exv10w3






Exhibit 10.3




EXECUTION COPY




 





STOCK AND WARRANT PURCHASE AGREEMENT




between




OXiGENE, INC.




and




SYMPHONY ViDA HOLDINGS LLC




 






Dated as of October 1, 2008




 






 




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





 









 








Table of Contents




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I DEFINITIONS
	 	 	2	 
	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	2	 
	 
	 	 	 	 
	ARTICLE II PURCHASE AND SALE OF SHARES AND WARRANTS
	 	 	2	 
	 
	 	 	 	 
	Section 2.01 Authorization to Issue Shares
	 	 	2	 
	Section 2.02 Purchase and Sale of Shares and Warrants
	 	 	2	 
	Section 2.03 Issuance of Option Premium Shares
	 	 	2	 
	Section 2.04 Share Date
	 	 	3	 
	Section 2.05 Issuance of Additional Shares
	 	 	3	 
	Section 2.06 Issuance of Non-IV Shares
	 	 	3	 
	Section 2.07 The Purchase Option
	 	 	3	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS OF PURCHASE
	 	 	4	 
	 
	 	 	 	 
	Section 3.01 Conditions Precedent to Each Party’s Obligations
	 	 	4	 
	Section 3.02 Conditions Precedent to Holdings’ Obligations
	 	 	4	 
	Section 3.03 Conditions Precedent to the Company’s Obligations
	 	 	6	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS
	 	 	7	 
	 
	 	 	 	 
	Section 4.01 Representations, Warranties and Covenants of Holdings
	 	 	7	 
	Section 4.02 Representations, Warranties of the Company
	 	 	10	 
	Section 4.03 Covenants of the Company
	 	 	14	 
	 
	 	 	 	 
	ARTICLE V INDEMNITY
	 	 	17	 
	 
	 	 	 	 
	Section 5.01 Indemnification
	 	 	17	 
	Section 5.02 Notice of Claims
	 	 	18	 
	Section 5.03 Defense of Proceedings
	 	 	18	 
	Section 5.04 Settlement
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VI TRANSFER RESTRICTIONS
	 	 	20	 
	 
	 	 	 	 
	Section 6.01 Transfer Restrictions
	 	 	20	 
	Section 6.02 Legends
	 	 	21	 
	Section 6.03 Share Legend Removal
	 	 	21	 
	Section 6.04 Improper Transfer
	 	 	22	 
	 
	 	 	 	 
	ARTICLE VII MISCELLANEOUS
	 	 	22	 
	 
	 	 	 	 
	Section 7.01 Notice of Breach
	 	 	22	 
	Section 7.02 Notices
	 	 	22	 





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




 









 








	 	 	 	 	 
	 	 	Page	 
	Section 7.03 Governing Law; Consent to Jurisdiction and Service of Process
	 	 	23	 
	Section 7.04 Waiver of Jury Trial
	 	 	24	 
	Section 7.05 Entire Agreement
	 	 	24	 
	Section 7.06 Amendment and Waivers
	 	 	24	 
	Section 7.07 Counterparts
	 	 	25	 
	Section 7.08 Assignment and Successors
	 	 	25	 
	Section 7.09 Specific Performance
	 	 	25	 






	 	 	 
	Annex A

	 	Certain Definitions
	Exhibit A

	 	Form of opinion of the Company’s counsel
	Exhibit B

	 	Form of OXiGENE Board Indemnification Agreement
	Exhibit 2.05

	 	Form of Addition Investment Warrant
	Exhibit 2.06A

	 	Form of Non-IV Warrant (2,000,000 Shares)
	Exhibit 2.06B

	 	Form of Non IV-Warrant (4,000,000 Shares)





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





 









 








STOCK AND WARRANT PURCHASE AGREEMENT




     This STOCK AND WARRANT PURCHASE AGREEMENT (this “Agreement”) is dated as of October 1,
2008, 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”).



     WHEREAS, contemporaneously with the execution of this Agreement, Holdings, the Company, and
Symphony ViDA, Inc., a Delaware corporation (the “Symphony Collaboration”) are entering
into a Purchase Option Agreement (the “Purchase Option Agreement”) pursuant to which, among
other things, Holdings is granting to the Company an option to purchase all of the equity
securities of the Symphony Collaboration (the “Symphony Collaboration Equity Securities”)
owned, or hereafter acquired, by Holdings on the terms and conditions set forth in the Purchase
Option Agreement (the “Purchase Option”); and



     WHEREAS, in consideration for Holdings’ grant of the Purchase Option to the Company, the
Company desires to issue to Holdings, for no additional consideration, an aggregate of 3,603,604
(three million six hundred three thousand six hundred four) shares of common stock of the Company
(the “Option Premium Shares”) on the terms and conditions set forth herein in an aggregate
amount of $4,000,000 (four million dollars);



     WHEREAS, Holdings desires to purchase for cash in the amount of up to $15,000,000 (fifteen
million dollars) (a) 2,231,637 (two million two hundred thirty one thousand six hundred thirty
seven) shares of common stock of the Company (the “Direct Investment Shares”) and (b)
warrants (the “Direct Investment Warrant”) to purchase 11,281,877 (eleven million two
hundred eighty one thousand eight hundred seventy seven) shares of common stock of the Company (the
“Warrant Shares”), in each case on the terms and conditions set forth in this Agreement,
and the Company desires to sell such Direct Investment Shares and Direct Investment Warrant on such
terms and conditions; 



     WHEREAS, Holdings may, pursuant and subject to the terms of the Additional Funding Agreement,
make a second capital contribution to the Symphony Collaboration of up to $10,000,000 (ten million
dollars) (the “Additional Holdings Funding”).



     WHEREAS, in consideration for the Additional Holdings Funding, the Company shall issue to
Holdings, for no additional consideration, either, or a combination of, (a) additional shares of
the Company’s common stock (the “Additional Investment Shares”) having a market value of up
to $1 million, to the extent permitted by the NASDAQ Rules, or (b) a warrant to purchase such
number of Additional Investment




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement



 









 







Shares, to the extent the issuance of the Additional Investment Shares is not permitted under the
NASDAQ Rules at such time.




     WHEREAS, pursuant and subject to the terms of the Novated and Restated Technology License
Agreement, the Company shall issue to Holdings the Non-IV Shares and/or the Non-IV Warrant at the
Non-IV Closing Date.



     WHEREAS, pursuant and subject to the terms of the Purchase Option Agreement, the Company shall
have the right to purchase 100% of Holdings’ equity ownership interest in the Symphony
Collaboration at the Purchase Option Closing Date in cash or a combination of cash and Company
Common Stock.



     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:



ARTICLE I




DEFINITIONS




     Section 1.01 Definitions. Capitalized terms used but not defined herein are used as
defined in Annex A hereto.




ARTICLE II




PURCHASE AND SALE OF SHARES AND WARRANTS




     Section 2.01 Authorization to Issue Shares. The Company has authorized the issuance of
shares of the Company’s common stock, par value $0.01 per share (“Company Common Stock”),
necessary to satisfy the Company’s obligations contemplated by this Agreement and the other
Operative Documents. The value of the shares of Company Common Stock as of the date hereof is
$1.11 per share.



     Section 2.02 Purchase and Sale of Shares and Warrants. Subject to the satisfaction or
waiver of the conditions set forth in this Agreement, the Company hereby agrees to issue to
Holdings, and Holdings hereby agrees to acquire from the Company, the Direct Investment Shares and
the Direct Investment Warrant on October 17, 2008, or any other date as may be agreed upon by the
parties (hereinafter, the “Share Date”), subject to the fulfillment of the conditions
precedent described in Article III below. The Direct Investment Shares and the Direct
Investment Warrant will be issued to Holdings as consideration for payment of $2,477,117.07 (two
million four hundred seventy seven thousand one hundred seventeen dollars and seven cents) in
immediately available funds to the Company on the Share Date.



     Section 2.03 Issuance of Option Premium Shares. The Company hereby agrees to issue to
Holdings, and Holdings hereby agrees to acquire from the Company,




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Stock and Warrant Purchase Agreement




2









 







the Option Premium Shares on the
Share Date, subject to the fulfillment of the conditions precedent described in Article III
below. The Option Premium Shares will be issued to Holdings as consideration for the execution and
delivery by Holdings of the Purchase Option Agreement.




     Section 2.04 Share Date. Subject to the terms and conditions of this Agreement, the
issuance, sale and purchase of the Direct Investment Shares, the Direct Investment Warrant and the
Option Premium Shares contemplated by this Agreement shall take place at a closing on the Share
Date (the “Share Closing”) to be held at the offices of Paul, Weiss, Rifkind, Wharton &
Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019, at 4:30 P.M., Eastern Time,
following the satisfaction or waiver of all conditions to the obligations of the Parties set forth
in Article III below, or at such other place or at such other time or such other date as
Holdings and the Company shall mutually agree upon in writing.



     Section 2.05 Issuance of Additional Shares. In accordance with the terms of the Additional
Funding Agreement, the Company shall issue to Holdings the Additional Investment Shares at the
Additional Closing Date. To the extent that the issuance of all or a portion of the Additional
Investment Shares is not permitted under the NASDAQ Rules at such time, Holdings shall be issued a
warrant, in a form substantially the same as set forth in Exhibit 2.05 hereto (the “Additional
Investment Warrant”), to purchase such number of Additional Investment Shares at an exercise
price of $0.01 per share.



     Section 2.06 Issuance of Non-IV Shares. In accordance with the terms of the Novated and
Restated Technology License Agreement, at the Non-IV Closing Date, Holdings shall have the right to
purchase the Non-IV Shares at a price equal to $1.22 per share (as adjusted for stock splits,
recapitalizations and other similar events occurring since the date hereof). If the issuance and
purchase of the Non-IV Shares is not permitted under the NASDAQ Rules, a warrant, in a form
substantially the same as set forth in Exhibit 2.06A or 2.06B (as applicable under the terms of the
Novated and Restated Technology License Agreement), will be issued to Holdings to purchase the
applicable number of Non-IV Shares (the “Non-IV Warrant”).



     Section 2.07 The Purchase Option. In accordance with the terms of the Purchase Option
Agreement, if the Company elects to exercise its Purchase Option, the Company shall have the right,
at its sole discretion, to purchase 100% of Holdings’ equity ownership interest in the Symphony
Collaboration at the Purchase Option Closing Date. At the Purchase Option Closing Date, the
Company shall pay the Purchase Option Price to Holdings in cash or a combination of cash and
Company Common Stock, and Holdings shall surrender 100% of its certificates representing its
Symphony Collaboration Equity Securities.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Stock and Warrant Purchase Agreement




3









 








ARTICLE III




CONDITIONS OF PURCHASE




     Section 3.01 Conditions Precedent to Each Party’s Obligations. The respective
obligations of the Company and Holdings to effect the transactions contemplated hereby (except for
those transactions which contemplate completion after the date hereof) shall be subject to the
satisfaction of the conditions precedent contained in this Section 3.01 or the waiver
thereof in writing by Holdings and the Company prior to or on the Share Date.



          (a) Approvals. All Governmental Approvals imposed by any Governmental Authority in
connection with the transactions contemplated by this Agreement and the other Operative Documents
required to be in effect prior to or on the Share Date shall be in effect, 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 either of the Parties.




          (b) Litigation. No Governmental Authority of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any Law or Governmental Order (whether temporary,
preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits the
consummation of the transactions contemplated hereby or in the other Operative Documents.




     Section 3.02 Conditions Precedent to Holdings’ Obligations. The obligation of
Holdings to effect the transactions contemplated hereby (except for those transactions which
contemplate completion after the date hereof) shall be subject to the satisfaction of the further
conditions precedent contained in this Section 3.02, or the waiver thereof in writing by
Holdings, prior to or on the Share Date.



          (a) Authorization, Execution and Delivery of Documents. This Agreement and each of
the other Operative Documents (including all schedules, annexes and exhibits thereto) required to
be entered into on or prior to the Share Date shall have been duly authorized, executed and
delivered by each of the parties thereto (other than Holdings) and shall be in full force and
effect.




          (b) Shares. All actions required by any applicable Law, or necessary in the
reasonable opinion of Holdings, to issue the Direct Investment Shares, the Direct Investment
Warrant, the Warrant Shares, the Option Premium Shares, the Additional Investment Shares, the
Additional Investment Warrant, the Non-IV Shares, the Non-IV Warrant and the Purchase Option Shares
(collectively and together with the securities issuable upon the exercise of such warrants, the
“Company Securities”) shall have been duly taken by the Company (or provisions therefor
shall have been made), including, without limitation, the making of all registrations and filings
required to be made prior to or on the Share Date, and all necessary consents to the issuance of





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




4









 







Company Securities shall have been received, the failure to take, or the absence of which,
would either individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect on the Company. In addition, the Common Stock shall continue to be listed and traded on the
NASDAQ Global Market.




          (c) Performance of Obligations by the Company; Representations and Warranties. The
Company shall have performed in all material respects and complied in all material respects with
all agreements and conditions contained in this Agreement and the other Operative Documents that
are required to be performed or complied with by it prior to or on the Share Date. The Company’s
representations and warranties set forth in Section 4.02 of this Agreement shall be true
and correct in all material respects as of the Share Date (or if stated to have been made as of an
earlier date, as of such date).




          (d) Opinion of Counsel. Holdings shall have received an opinion letter from Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., the Company’s outside counsel, substantially in the
form attached hereto as Exhibit A.




          (e) Share Closing Certificate. Holdings shall have received a certificate from the
Company executed by its Chief Financial Officer or other duly authorized executive officer, dated
as of the Share Date, in form and substance reasonably satisfactory to Holdings, certifying:




               (i) (A) that the Operative Documents to which the Company is a party have been duly
authorized, executed and delivered by the Company, and are in full force and effect, and (B) that
the Company has satisfied all conditions precedent contained in the Operative Documents to which it
is a party that are required to be satisfied by it on or prior to the Share Date; and



               (ii) as to (A) the accuracy and completeness of the contents of the Company’s charter
documents, (B) the resolutions of the Company’s board of directors (the “Company Board”),
duly authorizing the Company’s execution, delivery and performance of each Operative Document to
which it is or is to be a party and each other document required to be executed and delivered by it
in accordance with the provisions hereof or thereof, and (C) the incumbency and signature of the
Company’s representatives authorized to execute and deliver documents on its behalf in connection
with the obligations contemplated hereby and by the other Operative Documents.



          (f) No Events of Default. No breach, default, event of default or other similar event
by the Company, and no event which with the giving of notice, the passage of time, or both, would
constitute any of the foregoing, under any Operative Document or any other material contract or
agreement to which the Company is a party, shall have occurred and be continuing, and no condition
shall exist that constitutes, or with the giving of notice, the passage of time, or both, would
constitute such default,





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Stock and Warrant Purchase Agreement



5









 







event of default or other similar event, except as would not reasonably be expected to cause a
Material Adverse Effect on the Company.




          (g) Further Documents, Certificates, Etc. Holdings shall have received such other
documents or certificates as Holdings may reasonably request in connection with the consummation of
the transactions contemplated by this Agreement.




          (h) No Violation. The transactions contemplated hereby shall comply in all material
respects with all applicable Law in effect as of the Share Date, and no party (other than Holdings)
to such transactions shall be in violation of any such applicable Law that would have a Material
Adverse Effect on the Company. Holdings shall not be subject to any penalty or liability pursuant
to any violation of applicable Law in effect as of such Share Date by virtue of the transactions
contemplated hereby and by each of the other Operative Documents.




          (i) Change in Law. There shall have been no change in any Law, rule or regulation or
the interpretation thereof (including any Law, rule or regulation relating to taxes) that prohibits
or prevents the consummation of this Agreement or any of the transactions contemplated hereby
(including the sale and purchase of the Company Securities) or by the other Operative Documents or
that results in any material increase in taxes payable by Holdings or Investors in connection with
or related to the consummation of this Agreement or any transaction contemplated hereby.




          (j) NASDAQ Compliance. Holdings shall be satisfied that the transactions contemplated
by this Agreement comply with the NASDAQ Rules, including, without limitation, Rules 4350(i)(1)(B)
and 4350(i)(1)(D).




     Section 3.03 Conditions Precedent to the Company’s Obligations. The obligation of the
Company to effect the transactions contemplated hereby (except for those transactions which
contemplate completion after the date hereof) shall be subject to the satisfaction of the further
conditions precedent contained in this Section 3.03, or the waiver thereof in writing by
the Company, prior to or on the Share Date.



          (a) Authorization, Execution and Delivery of Documents. This Agreement and each of
the other Operative Documents (including all schedules, annexes and exhibits thereto) required to
be entered into on or prior to the Share Date shall have been duly authorized, executed and
delivered by each of the parties thereto (other than the Company) and shall be in full force and
effect.




          (b) Performance of Obligations by Holdings; Representations and Warranties. As of the
Share Date, Holdings shall have performed in all material respects and complied in all material
respects with all agreements and conditions contained in this Agreement and the other Operative
Documents required to be performed or complied with by it prior to or at the Share Date. Each of
Holdings’ representations and warranties set forth in Section 4.01 of this Agreement shall
be true and correct in all





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Stock and Warrant Purchase Agreement



6









 







respects as of the Share Date with the same effect as though such representations and
warranties were made on and as of the Share Date (or if stated to have been made as of an earlier
date, as of such date).




          (c) No Events of Default. No breach, default, event of default or other similar event
by Holdings, and no event which with the giving of notice, the passage of time, or both, would
constitute any of the foregoing, under any Operative Document or any other material contract or
agreement to which Holdings is a party, shall have occurred and be continuing, and no condition
shall exist that constitutes, or with the giving of notice, the passage of time, or both, would
constitute such default, event of default or other similar event.




          (d) No Violation. The transactions contemplated hereby shall comply in all material
respects with all applicable Law in effect as of the Share Date, and no party (other than the
Company) to such transactions shall be in material violation of any such applicable Law. The
Company shall not be subject to any penalty or liability pursuant to any violation of applicable
Law in effect as of such Share Date by virtue of the transactions contemplated hereby and by each
of the other Operative Documents.




          (e) Change in Law. There shall have been no change in any Law, rule or regulation or
the interpretation thereof (including any Law, rule or regulation relating to taxes) that prohibits
or prevents the consummation of this Agreement or any of the transactions contemplated hereby
(including the sale and purchase of the Company Securities) or by the other Operative Documents or
that results in any material increase in taxes payable by the Company in connection with or related
to the consummation of this Agreement or any transaction contemplated hereby.




ARTICLE IV




REPRESENTATIONS, WARRANTIES AND COVENANTS




     Section 4.01 Representations, Warranties and Covenants of Holdings.



          (a) Holdings hereby represents and warrants to the Company 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 the
other Operative Documents and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by Holdings of this Agreement and the other Operative Documents
and the consummation of the transactions contemplated hereby and thereby have been duly and




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




7









 







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 and the other
Operative Documents or for Holdings to perform its obligations under this Agreement or the other
Operative Documents. 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 other Operative Documents and the transactions contemplated hereby and thereby 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 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. 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 threatened to be named as a party) to set
aside, restrain, enjoin or prevent the execution, delivery or performance of this Agreement or the
other Operative Documents or the consummation of the transactions contemplated hereby or thereby by
any party hereto or thereto. 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




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




8









 







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




               (vi) Availability of Funds. Holdings has capital commitments for the requisite funds
necessary to consummate the transactions contemplated by the Operative Documents at the Share Date.



               (vii) 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 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 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 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 as set forth
in Section 6.01 hereof. Holdings agrees that the Company 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.



                    (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 (four million dollars), and the Additional Investment Shares, with a value of up to
$1,000,000 (one million dollars), for federal, state and local income tax purposes as option
premiums paid in return for the grant of the Purchase Option and the Additional Holdings Funding.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




9









 








     Section 4.02 Representations, Warranties of the Company. The Company hereby
represents and warrants to Holdings that:



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




          (b) Authority and Validity. The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement and the other
Operative Documents and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by the Company of this Agreement and the other Operative
Documents and the consummation of the transactions contemplated hereby and thereby 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 are necessary to authorize this Agreement or the other
Operative Documents or for the Company to perform its obligations under this Agreement or the other
Operative Documents. This Agreement and the other Operative Documents constitute the lawful, valid
and legally binding obligations of the Company, enforceable in accordance with their 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.




          (c) Capitalization. The authorized capital stock of the Company consists of
100,000,000 shares of Common Stock of which 29,176,207 shares were outstanding as of the date of
this Agreement. There are, as of September 30, 2008, outstanding options (each, a “Company
Stock Option”) to purchase an aggregate of not more than 2,218,500 shares of Company Common
Stock. All of the outstanding shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable. The Company Securities to be issued
pursuant to approval by the Company Board and/or Stockholder Approval in accordance with the terms
of this Agreement and the other Operative Documents or in respect of or upon conversion or exchange
of the Warrant Shares, the Additional Investment Warrant, the Additional Investment Shares, the
Non-IV Shares and the Non-IV Warrant, as the case may be, will be duly and validly authorized and
issued and fully paid and nonassessable, free and clear of all liens, and will not trigger any
pre-emptive or similar rights of any other Person. Except as set forth in this Section
4.02(c), there are no outstanding subscriptions, contracts, conversion privileges, options,
warrants, calls, preemptive rights or other rights obligating the Company to issue, sell or
otherwise dispose of, or to purchase, redeem or otherwise acquire, any shares of capital stock.
Except as set forth in this Section 4.02(c), there are no other authorized or outstanding
shares of capital stock or convertible securities of the Company.




          (d) No Violation or Conflict. The execution, delivery and performance of this
Agreement and the other Operative Documents and the transactions contemplated hereby and thereby do
not (A) violate, conflict with or result in the breach





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Stock and Warrant Purchase Agreement




10









 







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.




          (e) Governmental Consents and Approvals. The execution, delivery and performance of
this Agreement and the other Operative Documents by the Company do not, and the consummation of the
transactions contemplated hereby and thereby 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.




