FORM OF VOTING AGREEMENT
EXHIBIT 10.2
FORM
OF VOTING AGREEMENT
VOTING AGREEMENT, dated as of January __, 2011 (this “Agreement”), by and among OXiGENE, Inc.,
a Delaware corporation with offices located at 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxx Xxx Xxxxxxxxx, XX
00000 (the “Company”) and [Symphony ViDA Holdings LLC, a Delaware limited liability company with
offices located at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000] (the
“Stockholder”).
WHEREAS, the Company and certain investors (each, an “Investor”, and collectively, the
“Investors”) have entered into a Warrant Exchange Agreement, dated as of the date hereof (the
“Warrant Exchange Agreement”), pursuant to which, among other things, the Company and the Investors
have, severally but not jointly, agreed to exchange the Investors’ Series A Warrants and Series C
Warrants to purchase shares of the Company’s common stock, $0.01 par value per share (the “Common
Stock”), for shares of Common Stock and Series E Warrants, on the terms and subject to the
conditions set forth in the Warrant Exchange Agreement;
WHEREAS, as of the date hereof, the Stockholder owns shares of Common Stock, which represents
(i) approximately ___% of the total issued and outstanding Common Stock of the Company, and (ii)
approximately ___% of the total voting power of the Company; and
WHEREAS, as a condition to the willingness of the Investors to enter into the Warrant Exchange
Agreement and to consummate the transactions contemplated thereby (collectively, the
“Transaction”), the Investors have required that the Stockholder agree, and in order to induce the
Investors to enter into the Warrant Exchange Agreement, the Stockholder has agreed, to enter into
this Agreement with respect to all the Common Stock now owned and which may hereafter be acquired
by the Stockholder and any other securities, if any, which Stockholder is currently entitled to
vote, or after the date hereof becomes entitled to vote, at any meeting of the stockholders of the
Company (the “Other Securities”).
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING AGREEMENT OF THE STOCKHOLDER
SECTION 1.01. Voting Agreement. Subject to the last sentence of this Section 1.01,
the Stockholder hereby agrees that at any meeting of the stockholders of the Company, however
called, and in any action by written consent of the Company’s stockholders, the Stockholder shall
vote the Common Stock and the Other Securities: (a) in favor of the Stockholder Approval (as
defined in the Warrant Exchange Agreement), as described in Section 1.2 of the Warrant Exchange
Agreement; and (b) against any proposal or any other corporate action or agreement that would
result in a breach of any covenant, representation or warranty or any other obligation or agreement
of the Company under the Warrant Exchange
Agreement or which could result in any of the conditions to the Company’s obligations under the Warrant
Exchange Agreement not being fulfilled. The Stockholder acknowledges receipt and review of a copy
of the Warrant Exchange Agreement. The obligations of the Stockholder under this Section 1.01
shall terminate (i) immediately following the occurrence of the Stockholder Approval or (ii) upon
the termination of the Warrant Exchange Agreement pursuant to its terms.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants to the Company and each of the Investors as
follows:
SECTION 2.01. Authority Relative to this Agreement. The Stockholder has all
requisite power and authority to execute, deliver and perform its obligations under this Agreement.
This Agreement has been duly executed and delivered by the Stockholder and constitutes a legal,
valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except (a) as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar laws now or hereafter in
effect relating to, or affecting generally, the enforcement of creditors’ and other obligees’
rights and (b) where the remedy of specific performance or other forms of equitable relief may be
subject to certain equitable defenses and principles and to the discretion of the court before
which the proceeding may be brought.
SECTION 2.02. No Conflict. (a) The execution and delivery of this Agreement by the
Stockholder does not, and the performance of this Agreement by the Stockholder shall not, (i)
conflict with or violate any federal, state or local law, statute, ordinance, rule, regulation,
order, judgment or decree applicable to the Stockholder or by which the Common Stock or the Other
Securities owned by the Stockholder are bound or affected or (ii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a lien or encumbrance on any of the Common Stock or the Other Securities
owned by the Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which the Stockholder is a
party or by which the Stockholder or the Common Stock or Other Securities owned by the Stockholder
is bound.
(b) The execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental entity by the
Stockholder.
