VOTING AGREEMENT
Exhibit 99.2
THIS VOTING AGREEMENT (“Agreement”), dated as of October 14, 2009, is made by and
among OXiGENE, Inc., a Delaware corporation (“OXiGENE”), VaxGen, Inc., a Delaware
corporation (“VaxGen”), and the undersigned holder (“Stockholder”) of shares of
capital stock (the “Shares”) of VaxGen.
WHEREAS, OXiGENE, OXiGENE Merger Sub, Inc., a Delaware corporation and a wholly owned
subsidiary of OXiGENE (“Merger Sub”), VaxGen, and Xxxxx Xxxxx, as representative of the
stockholders of VaxGen, have entered into an Agreement and Plan of Merger, dated of even date
herewith (the “Merger Agreement”), providing for the merger of Merger Sub with and into
VaxGen (the “Merger”);
WHEREAS, Stockholder beneficially owns and has sole or shared voting power with respect to the
number of Shares, and holds stock options or other rights to acquire the number of Shares indicated
opposite Stockholder’s name on Schedule 1 attached hereto;
WHEREAS, as an inducement and a condition to the willingness of OXiGENE and Merger Sub to
enter into the Merger Agreement, and in consideration of the substantial expenses incurred and to
be incurred by them in connection therewith, Stockholder has agreed to enter into and perform this
Agreement; and
WHEREAS, all capitalized terms used in this Agreement without definition herein shall have the
meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE, in consideration of, and as a condition to, OXiGENE and Merger Sub entering
into the Merger Agreement and proceeding with the transactions contemplated thereby, and in
consideration of the expenses incurred and to be incurred by them in connection therewith,
Stockholder, OXiGENE and VaxGen agree as follows:
1. Agreement to Vote Shares. Stockholder agrees that, prior to the Expiration Date
(as defined in Section 2 below), at any meeting of the stockholders of VaxGen or any adjournment or
postponement thereof, or in connection with any written consent of the stockholders of VaxGen, with
respect to the Merger, the Merger Agreement or any Competing Proposal, Stockholder shall:
(a) appear at such meeting or otherwise cause the Shares and any New Shares (as defined in
Section 3 below) to be counted as present thereat for purposes of calculating a quorum;
(b) from and after the date hereof until the Expiration Date, vote (or cause to be voted), or
deliver a written consent (or cause a written consent to be delivered) covering all of the Shares
and any New Shares that such Stockholder shall be entitled to so vote: (i) in favor of adoption and
approval of the Merger Agreement and all other transactions contemplated by the Merger Agreement as
to which stockholders of VaxGen are called upon to vote in favor of or
consent to any matter necessary for consummation of the Merger and other transactions
contemplated by the Merger Agreement; and (ii) against any Competing Proposal. The Stockholder
shall not take or commit or agree to take any action inconsistent with the foregoing.
2. Expiration Date. As used in this Agreement, the term “Expiration Date”
shall mean the earlier to occur of (a) the Effective Time, (b) such date and time as the Merger
Agreement shall be terminated pursuant to Article 8 thereof or otherwise, or (c) upon mutual
written agreement of the parties to terminate this Agreement. Upon termination or expiration of
this Agreement, no party shall have any further obligations or liabilities under this Agreement;
provided, however, such termination or expiration shall not relieve any party from
liability for any willful breach of this Agreement or acts of bad faith prior to termination
hereof.
3. Additional Purchases. Stockholder agrees that any shares of capital stock or other
equity securities of VaxGen that Stockholder purchases or with respect to which Stockholder
otherwise acquires sole or shared voting power after the execution of this Agreement and prior to
the record date for determining the VaxGen stockholders entitled to vote with respect to the
Merger, whether by the exercise of any stock options or otherwise (“New Shares”), shall be
subject to the terms and conditions of this Agreement to the same extent as if they constituted the
Shares.
4. Agreement to Retain Shares. From and after the date hereof until the Expiration
Date, Stockholder shall not, directly or indirectly, take any action that would make any
representation or warranty of Stockholder contained herein untrue or incorrect or have the effect
of preventing or disabling Stockholder from performing Stockholder’s obligations under this
Agreement. Notwithstanding the foregoing, Stockholder may make (a) transfers by will or by
operation of law or other transfers for estate-planning purposes, in which case this Agreement
shall bind the transferee and (b) as OXiGENE may otherwise agree in writing in its sole discretion.