          (f) Litigation. Except as disclosed in any of the Company Public Filings available as
of the date hereof, 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 other 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.




          (g) Private Placement. Assuming the accuracy of Holdings’ representations and
warranties set forth in Section 4.01, (i) the purchase and sale of the Company Securities
is exempt from the registration requirements of the Securities Act, and (ii) no other offering of
Company Common Stock by the Company will be integrated with the offering of the Company Securities,
except with respect to the Additional Investment Shares or Non-IV Shares. Neither the Company nor
any Person acting on its behalf has or will offer the Company Securities by any form of general
solicitation or general advertising and all filings required under Rule 503 of the Securities Act
will be made in a timely manner.





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




11









 








          (h) No Undisclosed Liabilities; Internal Controls and Procedures.




               (i) The Company has filed all reports, schedules, forms, statements and other documents with
the SEC required to be filed by it since December 31, 2007 (including any items incorporated by
reference or attached as Exhibits thereto) (the “SEC Documents”). As of their respective
dates of filing, the SEC Documents complied as to form in all material respects with the
requirements of the Securities Act of 1933, as amended (the “Securities Act”), or the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), as the case may be, and
the rules and regulations of the SEC promulgated thereunder applicable thereto, and none of the SEC
Documents contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. There are no outstanding comments from
the SEC with respect to any SEC Document. The audited consolidated financial statements and the
unaudited quarterly financial statements (including, in each case, the notes thereto) of the
Company included in the SEC Documents when filed complied as to form in all material respects with
the published rules and regulations of the SEC with respect thereto, have been prepared in all
material respects in accordance with United States generally accepted accounting principles
(“GAAP”) (except, in the case of unaudited quarterly statements, as permitted by Form 10-Q
of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the
periods involved (except as may be indicated in the notes thereto) and fairly present in all
material respects the consolidated financial position of the Company as of the dates thereof and
the consolidated results of its operations and cash flows for the periods then ended (subject, in
the case of unaudited quarterly statements, to normal year-end adjustments). Except as
specifically reflected or reserved against in the audited consolidated balance sheet of the Company
at December 31, 2007 included in the filed SEC Documents, the Company does not have any liabilities
or obligations (whether absolute, accrued, contingent, fixed or otherwise) of any nature that would
be required under GAAP, as in effect on the date of this Agreement, to be reflected on a
consolidated balance sheet of the Company (including the notes thereto), except liabilities and
obligations that (A) were incurred in the ordinary course of business consistent with past practice
since December 31, 2007 and (B) have not had and would not, individually or in the aggregate,
reasonably be expected to have, a Material Adverse Effect on the Company. The Company does not
maintain any “off-balance sheet arrangement” within the meaning of Item 303 of Regulation S-K of
the SEC.



               (ii) The Company (A) has implemented and maintains disclosure controls and procedures (as
defined in Rule 13a-15(e) under the Exchange Act) to ensure that material information relating to
the Company is made known to the chief executive officer and the chief financial officer of the
Company, and (B) has disclosed, based on its most recent evaluation prior to the date hereof, to
the Company’s outside auditors and the audit committee of the Company Board (1) any significant
deficiencies and material weaknesses in the design or operation of internal controls over



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Stock and Warrant Purchase Agreement





12









 







financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably
likely to adversely affect the Company’s ability to record, process, summarize and report financial
information and (2) any fraud, whether or not material, that involves management or other employees
who have a significant role in the Company’s internal controls over financial reporting. As of the
date of this Agreement, the Company has no Knowledge of any reason that its outside auditors and
its chief executive officer and chief financial officer will not be able to give the certifications
and attestations required pursuant to the rules and regulations promulgated under Sections 302 and
404 of the Sarbanes-Oxley Act of 2002, without qualification, when next due. Since December 31,
2007, (x) the Company has not received or otherwise had or obtained knowledge of any material
complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or
auditing practices, procedures, methodologies or methods of the Company or its internal accounting
controls, including any material complaint, allegation, assertion or claim that the Company has
engaged in questionable accounting or auditing practices, and (y) no attorney representing the
Company, whether or not employed by the Company, has reported evidence of a material violation of
securities laws, breach of fiduciary duty or similar violation by the Company or any of its
officers, directors, employees or agents to the Company Board or any committee thereof or to any
director or officer of the Company.




          (i) Anti-takeover Provisions. The Company Board has taken all necessary actions such
that the provisions of Section 203 of the Delaware General Corporation Law (the “DGCL”) as
they relate to the Company do not and will not apply to the acquisition of the Company Securities
pursuant to this Agreement or the other Operative Documents or to any of the transactions
contemplated hereby or thereby. The acquisition of the Company Securities pursuant this Agreement
and the other Operative Documents and the transactions contemplated hereby and thereby have been
approved by the Company Board.




          (j) Board and Stockholder Approvals. The transactions contemplated by this Agreement
and the other Operative Documents have been approved unanimously by the Company Board. The Company
Board has unanimously (i) adopted, approved and declared advisable all of the transactions
contemplated by this Agreement and the other Operative Documents and the Stockholder Approval, (ii)
directed that the Stockholder Approval be submitted to the stockholders of the Company for their
approval and adoption and (iii) recommended that the stockholders of the Company adopt and grant
the Stockholder Approval.




          (k) Brokers and Finders. None of the Company’s officers, directors or employees have
incurred any liability for any financial advisory fees, brokerage fees, commissions or finder’s
fees in connection with this Agreement or the other Operative Documents or the transactions
contemplated hereby or thereby.




          (l) Rights Plan. The Company has delivered or made available to Holdings a correct
and complete copy of the Company shareholders’ rights agreement, dated as of March 24, 2005 (the
“Rights Plan”), including all exhibits thereto. The





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Stock and Warrant Purchase Agreement




13









 







Company has taken, and will take, all necessary action so that neither the execution and
delivery of this Agreement nor the consummation of the transactions contemplated herein will
(i) cause the rights granted under the Rights Plan to become exercisable, (ii) cause Holdings or
any Affiliate of Holdings, to become an “Acquiring Person” (as defined in the Rights Plan) or
(iii) give rise to a “Distribution Date” (as defined in the Rights Plan) or other triggering event
under the Rights Plan.




          (m) Compliance with Law. The business of the Company is presently being conducted in
compliance with all applicable federal, state, local and foreign governmental laws, rules,
regulations and ordinances, except where the failure to be in compliance would not reasonably be
expected to cause a Material Adverse Effect on the Company. The Company has all franchises,
permits, licenses, consents and other governmental or regulatory authorizations and approvals
necessary for the conduct of its business as now being conducted by it, except for such franchises,
permits, licenses, consents and other governmental or regulatory authorizations and approvals, the
failure to possess which, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect on the Company.




          (n) Material Non-Public Information. Except for this Agreement and the other
Operative Documents and the transactions contemplated hereby and thereby, neither the Company nor
its employees have disclosed to Holdings or its Affiliates, any material non-public information
that, according to applicable Law, rule or regulation, should have been disclosed publicly by the
Company prior to the date hereof but which has not been so disclosed.




     Section 4.03 Covenants of the Company.



          (a) The Company covenants and agrees with Holdings that, so long as any of the Direct
Investment Warrant, Additional Investment Warrant or Non-IV Warrant are outstanding or the Purchase
Option is unexercised (including as such Direct Investment Warrant, Additional Investment Warrant
or Non-IV Warrant may be reissued pursuant to transfer in accordance with Section 6.01
hereof), the Company shall take all action necessary to reserve and keep available out of its
authorized and unissued Company Common Stock, solely for the purpose of effecting the exercise of
the Direct Investment Warrant, Additional Investment Warrant, Non-IV Warrant or the Purchase
Option, as the case may be, 100% of the number of shares of Company Common Stock issuable upon
exercise of the Direct Investment Warrant, Additional Investment Warrant, Non-IV Warrant or
Purchase Option as applicable. Upon exercise in accordance with the Direct Investment Warrant,
Additional Investment Warrant, Non-IV Warrant or Purchase Option, the Company Common Stock
delivered thereby will be validly issued, fully paid and nonassessable and free from all taxes,
liens, preemptive rights and charges with respect to the issue thereof, with the holders being
entitled to all rights accorded to a holder of the Company Common Stock.




          (b) The Company acknowledges and agrees to treat the Option Premium Shares, with a value of
$4,000,000 (four million dollars), and the Additional





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




14









 







Investment Shares, with a value of up to $1,000,000 (one million dollars), for federal, state
and local income tax purposes as option premiums paid in return for the grant of the Purchase
Option and the Additional Holdings Funding.




          (c) Reasonable Best Efforts. The Company agrees to use its reasonable best efforts to
obtain the Stockholder Approval. In connection with the foregoing, the Company shall call and hold
a meeting of its stockholders to seek Stockholder Approval prior to December 15, 2008, and file
with the SEC a proxy statement and shall use its reasonable best efforts to solicit proxies in
favor of Stockholder Approval, and shall use its reasonable best efforts to respond to any comments
of the SEC or its staff and to cause a definitive proxy statement related to such stockholders’
meeting to be mailed to the Company’s stockholders. The Company Board shall unanimously recommend
Stockholder Approval and such unanimous recommendation shall be included in each proxy statement
filed with the SEC and disseminated to the Company stockholders in connection with such stockholder
meeting (such recommendations, the “Company Board Recommendation”). The Company shall
notify Holdings promptly of the receipt of any comments from the SEC or its staff and of any
request by the SEC or its staff for amendments or supplements to such proxy statement or for
additional information and will supply Holdings with copies of all correspondence between the
Company or any of its representatives, on the one hand, and the SEC or its staff, on the other
hand, with respect to such proxy statement. If at any time prior to such stockholders’ meeting
there shall occur any event that is required to be set forth in an amendment or supplement to the
proxy statement, the Company shall as promptly as practicable prepare and mail to its stockholders
such an amendment or supplement. Each of Holdings and the Company agrees promptly to correct any
information provided by it or on its behalf for use in the proxy statement if and to the extent
that such information shall have become false or misleading in any material respect, and the
Company shall as promptly as practicable prepare and mail to its stockholders an amendment or
supplement to correct such information to the extent required by applicable laws and regulations.
The Company shall provide Holdings with drafts of each such proxy statement, or amendment or
supplement thereto, and consult with Holdings regarding the same, in each case, prior to filing or
mailing the same. Without limiting the generality of the foregoing, the Company’s obligations
pursuant to the first two sentences of this Section 4.03(c) shall not be affected by the
withdrawal or modification by the Company Board or any committee thereof of the Company Board
Recommendation. In the event that Stockholder Approval is not obtained at the first meeting of
stockholders at which Stockholder Approval is sought, at the written request of Holdings, the
Company shall call and convene a subsequent meeting of stockholders for the purpose of obtaining
Stockholder Approval (and the Company Board will unanimously recommend Stockholder Approval), which
meeting may not be unreasonably delayed by the Company, and all covenants between the parties set
forth in this Section 4.03(c) shall apply equally with respect to any subsequent meeting of
stockholders. Unless otherwise required by Law, the Company shall not call or convene a meeting of
its stockholders prior to the meeting of stockholders at which Stockholder Approval is sought.





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




15









 








          (d) Officer and Director Insurance.




               (i) For so long as Holdings has a representative on the Company Board and for a period of six
(6) years following the date on which Holdings no longer has a representative on the Company Board,
the Company shall maintain the current policies of directors’ and officers’ liability insurance
maintained by the Company or policies of at least the same coverage and amounts containing terms
and conditions which are no less advantageous than the current policies so long as the Company is
not required to pay an annual premium in excess of 200% of the last annual premium paid by the
Company for such insurance prior to the date of this Agreement (such 200% amount being the
“Maximum Premium”). If the Company is unable to obtain the insurance described in the
prior sentence for an amount less than or equal to the Maximum Premium, it shall instead obtain as
much comparable insurance as possible for an annual premium equal to the Maximum Premium. The
Company represents that the Maximum Premium is $519,000. Notwithstanding the forgoing, if Holdings
no longer has a representative on the Company Board, the Company may purchase from an insurance
carrier with the same or better rating as the Company’s current insurance carrier a fully prepaid
“tail” insurance policy with respect to directors’ and officers’ liability insurance with respect
to claims against such representative(s) for a claims period of at least six (6) years from the
time such representative no longer serves on the Company Board in amount and scope at least as
favorable as the Company’s existing policies for claims arising from facts or events that occurred
prior to the time of such representative’s departure from the Company Board.



               (ii) The Company will enter into the OXiGENE Board Indemnification Agreement, a form of which
is attached as Exhibit B hereto, with the representatives that Holdings nominates to the
Company Board pursuant to Section 4.03(e) upon such representatives becoming members of the
Company Board.



          (e) Board Rights. For so long as Holdings or its Affiliates collectively own at least
10% of the shares of Company Common Stock outstanding after giving effect to the transactions
contemplated hereby, the Company will cause two (2) representatives nominated by Holdings to be
elected to the Company Board. If Holdings or its Affiliates do not exercise their right to have
representatives appointed to the Company Board and they continue to own at least 10% of the Company
Common Stock outstanding after giving effect to the transactions contemplated hereby, they may
designate, as a group, two (2) representatives to attend meetings of the Company Board. The
Company shall provide such representatives prior written notice of any such meeting and copies of
all minutes, consents, and other materials provided to the directors at such meeting, and such
representatives shall be subject to the provisions of the Confidentiality Agreement.




          (f) Section 16. The Company Board shall take all appropriate actions as may be
necessary or appropriate pursuant to Rule 16b-3(d) under the Exchange Act to exempt, for purposes
of Rule 16b-3 under the Exchange Act the direct or indirect acquisition of Company Common Stock by
Holdings and its Affiliates pursuant to the





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




16









 







terms of this Agreement and the other Operative Documents; provided, however,
that, despite the Company Board taking all such appropriate actions, an exemption for such purposes
shall not be guaranteed.




          (g) Registration and Listing. The Company shall use reasonable best efforts to (i)
cause the Company Common Stock to continue to be registered under Section 12(b) or 12(g) of the
Exchange Act, (ii) comply in all respects with its reporting and filing obligations under the
Exchange Act, and (iii) prevent the termination or suspension of such registration, or the
termination or suspension of its reporting and filing obligations under the Exchange Act or
Securities Act (except as expressly permitted herein). The Company shall use reasonable best
efforts to maintain the listing and trading of the Company Common Stock on the NASDAQ Global Market
or other national securities exchange.




          (h) Legal Opinions. Prior to the delivery of each of the Additional Investment and
the Non-IV Warrant, Holdings shall have received an opinion letter from Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., the Company’s outside counsel, in form and substance reasonably acceptable
to Holdings, with respect to such warrants and the shares of Company Common Stock underlying such
warrants.




ARTICLE V




INDEMNITY




     Section 5.01 Indemnification. To the greatest extent permitted by applicable Law, the
Company shall indemnify and hold harmless Holdings, and Holdings shall indemnify and hold harmless
the Company, and each of their respective Affiliates, officers, directors, employees, agents,
partners, members, successors, assigns and representatives of, and each Person, if any (including
any officers, directors, employees, agents, partners, members of such Person) who controls,
Holdings 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, “Losses”), 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 (as
defined below), (A) any breach of any representation or warranty made by the Company herein or in
the other Operative Documents or (B) any breach of any covenant, agreement or obligation of the
Company contained herein or in the other Operative Documents; provided, that the information
contained in a later filed report filed prior to the date of this Agreement shall be deemed to
update any related information contained in a previously filed report (the items set forth herein
in clauses (A) and (B) being hereinafter referred to as the “Holdings
Claims”), and (ii) in the case of Holdings being the Indemnifying Party, (x) any breach of any
representation or warranty made by




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement



17









 







Holdings herein or in the other Operative Documents or (y) any breach of any covenant,
agreement or obligation of Holdings contained herein or in the other Operative Documents (the items
set forth herein in clauses (x) and (y) being hereinafter referred to as the
“Company Claims”). 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.




     Section 5.02 Notice of Claims. Any Indemnified Party that proposes to assert a right
to be indemnified under this Article V 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 Article V, or the incurrence or realization of
any Loss in respect of which a claim is to be made under this Article V, 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 Article V or otherwise, except, as to such Indemnifying
Party’s liability under this Article V, 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.



     Section 5.03 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 5.02, 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
to so assume the defense thereof and the failure by such Indemnified Party to object to such
counsel within ten (10) 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 counsel in any
such Indemnified Proceeding, but the reasonable fees and expenses of such counsel shall be at the
expense of such Indemnified Party unless:




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement



18









 








               (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 5.03 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 diligently 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.




     Section 5.04 Settlement. Without the prior written consent of such Indemnified Party,
such Indemnifying Party shall not settle or compromise, or consent to




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



 Stock and Warrant Purchase Agreement



19









 







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 Indemnified 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, (B) which includes an injunction that will materially 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.




ARTICLE VI




TRANSFER RESTRICTIONS




     Section 6.01 Transfer Restrictions. Holdings agrees (and agrees to cause all of its
members and any subsequent transferees thereof to so agree) that (i) except as specifically set
forth in the proviso immediately below and without limiting the transfer restrictions in the Direct
Investment Warrant, the Additional Investment Warrant and the Non-IV Warrant, it will not, directly
or indirectly, offer, sell, assign, transfer, distribute, grant or sell a participation in, pledge
or otherwise dispose of any Company Securities or solicit any offers to buy or otherwise acquire,
or take a pledge of, any of the Company Securities (collectively, “Transfer”) unless such
Company Securities are registered and/or qualified under the Securities Act and applicable state
securities Laws, or unless an exemption from the registration or qualification requirements is
otherwise available; provided, that, prior to such registration or qualification,
(x) Holdings may Transfer the Company Securities to Investors, RRD and each Symphony Fund, (y)
Investors may Transfer the Company Securities to its members, and (z) SCP may, in a single
distribution, further Transfer the Company Securities to its limited partners, but in no event
shall any of RRD, the members of Investors (other than SCP) or SCP’s limited partners further
Transfer such Company Securities prior to their registration or qualification (unless pursuant to
an exemption from registration or qualification or in accordance with clauses (x),
(y) or (z)); and (ii) with respect to a private placement of the Company
Securities, no Transfer of such Company Securities shall be effective or recognized unless the
transferor and the transferee make the representations and agreements contained herein and furnish
to the Company such certifications and other information as the Company may reasonably request to
confirm that any proposed transfer complies with the restrictions set forth herein and any
applicable Laws.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




20









 








     Section 6.02 Legends.



          (a) Holdings acknowledges and agrees that the Company shall affix to each stock certificate or
warrant, as applicable, representing the Company Securities a legend in substantially the following
form (the “Share Legend”):





“[THE SHARES][THE WARRANTS AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF] REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN THE
SUBJECT OF REGISTRATION 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.”




“[THE SHARES][THE WARRANTS AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF] REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT
AS PERMITTED UNDER SUCH SECURITIES LAWS, PURSUANT TO REGISTRATION
OR EXEMPTION THEREFROM.”




“[THE SHARES][THE WARRANTS AND THE SECURITIES ISSUABLE UPON
EXERCISE HEREOF] REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK AND
WARRANT PURCHASE AGREEMENT, DATED AS OF OCTOBER 1, 2008, COPIES OF
WHICH ARE ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
ISSUER. NO REGISTRATION OF TRANSFER OF THIS [STOCK][WARRANT]
CERTIFICATE WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS AND
UNTIL SUCH TRANSFER COMPLIES WITH SUCH RESTRICTIONS.”



     Section 6.03 Share Legend Removal. If the certificates representing such Company
Securities include a Share Legend (as set forth in Section 6.02 hereof), the Company shall, upon a
request from Holdings, or a member or subsequent transferee thereof, as soon as practicable but in
no event more than thirty (30) days after receiving such request, remove or cause to be removed (i)
if the Company Securities, cease to be restricted securities, the securities law portion of the
Share Legend and/or (ii) in the event




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement



21









 







of a sale of the Company Securities in compliance with the transfer restrictions, the transfer
restriction portion of the Share Legend, from such certificates representing the Company Securities
as Holdings, or such member or transferee, shall designate, in accordance with the terms hereof
and, if applicable, in accordance with the terms of the applicable Company Securities.




     Section 6.04 Improper Transfer. Any attempt to sell, assign, transfer, grant or sell
a participation in, pledge or otherwise dispose of any Company Securities not in compliance with
this Agreement shall be null and void and the Company, and such transfer agent as the Company may
employ, shall give no effect to, and shall not register or record a transfer pursuant to, such
attempted sale, assignment, transfer, grant, sale of a participation, pledge or other disposition
that is not made in accordance with the terms of this Agreement.



ARTICLE VII




MISCELLANEOUS




     Section 7.01 Notice of Breach. Each Party covenants and agrees that, upon its
acquiring Knowledge of any breach by it of any representation, warranty, covenant or any other term
or condition of this Agreement or acquiring Knowledge of a material event or development that is,
or is reasonably expected to be, 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 the failure to
provide such notice shall not impair or otherwise be deemed a waiver of any rights any Party may
have arising from such breach, material event or development and that notice under this Section
7.01 shall not in itself constitute notice of any breach, unless explicitly stated in such
notice.



     Section 7.02 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 7.02), 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 P.M.
(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:




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




22









 








     the Company:


OXiGENE, Inc.

230 Third Avenue

Waltham, MA 02451

Attn:     Chief Executive Officer

Facsimile: (781) 547-6800




     with a copy to:


Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.

One Financial Center

Boston, MA 02111

Attn:     Jeffrey M. Wiesen, Esq.

Facsimile: (617) 542-2241




     Holdings:


Symphony ViDA Holdings LLC

7361 Calhoun Place, Suite 325

Rockville, MD 20855

Attn:     Robert L. Smith, Jr.

Facsimile: (301) 762-6154




     with a copy 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 7.03 Governing Law; Consent to Jurisdiction and Service of Process.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




23









 








          (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, 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 any Delaware state court
or federal court of the United States of America sitting in New York County 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 consent
to service of process by mail.




