4P), OXi4503 has been observed to block and destroy tumor vasculature, resulting in extensive tumor cell death and necrosis. In addition, preclinical data indicate that OXi4503 is metabolized by oxidative enzymes (e.g., tyrosinase and peroxidases), which are elevated in many solid tumors and tumor white blood cell infiltrates, to an orthoquinone chemical species that has direct cytotoxic effects on tumor cells. Preclinical studies have shown that OXi4503 has (i) single-agent activity against a range of xenograft tumor models; and (ii) synergistic or additive effects when incorporated in various combination regimens with chemotherapy, molecularly-targeted therapies (including tumor-angiogenesis inhibitors), and radiation therapy. OXi4503 is currently being evaluated as a monotherapy in a Phase 1 dose-escalation study in patients with advanced solid tumors and in a Phase 1b/2a study in patients with hepatic tumor burden.

About Symphony Capital Partners, LP

Symphony Capital is a New York-based private equity firm that invests in development stage biopharmaceutical programs. Symphony has the most experienced team in R&D project-specific financings and invests exclusively in the type of collaboration undertaken with OXiGENE. Symphony Capital Partners, LP is the lead investor in Symphony ViDA. Additional information about Symphony is available at www.symphonycapital.com.

About RRD International, LLC

RRD International, LLC (RRD) is a product development company dedicated to supporting the global regulatory, preclinical and clinical needs of biotechnology, pharmaceutical and medical device companies. RRD provides comprehensive strategic planning and operational support from program inception to product approval including the design, management and execution of clinical trials. RRD’s team of highly experienced drug and device developers has a substantial record of favorable FDA interactions and outcomes. Through its customized and flexible business approach, RRD offers a unique risk-sharing model, enabling its goals and interests to be aligned with a partner company’s success. Additional information about RRD is available at www.rrdintl.com.

About OXiGENE

OXiGENE is a clinical-stage biopharmaceutical company developing novel therapeutics to treat cancer and eye diseases. The company’s major focus is developing vascular

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OXGN Exercises Purchase Option Agreement
July 6, 2009
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disrupting agents (VDAs) that selectively disrupt abnormal blood vessels associated with solid tumor progression and visual impairment. OXiGENE is dedicated to leveraging its intellectual property and therapeutic development expertise to bring life-extending and life-enhancing medicines to patients.

Safe Harbor Statement

This news release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Any or all of the forward-looking statements in this press release may turn out to be wrong. Forward-looking statements can be affected by inaccurate assumptions OXiGENE might make or by known or unknown risks and uncertainties, including, but not limited to, enrollment rate for patients in the ZYBRESTAT pivotal trial for anaplastic thyroid cancer, interim analysis of the same, timing of the IND filing and Phase 1 trial initiation for topical ZYBRESTAT, timing of a Phase 2 study of ZYBRESTAT and bevacizumab in NSCLC, timing or execution of a strategic collaboration on any product or indication, and cash utilization rate for 2009. Additional information concerning factors that could cause actual results to materially differ from those in the forward-looking statements is contained in OXiGENE’s reports to the Securities and Exchange Commission, including OXiGENE’s reports on Form 10-K, 10-Q and 8-K. However, OXiGENE undertakes no obligation to publicly update forward-looking statements, whether because of new information, future events or otherwise. Please refer to our Annual Report on Form 10-K for the fiscal year ended December 31, 2008.

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