5. Representations and Warranties of Stockholder. Stockholder hereby represents and
warrants to OXiGENE and VaxGen as follows:
(a) Stockholder has the full power and authority to execute and deliver this Agreement and to
perform Stockholder’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by or on behalf of Stockholder and, to
the Stockholder’s knowledge and assuming this Agreement constitutes a valid and binding agreement
of OXiGENE and VaxGen, constitutes a valid and binding agreement with respect to Stockholder,
enforceable against Stockholder in accordance with its terms, except as enforcement may be limited
by general principles of equity whether applied in a court of law or a court of equity and by
bankruptcy, insolvency and similar laws affecting creditors’ rights and remedies generally;
(c) except as set forth on Schedule 1, Stockholder beneficially owns the number of
Shares indicated opposite such Stockholder’s name on Schedule 1, and will own any New
Shares, free and clear of any liens, claims, security interests, pledges or other encumbrances or
restrictions of any kind or nature whatsoever (“Liens”) except for any restrictions under
applicable securities laws, and has sole or shared, and otherwise unrestricted, voting power
with respect to such Shares or New Shares and none of the Shares or New Shares is subject to any
voting trust or other agreement, arrangement or restriction with respect to the voting of the
Shares or the New Shares, except as contemplated by this Agreement;
2
(d) to the knowledge of Stockholder, the execution and delivery of this Agreement by
Stockholder does not, and the performance by Stockholder of his or her obligations hereunder and
the compliance by Stockholder with any provisions hereof will not, violate or conflict with, result
in a material breach of or constitute a material default (or an event that with notice or lapse of
time or both would become a material default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any Liens on any Shares or
New Shares pursuant to, any agreement, instrument, note, bond, mortgage, contract, lease, license,
permit or other obligation or any order, arbitration award, judgment or decree to which Stockholder
is a party or by which Stockholder is bound, or any law, statute, rule or regulation to which
Stockholder is subject or, in the event that Stockholder is a corporation, partnership, trust or
other entity, any bylaw or other organizational document of Stockholder; and
(e) to the knowledge of Stockholder, the execution and delivery of this Agreement by
Stockholder does not, and the performance of this Agreement by Stockholder does not and will not,
require any consent, approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority by Stockholder except for applicable requirements, if any, of
the Exchange Act, and except where the failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent or delay the performance by
Stockholder of his or her obligations under this Agreement in any material respect.
6. Irrevocable Proxy. Subject to the penultimate sentence of this Section 6, by
execution of this Agreement, Stockholder does hereby appoint OXiGENE with full power of
substitution and resubstitution, as Stockholder’s true and lawful attorney and irrevocable proxy,
to the fullest extent of the undersigned’s rights with respect to the Shares, to vote, if the
Stockholder is unable to perform his or her obligations under this Agreement, each of such Shares
solely with respect to the matters set forth in Section 1 hereof. Stockholder intends this proxy
to be irrevocable and coupled with an interest hereunder until the Expiration Date and hereby
revokes any proxy previously granted by Stockholder with respect to the Shares. Notwithstanding
anything contained herein to the contrary, this irrevocable proxy shall automatically terminate
upon the Expiration Date of this Agreement. The Stockholder hereby revokes any proxies previously
granted and represents that none of such previously-granted proxies are irrevocable.
7. No Solicitation. From and after the date hereof until the Expiration Date,
Stockholder , insofar as such Stockholder is acting in his, her or its capacity as a Stockholder
shall not (a) initiate, solicit, seek or knowingly encourage or support any inquiries, proposals or
offers that constitute or may reasonably be expected to lead to, a Competing Proposal, (b) engage
or participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish
any nonpublic information to any Person in connection with, any inquiries, proposals or offers that
constitute, or may reasonably be expected to lead to, a Competing Proposal, (c) enter into
any letter of intent, agreement in principle or other similar type of agreement relating to a
Competing Proposal, or enter into any agreement or agreement in principle requiring the Company to
abandon, terminate or fail to consummate the transactions contemplated hereby, (d) initiate a
stockholders’ vote or action by consent of the Company’s stockholders with respect to a Competing
Proposal, (e) except by reason of this Agreement, become a member of a “group” (within the meaning
of Section 13(d) of the Exchange Act) with respect to any voting securities of VaxGen that takes
any action in support of a Competing Proposal or (f) propose or agree to do any of the foregoing.
In the event that Stockholder is a corporation, partnership, trust or other entity, it shall not
permit any of its Subsidiaries or Affiliates to, nor shall it authorize any officer, director or
representative of Stockholder, or any of its Subsidiaries or Affiliates to, undertake any of the
actions contemplated by this Section 7. Nothing in this Section 7 shall restrict any actions
permitted under the Merger Agreement by any Stockholder in his or her capacity as an officer or
director of VaxGen.
3
8. Waiver of Appraisal Rights. The Stockholder hereby waives, and agrees not to
exercise or assert, any appraisal rights under applicable law, including Section 262 of the DGCL in
connection with the Merger.
9. Specific Enforcement. 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
or was otherwise breached. It is accordingly agreed that the parties shall be entitled to seek
specific relief hereunder, including, without limitation, an injunction or injunctions to prevent
and enjoin breaches of the provisions of this Agreement and to enforce specifically the terms and
provisions hereof, in any state or federal court in any competent jurisdiction, in addition to any
other remedy to which they may be entitled at law or in equity. Any requirements for the securing
or posting of any bond with respect to any such remedy are hereby waived.
10. Further Assurances. Stockholder shall, from time to time, execute and deliver, or
cause to be executed and delivered, such additional or further consents, documents and other
instruments as OXiGENE or VaxGen may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement and the Merger Agreement.