     Section 7.04 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 7.05 Entire Agreement. This Agreement (including any Annexes, Schedules,
Exhibits or other attachments here) constitutes the entire agreement between the Parties 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,
excluding the other Operative Documents.



     Section 7.06 Amendment and Waivers. The terms of this Agreement shall not be waived,
altered, modified, amended or supplemented in any manner whatsoever except by a written instrument
signed by each of the Parties. Any Party may waive, solely with respect to itself, any one or more
of its rights hereunder without the




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




24









 







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 hereto against whom such waiver is to be
effective.




     Section 7.07 Counterparts. 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 7.08 Assignment and Successors. Except as otherwise permitted pursuant to
Article VI hereof, neither the Company nor Holdings may Transfer, in whole or in part, any
or all of its rights or obligations hereunder to any Person (a “Transferee”) without the
prior written approval of the other Party; provided, however, that the Company,
without the prior approval of the other Party, acting in accordance with Section 2A of the
Purchase Option Agreement, 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 or consolidation with the Company; provided
further, that in the event of any permitted Transfer by Holdings, Holdings shall provide
written notice to the Company of any such Transfer not later than ten (10) days after such Transfer
setting forth the identity and address of the Transferee and summarizing the terms of the Transfer.



     Section 7.09 Specific Performance. The Parties acknowledge and agree that irreparable
damage would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that
either Party shall be entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Agreement by the other Party and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which either Party may be entitled
by Law or equity.



[SIGNATURES FOLLOW ON NEXT PAGE]





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Stock and Warrant Purchase Agreement




25









 








     IN WITNESS WHEREOF, the Parties 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 Operating 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 Stock and Warrant Purchase Agreement]



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.





26











 





ANNEX A




CERTAIN DEFINITIONS




     “$” means United States dollars.



     “33 Act Legend” has the meaning set forth in Section 2(f) of the Purchase
Option Agreement.



     “Accredited Investor” has the meaning set forth in Rule 501(a) of Regulation D
promulgated under the Securities Act of 1933, as amended.



     “Act” means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq.



     “Activity” means:



          (a) in the case of goods or services procured from third party vendors, the resources applied
(and the costs incurred therefor) on one clinical study or protocol under a single contract with a
vendor, said contract consisting of either a purchase order or a stand alone contract, if for a
one-time purchase, or any work order under a master contract or master services agreement, if for
multiple purchases of similar goods or services from the same vendor; and




          (b) in the case of internally provided goods or services, the resources applied, allocated or
reallocated (and the costs associated therewith) under a single budgetary line item for any
Program.




     “Ad Hoc Meeting” has the meaning set forth in Paragraph 6 of Annex B of (i)
the Amended and Restated Research and Development Agreement, with respect to the Operative
Documents, and (ii) the Advisory Agreement, with respect to the Zybrestat Operative Documents.



     “Additional Closing Date” has the meaning set forth in Section 2(c) of the
Additional Funding Agreement.



     “Additional Funding Agreement” means the Additional Funding Agreement, dated as of the
Closing Date, among the Company, Holdings, Investors and the Symphony Collaboration.



     “Additional Holdings Funding” has the meaning set forth in the Preliminary Statement
of the Additional Funding Agreement.



     “Additional Holdings Funding Commitment” has the meaning set forth in the Preliminary
Statement of the Additional Funding Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




 









 








     “Additional Holdings Payment Amount” has the meaning set forth in Section 3(a)
of the Additional Funding Agreement.



     “Additional Investment Shares” has the meaning set forth in the Preliminary Statement
of the Additional Funding Agreement.



     “Additional Investment Warrant” has the meaning set forth in Section 5(b) of
the Additional Funding Agreement.



     “Additional Party” has the meaning set forth in Section 14 of the
Confidentiality Agreement or the Zybrestat Confidentiality Agreement, as the case may be.



     “Additional Regulatory Filings” means such Governmental Approvals as required to be
made under any law applicable to the purchase of the Symphony Collaboration Equity Securities under
the Purchase Option Agreement.



     “Adjusted Capital Account Deficit” has the meaning set forth in Section 1.01
of the Holdings LLC Agreement.



     “Advisory Agreement” means the Zybrestat Advisory Agreement, dated as of the Closing
Date, between Holdings and the Company.



     “Advisory Committee” has the meaning set forth in Article 3 of the Advisory
Agreement. 



     “Advisory Committee Charter” has the meaning set forth in Article 3 of the
Advisory Agreement.



     “Advisory Services” has the meaning set forth in Section 1(a) of the RRD
Zybrestat Services Agreement.



     “Affected Member” has the meaning set forth in Section 26 of the Investors LLC
Agreement.



     “Affiliate” means, with respect to any Person (i) any Person directly or indirectly
controlling, controlled by or under common control with such Person, (ii) any officer, director,
general partner, member or trustee of such Person, or (iii) any Person
who is an officer, director, general partner, member or trustee of any Person described in
clauses (i) or (ii) of this sentence. For purposes of this definition, the terms
“controlling,” “controlled by” or “under common control with” shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the management and policies of a Person
or entity, whether through the ownership of voting securities, by contract or otherwise, or the
power to elect at least 50% of the directors, managers, general partners, or persons exercising
similar authority with respect to such Person or entities.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Annex A to Stock and Warrant Purchase Agreement




2









 





     “Amended and Restated Research and Development Agreement” means the Amended and
Restated Research and Development Agreement dated as of the Closing Date, among the Company,
Holdings and the Symphony Collaboration.



     “Angiogene License Agreement” has the meaning set forth in Schedule 2.2 of the Novated
and Restated Technology License Agreement.



     “Approved Amount” has the meaning set forth in Section 2(b) of the Additional
Funding Agreement.



     “ASU License Agreement” has the meaning set forth in Schedule 2.2 of the Novated and
Restated Technology License Agreement.



     “Asset Value” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “Auditors” means an independent certified public accounting firm of recognized
national standing.



     “Balance Sheet Deficiency” has the meaning set forth in Section 1(c)(iii) of
the Purchase Option Agreement.



     “Balance Sheet Deficiency Date” has the meaning set forth in Section 1(c)(iii)
of the Purchase Option Agreement.



     “Balance Sheet Deficiency Threshold” shall be equal to $[ * ].



     “Bankruptcy Code” means the United States Bankruptcy Code.



     “Bankruptcy Event” means, with respect to a Person, the occurrence of either of the
following:



          (a) a case or other proceeding shall be commenced, without the application or consent of such
Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution,
winding up, or composition or readjustment of debts of such Person, the appointment of a trustee,
receiver, custodian, liquidator, assignee, sequestrator or the like for such Person of all or
substantially all of its assets, or any similar action with respect to such Person under any Law
relating to
bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and
such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of [ *
] consecutive days; or an order for relief in respect of such Person shall be entered in an
involuntary case under the federal bankruptcy Laws or other similar Laws now or hereafter in
effect; or




          (b) such Person shall generally not pay its debts as such debts become due or shall admit in
writing its inability to pay its debts generally or such Person





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement



3









 




shall commence a voluntary case or
other proceeding under any applicable bankruptcy, insolvency, reorganization, debt arrangement,
dissolution or other similar Law now or hereafter in effect, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee (other than a trustee under a
deed of trust, indenture or similar instrument), custodian, sequestrator (or other similar
official) for, such Person or for any substantial part of its property, or shall make any general
assignment for the benefit of creditors, or shall be adjudicated insolvent, or admit in writing its
inability to pay its debts generally as they become due, or, if a corporation or similar entity,
its board of directors shall vote to implement any of the foregoing.




     “Baylor License Agreement” has the meaning set forth in Schedule 2.2 of the Novated
and Restated Technology License Agreement.



     “Bio-Reductive Trigger” means a [ * ] on a [ * ] that [ * ] such [ * ] but which such
[ * ] a [ * ] or other [ * ] under [ * ] to [ * ] the [ * ], including (a) a [ * ] or (b) a [ * ].



     “BMS License Agreement” has the meaning set forth in Schedule 2.2 of the Novated and
Restated Technology License Agreement.



     “Business Day” means any day other than Saturday, Sunday or any other day on which
commercial banks in the City of New York are authorized or required by law to remain closed.



     “Capital Contributions” has the meaning set forth in Section 1.01 of the
Holdings LLC Agreement.



     “Capitalized Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.



     “Cash Available for Distribution” has the meaning set forth in Section 1.01 of
the Holdings LLC Agreement.



     “Chair” has the meaning set forth in Paragraph 4 of Annex B to the Amended and
Restated Research and Development Agreement.



     “Change of Control” means and includes the occurrence of any of the following events,
but specifically excludes (i) acquisitions of capital stock directly from
the Company for cash, whether in a public or private offering, (ii) sales of capital stock by
stockholders of the Company, and (iii) acquisitions of capital stock by or from any employee
benefit plan or related trust:



          (a) the merger, reorganization or consolidation of the Company into or with another
corporation or legal entity in which the Company’s stockholders holding the right to vote with
respect to matters generally immediately preceding such





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Annex A to Stock and Warrant Purchase Agreement




4









 







merger, reorganization or consolidation,
own less than fifty percent (50%) of the voting securities of the surviving entity; or




          (b) the sale of all or substantially all of the Company’s assets or business.




     “Change of Control Put Option” has the meaning set forth in Section 2A(b) of
the Purchase Option Agreement.



     “Change of Control Put Option Exercise Notice” has the meaning set forth in
Section 2A(c) of the Purchase Option Agreement.



     “Class A Member” means a holder of a Class A Membership Interest.



     “Class A Membership Interest” means a Class A Membership Interest in Holdings.



     “Class B Member” means a holder of a Class B Membership Interest.



     “Class B Membership Interest” means a Class B Membership Interest in Holdings.



     “Class C Member” means a holder of a Class C Membership Interest.



     “Class C Membership Interest” means a Class C Membership Interest in Holdings.



     “Class D Member” means a holder of a Class D Membership Interest.



     “Class D Membership Interest” means a Class D Membership Interest in Holdings.



     “Client Schedules” has the meaning set forth in Section 5(b)(i) of the RRD
Services Agreement.



     “Clinical Trial Material” means Product and placebo for administration to animals for
non-clinical testing or to humans for clinical testing, and Product for non-clinical testing.



     “Closing Date” means October 1, 2008.



     “Closing Market Price” means, depending on when an Operative Document is entered into,
either (i) the previous trading day’s closing bid price of Company Common Stock if such Operative
Document is entered into during market hours before the close of the regular session of the NASDAQ
Global Market or (ii) that




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




5









 







day’s closing bid price of Company Common Stock if such Operative
Document is entered into after the close of the regular session.




     “CMC” means the chemistry, manufacturing and controls documentation as required for
filings with a Regulatory Authority relating to the manufacturing, production and testing of drug
products.



     “Code” means the Internal Revenue Code of 1986, as amended from time to time.



     “Combretastatin” mean [ * ] of the [ * ] that [ * ] either a [ * ] or [ * ], in which
at least one of the [ * ] is [ * ] with [ * ] or [ * ] or [ * ], including but not limited to [ * ]
and [ * ].



     “Common Stock” means the common stock, par value $0.01 per share, of the Symphony
Collaboration.



     “Company” means OXiGENE, Inc., a Delaware corporation.



     “Company Accounting Advisor” means Ernst & Young LLP.



     “Company Board” has the meaning set forth in Section 3.02 (e) of the Stock and
Warrant Purchase Agreement.



     “Company Common Stock” means the common stock, par value $0.01 per share, of the
Company.



     “Company Common Stock Valuation” has the meaning set forth in Section 2(e) of
the Purchase Option Agreement.



     “Company Obligations” has the meaning set forth in Section 6.1(a) of the
Amended and Restated Research and Development Agreement.



     “Company Payment Amount” has the meaning set forth in Section 4(a) of the
Additional Funding Agreement.



     “Company Payment Commitment” has the meaning set forth in the Preliminary Statement of
the Additional Funding Agreement.



     “Company Payment Date” has the meaning set forth in Section 4(b) of the
Additional Funding Agreement.



     “Company Personnel” has the meaning set forth in Section 8.4 of the Amended
and Restated Research and Development Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Annex A to Stock and Warrant Purchase Agreement




6









 








     “Company Public Filings” means all publicly available filings made by the Company with
the SEC.



     “Company Securities” has the meaning set forth Section 3.02(b) of the Stock
and Warrant Purchase Agreement.



     “Company Shares” has the meaning set forth in Section 2.02 of the Holdings LLC
Agreement.



     “Company Warrants” has the meaning set forth in Section 2.02 of the Holdings
LLC Agreement.



     “Company Subcontractor” means a third party that has entered into a Subcontracting
Agreement with the Company.



     “Confidential Information” has the meaning set forth in Section 2 of the
Confidentiality Agreement or the Zybrestat Confidentiality Agreement, as the case may be.



     “Confidentiality Agreement” means the Confidentiality Agreement, dated as of the
Closing Date, among the Symphony Collaboration, Holdings, the Company, SCP, SSP, Investors,
Symphony Capital and RRD, as such agreement may be amended or amended and restated from time to
time.



     “Conflict Transaction” has the meaning set forth in Article X of the Symphony
Collaboration Charter.



     “Control” means, with respect to any material, information or intellectual property
right, that a Party owns or has a license to such item or right, and has the ability to grant the
other Party access, a license or a sublicense (as applicable) in or to such item or right as
provided in the Operative Documents or Zybrestat Operative Documents, as applicable, without
violating the terms of any agreement or other arrangement with any third party.



     “Cross Program Budget Component” has the meaning set forth in Section 4.1 of
the Amended and Restated Research and Development Agreement.



     “Debt” of any Person means, without duplication:



          (a) all indebtedness of such Person for borrowed money,




          (b) all obligations of such Person for the deferred purchase price of property or services
(other than any portion of any trade payable obligation that shall not have remained unpaid for [ *
] days or more from the later of (A) the original due date of such portion and (B) the customary
payment date in the industry and relevant market for such portion),





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




7









 








          (c) all obligations of such Person evidenced by bonds, notes, debentures or other similar
instruments,




          (d) all obligations of such Person created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person (whether or not the
rights and remedies of the seller or lender under such agreement in an event of default are limited
to repossession or sale of such property),




          (e) all Capitalized Leases to which such Person is a party,




          (f) all obligations, contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities,




          (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire
for value any Equity Securities of such Person,




          (h) the net amount of all financial obligations of such Person in respect of Hedge Agreements,




          (i) the net amount of all other financial obligations of such Person under any contract or
other agreement to which such Person is a party,




          (j) all Debt of other Persons of the type described in clauses (a) through (i)
above guaranteed, directly or indirectly, in any manner by such Person, or in effect guaranteed,
directly or indirectly, by such Person through an agreement (A) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (B) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure the holder of such Debt against loss,
(C) to supply funds to or in any other manner invest in the debtor (including any agreement to pay
for property or services irrespective of whether such property is received or such services are
rendered) or (D) otherwise to assure a creditor against loss, and




          (k) all Debt of the type described in clauses (a) through (i) above secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any
Encumbrance on property (including accounts and contract rights) owned or held or used under lease
or license by such Person, even though such Person has not assumed or become liable for payment of
such Debt.




     “Declaration Period” has the meaning set forth in Section 2(a)(ii) of the
Purchase Option Agreement.



     “Development Budget” means (i) the budget (comprised of the Program Specific Budget
Component with components for each Program and the Cross Program Budget Component) for the
implementation of the Development Plan, as may be further




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Annex A to Stock and Warrant Purchase Agreement





8









 







developed and revised from time to time
in accordance with the Development Committee Charter and the Amended and Restated Research and
Development Agreement, or (ii) the budget for the implementation of the Development Plan, as may be
further developed and revised from time to time in accordance with the Advisory Committee Charter
and the Advisory Agreement, as the case may be.




     “Development Committee” has the meaning set forth in Article 3 of the Amended
and Restated Research and Development Agreement.



     “Development Committee Charter” has the meaning set forth in Article 3 of the
Amended and Restated Research and Development Agreement.



     “Development Committee Indemnification Agreement” means the Indemnification Agreement
among the Symphony Collaboration and the members of the Development Committee named therein, dated
as of the Closing Date, as such agreement may be amended and restated from time to time.



     “Development Committee Member” has the meaning set forth in Paragraph 1 of
Annex B to the Amended and Restated Research and Development Agreement.



     “Development Plan” means (i) with respect to the Operative Documents, the development
plan covering all the Programs with components for each Program, as may be further developed and
revised from time to time in accordance with the Development Committee Charter and the Amended and
Restated Research and Development Agreement, or (ii) with respect to the Zybrestat Operative
Documents, the development plan covering the Zybrestat Program, as may be further developed and
revised from time to time in accordance with the Advisory Committee Charter and the Advisory
Agreement, as the case may be.



     “Development Product” means a Product that is administered in a clinical trial
performed pursuant to the Development Plan.



     “Development Services” has the meaning set forth in Section 1(b) of the RRD
Services Agreement.



     “DGCL” means Delaware General Corporate Law, as amended from time to time.



     “Direct Investment Shares” has the meaning set forth in the Preliminary Statement of
the Purchase Option Agreement.



     “Direct Investment Warrant” has the meaning set forth in the Preliminary Statement of
the Purchase Option Agreement.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




9









 





     “Director(s)” means the Persons identified as such in the Preliminary Statement of the
Indemnification Agreement (including such Persons as may become parties thereto after the date
hereof).



     “Disclosing Party” has the meaning set forth in Section 4 of the
Confidentiality Agreement or the Zybrestat Confidentiality Agreement, as the case may be.



     “Discontinuation Option” has the meaning set forth in Section 11(a) of the
Amended and Restated Research and Development Agreement.



     “Discontinuation Option Closing Date” means the date of expiration of the
Discontinuation Option pursuant to Section 11(a) of the Amended and Restated Research and
Development Agreement.



     “Discontinuation Price” has the meaning set forth in Section 11(a) of the
Amended and Restated Research and Development Agreement.



     “Discontinued Funds” has the meaning set forth in Section 8.1(b) of the
Amended and Restated Research and Development Agreement.



     “Discontinued Program” has the meaning set forth in Section 2.10 of the
Novated and Restated Technology License Agreement.



     “Disinterested Directors” has the meaning set forth in Article X of the
Symphony Collaboration Charter.



     “Disposition” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “Distribution” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “DMF” means a Regulatory File relating to the manufacture of a Product, including any
drug master file or similar file.



     “Effective Registration Date” has the meaning set forth in Section 1 of the
Registration Rights Agreement.



     “Encumbrance” means (i) any security interest, pledge, mortgage, lien (statutory or
other), charge or option to purchase, lease or otherwise acquire any interest, (ii) any adverse
claim, restriction, covenant, title defect, hypothecation, assignment, deposit arrangement, license
or other encumbrance of any kind, preference or priority, or (iii) any other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement).




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




10









 








     “Equity Securities” means, with respect to any Person, shares of capital stock of (or
other ownership or profit interests in) such Person, warrants, options or other rights for the
purchase or other acquisition from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or such other interests), and
other ownership or profit interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise existing on any date of
determination.



     “ERISA” means the United States Employee Retirement Income Security Act of 1974, as
amended.



     “Excepted Debt” has the meaning set forth in Section 5(c)(iii) of the Purchase
Option Agreement.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



     “Existing Confidentiality Agreement” has the meaning set forth in Section 2(a)
of the Confidentiality Agreement.



     “FDA” means the United States Food and Drug Administration or its successor agency in
the United States.



     “FDA Sponsor” has the meaning set forth in Section 5.1 of the Amended and
Restated Research and Development Agreement.



     “Final Termination Date” has the meaning set forth in Section 1(c)(iii) of the
Purchase Option Agreement.



     “Financial Audits” has the meaning set forth in Section 6.6 of the Amended and
Restated Research and Development Agreement.



     “Financing” has the meaning set forth in the Preliminary Statement of the Purchase
Option Agreement.



     “Fiscal Year” has the meaning set forth in each Operative Document in which it
appears.



     “FTE” means the time and effort of one or more qualified scientists, technicians,
project managers, preclinical or clinical research personnel, regulatory personnel, or patent
professionals that is equivalent to [ * ] hours per year.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement






11









 








     “Funds Termination Date” has the meaning set forth in Section 1(c)(iii) of the
Purchase Option Agreement.



     “Funds Termination Notice” has the meaning set forth in Section 1(c)(iii) of
the Purchase Option Agreement.



     “GAAP” means generally accepted accounting principles in effect in the United States
of America from time to time.



     “Governmental Approvals” means authorizations, consents, orders, declarations or
approvals of, or filings with, or terminations or expirations of waiting periods imposed by any
Governmental Authority.



     “Governmental Authority” means any United States or non-United States federal,
national, supranational, state, provincial, local, or similar government, governmental, regulatory
or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral
body.



     “Governmental Order” means any order, writ, judgment, injunction, decree, stipulation,
determination or award entered by or with any Governmental Authority.



     “Hedge Agreement” means any interest rate swap, cap or collar agreement, interest rate
future or option contract, currency swap agreement, currency future or option contract or other
similar hedging agreement.



     “Holdings” means Symphony ViDA Holdings LLC, a Delaware limited liability company.



     “Holdings Expenses” has the meaning set forth in Section 5.09 of the Holdings
LLC Agreement.



     “Holdings LLC Agreement” means the Amended and Restated Limited Liability Company
Agreement of Holdings dated as of the Closing Date.



     “Holdings Property” has the meaning set forth in Section 1.01 of the Holdings
LLC Agreement.



     “HSR Filings” means the pre-merger notification and report forms required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.



     “IND” means an Investigational New Drug Application, as described in 21 U.S.C.
§ 355(i)(1) and 21 C.F.R. § 312 in the regulations promulgated by the United States Food and Drug
Administration, or any foreign equivalent thereof.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Annex A to Stock and Warrant Purchase Agreement




12









 








     “Indemnification Agreement” means the Indemnification Agreement among the Symphony
Collaboration and the Directors named therein, dated as of the Closing Date, as such agreement may
be amended or amended and restated from time to time.



