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EXHIBIT 10.10
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN EXEMPTION FROM SUCH REQUIREMENT UNDER SUCH ACT.
No. __________
XENOGEN CORPORATION
WARRANT CERTIFICATE
THIS CERTIFIES that, for valued received, _______________________________,
or its registered successors and assigns, is the owner of Warrants to purchase
from XENOGEN CORPORATION, a California corporation (herein called the
"Company"), the security issued in the Company's next financing with gross
proceeds (excluding amounts received upon cancellation of indebtedness) in
excess of $________ (the "Next Financing"). For purposes of this Warrant
Certificate, the term "Shares" shall mean the security issued by the Company
in the Next Financing. The aggregate Exercise price of the Shares subject to
this Warrant Certificate is $______ (the "Aggregate Exercise Price"). The
aggregate number of Shares for which the Warrants may be exercised equals the
Aggregate Exercise Price divided by the price per share of the Shares, subject
to adjustment from time to time pursuant to the provisions of Section 2
hereof. Upon exercise of the Warrants, the holder hereof shall pay the
exercise price per Share equal to the per Share price paid in the Next
Financing.
1. Exercise of Warrants.
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1.1 Cash Exercise. The Warrants evidenced hereby may be exercised at any
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time after the date of commencement of the Next Financing through November 13,
2007 (the "Expiration Date") by the registered holder hereof, in whole or in
part, by the surrender of this Warrant Certificate, duly endorsed (unless
endorsement is waived by the Company), at the time principal office of the
Company (or at such other office or agency of the Company as it may designate by
notice in writing to the registered holder hereof at such holder's last address
appearing on the books of the Company) and upon payment to the Company by check
payable to the order of the Company of the purchase price of the Shares
purchased. The certificates(s) for such Shares shall be delivered to the
registered holder hereof within a reasonable time, not exceeding ten (10) days,
after Warrants evidenced hereby shall have been so exercised and a new Warrant
Certificate evidencing the number of Warrants, if any, remaining unexercised
shall also be issued to the registered holder within such time unless such
Warrants have expired. The holder of the Warrants evidenced by this Certificate
shall have all the rights of a holder of Shares to be issued upon exercise of
the Warrants when such Warrant holder tenders payment of the Exercise Price (as
defined below) to the Company
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along with this Warrant Certificate duly endorsed in accordance with this
Section 1. No fractional Shares of the Company, or scrip for any such fractional
shares, shall be issued upon the exercise of any Warrants; but the holder hereof
shall be entitled to cash equal to such fraction multiplied by the then
effective Exercise Price (as defined below).
1.2 Common Net Issue Exercise.
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(a) In lieu of exercising this Warrant and provided that the
Company's common stock (the "Common Stock") is then publicly traded, the holder
hereof may elect to receive shares of Common Stock equal to the value of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant at
the principal office of the Company together with notice of such election in
which event the Company shall issue to the holder hereof a number of shares of
the Company's Common Stock computed using the following formula:
X = Y (A - B)
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A
Where X - The number of shares of Common Stock to be issued to Holder.
Y - The number of shares of Common Stock into which the Shares
purchasable under this Warrant are then convertible.
A - The fair market value of one share of the Company's Common Stock.
B - Exercise Price (as adjusted to the date of such calculations).
(b) For purposes of this Section, fair market value of the Company's
Common Stock shall mean the average of the closing bid and asked prices of the
Company's Common Stock quoted in the over-the-counter market summary or the
closing price quoted on any exchange on which the Common Stock is listed,
whichever is applicable, as published in the Eastern Edition of The Wall Street
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Journal for the ten trading days prior to the date of determination of fair
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market value.
1.3 Preferred Net Issue Exercise.
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In the event of a merger of the Company with or into another entity in
which the shareholders of the Company immediately prior to the merger own
immediately after the consummation of the merger less than a majority of the
outstanding voting securities of the surviving entity (or its parent) calculated
on a fully-diluted basis, then,
(a) In lieu of exercising this Warrant, the holder hereof may elect
to receive Shares of the Company equal to the value of this Warrant (or the
portion thereof being canceled) by surrender of this Warrant at the
principal office of the company together
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with notice of such election, in which event the Company shall issue to the
holder hereof a number of Shares of the Company computed using the
following formula:
X = Y (A - B)
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A
Where X - The number of Shares to be issued to Holder.
Y - The number of Shares purchasable under this Warrant.
A - The fair market value of one Share of the Company's Preferred
Stock.
B - Exercise Price (as adjusted to the date of such calculations).
(b) For purposes of this Section, fair market value of the Company's
Preferred Stock shall mean the average of the closing bid and asked prices
of the Company's Preferred Stock quoted in the over-the-counter market
summary or the closing price quoted on any exchange on which the Preferred
Stock is listed, whichever is applicable, as published in the Eastern
Edition of The Wall Street Journal for the ten trading days prior to the
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date of determination of fair market value. If the Preferred Stock is not
traded over-the-counter or on an exchange, the fair market value shall be
determined in good faith by the Board of Directors of the Company with the
approval of the holder of this Certificate, which approval shall not be
unreasonably withheld.