SECTION 2.03. Title to the Stock. As of the date hereof, the Stockholder is the
owner of ________ shares of Common Stock, entitled to vote, without restriction, on all matters
brought before holders of capital stock of the Company, which Common Stock represents on the date
hereof approximately ____% of the outstanding stock and approximately ____% of the voting power of
the Company. Such Common Stock represents all of the securities of the Company owned, either of
record or beneficially, by the Stockholder. Such Common Stock is owned free and clear of all
security interests, liens, claims, pledges, options, rights of first
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refusal, agreements, limitations on the Stockholder’s voting rights, charges and other
encumbrances of any nature whatsoever. The Stockholder has not appointed or granted any proxy,
which appointment or grant is still effective, with respect to the Common Stock or Other Securities
owned by the Stockholder.
ARTICLE III
COVENANTS
SECTION 3.01. No Disposition or Encumbrance of Stock. The Stockholder hereby
covenants and agrees that, until the termination of this Agreement, the Stockholder shall not
offer or agree to sell, transfer, tender, assign, hypothecate or otherwise dispose of, grant a
proxy or power of attorney with respect to, or create or permit to exist any security interest,
lien, claim, pledge, option, right of first refusal, agreement, limitation on Stockholders’ voting
rights, charge or other encumbrance of any nature whatsoever (“Encumbrance”) with respect to the
Common Stock or Other Securities, directly or indirectly, or initiate, solicit or encourage any
person to take actions which could reasonably be expected to lead to the occurrence of any of the
foregoing.
SECTION 3.02. Company Cooperation. The Company hereby covenants and agrees that it
will not, and the Stockholder irrevocably and unconditionally acknowledges and agrees that the
Company will not (and waives any rights against the Company in relation thereto), recognize any
Encumbrance on any of the Common Stock or Other Securities subject to this Agreement.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Further Assurances. The Stockholder shall execute and deliver such
further documents and instruments and take all further action as may be reasonably necessary in
order to consummate the transactions contemplated hereby.
SECTION 4.02. Specific Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in accordance with the
terms hereof and that any Investor (without being joined by any other Investor) shall be entitled
to specific performance of the terms hereof, in addition to any other remedy at law or in equity.
Any Investor shall be entitled to its reasonable attorneys’ fees in any action brought to enforce
this Agreement in which it is the prevailing party.
SECTION 4.03. Entire Agreement. This Agreement constitutes the entire agreement
among the Company and the Stockholder (other than the Warrant Exchange Agreement) with respect to
the subject matter hereof and supersedes all prior agreements and understandings, both written and
oral, among the Company and the Stockholder with respect to the subject matter hereof.
SECTION 4.04. Amendment. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
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SECTION 4.05. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as originally contemplated to
the fullest extent possible.
SECTION 4.06. Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by the internal laws of the
State of Delaware, without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdictions) that would cause the application of
the laws of any jurisdictions other than the State of Delaware. The parties hereby agree that all
actions or proceedings arising directly or indirectly from or in connection with this Agreement
shall be litigated only in the Supreme Court of the State of New York or the United States District
Court for the Southern District of New York located in New York County, New York. The parties
consent to the jurisdiction and venue of the foregoing courts and consent that any process or
notice of motion or other application to any of said courts or a judge thereof may be served inside
or outside the State of New York or the Southern District of New York by registered mail, return
receipt requested, directed to the party being served at its address set forth on the signature
ages to this Agreement (and service so made shall be deemed complete three (3) days after the same
has been posted as aforesaid) or by personal service or in such other manner as may be permissible
under the rules of said courts. Each of the Company and the Stockholder irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter have to the laying of
the venue of any such suit, action, or proceeding brought in such a court and any claim that suit,
action, or proceeding has been brought in an inconvenient forum. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY
DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
SECTION 4.07. Termination. This Agreement shall terminate (i) immediately following
the occurrence of the Stockholder Approval or (ii) upon the termination of the Warrant Exchange
Agreement pursuant to its terms.
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IN WITNESS WHEREOF, the Stockholder and the Company has duly executed this Agreement.
| THE COMPANY: OXIGENE, INC. |
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| By: | ||||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Chief Executive Officer | |||
| Address: |
OXiGENE, Inc. 000 Xxxxxxx Xxxx Xxxxx 000 Xxxxx Xxx Xxxxxxxxx, XX 00000 |
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STOCKHOLDER: |
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