     “Indemnified Party” has the meaning set forth in each Operative Document or Zybrestat
Operative Document in which it appears.



     “Indemnified Proceeding” has the meaning set forth in each Operative Document or
Zybrestat Operative Document in which it appears.



     “Indemnifying Party” has the meaning set forth in each Operative Document or Zybrestat
Operative Document in which it appears.



     “Initial Holdings LLC Agreement” means the Agreement of Limited Liability Company of
Holdings, dated July 31, 2008.



     “Initial Investors Funding” means the initial $15,000,000 contribution to the Symphony
Collaboration by the Investors through Holdings.



     “Initial Investors LLC Agreement” means the Agreement of Limited Liability Company of
Investors, dated July 31, 2008.



     “Initial LLC Member” has the meaning set forth in Section 1.01 of the Holdings
LLC Agreement.



     “Interest Certificate” has the meaning set forth in Section 1.01 of the
Holdings LLC Agreement.



     “Investment Company Act” means the Investment Company Act of 1940, as amended.



     “Investment Policy” has the meaning set forth in Section 1(a)(vi) of the RRD
Services Agreement.



     “Investors” means Symphony ViDA Investors LLC.



     “Investors LLC Agreement” means the Amended and Restated Agreement of Limited
Liability Company of Investors dated as of the Closing Date.



     “IRS” means the U.S. Internal Revenue Service.



     “IV Commercialization Activities” means submitting an application for, or obtaining
regulatory approval of, or the promotion of any IV Ophthalmology Product.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Annex A to Stock and Warrant Purchase Agreement





13









 








     “IV Ophthalmology Product” means [ * ] comprising [ * ] and [ * ] or other[ * ]. [ *
] do not include products that are [ * ] or other [ * ].



     “Key Personnel” means those Company Personnel listed on Schedule 6.4 to the
Amended and Restated Research and Development Agreement or the Advisory Agreement, as applicable,
as such schedule may be updated from time to time by mutual agreement of the parties to the Amended
and Restated Research and Development Agreement or the Advisory Agreement, as applicable.



     “Know-How” means any and all proprietary technology, including without limitation,
manufacturing processes or protocols, know-how, writings, documentation, data, technical
information, techniques, results of experimentation and testing, diagnostic and prognostic assays,
specifications, databases, any and all laboratory, research, pharmacological, toxicological,
analytical, quality control, non-clinical and clinical data, and other information and materials,
whether or not patentable.



     “Knowledge” of the Company, the Symphony Collaboration or Holdings, as the case may
be, means, as of any relevant date, the actual (and not imputed) knowledge of the executive
officers or managing member of such Person holding such office at such time, without the duty of
inquiry or investigation.



     “Law” means any law, statute, treaty, constitution, regulation, rule, ordinance, order
or Governmental Approval, or other governmental restriction, requirement or determination, of or by
any Governmental Authority.



     “License” has the meaning set forth in the Preliminary Statement of the Purchase
Option Agreement.



     “Licensed Intellectual Property” means the Licensed Patent Rights and the Licensed
Know-How.



     “Licensed Know-How” means any and all Know-How that is Controlled by Licensor or its
Affiliates on or after the Closing Date and prior to the expiration or termination of the Purchase
Option without Licensor’s exercise of the Purchase Option that relates to, or is exploitable in
connection with, the Licensed Patent Rights, Regulatory Files, Products or the Programs.



     “Licensed Patent Rights” means:



          (a) [ * ] and [ * ] and [ * ] prior to the expiration or termination of the [ * ] without [ *
] relating to, or exploitable in connection with, any [ * ] and/or any [ * ];




          (b) [ * ] and [ * ] or [ * ] of the [ * ] or [ * ] described in (a) filed prior to the [ * ]
without [ * ]; and





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




14









 








          (c) [ * ] and [ * ] of the [ * ] or [ * ] described in (a) or (b) filed after [ * ] but solely
to the extent the subject matter in any such [ * ].




     Licensed Patent Rights include (i) [ * ] and (ii) [ * ].



     “Licensor” means the Company.



     “Licensor Regulatory Files” means any IND, NDA, DMF or any other correspondence or
filings filed with or received from any Regulatory Authority Controlled by Licensor or its
Affiliates at any time subsequent to the expiration or termination of the Purchase Option without
Licensor’s exercise of the Purchase Option relating to, or exploitable in connection with,
Zybrestat Compounds.



     “Licensor Zybrestat Patents” means, other than the [ * ], any and all other patents,
patent applications and invention disclosures [ * ].



     “Lien” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “Liquidating Event” has the meaning set forth in Section 8.01 of the Holdings
LLC Agreement.



     “LLC Agreements” means the Initial Holdings LLC Agreement, the Holdings LLC Agreement,
the Initial Investors LLC Agreement and the Investors LLC Agreement.



     “Loss” has the meaning set forth in each Operative Document in which it appears.



     “Management Fee” has the meaning set forth in Section 6(a) of the RRD Services
Agreement.



     “Management Services” has the meaning set forth in Section 1(a) of the RRD
Services Agreement.



     “Manager” means (i) for each LLC Agreement in which it appears, the meaning set forth
in such LLC Agreement, and (ii) for each other Operative Document in which it appears, RRD in its
capacity as the provider of Management Services on behalf of the Symphony Collaboration pursuant to
the RRD Services Agreement.



     “Manager Event” has the meaning set forth in Section 3.01(g) of the Holdings
LLC Agreement.



     “Material Adverse Effect” means, with respect to any Person, a material adverse effect
on (i) the business, assets, property or condition (financial or otherwise) of such Person or,
(ii) its ability to comply with and satisfy its respective agreements and




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




15









 







obligations under the
Operative Documents or the Zybrestat Operative Documents, as applicable, or, (iii) the
enforceability of the obligations of such Person under any of the Operative Documents or the
Zybrestat Operative Documents, as applicable, to which it is a party.




     “Maximum Premium” has the meaning set forth in Section 4.03(d) of the Stock
and Warrant Purchase Agreement.



     “Medical Discontinuation Event” means a series of adverse events, side effects or
other undesirable outcomes that, when collected in a Program, would cause a reasonable FDA Sponsor
to discontinue such Program.



     “Membership Interest” means (i) for each LLC Agreement in which it appears, the
meaning set forth in such LLC Agreement, and (ii) for each other Operative Document in which it
appears, the meaning set forth in the Holdings LLC Agreement.



     “NASDAQ Rules” means the rules and regulations promulgated by the NASDAQ Stock Market,
including, without limitation, Rules 4350(i)(1)(B) and 4350(i)(1)(D).



     “NDA” means a New Drug Application, as defined in the regulations promulgated by the
FDA, or any foreign equivalent thereof.



     “Non-IV Closing Date” means the date, chosen by Holdings, at which the Non-IV Shares
and/or Non-IV Warrant are issued and purchased by Holdings; provided that Holdings must select a
date within one year after the Company delivers the Non-IV Notice.



     “Non-IV Notice” means a notice from the Company stating that that the Company believes
in good faith that the licensing and/or commercialization of a Zybrestat Compound for use in any
oncology indication will be benefited by prohibiting the Symphony Collaboration from conducting IV
Commercialization Activities and stating that the Symphony Collaboration shall be prohibited from
conducting any future IV Commercialization Activities.



     “Non-IV Shares” means (a) 4,000,000 (four million) shares of Company Common Stock if
the Symphony Collaboration has both (x) completed sufficient clinical trials to enable the conduct
of a pivotal trial (as determined by the Development Committee and as approved by the Symphony
Collaboration Board) and (y) given the
Company written notice that the Symphony Collaboration intends to commence a pivotal trial of
an IV VDA Ophthalmology Product or (b) if the Symphony Collaboration has not both (x) completed
sufficient clinical trials to enable the conduct of a pivotal trial (as determined by the
Development Committee and as approved by the Symphony Collaboration Board) and (y) given the
Company written notice that the Symphony



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement





16









 







Collaboration intends to commence a pivotal trial of an IV
VDA Product, 2,000,000 (two million) shares of Company Common Stock.




     “Non-IV Warrant” has the meaning set forth in Section 2.06 of the Stock and
Warrant Purchase Agreement.



     “Non-Pivotal Requirements” means that with respect to the applicable contemplated
clinical study: (a) the primary purpose for conducting such study, as reasonably determined by the
Symphony Collaboration, is to subsequently enable initiation of a pivotal study as the next
clinical study with an IV Ophthalmology Product; (b) the primary purpose of such study is not, as
reasonably determined by the Symphony Collaboration, to materially benefit or further the
development of a product other than an IV Ophthalmology Product; and (c) the Symphony Collaboration
has previously completed at least one clinical study with an IV Ophthalmology Product.



     “Novated and Restated Technology License Agreement” means the Novated and Restated
Technology License Agreement, dated as of the Closing Date, among the Company, the Symphony
Collaboration and Holdings.



     “Operative Documents” means, collectively, the Indemnification Agreement, the
Development Committee Indemnification Agreement, the Holdings LLC Agreement, the Purchase Option
Agreement, the Stock and Warrant Purchase Agreement, the Subscription Agreement, the Additional
Funding Agreement, the Registration Rights Agreement, the Technology License Agreement, the Novated
and Restated Technology License Agreement, the RRD Services Agreement, the Research and Development
Agreement, the Amended and Restated Research and Development Agreement, the Confidentiality
Agreement, the OXiGENE Directors Indemnification Agreement, and each other certificate and
agreement executed in connection with any of the foregoing documents.



     “Ophthalmology Product” means any [ * ] or [ * ] comprising a [ * ] for use in the [ *
].



     “Ophthalmology Program” means the identification, development, manufacture and/or use
of any Ophthalmology Product.



     “Option Premium Shares” has the meaning set forth in the Preliminary Statement of the
Purchase Option Agreement.



     “Optional Company Funding” has the meaning set forth in Section 2(c) of the
Additional Funding Agreement.



     “Optional Company Funding Amount” has the meaning set forth in the Preliminary
Statement of the Additional Funding Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement





17









 








     “OQP” means any [ * ] that contains at least one [ * ] derived from, or that may be
converted to, [ * ], including but not limited to [ * ].



     “Organizational Documents” means any certificates or articles of incorporation or
formation, partnership agreements, trust instruments, bylaws or other governing documents.



     “Original Agreement” has the meaning set forth in each Operative Document in which it
appears.



     “OXi4503” means [ * ] which has the following chemical structure:



     [ * ]



     “OXi4503 Compounds” means [ * ], which has the [ * ] and the following chemical
structure:


[ * ]



[ * ].




     “OXiGENE Directors Indemnification Agreement” means the Indemnification Agreement
among the Company and the Directors named therein, dated as of the Closing Date, as such agreement
may be amended or amended and restated from time to time.



     “Partial Stock Payment” has the meaning set forth in Section 3(a)(iii) of the
Purchase Option Agreement.



     “Party(ies)” means, for each Operative Document, Zybrestat Operative Document or other
agreement in which it appears, the parties to such Operative Document, Zybrestat Operative Document
or other agreement, as set forth therein. With respect to any agreement in which a provision is
included therein by reference to a provision in another agreement, the term “Party” shall
be read to refer to the parties to the document at hand, not the agreement that is referenced.



     “Payment Terms” has the meaning set forth in Section 8.2 of the Amended and
Restated Research and Development Agreement.



     “Percentage” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “Permitted Investments” has the meaning set forth in Section 1.01 of the
Holdings LLC Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement





18









 








     “Permitted Lien” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “Person” means any individual, partnership (whether general or limited), limited
liability company, corporation, trust, estate, association, nominee or other entity.



     “Personnel” of a Party means such Party, its employees, subcontractors, consultants,
representatives and agents.



     “Prime Rate” means the quoted “Prime Rate” at JPMorgan Chase Bank or, if such bank
ceases to exist or is not quoting a base rate, prime rate reference rate or similar rate for United
States dollar loans, such other major money center commercial bank in New York City selected by the
Manager.



     “Products” means Ophthalmology Products and/or Second Generation OQP Products.



     “Profit” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “Program Specific Budget Component” has the meaning set forth in Section 4.1
of the Amended and Restated Research and Development Agreement.



     “Program-Specific Claim” means any claim in a patent or patent application in the
Licensed Patent Rights that is directed exclusively to the composition of matter, formulations or
use of any Product.



     “Program-Specific Patents” means any and all Licensed Patent Rights that contain at
least one Program-Specific Claim.



     “Program” or “Programs” means the Ophthalmology Program and/or the Second
Generation OQP Program, with respect to the Operative Documents.



     “Protocol” means a written protocol that meets the substantive requirements of
Section 6 of the ICH Guideline for Good Clinical Practice as adopted by the FDA, effective
May 9, 1997, and is included within the Development Plan or later modified or added to the
Development Plan pursuant to the Amended and Restated Research and Development Agreement or the
Advisory Agreement, as the case may be.



     “Public Companies” has the meaning set forth in Section 5(e) of the Purchase
Option Agreement.



     “Purchase Option” has the meaning set forth in Section 1(a) of the Purchase
Option Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Annex A to Stock and Warrant Purchase Agreement




19









 








     “Purchase Option Agreement” means the Purchase Option Agreement dated as of the
Closing Date, among the Company, Holdings and the Symphony Collaboration.



     “Purchase Option Closing” has the meaning set forth in Section 2(a) of the
Purchase Option Agreement.



     “Purchase Option Closing Date” has the meaning set forth in Section 2(a) of
the Purchase Option Agreement.



     “Purchase Option Commencement Date” has the meaning set forth in
Section 1(c)(iii) of the Purchase Option Agreement.



     “Purchase Option Exercise Date” has the meaning set forth in Section 2(a) of
the Purchase Option Agreement.



     “Purchase Option Exercise Notice” has the meaning set forth in Section 2(a) of
the Purchase Option Agreement.



     “Purchase Option Period” has the meaning set forth in Section 1(c)(iii) of the
Purchase Option Agreement.



     “Purchase Option Shares” has the meaning set forth in the recitals to the Registration
Rights Agreement.



     “Purchase Price” has the meaning set forth in Section 2(b) of the Purchase
Option Agreement.



     “QA Audits” has the meaning set forth in Section 6.5 of the Amended and
Restated Research and Development Agreement.



     “Regulatory Allocation” has the meaning set forth in Section 3.06 of the
Holdings LLC Agreement.



     “Regulatory Authority” means the United States Food and Drug Administration, or any
successor agency in the United States, or any health regulatory authority(ies) in any other country
that is a counterpart to the FDA and has responsibility for granting registrations or other
regulatory approval for the marketing, manufacture, storage, sale or use of drugs in such other
country.



     “Regulatory Files” means any IND, NDA, DMF or any other correspondence or filings
filed with or received from any Regulatory Authority with respect to the Programs.



     “Representative” of any Person means such Person’s shareholders, principals,
directors, officers, employees, members, managers and/or partners.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


Annex A to Stock and Warrant Purchase Agreement





20









 








     “Research and Development Agreement” means the Research and Development Agreement,
dated as of the Closing Date, between the Company and Holdings.



     “RRD” means RRD International, LLC, a Delaware limited liability company.



     “RRD Indemnified Party” has the meaning set forth in Section 10(a) of the RRD
Services Agreement.



     “RRD Loss” has the meaning set forth in Section 10(a) of the RRD Services
Agreement.



     “RRD Personnel” has the meaning set forth in Section 1(a)(ii) of the RRD
Services Agreement.



     “RRD Services Agreement” means the RRD Services Agreement, between the Symphony
Collaboration and RRD, dated as of the Closing Date.



     “RRD Zybrestat Services Agreement” means the RRD Zybrestat Services Agreement, between
Holdings, the Company and RRD, dated as of the Closing Date.



     “Schedule K-1” has the meaning set forth in Section 9.02(a) of the Holdings
LLC Agreement.



     “Scheduled Meeting” has the meaning set forth in Paragraph 6 of
Annex B of the Amended and Restated Research and Development Agreement.



     “Scientific Discontinuation Event” has the meaning set forth in Section 4.2(c)
of the Amended and Restated Research and Development Agreement.



     “SCP” means Symphony Capital Partners, L.P., a Delaware limited partnership.



     “Second Generation OQP Products” means any pharmaceutical composition or method
comprising an OQP.



     “Second Generation OQP Program” means the identification, development, manufacture
and/or use of any Second Generation OQP Product.



     “SEC” means the United States Securities and Exchange Commission.



     “Securities Act” means the Securities Act of 1933, as amended.



     “Share Date” has the meaning set forth in Section 2.02 of the Stock and
Warrant Purchase Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




21









 








     “Solvent” has the meaning set forth in Section 1.01 of the Holdings LLC
Agreement.



     “SSP” means Symphony Strategic Partners, LLC, a Delaware limited liability company.



     “Stock and Warrant Purchase Agreement” means that certain Stock and Warrant Purchase
Agreement, dated as of the Closing Date, by and between the Company and Holdings.



     “Stock Payment Date” has the meaning set forth in Section 2 of the
Subscription Agreement.



     “Stock Purchase Price” has the meaning set forth in Section 2 of the
Subscription Agreement.



     “Stockholder Approval” means the approval required to be obtained by the Company from
its stockholders in accordance with the DGCL, the NASDAQ Rules, the Securities Act, Exchange Act
and other applicable Laws to approve the transactions contemplated by the Operative Documents,
including, without limitation, the issuance of the Company Securities.



     “Subcontracting Agreement” means (a) any written agreement between the Company and a
third party pursuant to which the third party performs any Company Obligations or (b) any work
order, change order, purchase order or the like entered into pursuant to Section 6.2 of the
Amended and Restated Research and Development Agreement or Section 6.2 of the Advisory
Agreement, as the case may be.



     “Sublicense Obligations” has the meaning set forth in Section 3.2 of the
Novated and Restated Technology License Agreement.



     “Sublicensed Intellectual Property” has the meaning set forth in Section 3.2
of the Novated and Restated Technology License Agreement.



     “Subscription Agreement” means the Subscription Agreement between the Symphony
Collaboration and Holdings, dated as the Closing Date.



     “Subsidiary” of any Person means any corporation, partnership, joint venture, limited
liability company, trust or estate of which (or in which) more than 50%
of (a) the issued and outstanding capital stock having ordinary voting power to elect a
majority of the board of directors of such corporation (irrespective of whether at the time capital
stock of any other class or classes of such
corporation shall or might have voting power upon the
occurrence of any contingency); (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company; or (c) the beneficial interest in such trust or estate
is at the time directly or indirectly owned or controlled by such




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Annex A to Stock and Warrant Purchase Agreement




22









 







Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries.




     “Surviving Entity” means the surviving legal entity which survives the Company after
giving effect to a Change of Control.



     “Symphony Capital” means Symphony Capital LLC, a Delaware limited liability company.



     “Symphony Collaboration” means Symphony ViDA, Inc., a Delaware corporation.



     “Symphony Collaboration Auditors” has the meaning set forth in Section 5(b) of
the RRD Services Agreement.



     “Symphony Collaboration Board” means the board of directors of the Symphony
Collaboration.



     “Symphony Collaboration By-laws” means the By-laws of the Symphony Collaboration, as
adopted by resolution of the Symphony Collaboration Board on the Closing Date.



     “Symphony Collaboration Charter” means the Amended and Restated Certificate of
Incorporation of the Symphony Collaboration, dated as of the Closing Date.



     “Symphony Collaboration Director Event” has the meaning set forth in
Section 3.01(h)(i) of the Holdings LLC Agreement.



     “Symphony Collaboration Enhancements” means [ * ] (including [ * ]), that is made by
or on behalf of [ * ], including [ * ] and including [ * ], together with [ * ].



     “Symphony Collaboration Equity Securities” means the Common Stock and any other stock
or shares issued by the Symphony Collaboration.



     “Symphony Collaboration Loss” has the meaning set forth in Section 10(b) of
the RRD Services Agreement.



     “Symphony Collaboration Relevant Infringement” means an infringement,
misappropriation, illegal use or misuse of the Licensed Patent Rights or other Licensed
Intellectual Property due to the manufacture, use, sale or importation of any of the Products
for which the Company has not exercised a Discontinuation Option.



     “Symphony Collaboration Shareholder” means any Person who owns any Symphony
Collaboration Shares.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement





23









 








     “Symphony Collaboration Shares” has the meaning set forth in Section 2.02 of
the Holdings LLC Agreement.



     “Symphony Fund(s)” means Symphony Capital Partners, L.P., a Delaware limited
partnership, and Symphony Strategic Partners, LLC, a Delaware limited liability company.



     “Symphony Regulatory Files” means any IND, NDA, DMF or any other correspondence or
filings filed with or received from any Regulatory Authority Controlled by the Symphony
Collaboration or its Affiliates at any time subsequent to either (i) the expiration or termination
of the Purchase Option without Licensor’s exercise of the Purchase Option; or (ii) the expiration
of the Discontinuation Option relating to the Ophthalmology Program without exercise thereof, in
either case, relating to, or exploitable in connection with, Zybrestat Compounds.



     “Symphony Zybrestat Patents” means any and all patents, patent applications and
invention disclosures Controlled by the Symphony Collaboration or its Affiliates at any time
subsequent to the expiration or termination of the Purchase Option without Licensor’s exercise of
the Purchase Option relating to, or exploitable in connection with, Zybrestat Compounds.



     “Tangible Materials” means [ * ], that embodies or relates to [ * ], including [ * ];
provided, however, that Tangible Materials shall not include [ * ].



     “Tax Amount” has the meaning set forth in Section 4.02 of the Holdings LLC
Agreement.



     “Technology License Agreement” means the Technology License Agreement, dated as of the
Closing Date, between the Company and Holdings.



     “Term” has the meaning set forth in Section 4(b)(iv) of the Purchase Option
Agreement, unless otherwise stated in the applicable Operative Document.



     “Territory” means the world.



     “Third Party IP” has the meaning set forth in Section 2.9 of the Novated and
Restated Technology License Agreement.