11. Disclosure. Stockholder hereby agrees that OXiGENE and VaxGen may publish and
disclose in the Registration Statement (including all documents and schedules filed with the SEC),
the Proxy Statement, any prospectus filed with any regulatory authority in connection with the
Merger and any related documents filed with such regulatory authority and as otherwise required by
Law, such Stockholder’s identity and ownership of Shares and the nature of such Stockholder’s
commitments, arrangements and understandings under this Agreement and may further file this
Agreement as an exhibit to the Registration Statement or prospectus or in any other filing made by
OXiGENE or VaxGen as required by Law or the terms of the Merger Agreement, including with the SEC
or other regulatory authority, relating to the Merger, all subject to prior review and an
opportunity to comment by Stockholder’s counsel.
12. Notice. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or sent by nationally-recognized overnight courier
(providing proof of delivery) or by electronic mail (providing a copy to be delivered by mail) or
by facsimile transmission (providing confirmation of transmission) to OXiGENE or VaxGen, as
the case may be, in accordance with Section 10.2 of the Merger Agreement and to each Stockholder at
its address set forth on Schedule 1 attached hereto (or at such other address for a party
as shall be specified by like notice).
4
13. Severability. If any term or other provision of this Agreement is determined to
be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so
long as the economic or legal substance of the transactions contemplated hereby is not affected in
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 to the fullest extent permitted by applicable law in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
14. Binding Effect and Assignment. All of the covenants and agreements contained in
this Agreement shall be binding upon, and inure to the benefit of, the respective parties and their
permitted successors, assigns, heirs, executors, administrators and other legal representatives, as
the case may be. This Agreement may not be assigned by any party hereto without the prior written
consent of the other parties hereto.
15. No Third Party Beneficiaries. This Agreement is not intended, and shall not be
deemed, to confer any rights or remedies upon any person other than the parties hereto and their
respective successors and permitted assigns, to create any agreement of employment with any person
or to otherwise create any third-party beneficiary hereto.
16. No Waivers. No waivers of any breach of this Agreement extended by OXiGENE or
VaxGen to Stockholder shall be construed as a waiver of any rights or remedies of OXiGENE or
VaxGen, as applicable, with respect to any other stockholder of VaxGen who has executed an
agreement substantially in the form of this Agreement with respect to Shares held or subsequently
held by such stockholder or with respect to any subsequent breach of the Stockholder or any other
such stockholder of VaxGen. No waiver of any provisions hereof by any party shall be deemed a
waiver of any other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
17. Governing Law; Jurisdiction and Venue. THIS AGREEMENT IS MADE UNDER, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF DELAWARE APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED SOLELY THEREIN, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. In any
action between or among any of the parties, whether arising out of this Agreement or otherwise, (a)
each of the parties irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of the state and federal courts located in San Francisco, California; (b) if
any such action is commended in a state court, then, subject to applicable law, no party shall
object to the removal of such action to any federal court located in the Northern District of
California; (c) each of the parties irrevocably waives the right to trial by jury; and (d) each of
the parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepared, to the address at which such party is to
receive notice in accordance with Section 11.
5
18. Waiver of Jury Trial. The parties hereto hereby waive any right to trial by jury
with respect to any action or proceeding related to or arising out of this Agreement, any document
executed in connection herewith and the matters contemplated hereby and thereby.
19. No Agreement Until Executed. Irrespective of negotiations among the parties or
the exchanging of drafts of this Agreement, this Agreement shall not constitute or be deemed to
evidence a contract, agreement, arrangement or understanding between the parties hereto unless and
until (a) the Board of Directors of VaxGen has approved, for purposes of any applicable
anti-takeover laws and regulations and any applicable provision of the VaxGen Certificate of
Incorporation, the transactions contemplated by the Merger Agreement, (b) the Merger Agreement is
executed by all parties thereto, and (c) this Agreement is executed by all parties hereto.
20. Entire Agreement; Amendment. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter hereof and contains
the entire agreement among the parties with respect to the subject matter hereof. This Agreement
may not be amended, supplemented or modified, and no provisions hereof may be modified or waived,
except by an instrument in writing signed by each party hereto.
21. Effect of Headings. The section headings herein are for convenience only and
shall not affect the construction of interpretation of this Agreement.
22. Definition of Merger Agreement. For purposes of this Agreement, the term
“Merger Agreement” may include such agreement as amended or modified as long as such
amendments or modifications (i) do not (x) change the form of consideration, or (y) reduce the
Merger Consideration or change the allocation of Merger Consideration among the VaxGen Stockholders
in either case in a manner adverse to the Stockholder, or (ii) have been agreed to in writing by
Stockholder.
23. Counterparts. This Agreement may be executed in one or more counterparts, each of
which will be deemed an original but all of which together shall constitute one and the same
instrument.
6
EXECUTED as of the date first above written.
| STOCKHOLDER | ||||||
| Name: | ||||||
| OXIGENE, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| VAXGEN, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