     “Third Party License Agreement” means any agreement between the Company or its
Affiliates and a third party pursuant to which any element of the Licensed
Intellectual Property is licensed to the Company or its Affiliates. Third Party License
Agreements include the ASU License Agreement, the Baylor License Agreement, the BMS License
Agreement and the Angiogene License Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.




Annex A to Stock and Warrant Purchase Agreement




24









 








     “Third Party Licensor” means a third party from which the Company has received a
license or sublicense to Licensed Intellectual Property.



     “Transaction Event” means a merger, acquisition or similar change of control event
involving the Company.



     “Transfer” has for each Operative Document in which it appears the meaning set forth
in such Operative Document.



     “Transferee” has, for each Operative Document in which it appears, the meaning set
forth in such Operative Document.



     “Treasury Regulations” means the rules, regulations and orders, and interpretations
thereof, adopted by the IRS under the Code, as in effect from time to time.



     “Vascular Disrupting Agent” means an agent that selectively disrupts abnormal blood
vessels or a radioisomer, salt, solvate, polymorph, isomer, metabolite or prodrug thereof,
including, but not limited to, Combretastatins; provided, however, that Vascular
Disrupting Agents shall not include any such agent that includes a Bio-Reductive Trigger.



     “Voluntary Bankruptcy” has the meaning set forth in Section 1.01 of the
Holdings LLC Agreement.



     “Warrant Shares” has the meaning set forth in the Preliminary Statement of the
Purchase Option Agreement.



     “Zybrestat” means [ * ], which has the following chemical structure:


[ * ]




     “Zybrestat Compounds” means [ * ] and the following chemical structure:


[ * ]



[ * ].




     “Zybrestat Confidentiality Agreement” means the Confidentiality Agreement, dated as of
the Closing Date, among the Symphony Collaboration, Holdings,
the Company, SCP, SSP, Investors, Symphony Capital and RRD, as such agreement may be amended
or amended and restated from time to time.



     “Zybrestat Indemnification Agreement” means the Advisory Committee Indemnification
Agreement, dated as of the Closing Date, among the Company and the




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




25









 







members of the Advisory
Committee named therein, as such agreement may be amended and restated from time to time.




     “Zybrestat Operative Documents” means, collectively, the Advisory Agreement, the RRD
Zybrestat Services Agreement, the Advisory Committee Indemnification Agreement and the Zybrestat
Confidentiality Agreement.



     “Zybrestat Product” or “Zybrestat Product” has the meaning set forth in the
Preliminary Statement of the Advisory Agreement.



     “Zybrestat Program” has the meaning set forth in the Preliminary Statement of the
Advisory Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement



26









 





EXHIBIT A




FORM OF OPINION OF THE COMPANY’S COUNSEL




See Attached





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement




A-1









 





EXHIBIT B




FORM OF OXIGENE BOARD INDEMNIFICATION AGREEMENT




 





FORM OF




INDEMNIFICATION AGREEMENT




by and among




THE PERSONS LISTED HEREIN




and




OXiGENE, INC.




 






Dated as of [                    ], 2008




 






 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under Rule 24b-2
of the Securities Exchange Act of 1934, as amended.



Annex A to Stock and Warrant Purchase Agreement





B-1











 





FORM OF INDEMNIFICATION AGREEMENT




     This INDEMNIFICATION AGREEMENT (this “Agreement”) is entered into as of
[                    ], 2008, among OXiGENE, Inc., a Delaware corporation (the “Company”), and
each of the Indemnitees (as defined below), each in his or her capacity as a member of the board of
directors of the Company.



PRELIMINARY STATEMENT




     WHEREAS, the following persons (including any successors and subsequently elected directors
who shall execute counterpart signature pages in accordance with Section 5(c) hereof, the
“Directors” and the “Indemnitees”) have each agreed to serve as a member of the
board of directors of the Company: Mark Kessel and Alastair J.J. Wood, M.D.;



     WHEREAS, the Company desires to indemnify and hold harmless the Indemnitees as set forth
herein;



     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:



     Indemnification.



          The Company hereby agrees to and shall indemnify and hold harmless any Indemnitee who was or
is a party or is threatened to be made a party, by reason of the fact that the Indemnitee is or was
a Director, to any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the right of the Company),
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such Indemnitee in connection with such action, suit or
proceeding if the Indemnitee acted in good faith and in a manner the Indemnitee reasonably believed
to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner which the Indemnitee reasonably believed
to be in or not opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that the Indemnitee’s conduct was unlawful.




          The Company hereby agrees to and shall indemnify and hold harmless any Indemnitee who was or
is a party or is threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Company to procure a judgment in its favor by reason of the fact
that the Indemnitee is or was a




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	B-2
	 	Exhibit B to the Stock and Warrant Purchase Agreement







 









 




Director, against expenses (including attorneys’ fees) actually and reasonably incurred by the
Indemnitee in connection with the defense or settlement of such action or suit if the Indemnitee
acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such Indemnitee shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.




          To the extent that a present or former Director has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in Sections (1)(a) or (1)(b) hereof, or in
defense of any claim, issue or matter therein, such Indemnitee shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such Indemnitee in
connection therewith.




          Any indemnification under Sections (1)(a) or (1)(b) hereof (unless ordered by a court) shall
be made by the Company only as authorized in the specific case upon a determination that
indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in such Sections (1)(a) and (1)(b). Such determination
shall be made (a) by a majority vote of the Directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (b) by a committee of Directors who are not parties
to such action, suit or proceeding designated by majority vote of such Directors, even though less
than a quorum, or (c) if there are no Directors who are not parties to such action, suit or
proceeding, or if such Directors so direct, by independent legal counsel in a written opinion, or
(d) by the stockholders of the Company.




          Expenses (including reasonable attorneys’ fees) incurred by a present or former Indemnitee in
defending any civil, criminal, administrative or investigative action, suit or proceeding shall be
paid by the Company in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall
ultimately be determined that such Indemnitee is not entitled to be indemnified by the Company as
authorized in this Agreement.




          The indemnification and advancement of expenses provided by, or granted pursuant to, the other
provisions of this Section 1 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any law, by-law,
agreement, vote of stockholders or disinterested Directors or otherwise and in any capacity.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	B-3
	 	Exhibit B to the Stock and Warrant Purchase Agreement








 









 





          Pursuant to the Stock and Warrant Purchase Agreement, the Company shall purchase and maintain
insurance on behalf of the Indemnitees against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his or her status as such, whether
or not the Company would have the power to indemnify such Indemnitee against such liability under
the provisions of Section 145 of the General Corporation Law of the State of Delaware.




          The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 1 shall continue as to any Indemnitee who has ceased to be an Indemnitee of the Company and
shall inure to the benefit of the heirs, executors and administrators of such Indemnitee.




     Governing Law. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware.



     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.



     Entire Agreement. This Agreement constitutes the entire agreement between the Parties with
respect to the matters covered hereby and supersedes all prior agreements and understandings with
respect to such matters between the Parties.



     Amendment; Counterparts; Additional Indemnitees.



          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.




          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.




          Persons who become Indemnitees after the date hereof may become a party hereto by
executing a counterpart of this Agreement and upon the acknowledgement of such execution by the
Company.




[SIGNATURES FOLLOW ON NEXT PAGE]




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	B-4
	 	Exhibit B to the Stock and Warrant Purchase Agreement








 









 





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



	 	 	 	 	 
	 	OXIGENE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	John A. Kollins 	 
	 	 	Title:  	Chief Operating Officer 	 
	 



	 	 	 	 	 
	 	DIRECTORS:

 	 
	 	By:  	 	 
	 	 	Name:  	Mark Kessel 	 
	 	 	Title:  	Director 	 



	 	 	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Alastair J.J. Wood, M.D. 	 
	 	 	Title:  	Director 	 
	 



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	B-5
	 	Exhibit B to the Stock and Warrant Purchase Agreement









 









 





EXHIBIT 2.05




FORM OF ADDITIONAL INVESTMENT WARRANT



NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN THE SUBJECT OF
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE, AND THE SAME HAVE BEEN (OR WILL BE, WITH RESPECT TO THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF) ISSUED IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH
LAWS. NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER SUCH
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.



THE WARRANT EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE STOCK AND WARRANT PURCHASE AGREEMENT, DATED AS OF OCTOBER 1, 2008, COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO REGISTRATION OF TRANSFER OF THIS
WARRANT WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN
COMPLIED WITH.




OXiGENE, INC.




WARRANT TO PURCHASE COMPANY COMMON STOCK




			
	 	 	 
	No. CW- _
	 	                    , 200_






     THIS CERTIFIES THAT, for value received, SYMPHONY ViDA HOLDINGS LLC, with its principal office
at 7361 Calhoun Place, Suite 325, Rockville, MD 20855, or its permitted assigns (the
“Holder”), is entitled to subscribe for and purchase at the Exercise Price (defined below)
from OXiGENE, Inc., a Delaware corporation, with its principal office at 230 Third Avenue, Waltham,
MA 02451(the “Company”) up to [                    ]1 (                    ) shares of the Common Stock
of the Company (the “Company Common Stock”), subject to adjustment as provided herein.
This Warrant is being issued pursuant to the terms of the Stock and Warrant Purchase





 




			
	1	 	Insert that number of shares of Company Common Stock
with a Closing Market Value, determined as of the Additional Closing Date,
equal to $1,000,000 (one million dollars), reduced proportionately if the
Additional Holdings Payment Amount is less than $10,000,000 (ten million
dollars).




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit 2.05 to the Stock and Warrant Purchase Agreement





 









 




Agreement, dated October 1, 2008, by and among the Company and the Holder (the “Stock and
Warrant Purchase Agreement”). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Stock and Warrant Purchase Agreement (including
Annex A thereto).




     1. DEFINITIONS. As used herein, the following terms shall have the following
respective meanings:



          (a) “Exercise Period” shall mean the period commencing on the date fifteen (15)
Business Days after the receipt of Stockholder Approval with respect to the shares of Company
Common Stock underlying this Warrant, provided that at such date the exercise of this Warrant would
be permitted under the NASDAQ Rules, and ending on the ten year anniversary of such date, except as
otherwise provided below.




          (b) “Exercise Price” shall mean $0.01, subject to adjustment from time to time
pursuant to Section 6 below.




          (c) “Exercise Shares” shall mean the shares of Company Common Stock issuable upon
exercise of this Warrant, subject to adjustment pursuant to the terms herein, including but not
limited to adjustment pursuant to Section 6 below.




     2. EXERCISE OF WARRANT.



          2.1 Method of Exercise. The rights represented by this Warrant may be exercised for
cash or pursuant to Section 2.2, in each case, at any time during the Exercise Period in increments
(if exercised for cash) having a market value of not less than $3,000,000 (three million dollars)
or, if less than $3,000,000 (three million dollars, the amount needed to exercise this Warrant in
full by delivery of the following to the Company at its address set forth above (or at such other
address as it may designate by notice in writing to the Holder):




          (a) An executed Notice of Exercise in the form attached hereto;




          (b) Either (i) payment of the Exercise Price of the Exercise Shares purchased thereby in cash
or by check or wire transfer of immediately available funds or (ii) by tendering this Warrant as
set forth in Section 2.2;




          (c) This Warrant; and




          (d) Upon the exercise of the rights represented by this Warrant, shares of Company Common
Stock shall be issued for the Exercise Shares so purchased, and shall be registered in the name of
the Holder or persons affiliated with the Holder, if the Holder so designates, within a reasonable
amount of time following receipt by the Company of all of the items designated in clauses
(a) and (b) above, but in no event later




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit 2.05 to the Stock and Warrant Purchase Agreement





 









 




than thirty (30) days after the date of exercise pursuant to this Section 2.1. The Company
shall (i) upon request of the Holder, if available and if allowed under applicable securities laws,
use commercially reasonable efforts to deliver Exercise Shares electronically through the
Depository Trust Corporation or another established clearing corporation performing similar
functions, or (ii) if requested by the Holder, deliver to the Holder certificates evidencing the
Exercise Shares. The person in whose name any Exercise Shares are to be issued upon exercise of
this Warrant shall be deemed to have become the holder of record of such shares on the date on
which delivery of the Notice of Exercise, delivery of this Warrant and payment of the Exercise
Price (if applicable) were made, irrespective of the date of issuance of the shares of Company
Common Stock, except that, if the date of such delivery and payment is a date when the stock
transfer books of the Company are closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on which the stock transfer books
are open.




          2.2 Cashless Exercise. At the option of the Holder, the Exercise Shares to be
acquired upon the exercise of this Warrant will be applied automatically to the Exercise Price in
connection with a cashless exercise of this Warrant in whole or in part. Any Exercise Shares
transferred to the Company as cashless payment of the Exercise Price under this Warrant shall be
valued at their then Closing Market Price. The formula below illustrates the cashless exercise
feature:




	 	 	 	 	 
	X =

	 	Y (A-B)	 	 
	 

	 

	 	 
	 	A          	 	 







	 	X =	 	 the number of Exercise Shares to be issued to the Holder;
	 
	 	Y =	 	 the number of Exercise Shares with respect to which the Holder is
exercising its purchase rights under this Warrant;
	 
	 	A =	 	 the then Closing Market Price of one (1) share of Company Common Stock determined on the Exercise Date; and
	 
	 	B =	 	 the Exercise Price.





          2.3 Partial Exercise. If this Warrant is exercised in part only, the Company shall,
upon surrender of this Warrant, execute and deliver, within ten (10) days of the date of exercise,
a new Warrant evidencing the rights of the Holder, or such other person as shall be designated in
the Notice of Exercise, to purchase the balance of the Exercise Shares purchasable hereunder. In
no event shall this Warrant be exercised for a fractional Exercise Share, and the Company shall not
distribute a Warrant exercisable for a fractional Exercise Share. Fractional Exercise Shares shall
be treated as provided in Section 5 hereof.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




Exhibit 2.05 to the Stock and Warrant Purchase Agreement




 









 





          2.4 Legend.




               (a) All certificates evidencing the shares to be issued to the Holder may bear the following
legends (provided that no such legend shall be borne by Exercise Shares issued following the valid
disposition of such shares pursuant to a registration statement which is effective under the
Securities Act):



     “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.”



     “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS
SET FORTH IN ARTICLE VI OF THE STOCK AND WARRANT PURCHASE AGREEMENT, DATED AS OF OCTOBER 1,
2008, BY AND BETWEEN THE ISSUER HEREOF AND SYMPHONY ViDA HOLDINGS LLC (COPIES OF WHICH ARE ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER HEREOF).”



               (b) If the certificates representing shares include either or both of the legends set forth in
Section 2.4(a) hereof, the Company shall, upon a request from a Holder, or subsequent transferee of
a Holder, as soon as practicable but in no event more than thirty (30) days after receiving such
request, remove or cause to be removed (i) if the shares cease to be restricted securities, the
securities law portion of the legend and/or (ii) in the event of a sale of the shares subject to
issuance following the transfer of the shares in compliance with the transfer restrictions, the
transfer restriction portion of the legend, from certificates representing the shares delivered by
a Holder (or a subsequent transferee).



          2.5 Charges, Taxes and Expenses. Issuance of the Exercise Shares shall be made
without charge to the Holder for any issue or transfer tax or other incidental expense in respect
of the issuance of any electronic or paper certificate, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of the Holder or in such
name or names as may be directed by the Holder; provided, however, that in the
event Exercise Shares are to be issued in a name other than the name of the Holder, this Warrant
when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto. Notwithstanding anything to
the contrary in this Section 2.5, all issue or transfer tax or other incidental expenses imposed




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit 2.05 to the Stock and Warrant Purchase Agreement





 









 




by a Governmental Authority outside the United States shall be 100% borne by the Holder. To
the extent that the issuance of the Exercise Shares requires a filing under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, all such fees and expenses in connection with such
filing will be paid by the Company, and the Company shall cooperate with the Holder with respect to
any such filing.




     3. COVENANTS OF THE COMPANY.



          3.1 Covenants as to Exercise Shares. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be duly authorized and validly issued and outstanding, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof.
The Company further covenants and agrees that the Company will at all times during the Exercise
Period, have authorized and reserved, free from preemptive rights, a sufficient number of shares of
Company Common Stock to provide for the exercise of the rights represented by this Warrant. If at
any time during the Exercise Period the number of authorized but unissued shares of Company Common
Stock shall not be sufficient to permit exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of counsel, be necessary to increase its authorized but
unissued shares of Company Common Stock (or other securities as provided herein) to such number of
shares as shall be sufficient for such purposes.




          3.2 No Impairment. The Company will not, by amendment (including by merger,
consolidation or otherwise) of its Certificate of Incorporation (as such may be amended from time
to time), or through any means, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all times in good faith
carry out of all the provisions of this Warrant and take all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder against such impairment.




          3.3 Notices of Record Date. If at any time:




               (a) the Company shall take a record of the holders of Company Common Stock for the purpose of
entitling them to receive a dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right (other than with respect to any equity or
equity equivalent security issued pursuant to a rights plan adopted by the Company Board);



               (b) there shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or merger of the Company,
or any sale, transfer or other disposition of all or substantially all the property, assets or
business of the Company; or



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 





               (c) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the
Company;


then, in any one or more of such cases, the Company shall use commercially reasonable efforts to
give to the Holder, provided that such action is available and permitted under applicable
securities laws, at least ten (10) days prior written notice of the record date for such dividend,
distribution or right or for determining rights to vote in respect of any such reorganization,
reclassification, recapitalization, consolidation, merger, sale, transfer, disposition,
dissolution, liquidation or winding up of the Company. Any notice provided hereunder shall specify
the date on which the holders of Company Common Stock shall be entitled to any such dividend,
distribution or right, and the amount and character thereof, and the then current estimated date
for the closing of the transaction contemplated by any proposed reorganization, reclassification,
recapitalization, consolidation, merger, sale, transfer, disposition, dissolution, liquidation or
winding up of the Company.




     4. REPRESENTATIONS OF HOLDER.



          4.1 Acquisition of Warrant for Personal Account. The Holder represents and warrants
that it is acquiring the Warrant and the Exercise Shares solely for its account for investment and
not with a present view toward the public sale or public distribution of said Warrant or Exercise
Shares or any part thereof and has no intention of selling or distributing said Warrant or Exercise
Shares or any arrangement or understanding with any other persons regarding the sale or
distribution of said Warrant or the Exercise Shares, except as would not result in a violation of
the Securities Act. The Holder will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) the Warrant except in accordance with Section 8 and the provisions of Article VI of the
Stock and Warrant Purchase Agreement and will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of) the Exercise Shares except in accordance with the provisions of Section 8 and
Article VI of the Stock and Warrant Purchase Agreement and pursuant to and in accordance
with the Securities Act.




          4.2 Securities Are Not Registered.




               (a) The Holder understands that the offer and sale of neither the Warrant nor the Exercise
Shares has been registered under the Securities Act.



               (b) The Holder recognizes that the Warrant and the Exercise Shares must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption from such
registration is available. The Holder recognizes that the Company has no obligation to register
the Warrant or, except as provided in the Stock and Warrant Purchase Agreement and the Registration
Rights Agreement, the Exercise Shares, or to comply with any exemption from such registration.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 








               (c) The Holder is aware that neither the Warrant nor the Exercise Shares may be sold pursuant
to Rule 144 adopted under the Securities Act (“Rule 144”) unless certain conditions are
met, including, among other things, the availability of certain current public information about
the Company and the expiration of the required holding period under Rule 144.



          4.3 Disposition of Warrant and Exercise Shares.




               (a) The Holder further agrees not to make any disposition of all or any part of the Warrant or
Exercise Shares in any event unless and until one of the following occurs:



                    (i) The Company shall have received a letter secured by the Holder from the SEC stating that
no action will be recommended to the SEC with respect to the proposed disposition;



                    (ii) There is then in effect a registration statement under the Securities Act covering the
Exercise Shares and such disposition is made in accordance with said registration statement; or



                    (iii) The Holder shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, for the Holder to the effect that such disposition will not require
registration of such Warrant or Exercise Shares under the Securities Act or any applicable state
securities laws; provided, that so long as the Holder provides the Company with a representation
letter in customary form with respect to a Rule 144 disposition, no opinion shall be required for
any disposition made or to be made in accordance with the provisions of Rule 144.



     5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this
Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after aggregation,
the exercise would result in the issuance of a fractional share, the Company shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash
equal to the product resulting from multiplying the then Closing Market Price (as of the applicable
exercise date) of an Exercise Share by such fraction.



     6. CERTAIN EVENTS.



     6.1 Dividends, Subdivisions, Combinations and Reclassifications. The number and kind
of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject
to adjustment from time to time upon the happening of any of the following. In case the Company
shall (i) pay a dividend in shares of Company



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 




Common Stock or make a distribution in shares of Company Common Stock to holders of its
outstanding Company Common Stock, (ii) subdivide its outstanding shares of Company Common Stock
into a greater number of shares, (iii) combine its outstanding shares of Company Common Stock into
a smaller number of shares of Company Common Stock, or (iv) issue any shares of its capital stock
in a reclassification of the Company Common Stock, then the number of Exercise Shares purchasable
upon exercise of this Warrant immediately prior thereto shall be adjusted so that the Holder shall
be entitled to receive the kind and number of Exercise Shares or other securities of the Company
which it would have owned or have been entitled to receive had such Warrant been exercised in
advance thereof. Upon each such adjustment of the kind and number of Exercise Shares or other
securities of the Company which are purchasable hereunder, the Holder shall thereafter be entitled
to purchase the number of Exercise Shares or other securities resulting from such adjustment at an
Exercise Price per Exercise Share or other security obtained by multiplying the Exercise Price in
effect immediately prior to such adjustment by the number of Exercise Shares purchasable pursuant
hereto immediately prior to such adjustment and dividing by the number of Exercise Shares or other
securities of the Company resulting from such adjustment. An adjustment made pursuant to this
paragraph shall become effective immediately after the effective date of such event retroactive to
the record date, if any, for such event.




     6.2 Corporate Transactions. In the event that the surviving or resulting “parent”
entity (the “Surviving Entity”) in a merger or acquisition involving the Company is an
entity other than the Company, then the Holder or any subsequent holder of this Warrant shall
either exercise this Warrant (which will become immediately exercisable upon a Transaction Event)
or surrender this Warrant in exchange for a new Warrant exercisable for shares of the common stock
of the Surviving Entity (the “Replacement Warrant”); provided, that:



          (e) if the terms of such merger or acquisition shall provide for consideration that consists
of a combination of cash and stock of the Surviving Entity, then any Replacement Warrant issued to
the holders of this Warrant shall be solely for stock of the Surviving Entity, at an exchange ratio
reflecting the total consideration paid by the Surviving Entity at the time of such change in
control as if the total consideration (including cash) for each share of Company Common Stock was
instead paid only in stock of the Surviving Entity at the time of such change of control (as
illustrated on Exhibit A to this Warrant), and the holders of the Replacement Warrant shall
have the registration rights for stock issuable upon exercise of the Replacement Warrant as
provided under the Registration Rights Agreement; and




          (f) if such a merger or acquisition shall occur and the consideration for such merger or
acquisition shall be paid entirely in cash, then any holder of this Warrant shall have the option
to elect, within fifteen (15) Business Days of receiving notice of the public announcement of the
merger or acquisition by written notice of election to the Company, either to (A) receive from the
Surviving Entity, upon




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 




the closing of such merger or acquisition, a Replacement Warrant solely for stock of the
Surviving Entity, at an exchange ratio reflecting the cash paid by the Surviving Entity at the time
of such change in control; or (B) surrender this Warrant to the Company in consideration of a cash
payment for each share of Company Common Stock subject to purchase under this Warrant equal to the
difference of (i) the per share cash consideration to be received by a holder of one share of
Company Common Stock (including the Company Common Stock subject to purchase under this Warrant) to
be tendered in the merger or acquisition and (ii) the Exercise Price (the aggregate of such
amounts, the “Warrant Surrender Price”). The Warrant Surrender Price shall be paid upon
the surrender of this Warrant promptly following the closing of the all cash merger or acquisition.




          (g) Following a merger or acquisition involving the payment of non-cash consideration in which
the Company is not the Surviving Entity, any reference to “Company Common Stock” shall be
deemed instead to refer to the common stock of the Surviving Entity. For purposes of this Section
6.2 “common stock of the Surviving Entity” shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other class of stock of such corporation,
and which is not subject to redemption and shall also include any evidences of indebtedness, shares
of stock or other securities which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the occurrence of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 6.2 shall similarly apply to successive mergers, acquisitions, consolidations or
disposition of assets.




     6.3 Adjustment of Exercise Price. The form of this Warrant need not be changed
because of any adjustment in the number, class, and kind of shares subject to this Warrant. The
Company shall promptly provide a certificate from its principal accounting officer notifying the
Holder in writing of any adjustment in the Exercise Price and/or the total number, class, and kind
of shares (and other securities or property) issuable upon exercise of this Warrant, which
certificate shall specify the Exercise Price and number, class and kind of shares (and other
securities or property) under this Warrant after giving effect to such adjustment and shall set
forth a brief statement of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.



     7. NO STOCKHOLDER RIGHTS. Except to the extent specified in Section 6, this Warrant
in and of itself shall not entitle the Holder to any voting rights or other rights as a stockholder
of the Company. Upon the exercise of this Warrant in accordance with Section 2, the Exercise
Shares so purchased shall be and be deemed to be issued to such Holder as the record owner of such
shares as of the close of business on the date of such exercise.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 








     8. TRANSFER OF WARRANT. Subject to applicable laws, the restriction on transfer set
forth on the first page of this Warrant and the provisions of Article VI of the Stock and
Warrant Purchase Agreement, this Warrant and all rights hereunder are transferable, in whole or in
part, by the Holder or its Affiliates, in person or by duly authorized attorney, upon delivery of
this Warrant, the Assignment Form attached hereto and funds sufficient to pay any transfer taxes
(in accordance with Section 2.5 hereof) payable upon the making of such transfer, to one or more
transferees designated by the Holder on or after the twelve month anniversary of the date of
issuance of this Warrant; provided, however, that without the prior written consent
of the Company (not to be unreasonably withheld), the Holder shall not transfer this Warrant to
more than five (5) transferees. Any transferee will sign and deliver to the Company an investment
letter in a form that is commercially reasonable, customary for use in similar transactions and
reasonably satisfactory to the Company. Upon such delivery and, if required, such payment, the
Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or
assignees and in the denomination or denominations specified in such instrument of assignment, and
shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned,
and this Warrant shall promptly be cancelled. A Warrant, if properly assigned, may be exercised by
a new holder for the purchase of Exercise Shares without having a new Warrant issued.



     9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof),
issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed.



     10. MODIFICATIONS AND WAIVER. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the Company and the
Holder.



     11. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when
sent by confirmed facsimile if sent during normal business hours of the recipient, if not, then on
the next Business Day, (c) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one Business Day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written verification of receipt.
All communications shall be sent to the Company at the address listed on the signature page and to
the Holder at the addresses on the Company records, or at such other address as the Company or
Holder may designate by ten days’ advance written notice to the other party hereto.



     12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 








     13. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder
shall be governed by the laws of the State of New York without regard to the principles of conflict
of laws. The Company and, by accepting this Warrant, the Holder, each irrevocably submits and
consents to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States District Court for the Southern District of New York for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this Warrant and the
transactions contemplated hereby. The Company and, by accepting this Warrant, the Holder, each
irrevocably waives any objection to the laying of venue of any such suit, action or proceeding
brought in such courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE COMPANY AND, BY
ITS ACCEPTANCE HEREOF, THE HOLDER HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS WARRANT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY
AS TO THIS WAIVER.



     14. DESCRIPTIVE HEADINGS. The descriptive headings of the several paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this Warrant. The
language in this Warrant shall be construed as to its fair meaning without regard to which party
drafted this Warrant.



     15. SUCCESSORS AND ASSIGNS. Subject to applicable securities laws, this Warrant and
the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of the Holder.



     16. SEVERABILITY. The invalidity or unenforceability of any provision of this Warrant
in any jurisdiction shall not affect the validity or enforceability of such provision in any other
jurisdiction, or affect any other provision of this Warrant, which shall remain in full force and
effect.



     17. REGISTRATION RIGHTS. The holder of this Warrant and of the Exercise Shares shall
be entitled to the registration rights and other applicable rights with respect to the Exercise
Shares as and to the extent set forth in the Stock and Warrant Purchase Agreement and the
Registration Rights Agreement.



     18. SPECIFIC PERFORMANCE. The parties acknowledge and agree that irreparable damage
would occur in the event that any of the provisions of this Warrant were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that
either party shall be entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Warrant by the other party and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which either party may be entitled by law or
equity.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 








     19. ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and undertakings of the parties, whether oral or
written, with respect to such subject matter.



[Signature Page Follows]




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 








     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of                     , 2008.



	 	 	 	 	 	 	 
	 	 	OXiGENE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	230 Third Avenue	 	 
	 

	 	 	 	Waltham, MA 02451	 	 
	 

	 	 	 	Attn:                     	 	 
	 

	 	 	 	Facsimile: (     )      -      	 	 






Signature Page to the Additional Investment Warrant




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit  2.05 to the Stock and Warrant Purchase Agreement




 









 





NOTICE OF EXERCISE




TO: OXiGENE, INC.




     (1) The undersigned hereby elects to:



          o purchase                      shares of the Company Common Stock of OXiGENE, Inc. (the
“Company”) pursuant to the terms of the attached Warrant, and tenders herewith payment of
the exercise price in full for such shares.




          o make payment for                      shares of the Company Common Stock using the cashless exercise
method pursuant to Section 2.2 of the attached Warrant.




     (2) Please issue a certificate or certificates representing said shares of Company Common
Stock in the name of the undersigned or in such other name as is specified below:



 





(Name)




 






 





(Address)




     (3) If the Warrant is not being exercised in full, please issue a certificate representing a
new Warrant evidencing the right of the Holder to purchase the balance of the Exercise Shares
purchasable under the Warrant, such certificate to be registered in the name of the undersigned or
in such other name as is specified below:



 





(Name)




 






 





(Address)




     (4) The undersigned represents that (i) the aforesaid shares of Company Common Stock are being
acquired for the account of the undersigned not with a view to, or for resale in connection with,
the distribution thereof in violation of the Securities Act of 1933, as amended (the
“Securities Act”) and that the undersigned has no present intention of distributing or
reselling such shares in violation of the Securities Act; (ii) the undersigned is aware of the
Company’s business affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision regarding its investment in the
Company; (iii) the undersigned is



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit  2.05 to the Stock and Warrant Purchase Agreement





 









 







experienced in making investments of this type and has such knowledge and background in
financial and business matters that the undersigned is capable of evaluating the merits and risks
of this investment and protecting the undersigned’s own interests; (iv) the undersigned understands
that the shares of Company Common Stock issuable upon exercise of this Warrant must be held
indefinitely unless subsequently registered under the Securities Act or an exemption from such
registration is available, and (v) the undersigned agrees not to make any disposition of all or any
part of the aforesaid shares of Company Common Stock unless and until there is then in effect a
registration statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with said registration statement, or the undersigned has provided
the Company with an opinion of counsel satisfactory to the Company, stating that such registration
is not required.




	 	 	 	 	 
	 
	 

(Date)

	 	 

(Signature)
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	(Print Name)	 	 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit  2.05 to the Stock and Warrant Purchase Agreement




 









 





ASSIGNMENT FORM





(To assign the foregoing Warrant, subject to compliance with
Section 4.3 hereof, execute this form and supply required
information. Do not use this form to purchase shares.)



     FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to


Name:                                                                  
                                                                           
                                                            



(Please Print)



Address:                                                                  
                                                                            
                                                           



(Please Print)




Dated:                                          , 20__




Holder’s

Signature:                                                             




Holder’s

Address:                                                             



NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatever. Officers of
corporations and those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




 Exhibit  2.05 to the Stock and Warrant Purchase Agreement




 









 





EXHIBIT A




WARRANT CONVERSION EXAMPLE




          In the event that the Company is the target of a merger or acquisition in which the share
purchase price paid by the acquiror is paid in cash or a mixture of cash and stock, the outstanding
Warrants are to be exchanged for Replacement Warrants of the Surviving Entity such that the holders
of Warrants shall receive additional Replacement Warrants in lieu of the cash portion of the share
purchase price, as set out in the following example:





A holder hereunder holds Warrants exercisable for 100,000 shares of Company Common Stock at
an exercise price of $10.00 per share, and the share purchase price paid by the acquiror is
$15.00 per share of Company Common Stock, with $5.00 to be paid in cash and $10.00 to be
paid in shares of the common stock of the Surviving Entity (“New Stock”), based on
a price of $100.00 per share of New Stock.




The Warrants of the holder, exercisable for 100,000 shares of Company Common Stock, shall
be converted as follows:




	 	(1)	 	The New Stock portion of the purchase price ($10.00 / share, or a ratio of
New Stock to Company Common Stock of 10 to 1) shall yield Replacement Warrants
exercisable for 10,000 shares of New Stock; and
	 
	 	(2)	 	The cash portion of the purchase price ($5.00 / share, or $500,000 total)
shall, at the New Stock price of $100 /share, yield Replacement Warrants exercisable
for 5,000 shares of New Stock ($500,000 / $100 = 5,000).






Therefore, in such a scenario, a holder of Warrants exercisable for 100,000 shares of
Company Common Stock would receive Replacement Warrants exercisable for 15,000 shares of
New Stock at an exercise price of $66.67 per share ($10.00 / $15.00 = 0.67 x $100.00 =
$66.67).



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit  2.05 to the Stock and Warrant Purchase Agreement




 









 





EXHIBIT 2.06A




FORM OF 2,000,000 SHARE NON-IV WARRANT



NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN THE SUBJECT OF
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE, AND THE SAME HAVE BEEN (OR WILL BE, WITH RESPECT TO THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF) ISSUED IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH
LAWS. NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER SUCH
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.



THE WARRANT EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE STOCK AND WARRANT PURCHASE AGREEMENT, DATED AS OF OCTOBER 1, 2008, COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO REGISTRATION OF TRANSFER OF THIS
WARRANT WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN
COMPLIED WITH.




OXiGENE, INC.




WARRANT TO PURCHASE COMPANY COMMON STOCK




			
	 	 	 
	No. CW-_
	 	                    , 200_






          THIS CERTIFIES THAT, for value received, SYMPHONY ViDA HOLDINGS LLC, with its principal office
at 7361 Calhoun Place, Suite 325, Rockville, MD 20855, or its permitted assigns (the
“Holder”), is entitled to subscribe for and purchase at the Exercise Price (defined below)
from OXiGENE, Inc., a Delaware corporation, with its principal office at 230 Third Avenue, Waltham,
MA 02451(the “Company”) up to two million (2,000,000) shares of the Common Stock of the
Company (the “Company Common Stock”), subject to adjustment as provided herein. This
Warrant is being issued pursuant to the terms of the Stock and Warrant Purchase Agreement, dated
October 1, 2008, by and among the Company and the Holder (the “Stock and Warrant Purchase
Agreement”). Capitalized terms not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Stock and Warrant Purchase Agreement (including Annex A thereto).




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	2
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement















 





          1. DEFINITIONS. As used herein, the following terms shall have the following
respective meanings:




               (h) “Exercise Period” shall mean the period commencing on the date fifteen (15)
Business Days after the receipt of Stockholder Approval with respect to the shares of Company
Common Stock underlying this Warrant, provided that at such date the exercise of this Warrant would
be permitted under the NASDAQ Rules, and ending on the one year anniversary of such date, except as
otherwise provided below.



               (i) “Exercise Price” shall mean $1.22, subject to adjustment from time to time
pursuant to Section 6 below.



               (j) “Exercise Shares” shall mean the shares of Company Common Stock issuable upon
exercise of this Warrant, subject to adjustment pursuant to the terms herein, including but not
limited to adjustment pursuant to Section 6 below.



          2. EXERCISE OF WARRANT.




               2.1 Method of Exercise. The rights represented by this Warrant may be exercised for
cash or pursuant to Section 2.2, in each case, at any time during the Exercise Period in increments
(if exercised for cash) having a market value of not less than $3,000,000 (three million dollars)
or, if less than $3,000,000 (three million dollars), the amount needed to exercise this Warrant in
full by delivery of the following to the Company at its address set forth above (or at such other
address as it may designate by notice in writing to the Holder):



               (k) An executed Notice of Exercise in the form attached hereto;



               (l) Either (i) payment of the Exercise Price of the Exercise Shares purchased thereby in cash
or by check or wire transfer of immediately available funds or (ii) by tendering this Warrant as
set forth in Section 2.2;



               (m) This Warrant; and



               (n) Upon the exercise of the rights represented by this Warrant, shares of Company Common
Stock shall be issued for the Exercise Shares so purchased, and shall be registered in the name of
the Holder or persons affiliated with the Holder, if the Holder so designates, within a reasonable
amount of time following receipt by the Company of all of the items designated in clauses
(a) and (b) above, but in no event later than thirty (30) days after the date of
exercise pursuant to this Section 2.1. The Company shall (i) upon request of the Holder, if
available and if allowed under applicable securities laws, use commercially reasonable efforts to
deliver Exercise Shares electronically through the Depository Trust Corporation or another
established clearing corporation performing similar functions, or (ii) if requested by the Holder,
deliver to the Holder



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	3
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement






 









 




certificates evidencing the Exercise Shares. The person in whose name any Exercise Shares are
to be issued upon exercise of this Warrant shall be deemed to have become the holder of record of
such shares on the date on which delivery of the Notice of Exercise, delivery of this Warrant and
payment of the Exercise Price (if applicable) were made, irrespective of the date of issuance of
the shares of Company Common Stock, except that, if the date of such delivery and payment is a date
when the stock transfer books of the Company are closed, such person shall be deemed to have become
the holder of such shares at the close of business on the next succeeding date on which the stock
transfer books are open.




          2.2 Cashless Exercise. At the option of the Holder, the Exercise Shares to be
acquired upon the exercise of this Warrant will be applied automatically to the Exercise Price in
connection with a cashless exercise of this Warrant in whole or in part. Any Exercise Shares
transferred to the Company as cashless payment of the Exercise Price under this Warrant shall be
valued at their then Closing Market Price. The formula below illustrates the cashless exercise
feature:






	 	 	 	 	 
	X =

	 	Y (A-B)	 	 
	 

	 

	 	 
	 	A          	 	 






	 	X =	 	 the number of Exercise Shares to be issued to the Holder;
	 
	 	Y =	 	 the number of Exercise Shares with respect to which the Holder is
exercising its purchase rights under this Warrant;
	 
	 	A =	 	 the then Closing Market Price of one (1) share of Company Common Stock determined on the
Exercise Date; and
	 
	 	B =	 	 the Exercise Price.





          2.3 Partial Exercise. If this Warrant is exercised in part only, the Company shall,
upon surrender of this Warrant, execute and deliver, within ten (10) days of the date of exercise,
a new Warrant evidencing the rights of the Holder, or such other person as shall be designated in
the Notice of Exercise, to purchase the balance of the Exercise Shares purchasable hereunder. In
no event shall this Warrant be exercised for a fractional Exercise Share, and the Company shall not
distribute a Warrant exercisable for a fractional Exercise Share. Fractional Exercise Shares shall
be treated as provided in Section 5 hereof.




          2.4 Legend.




               (a) All certificates evidencing the shares to be issued to the Holder may bear the following
legends (provided that no such legend shall be borne



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	4
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement







 









 




by Exercise Shares issued following the valid disposition of such shares pursuant to a
registration statement which is effective under the Securities Act):




     “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.”



     “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS
SET FORTH IN ARTICLE VI OF THE STOCK AND WARRANT PURCHASE AGREEMENT, DATED AS OF October 1,
2008, BY AND BETWEEN THE ISSUER HEREOF AND SYMPHONY ViDA HOLDINGS LLC (COPIES OF WHICH ARE ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER HEREOF).”



               (b) If the certificates representing shares include either or both of the legends set forth in
Section 2.4(a) hereof, the Company shall, upon a request from a Holder, or subsequent transferee of
a Holder, as soon as practicable but in no event more than thirty (30) days after receiving such
request, remove or cause to be removed (i) if the shares cease to be restricted securities, the
securities law portion of the legend and/or (ii) in the event of a sale of the shares subject to
issuance following the transfer of the shares in compliance with the transfer restrictions, the
transfer restriction portion of the legend, from certificates representing the shares delivered by
a Holder (or a subsequent transferee).



          2.5 Charges, Taxes and Expenses. Issuance of the Exercise Shares shall be made
without charge to the Holder for any issue or transfer tax or other incidental expense in respect
of the issuance of any electronic or paper certificate, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of the Holder or in such
name or names as may be directed by the Holder; provided, however, that in the
event Exercise Shares are to be issued in a name other than the name of the Holder, this Warrant
when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto. Notwithstanding anything to
the contrary in this Section 2.5, all issue or transfer tax or other incidental expenses imposed by
a Governmental Authority outside the United States shall be 100% borne by the Holder. To the
extent that the issuance of the Exercise Shares requires a filing under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, all such fees and




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	5
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement






 









 




expenses in connection with such filing will be paid by the Company, and the Company shall
cooperate with the Holder with respect to any such filing.




     3. COVENANTS OF THE COMPANY.



          3.1 Covenants as to Exercise Shares. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be duly authorized and validly issued and outstanding, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof.
The Company further covenants and agrees that the Company will at all times during the Exercise
Period, have authorized and reserved, free from preemptive rights, a sufficient number of shares of
Company Common Stock to provide for the exercise of the rights represented by this Warrant. If at
any time during the Exercise Period the number of authorized but unissued shares of Company Common
Stock shall not be sufficient to permit exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of counsel, be necessary to increase its authorized but
unissued shares of Company Common Stock (or other securities as provided herein) to such number of
shares as shall be sufficient for such purposes.




          3.2 No Impairment. The Company will not, by amendment (including by merger,
consolidation or otherwise) of its Certificate of Incorporation (as such may be amended from time
to time), or through any means, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all times in good faith
carry out of all the provisions of this Warrant and take all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder against such impairment.




          3.3 Notices of Record Date. If at any time:




               (a) the Company shall take a record of the holders of Company Common Stock for the purpose of
entitling them to receive a dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right (other than with respect to any equity or
equity equivalent security issued pursuant to a rights plan adopted by the Company Board);



               (b) there shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or merger of the Company,
or any sale, transfer or other disposition of all or substantially all the property, assets or
business of the Company; or



               (c) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the
Company;



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	6
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 




then, in any one or more of such cases, the Company shall use commercially reasonable efforts to
give to the Holder, provided that such action is available and permitted under applicable
securities laws, at least ten (10) days prior written notice of the record date for such dividend,
distribution or right or for determining rights to vote in respect of any such reorganization,
reclassification, recapitalization, consolidation, merger, sale, transfer, disposition,
dissolution, liquidation or winding up of the Company. Any notice provided hereunder shall specify
the date on which the holders of Company Common Stock shall be entitled to any such dividend,
distribution or right, and the amount and character thereof, and the then current estimated date
for the closing of the transaction contemplated by any proposed reorganization, reclassification,
recapitalization, consolidation, merger, sale, transfer, disposition, dissolution, liquidation or
winding up of the Company.




     4. REPRESENTATIONS OF HOLDER.



          4.1 Acquisition of Warrant for Personal Account. The Holder represents and warrants
that it is acquiring the Warrant and the Exercise Shares solely for its account for investment and
not with a present view toward the public sale or public distribution of said Warrant or Exercise
Shares or any part thereof and has no intention of selling or distributing said Warrant or Exercise
Shares or any arrangement or understanding with any other persons regarding the sale or
distribution of said Warrant or the Exercise Shares, except as would not result in a violation of
the Securities Act. The Holder will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) the Warrant except in accordance with Section 8 and the provisions of Article VI of the
Stock and Warrant Purchase Agreement and will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of) the Exercise Shares except in accordance with the provisions of Section 8 and
Article VI of the Stock and Warrant Purchase Agreement and pursuant to and in accordance
with the Securities Act.




          4.2 Securities Are Not Registered.




               (a) The Holder understands that the offer and sale of neither the Warrant nor the Exercise
Shares has been registered under the Securities Act.



               (b) The Holder recognizes that the Warrant and the Exercise Shares must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption from such
registration is available. The Holder recognizes that the Company has no obligation to register
the Warrant or, except as provided in the Stock and Warrant Purchase Agreement and the Registration
Rights Agreement, the Exercise Shares, or to comply with any exemption from such registration.



               (c) The Holder is aware that neither the Warrant nor the Exercise Shares may be sold pursuant
to Rule 144 adopted under the Securities Act



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	7
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 




(“Rule 144”) unless certain conditions are met, including, among other things, the
availability of certain current public information about the Company and the expiration of the
required holding period under Rule 144.




          4.3 Disposition of Warrant and Exercise Shares.




               (a) The Holder further agrees not to make any disposition of all or any part of the Warrant or
Exercise Shares in any event unless and until one of the following occurs:



                    (i) The Company shall have received a letter secured by the Holder from the SEC stating that
no action will be recommended to the SEC with respect to the proposed disposition;



                    (ii) There is then in effect a registration statement under the Securities Act covering the
Exercise Shares and such disposition is made in accordance with said registration statement; or



                    (iii) The Holder shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, for the Holder to the effect that such disposition will not require
registration of such Warrant or Exercise Shares under the Securities Act or any applicable state
securities laws; provided, that so long as the Holder provides the Company with a representation
letter in customary form with respect to a Rule 144 disposition, no opinion shall be required for
any disposition made or to be made in accordance with the provisions of Rule 144.



     5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this
Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after aggregation,
the exercise would result in the issuance of a fractional share, the Company shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash
equal to the product resulting from multiplying the then Closing Market Price (as of the applicable
exercise date) of an Exercise Share by such fraction.



     6. CERTAIN EVENTS.



     6.1 Dividends, Subdivisions, Combinations and Reclassifications. The number and kind
of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject
to adjustment from time to time upon the happening of any of the following. In case the Company
shall (i) pay a dividend in shares of Company Common Stock or make a distribution in shares of
Company Common Stock to holders of its outstanding Company Common Stock, (ii) subdivide its
outstanding shares of Company Common Stock into a greater number of shares, (iii) combine its
outstanding



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	8
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 




shares of Company Common Stock into a smaller number of shares of Company Common Stock, or
(iv) issue any shares of its capital stock in a reclassification of the Company Common Stock, then
the number of Exercise Shares purchasable upon exercise of this Warrant immediately prior thereto
shall be adjusted so that the Holder shall be entitled to receive the kind and number of Exercise
Shares or other securities of the Company which it would have owned or have been entitled to
receive had such Warrant been exercised in advance thereof. Upon each such adjustment of the kind
and number of Exercise Shares or other securities of the Company which are purchasable hereunder,
the Holder shall thereafter be entitled to purchase the number of Exercise Shares or other
securities resulting from such adjustment at an Exercise Price per Exercise Share or other security
obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the
number of Exercise Shares purchasable pursuant hereto immediately prior to such adjustment and
dividing by the number of Exercise Shares or other securities of the Company resulting from such
adjustment. An adjustment made pursuant to this paragraph shall become effective immediately after
the effective date of such event retroactive to the record date, if any, for such event.




     6.2 Corporate Transactions. In the event that the surviving or resulting “parent”
entity (the “Surviving Entity”) in a merger or acquisition involving the Company is an
entity other than the Company, then the Holder or any subsequent holder of this Warrant shall
either exercise this Warrant (which will become immediately exercisable upon a Transaction Event)
or surrender this Warrant in exchange for a new Warrant exercisable for shares of the common stock
of the Surviving Entity (the “Replacement Warrant”); provided, that:



          (o) if the terms of such merger or acquisition shall provide for consideration that consists
of a combination of cash and stock of the Surviving Entity, then any Replacement Warrant issued to
the holders of this Warrant shall be solely for stock of the Surviving Entity, at an exchange ratio
reflecting the total consideration paid by the Surviving Entity at the time of such change in
control as if the total consideration (including cash) for each share of Company Common Stock was
instead paid only in stock of the Surviving Entity at the time of such change of control (as
illustrated on Exhibit A to this Warrant), and the holders of the Replacement Warrant shall
have the registration rights for stock issuable upon exercise of the Replacement Warrant as
provided under the Registration Rights Agreement; and




          (p) if such a merger or acquisition shall occur and the consideration for such merger or
acquisition shall be paid entirely in cash, then any holder of this Warrant shall have the option
to elect, within fifteen (15) Business Days of receiving notice of the public announcement of the
merger or acquisition by written notice of election to the Company, either to (A) receive from the
Surviving Entity, upon the closing of such merger or acquisition, a Replacement Warrant solely for
stock of the Surviving Entity, at an exchange ratio reflecting the cash paid by the Surviving
Entity at the time of such change in control; or (B) surrender this Warrant to the Company in




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	9
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 




consideration of a cash payment for each share of Company Common Stock subject to purchase
under this Warrant equal to the difference of (i) the per share cash consideration to be received
by a holder of one share of Company Common Stock (including the Company Common Stock subject to
purchase under this Warrant) to be tendered in the merger or acquisition and (ii) the Exercise
Price (the aggregate of such amounts, the “Warrant Surrender Price”). The Warrant
Surrender Price shall be paid upon the surrender of this Warrant promptly following the closing of
the all cash merger or acquisition.




          (q) Following a merger or acquisition involving the payment of non-cash consideration in which
the Company is not the Surviving Entity, any reference to “Company Common Stock” shall be
deemed instead to refer to the common stock of the Surviving Entity. For purposes of this Section
6.2 “common stock of the Surviving Entity” shall include stock of such corporation of any class
which is not preferred as to dividends or assets over any other class of stock of such corporation,
and which is not subject to redemption and shall also include any evidences of indebtedness, shares
of stock or other securities which are convertible into or exchangeable for any such stock, either
immediately or upon the arrival of a specified date or the occurrence of a specified event and any
warrants or other rights to subscribe for or purchase any such stock. The foregoing provisions of
this Section 6.2 shall similarly apply to successive mergers, acquisitions, consolidations or
disposition of assets.




     6.3 Adjustment of Exercise Price. The form of this Warrant need not be changed
because of any adjustment in the number, class, and kind of shares subject to this Warrant. The
Company shall promptly provide a certificate from its principal accounting officer notifying the
Holder in writing of any adjustment in the Exercise Price and/or the total number, class, and kind
of shares (and other securities or property) issuable upon exercise of this Warrant, which
certificate shall specify the Exercise Price and number, class and kind of shares (and other
securities or property) under this Warrant after giving effect to such adjustment and shall set
forth a brief statement of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.



     7. NO STOCKHOLDER RIGHTS. Except to the extent specified in Section 6, this Warrant
in and of itself shall not entitle the Holder to any voting rights or other rights as a stockholder
of the Company. Upon the exercise of this Warrant in accordance with Section 2, the Exercise
Shares so purchased shall be and be deemed to be issued to such Holder as the record owner of such
shares as of the close of business on the date of such exercise.



     8. TRANSFER OF WARRANT. Subject to applicable laws, the restriction on transfer set
forth on the first page of this Warrant and the provisions of Article VI of the Stock and
Warrant Purchase Agreement, this Warrant and all rights hereunder are transferable, in whole or in
part, by the Holder or its Affiliates, in person or by duly authorized attorney, upon delivery of
this Warrant, the Assignment Form



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 
					
	 	 	 	 	 
	 
	 	10
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 




attached hereto and funds sufficient to pay any transfer taxes (in accordance with Section 2.5
hereof) payable upon the making of such transfer, to one or more transferees designated by the
Holder; provided, however, that without the prior written consent of the Company
(not to be unreasonably withheld), the Holder shall not transfer this Warrant to more than five (5)
transferees. Any transferee will sign and deliver to the Company an investment letter in a form
that is commercially reasonable, customary for use in similar transactions and reasonably
satisfactory to the Company. Upon such delivery and, if required, such payment, the Company shall
execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the
denomination or denominations specified in such instrument of assignment, and shall issue to the
assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. A Warrant, if properly assigned, may be exercised by a new holder for
the purchase of Exercise Shares without having a new Warrant issued.




     9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof),
issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed.



     10. MODIFICATIONS AND WAIVER. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the Company and the
Holder.



     11. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when
sent by confirmed facsimile if sent during normal business hours of the recipient, if not, then on
the next Business Day, (c) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one Business Day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written verification of receipt.
All communications shall be sent to the Company at the address listed on the signature page and to
the Holder at the addresses on the Company records, or at such other address as the Company or
Holder may designate by ten days’ advance written notice to the other party hereto.



     12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.



     13. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder
shall be governed by the laws of the State of New York without regard to the principles of conflict
of laws. The Company and, by accepting this Warrant, the Holder, each irrevocably submits and
consents to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	11
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 




District Court for the Southern District of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Warrant and the transactions contemplated
hereby. The Company and, by accepting this Warrant, the Holder, each irrevocably waives any
objection to the laying of venue of any such suit, action or proceeding brought in such courts and
irrevocably waives any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. EACH OF THE COMPANY AND, BY ITS ACCEPTANCE HEREOF, THE
HOLDER HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS
WARRANT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.




     14. DESCRIPTIVE HEADINGS. The descriptive headings of the several paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this Warrant. The
language in this Warrant shall be construed as to its fair meaning without regard to which party
drafted this Warrant.



     15. SUCCESSORS AND ASSIGNS. Subject to applicable securities laws, this Warrant and
the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of the Holder.



     16. SEVERABILITY. The invalidity or unenforceability of any provision of this Warrant
in any jurisdiction shall not affect the validity or enforceability of such provision in any other
jurisdiction, or affect any other provision of this Warrant, which shall remain in full force and
effect.



     17. REGISTRATION RIGHTS. The holder of this Warrant and of the Exercise Shares shall
be entitled to the registration rights and other applicable rights with respect to the Exercise
Shares as and to the extent set forth in the Stock and Warrant Purchase Agreement and the
Registration Rights Agreement.



     18. SPECIFIC PERFORMANCE. The parties acknowledge and agree that irreparable damage
would occur in the event that any of the provisions of this Warrant were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that
either party shall be entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Warrant by the other party and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which either party may be entitled by law or
equity.



     19. ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and undertakings of the parties, whether oral or
written, with respect to such subject matter.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	12
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 





[Signature Page Follows]




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	13
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement
















 





     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of                     , 2008.



	 	 	 	 	 	 	 
	 	 	OXiGENE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	230 Third Avenue	 	 
	 

	 	 	 	Waltham, MA 02451	 	 
	 

	 	 	 	Attn:                          	 	 
	 

	 	 	 	Facsimile: (     )       -      	 	 






Signature Page to the 2,000,000 Share Non-IV Warrant




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit 2.06A to the Stock and Warrant Purchase Agreement




 









 





NOTICE OF EXERCISE




TO: OXiGENE, INC.




     (1) The undersigned hereby elects to:



          o purchase                     
shares of the Company Common Stock of OXiGENE, Inc. (the
“Company”) pursuant to the terms of the attached Warrant, and tenders herewith payment of
the exercise price in full for such shares.




          o make payment for                    
shares of the Company Common Stock using the cashless exercise
method pursuant to Section 2.2 of the attached Warrant.




     (2) Please issue a certificate or certificates representing said shares of Company Common
Stock in the name of the undersigned or in such other name as is specified below:



 





(Name)




 






 





(Address)




     (3) If the Warrant is not being exercised in full, please issue a certificate representing a
new Warrant evidencing the right of the Holder to purchase the balance of the Exercise Shares
purchasable under the Warrant, such certificate to be registered in the name of the undersigned or
in such other name as is specified below:



 





(Name)




 






 





(Address)




     (4) The undersigned represents that (i) the aforesaid shares of Company Common Stock are being
acquired for the account of the undersigned not with a view to, or for resale in connection with,
the distribution thereof in violation of the Securities Act of 1933, as amended (the
“Securities Act”) and that the undersigned has no present intention of distributing or
reselling such shares in violation of the Securities Act; (ii) the undersigned is aware of the
Company’s business affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision regarding its investment in the
Company; (iii) the undersigned is



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit 2.06A to the Stock and Warrant Purchase Agreement




 









 




experienced in making investments of this type and has such knowledge and background in
financial and business matters that the undersigned is capable of evaluating the merits and risks
of this investment and protecting the undersigned’s own interests; (iv) the undersigned understands
that the shares of Company Common Stock issuable upon exercise of this Warrant must be held
indefinitely unless subsequently registered under the Securities Act or an exemption from such
registration is available, and (v) the undersigned agrees not to make any disposition of all or any
part of the aforesaid shares of Company Common Stock unless and until there is then in effect a
registration statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with said registration statement, or the undersigned has provided
the Company with an opinion of counsel satisfactory to the Company, stating that such registration
is not required.




	 	 	 	 	 
	 
	 


	 	 

	 	 
	(Date)

	 	(Signature)	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	(Print Name)	 	 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	2
	 	Exhibit 2.06A to the Stock and Warrant Purchase Agreement

















 








ASSIGNMENT FORM





(To assign the foregoing Warrant, subject to compliance with
Section 4.3 hereof, execute this form and supply required
information. Do not use this form to purchase shares.)



     FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to


Name:                                                                   
                                                                            
                                                            




(Please Print)



Address:                                                                 
                                                                             
                                                          




(Please Print)




Dated:                                          , 20__




Holder’s

Signature:                                                             




Holder’s

Address:                                                             



NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatever. Officers of
corporations and those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit 2.06A to the Stock and Warrant Purchase Agreement




 









 





EXHIBIT A




WARRANT CONVERSION EXAMPLE




          In the event that the Company is the target of a merger or acquisition in which the share
purchase price paid by the acquiror is paid in cash or a mixture of cash and stock, the outstanding
Warrants are to be exchanged for Replacement Warrants of the Surviving Entity such that the holders
of Warrants shall receive additional Replacement Warrants in lieu of the cash portion of the share
purchase price, as set out in the following example:





A holder hereunder holds Warrants exercisable for 100,000 shares of Company Common Stock at
an exercise price of $10.00 per share, and the share purchase price paid by the acquiror is
$15.00 per share of Company Common Stock, with $5.00 to be paid in cash and $10.00 to be
paid in shares of the common stock of the Surviving Entity (“New Stock”), based on
a price of $100.00 per share of New Stock.




The Warrants of the holder, exercisable for 100,000 shares of Company Common Stock, shall
be converted as follows:




	 	(1)	 	The New Stock portion of the purchase price ($10.00 / share, or a ratio of
New Stock to Company Common Stock of 10 to 1) shall yield Replacement Warrants
exercisable for 10,000 shares of New Stock; and
	 
	 	(2)	 	The cash portion of the purchase price ($5.00 / share, or $500,000 total)
shall, at the New Stock price of $100 /share, yield Replacement Warrants exercisable
for 5,000 shares of New Stock ($500,000 / $100 = 5,000).






Therefore, in such a scenario, a holder of Warrants exercisable for 100,000 shares of
Company Common Stock would receive Replacement Warrants exercisable for 15,000 shares of
New Stock at an exercise price of $66.67 per share ($10.00 / $15.00 = 0.67 x $100.00 =
$66.67).



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit 2.06A to the Stock and Warrant Purchase Agreement




 









 





EXHIBIT 2.06B




FORM OF 2,000,000 SHARE NON-IV WARRANT



NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN THE SUBJECT OF
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE, AND THE SAME HAVE BEEN (OR WILL BE, WITH RESPECT TO THE SECURITIES ISSUABLE UPON EXERCISE
HEREOF) ISSUED IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF SAID ACT AND SUCH
LAWS. NEITHER THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT AS PERMITTED UNDER SUCH
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.



THE WARRANT EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET
FORTH IN THE STOCK AND WARRANT PURCHASE AGREEMENT, DATED AS OF OCTOBER 1, 2008, COPIES OF WHICH ARE
ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO REGISTRATION OF TRANSFER OF THIS
WARRANT WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN
COMPLIED WITH.




OXiGENE, INC.




WARRANT TO PURCHASE COMPANY COMMON STOCK




			
	 	 	 
	No. CW-_
	 	                    , 200_






     THIS CERTIFIES THAT, for value received, SYMPHONY ViDA HOLDINGS LLC, with its principal office
at 7361 Calhoun Place, Suite 325, Rockville, MD 20855, or its permitted assigns (the
“Holder”), is entitled to subscribe for and purchase at the Exercise Price (defined below)
from OXiGENE, Inc., a Delaware corporation, with its principal office at 230 Third Avenue, Waltham,
MA 02451(the “Company”) up to two million (2,000,000) shares of the Common Stock of the
Company (the “Company Common Stock”), subject to adjustment as provided herein. This
Warrant is being issued pursuant to the terms of the Stock and Warrant Purchase Agreement, dated
October 1, 2008, by and among the Company and the Holder (the “Stock and Warrant Purchase
Agreement”). Capitalized terms not otherwise defined herein shall have the respective meanings
ascribed to such terms in the Stock and Warrant Purchase Agreement (including Annex A thereto).



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	2
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement

















 





     1. DEFINITIONS. As used herein, the following terms shall have the following
respective meanings:



          (r) “Exercise Period” shall mean the period commencing on the date fifteen (15)
Business Days after the receipt of Stockholder Approval with respect to the shares of Company
Common Stock underlying this Warrant, provided that at such date the exercise of this Warrant would
be permitted under the NASDAQ Rules, and ending on the one year anniversary of such date, except as
otherwise provided below.




          (s) “Exercise Price” shall mean $1.22, subject to adjustment from time to time
pursuant to Section 6 below.




          (t) “Exercise Shares” shall mean the shares of Company Common Stock issuable upon
exercise of this Warrant, subject to adjustment pursuant to the terms herein, including but not
limited to adjustment pursuant to Section 6 below.




     2. EXERCISE OF WARRANT.



          2.1 Method of Exercise. The rights represented by this Warrant may be exercised for
cash or pursuant to Section 2.2, in each case, at any time during the Exercise Period in increments
(if exercised for cash) having a market value of not less than $3,000,000 (three million dollars)
or, if less than $3,000,000 (three million dollars), the amount needed to exercise this Warrant in
full by delivery of the following to the Company at its address set forth above (or at such other
address as it may designate by notice in writing to the Holder):




          (u) An executed Notice of Exercise in the form attached hereto;




          (v) Either (i) payment of the Exercise Price of the Exercise Shares purchased thereby in cash
or by check or wire transfer of immediately available funds or (ii) by tendering this Warrant as
set forth in Section 2.2;




          (w) This Warrant; and




          (x) Upon the exercise of the rights represented by this Warrant, shares of Company Common
Stock shall be issued for the Exercise Shares so purchased, and shall be registered in the name of
the Holder or persons affiliated with the Holder, if the Holder so designates, within a reasonable
amount of time following receipt by the Company of all of the items designated in clauses
(a) and (b) above, but in no event later than thirty (30) days after the date of
exercise pursuant to this Section 2.1. The Company shall (i) upon request of the Holder, if
available and if allowed under applicable securities laws, use commercially reasonable efforts to
deliver Exercise Shares electronically through the Depository Trust Corporation or another
established clearing corporation performing similar functions, or (ii) if requested by the Holder,
deliver to the Holder certificates evidencing the Exercise Shares. The person in whose name any
Exercise




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	3
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 




Shares are to be issued upon exercise of this Warrant shall be deemed to have become the
holder of record of such shares on the date on which delivery of the Notice of Exercise, delivery
of this Warrant and payment of the Exercise Price (if applicable) were made, irrespective of the
date of issuance of the shares of Company Common Stock, except that, if the date of such delivery
and payment is a date when the stock transfer books of the Company are closed, such person shall be
deemed to have become the holder of such shares at the close of business on the next succeeding
date on which the stock transfer books are open.




               2.2 Cashless Exercise. At the option of the Holder, the Exercise Shares to be
acquired upon the exercise of this Warrant will be applied automatically to the Exercise Price in
connection with a cashless exercise of this Warrant in whole or in part. Any Exercise Shares
transferred to the Company as cashless payment of the Exercise Price under this Warrant shall be
valued at their then Closing Market Price. The formula below illustrates the cashless exercise
feature:





	 	 	 	 	 
	X =

	 	Y (A-B)	 	 
	 

	 

	 	 
	 	A          	 	 






	 	X =	 	 the number of Exercise Shares to be issued to the Holder;
	 
	 	Y =	 	 the number of Exercise Shares with respect to which the Holder is
exercising its purchase rights under this Warrant;
	 
	 	A =	 	 the then Closing Market Price of one (1) share of Company Common Stock determined on the
Exercise Date; and
	 
	 	B =	 	 the Exercise Price.





               2.3 Partial Exercise. If this Warrant is exercised in part only, the Company shall,
upon surrender of this Warrant, execute and deliver, within ten (10) days of the date of exercise,
a new Warrant evidencing the rights of the Holder, or such other person as shall be designated in
the Notice of Exercise, to purchase the balance of the Exercise Shares purchasable hereunder. In
no event shall this Warrant be exercised for a fractional Exercise Share, and the Company shall not
distribute a Warrant exercisable for a fractional Exercise Share. Fractional Exercise Shares shall
be treated as provided in Section 5 hereof.



               2.4 Legend.



                    (a) All certificates evidencing the shares to be issued to the Holder may bear the following
legends (provided that no such legend shall be borne by Exercise Shares issued following the valid
disposition of such shares pursuant to a registration statement which is effective under the
Securities Act):



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	4
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement

















 








          “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.”




          “THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS
SET FORTH IN ARTICLE VI OF THE STOCK AND WARRANT PURCHASE AGREEMENT, DATED AS OF October 1,
2008, BY AND BETWEEN THE ISSUER HEREOF AND SYMPHONY ViDA HOLDINGS LLC (COPIES OF WHICH ARE ON FILE
AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER HEREOF).”




                    (b) If the certificates representing shares include either or both of the legends set forth in
Section 2.4(a) hereof, the Company shall, upon a request from a Holder, or subsequent transferee of
a Holder, as soon as practicable but in no event more than thirty (30) days after receiving such
request, remove or cause to be removed (i) if the shares cease to be restricted securities, the
securities law portion of the legend and/or (ii) in the event of a sale of the shares subject to
issuance following the transfer of the shares in compliance with the transfer restrictions, the
transfer restriction portion of the legend, from certificates representing the shares delivered by
a Holder (or a subsequent transferee).



               2.5 Charges, Taxes and Expenses. Issuance of the Exercise Shares shall be made
without charge to the Holder for any issue or transfer tax or other incidental expense in respect
of the issuance of any electronic or paper certificate, all of which taxes and expenses shall be
paid by the Company, and such certificates shall be issued in the name of the Holder or in such
name or names as may be directed by the Holder; provided, however, that in the
event Exercise Shares are to be issued in a name other than the name of the Holder, this Warrant
when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly
executed by the Holder; and the Company may require, as a condition thereto, the payment of a sum
sufficient to reimburse it for any transfer tax incidental thereto. Notwithstanding anything to
the contrary in this Section 2.5, all issue or transfer tax or other incidental expenses imposed by
a Governmental Authority outside the United States shall be 100% borne by the Holder. To the
extent that the issuance of the Exercise Shares requires a filing under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, all such fees and expenses in connection with such
filing will be paid by the Company, and the Company shall cooperate with the Holder with respect to
any such filing.



     3. COVENANTS OF THE COMPANY.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	5
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 





     3.1 Covenants as to Exercise Shares. The Company covenants and agrees that all
Exercise Shares that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be duly authorized and validly issued and outstanding, fully paid and
nonassessable, and free from all taxes, liens and charges with respect to the issuance thereof.
The Company further covenants and agrees that the Company will at all times during the Exercise
Period, have authorized and reserved, free from preemptive rights, a sufficient number of shares of
Company Common Stock to provide for the exercise of the rights represented by this Warrant. If at
any time during the Exercise Period the number of authorized but unissued shares of Company Common
Stock shall not be sufficient to permit exercise of this Warrant, the Company will take such
corporate action as may, in the opinion of counsel, be necessary to increase its authorized but
unissued shares of Company Common Stock (or other securities as provided herein) to such number of
shares as shall be sufficient for such purposes.



     3.2 No Impairment. The Company will not, by amendment (including by merger,
consolidation or otherwise) of its Certificate of Incorporation (as such may be amended from time
to time), or through any means, avoid or seek to avoid the observance or performance of any of the
terms to be observed or performed hereunder by the Company, but will at all times in good faith
carry out of all the provisions of this Warrant and take all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder against such impairment.



     3.3 Notices of Record Date. If at any time:



          (a) the Company shall take a record of the holders of Company Common Stock for the purpose of
entitling them to receive a dividend or other distribution, or any right to subscribe for or
purchase any evidences of its indebtedness, any shares of stock of any class or any other
securities or property, or to receive any other right (other than with respect to any equity or
equity equivalent security issued pursuant to a rights plan adopted by the Company Board);




          (b) there shall be any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any consolidation or merger of the Company,
or any sale, transfer or other disposition of all or substantially all the property, assets or
business of the Company; or




          (c) there shall be a voluntary or involuntary dissolution, liquidation or winding up of the
Company;



then, in any one or more of such cases, the Company shall use commercially reasonable efforts to
give to the Holder, provided that such action is available and permitted under applicable
securities laws, at least ten (10) days prior written notice of the record date for such dividend,
distribution or right or for determining rights to vote in respect of any such reorganization,
reclassification, recapitalization, consolidation, merger, sale, transfer, disposition,
dissolution, liquidation or winding up of the Company. Any notice provided hereunder shall specify
the date on which the holders of Company Common Stock shall




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 
					
	 	 	 	 	 
	 
	 	6
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 




be entitled to any such dividend, distribution or right, and the amount and character thereof, and
the then current estimated date for the closing of the transaction contemplated by any proposed
reorganization, reclassification, recapitalization, consolidation, merger, sale, transfer,
disposition, dissolution, liquidation or winding up of the Company.




     4. REPRESENTATIONS OF HOLDER.



          4.1 Acquisition of Warrant for Personal Account. The Holder represents and warrants
that it is acquiring the Warrant and the Exercise Shares solely for its account for investment and
not with a present view toward the public sale or public distribution of said Warrant or Exercise
Shares or any part thereof and has no intention of selling or distributing said Warrant or Exercise
Shares or any arrangement or understanding with any other persons regarding the sale or
distribution of said Warrant or the Exercise Shares, except as would not result in a violation of
the Securities Act. The Holder will not, directly or indirectly, offer, sell, pledge, transfer or
otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge
of) the Warrant except in accordance with Section 8 and the provisions of Article VI of the
Stock and Warrant Purchase Agreement and will not, directly or indirectly, offer, sell, pledge,
transfer or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or
take a pledge of) the Exercise Shares except in accordance with the provisions of Section 8 and
Article VI of the Stock and Warrant Purchase Agreement and pursuant to and in accordance
with the Securities Act.




          4.2 Securities Are Not Registered.




               (a) The Holder understands that the offer and sale of neither the Warrant nor the Exercise
Shares has been registered under the Securities Act.



               (b) The Holder recognizes that the Warrant and the Exercise Shares must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption from such
registration is available. The Holder recognizes that the Company has no obligation to register
the Warrant or, except as provided in the Stock and Warrant Purchase Agreement and the Registration
Rights Agreement, the Exercise Shares, or to comply with any exemption from such registration.



               (c) The Holder is aware that neither the Warrant nor the Exercise Shares may be sold pursuant
to Rule 144 adopted under the Securities Act (“Rule 144”) unless certain conditions are
met, including, among other things, the availability of certain current public information about
the Company and the expiration of the required holding period under Rule 144.



          4.3 Disposition of Warrant and Exercise Shares.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 
					
	 	 	 	 	 
	 
	 	7
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 





               (a) The Holder further agrees not to make any disposition of all or any part of the Warrant or
Exercise Shares in any event unless and until one of the following occurs:



                    (i) The Company shall have received a letter secured by the Holder from the SEC stating that
no action will be recommended to the SEC with respect to the proposed disposition;



                    (ii) There is then in effect a registration statement under the Securities Act covering the
Exercise Shares and such disposition is made in accordance with said registration statement; or



                    (iii) The Holder shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, for the Holder to the effect that such disposition will not require
registration of such Warrant or Exercise Shares under the Securities Act or any applicable state
securities laws; provided, that so long as the Holder provides the Company with a representation
letter in customary form with respect to a Rule 144 disposition, no opinion shall be required for
any disposition made or to be made in accordance with the provisions of Rule 144.



     5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this
Warrant as a consequence of any adjustment pursuant hereto. All Exercise Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after aggregation,
the exercise would result in the issuance of a fractional share, the Company shall, in lieu of
issuance of any fractional share, pay the Holder otherwise entitled to such fraction a sum in cash
equal to the product resulting from multiplying the then Closing Market Price (as of the applicable
exercise date) of an Exercise Share by such fraction.



     6. CERTAIN EVENTS.



     6.1 Dividends, Subdivisions, Combinations and Reclassifications. The number and kind
of securities purchasable upon the exercise of this Warrant and the Exercise Price shall be subject
to adjustment from time to time upon the happening of any of the following. In case the Company
shall (i) pay a dividend in shares of Company Common Stock or make a distribution in shares of
Company Common Stock to holders of its outstanding Company Common Stock, (ii) subdivide its
outstanding shares of Company Common Stock into a greater number of shares, (iii) combine its
outstanding shares of Company Common Stock into a smaller number of shares of Company Common Stock,
or (iv) issue any shares of its capital stock in a reclassification of the Company Common Stock,
then the number of Exercise Shares purchasable upon exercise of this Warrant immediately prior
thereto shall be adjusted so that the Holder shall be entitled to receive the kind and number of
Exercise Shares or other securities of the Company which it would have owned or have been entitled
to receive had such Warrant



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	8
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 




been exercised in advance thereof. Upon each such adjustment of the kind and number of
Exercise Shares or other securities of the Company which are purchasable hereunder, the Holder
shall thereafter be entitled to purchase the number of Exercise Shares or other securities
resulting from such adjustment at an Exercise Price per Exercise Share or other security obtained
by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of
Exercise Shares purchasable pursuant hereto immediately prior to such adjustment and dividing by
the number of Exercise Shares or other securities of the Company resulting from such adjustment.
An adjustment made pursuant to this paragraph shall become effective immediately after the
effective date of such event retroactive to the record date, if any, for such event.




     6.2 Corporate Transactions. In the event that the surviving or resulting “parent”
entity (the “Surviving Entity”) in a merger or acquisition involving the Company is an
entity other than the Company, then the Holder or any subsequent holder of this Warrant shall
either exercise this Warrant (which will become immediately exercisable upon a Transaction Event)
or surrender this Warrant in exchange for a new Warrant exercisable for shares of the common stock
of the Surviving Entity (the “Replacement Warrant”); provided, that:



          (y) if the terms of such merger or acquisition shall provide for consideration that consists
of a combination of cash and stock of the Surviving Entity, then any Replacement Warrant issued to
the holders of this Warrant shall be solely for stock of the Surviving Entity, at an exchange ratio
reflecting the total consideration paid by the Surviving Entity at the time of such change in
control as if the total consideration (including cash) for each share of Company Common Stock was
instead paid only in stock of the Surviving Entity at the time of such change of control (as
illustrated on Exhibit A to this Warrant), and the holders of the Replacement Warrant shall
have the registration rights for stock issuable upon exercise of the Replacement Warrant as
provided under the Registration Rights Agreement; and




          (z) if such a merger or acquisition shall occur and the consideration for such merger or
acquisition shall be paid entirely in cash, then any holder of this Warrant shall have the option
to elect, within fifteen (15) Business Days of receiving notice of the public announcement of the
merger or acquisition by written notice of election to the Company, either to (A) receive from the
Surviving Entity, upon the closing of such merger or acquisition, a Replacement Warrant solely for
stock of the Surviving Entity, at an exchange ratio reflecting the cash paid by the Surviving
Entity at the time of such change in control; or (B) surrender this Warrant to the Company in
consideration of a cash payment for each share of Company Common Stock subject to purchase under
this Warrant equal to the difference of (i) the per share cash consideration to be received by a
holder of one share of Company Common Stock (including the Company Common Stock subject to purchase
under this Warrant) to be tendered in the merger or acquisition and (ii) the Exercise Price (the
aggregate of such amounts, the “Warrant Surrender Price”). The Warrant Surrender Price
shall be paid upon the




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	9
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 




surrender of this Warrant promptly following the closing of the all cash merger or
acquisition.




          (aa) Following a merger or acquisition involving the payment of non-cash consideration in
which the Company is not the Surviving Entity, any reference to “Company Common Stock”
shall be deemed instead to refer to the common stock of the Surviving Entity. For purposes of this
Section 6.2 “common stock of the Surviving Entity” shall include stock of such corporation of any
class which is not preferred as to dividends or assets over any other class of stock of such
corporation, and which is not subject to redemption and shall also include any evidences of
indebtedness, shares of stock or other securities which are convertible into or exchangeable for
any such stock, either immediately or upon the arrival of a specified date or the occurrence of a
specified event and any warrants or other rights to subscribe for or purchase any such stock. The
foregoing provisions of this Section 6.2 shall similarly apply to successive mergers, acquisitions,
consolidations or disposition of assets.




     6.3 Adjustment of Exercise Price. The form of this Warrant need not be changed
because of any adjustment in the number, class, and kind of shares subject to this Warrant. The
Company shall promptly provide a certificate from its principal accounting officer notifying the
Holder in writing of any adjustment in the Exercise Price and/or the total number, class, and kind
of shares (and other securities or property) issuable upon exercise of this Warrant, which
certificate shall specify the Exercise Price and number, class and kind of shares (and other
securities or property) under this Warrant after giving effect to such adjustment and shall set
forth a brief statement of the facts requiring such adjustment and setting forth the computation by
which such adjustment was made.



     7. NO STOCKHOLDER RIGHTS. Except to the extent specified in Section 6, this Warrant
in and of itself shall not entitle the Holder to any voting rights or other rights as a stockholder
of the Company. Upon the exercise of this Warrant in accordance with Section 2, the Exercise
Shares so purchased shall be and be deemed to be issued to such Holder as the record owner of such
shares as of the close of business on the date of such exercise.



     8. TRANSFER OF WARRANT. Subject to applicable laws, the restriction on transfer set
forth on the first page of this Warrant and the provisions of Article VI of the Stock and
Warrant Purchase Agreement, this Warrant and all rights hereunder are transferable, in whole or in
part, by the Holder or its Affiliates, in person or by duly authorized attorney, upon delivery of
this Warrant, the Assignment Form attached hereto and funds sufficient to pay any transfer taxes
(in accordance with Section 2.5 hereof) payable upon the making of such transfer, to one or more
transferees designated by the Holder; provided, however, that without the prior
written consent of the Company (not to be unreasonably withheld), the Holder shall not transfer
this Warrant to more than five (5) transferees. Any transferee will sign and deliver to the
Company an investment letter in a form that is commercially reasonable, customary for use in
similar



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	10
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 




transactions and reasonably satisfactory to the Company. Upon such delivery and, if required,
such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees and in the denomination or denominations specified in such instrument of
assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant
not so assigned, and this Warrant shall promptly be cancelled. A Warrant, if properly assigned,
may be exercised by a new holder for the purchase of Exercise Shares without having a new Warrant
issued.




     9. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof),
issue a new Warrant of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed.



     10. MODIFICATIONS AND WAIVER. This Warrant and any provision hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the Company and the
Holder.



     11. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when
sent by confirmed facsimile if sent during normal business hours of the recipient, if not, then on
the next Business Day, (c) five days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (d) one Business Day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written verification of receipt.
All communications shall be sent to the Company at the address listed on the signature page and to
the Holder at the addresses on the Company records, or at such other address as the Company or
Holder may designate by ten days’ advance written notice to the other party hereto.



     12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.



     13. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder
shall be governed by the laws of the State of New York without regard to the principles of conflict
of laws. The Company and, by accepting this Warrant, the Holder, each irrevocably submits and
consents to the exclusive jurisdiction of the courts of the State of New York located in New York
County and the United States District Court for the Southern District of New York for the purpose
of any suit, action, proceeding or judgment relating to or arising out of this Warrant and the
transactions contemplated hereby. The Company and, by accepting this Warrant, the Holder, each
irrevocably waives any objection to the laying of venue of any such suit, action or proceeding
brought in such courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE COMPANY AND, BY
ITS ACCEPTANCE HEREOF,



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





					
	 	 	 	 	 
	 
	 	11
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 




THE HOLDER HEREBY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT
TO THIS WARRANT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.




     14. DESCRIPTIVE HEADINGS. The descriptive headings of the several paragraphs of this
Warrant are inserted for convenience only and do not constitute a part of this Warrant. The
language in this Warrant shall be construed as to its fair meaning without regard to which party
drafted this Warrant.



     15. SUCCESSORS AND ASSIGNS. Subject to applicable securities laws, this Warrant and
the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the
successors of the Company and the successors and permitted assigns of the Holder.



     16. SEVERABILITY. The invalidity or unenforceability of any provision of this Warrant
in any jurisdiction shall not affect the validity or enforceability of such provision in any other
jurisdiction, or affect any other provision of this Warrant, which shall remain in full force and
effect.



     17. REGISTRATION RIGHTS. The holder of this Warrant and of the Exercise Shares shall
be entitled to the registration rights and other applicable rights with respect to the Exercise
Shares as and to the extent set forth in the Stock and Warrant Purchase Agreement and the
Registration Rights Agreement.



     18. SPECIFIC PERFORMANCE. The parties acknowledge and agree that irreparable damage
would occur in the event that any of the provisions of this Warrant were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed that
either party shall be entitled to an injunction or injunctions to prevent or cure breaches of the
provisions of this Warrant by the other party and to enforce specifically the terms and provisions
hereof, this being in addition to any other remedy to which either party may be entitled by law or
equity.



     19. ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between the
parties pertaining to the subject matter contained in it and supersedes all prior and
contemporaneous agreements, representations, and undertakings of the parties, whether oral or
written, with respect to such subject matter.



[Signature Page Follows]




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.




					
	 	 	 	 	 
	 
	 	12
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 





     IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of                     , 2008.



	 	 	 	 	 	 	 
	 	 	OXiGENE, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Address:
	 	230 Third Avenue	 	 
	 

	 	 	 	Waltham, MA 02451	 	 
	 

	 	 	 	Attn:                          	 	 
	 

	 	 	 	Facsimile: (     )      -     	 	 






Signature Page to the 2,000,000 Share Non-IV Warrant




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



Exhibit 2.06B to the Stock and Warrant Purchase Agreement




 









 





NOTICE OF EXERCISE




TO: OXiGENE, INC.




     (1) The undersigned hereby elects to:



          o purchase                    
shares of the Company Common Stock of OXiGENE, Inc. (the
“Company”) pursuant to the terms of the attached Warrant, and tenders herewith payment of
the exercise price in full for such shares.




          o make payment for                     
shares of the Company Common Stock using the cashless exercise
method pursuant to Section 2.2 of the attached Warrant.




     (2) Please issue a certificate or certificates representing said shares of Company Common
Stock in the name of the undersigned or in such other name as is specified below:



 





(Name)




 






 





(Address)




     (3) If the Warrant is not being exercised in full, please issue a certificate representing a
new Warrant evidencing the right of the Holder to purchase the balance of the Exercise Shares
purchasable under the Warrant, such certificate to be registered in the name of the undersigned or
in such other name as is specified below:



 





(Name)




 






 





(Address)




     (4) The undersigned represents that (i) the aforesaid shares of Company Common Stock are being
acquired for the account of the undersigned not with a view to, or for resale in connection with,
the distribution thereof in violation of the Securities Act of 1933, as amended (the
“Securities Act”) and that the undersigned has no present intention of distributing or
reselling such shares in violation of the Securities Act; (ii) the undersigned is aware of the
Company’s business affairs and financial condition and has acquired sufficient information about
the Company to reach an informed and knowledgeable decision regarding its investment in the
Company; (iii) the undersigned is



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit 2.06B to the Stock and Warrant Purchase Agreement




 









 




experienced in making investments of this type and has such knowledge and background in
financial and business matters that the undersigned is capable of evaluating the merits and risks
of this investment and protecting the undersigned’s own interests; (iv) the undersigned understands
that the shares of Company Common Stock issuable upon exercise of this Warrant must be held
indefinitely unless subsequently registered under the Securities Act or an exemption from such
registration is available, and (v) the undersigned agrees not to make any disposition of all or any
part of the aforesaid shares of Company Common Stock unless and until there is then in effect a
registration statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with said registration statement, or the undersigned has provided
the Company with an opinion of counsel satisfactory to the Company, stating that such registration
is not required.




	 	 	 	 	 
	 
	 

(Date)

	 	 

(Signature)
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	(Print Name)	 	 





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.





 
					
	 	 	 	 	 
	 
	 	2
	 	Exhibit 2.06B to the Stock and Warrant Purchase Agreement
















 





ASSIGNMENT FORM





(To assign the foregoing Warrant, subject to compliance with
Section 4.3 hereof, execute this form and supply required
information. Do not use this form to purchase shares.)



     FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to


Name:                                                                 
                                                                          
                                                            




(Please Print)



Address:                                                                   
                                                                             
                                                           




(Please Print)




Dated:                                         , 20__




Holder’s

Signature:                                                             




Holder’s

Address:                                                             



NOTE: The signature to this Assignment Form must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatever. Officers of
corporations and those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit 2.06B to the Stock and Warrant Purchase Agreement




 









 





EXHIBIT A




WARRANT CONVERSION EXAMPLE




          In the event that the Company is the target of a merger or acquisition in which the share
purchase price paid by the acquiror is paid in cash or a mixture of cash and stock, the outstanding
Warrants are to be exchanged for Replacement Warrants of the Surviving Entity such that the holders
of Warrants shall receive additional Replacement Warrants in lieu of the cash portion of the share
purchase price, as set out in the following example:





A holder hereunder holds Warrants exercisable for 100,000 shares of Company Common Stock at
an exercise price of $10.00 per share, and the share purchase price paid by the acquiror is
$15.00 per share of Company Common Stock, with $5.00 to be paid in cash and $10.00 to be
paid in shares of the common stock of the Surviving Entity (“New Stock”), based on
a price of $100.00 per share of New Stock.




The Warrants of the holder, exercisable for 100,000 shares of Company Common Stock, shall
be converted as follows:




	 	(1)	 	The New Stock portion of the purchase price ($10.00 / share, or a ratio of
New Stock to Company Common Stock of 10 to 1) shall yield Replacement Warrants
exercisable for 10,000 shares of New Stock; and
	 
	 	(2)	 	The cash portion of the purchase price ($5.00 / share, or $500,000 total)
shall, at the New Stock price of $100 /share, yield Replacement Warrants exercisable
for 5,000 shares of New Stock ($500,000 / $100 = 5,000).






Therefore, in such a scenario, a holder of Warrants exercisable for 100,000 shares of
Company Common Stock would receive Replacement Warrants exercisable for 15,000 shares of
New Stock at an exercise price of $66.67 per share ($10.00 / $15.00 = 0.67 x $100.00 =
$66.67).



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Company’s application requesting confidential treatment under
Rule 24b-2 of the Securities Exchange Act of 1934, as amended.



 Exhibit 2.06B to the Stock and Warrant Purchase Agreement