2. Adjustment in Exercise Price and Number of Shares. The applicable exercise
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price per share as set forth above shall be subject to adjustment from time to
time as hereinafter provided (such price, as last adjusted, being hereinafter
called the "Exercise Price"). Upon each adjustment of the Exercise Price, the
holder of this Warrant Certificate shall thereafter be entitled to purchase at
the Exercise Price resulting from such adjustment, the number of shares obtained
by dividing (1) the Aggregate Exercise Price by (2) the Exercise Price resulting
from such adjustment.
2.1 Stock Dividends. If and whenever at any time the Company shall
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declare a dividend or make any other distribution upon any class or series of
stock of the Company payable in Shares or securities convertible into or
exercisable for Shares, the number of Shares to be obtained upon exercise of
this Warrant shall be proportionately adjusted (through a reduction of the
Exercise Price) to reflect the issuance of any such securities issuable in
payment of such dividend or distribution.
2.2 Subdivision or Combination of Stock. If and whenever the Company
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shall at any time subdivide its outstanding Common Shares into a greater number
of shares, the Exercise Price in effect immediately prior to such subdivision
shall be proportionately reduced, and conversely, in case the outstanding Common
Shares of the Company shall be
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combined into a smaller number of shares, the Exercise Price in effect
immediately prior to such combination shall be proportionately increased.
2.3 Reorganization, Reclassification. If any capital reorganization or
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reclassification of the capital stock of the Company shall be effected, then, as
a condition of such reorganization or reclassification, lawful and adequate
provision shall be made whereby each holder of Warrants shall thereafter have
the right, but shall not be required, to purchase and receive upon the basis and
upon the terms and conditions herein specified and in lieu of the Shares
immediately theretofore issuable upon exercise of the Warrants, such shares of
stock, securities or properties (collectively, the "Substitute Securities") as
may be issuable or payable with respect to or in exchange for a number of
outstanding Shares equal to the number of Shares immediately theretofore
issuable upon exercise of the Warrants, had such reorganization or
reclassification taken place, and in any such case appropriate provision shall
be made with respect to the rights and interests of each holder of Warrants to
the end that the provisions hereof (including, without limitation, provisions
for adjustment of the Exercise Price) shall thereafter be applicable, as nearly
equivalent as may be practicable in relation to any Substitute Securities
thereafter deliverable upon the exercise thereof. The above provisions of this
Subsection 2.3 shall similarly apply to successive reorganizations or
reclassification.
3. Other Notices. If any time prior to the Expiration Date of the Warrants
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evidenced hereby:
(a) The Company shall declare any dividend payable in shares of
capital stock of the Company; or
(b) The Company shall authorize the issue of any options, warrants or
rights entitling the recipient to subscribe for or purchase any shares of
capital stock of the Company or to receive any other rights; or
(c) The Company shall authorize the distribution of evidences of its
indebtedness or assets (including cash dividends or distributions paid out
of retained earnings or retained surplus); or
(d) There shall occur any reclassification of the capital stock of
the Company, or any consolidation or merger of the Company with or into
another corporation (other than a consolidation or merger in which the
Company is the continuing corporation and which does not result in any
reclassification of the Shares) or a sale or transfer to another
corporation of all or substantially all of the properties of the Company;
or
(e) There shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company;
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then, and in each of such cases, the Company shall mail to the registered holder
hereof as its last address appearing on the books of the Company, as promptly as
practicable but in any event at least twenty days prior to the applicable record
date (or determination date) mentioned below, a notice stating, to the extent
such information is available, (I) the date on which a record is to be taken for
the purpose of such dividend, distribution or rights, if a record is not to be
taken, the date as of which the holders of Shares of record to be entitled to
such dividend, distribution or rights are to be determined, or (ii) the date on
which such liquidation, dissolution or winding up is expected to become
effective and the date as of which it is expected that holders of Shares of
record shall be entitled to exchange their Shares for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution or winding up.
4. Replacement of Warrants. On receipt of evidence reasonably satisfactory to
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the Company of the loss, theft, destruction or mutilation of any Warrant, and in
the case of any such loss, theft or destruction of any Warrant, on delivery of
an indemnity agreement or security reasonable satisfactory in form and amount to
the Company or, in the case of any such mutilation, on surrender and
cancellation of such Warrant, unless the Company has received notice that any
such Warrant has been acquired by a bona fide purchaser, the Company at its
expense will execute and deliver, in lieu thereof, a new Warrant of like tenor;
provided, however, if any Warrant of which the original holder of this Warrant,
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its nominee, or any of its affiliates is the registered holder is lost, stolen
or destroyed, the affidavit of the President, Vice President, Treasurer,
Secretary, or Clerk, of the registered holder setting forth the circumstances
with respect to such loss, theft or destruction shall be accepted as
satisfactory evidence thereof, and no indemnity bond or other security shall be
required as a condition to the execution and delivery by the Company of a new
Warrant in replacement of such lost, stolen or destroyed Warrant other than the
registered holder's written agreement to indemnify the Company.
5. Registered Holder. The registered holder of this Warrant Certificate shall
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be deemed the owner hereof and of the Warrants evidenced hereby for all
purposes. The registered holder of this Warrant Certificate shall not be
entitled by virtue of ownership of this Warrant Certificate to any rights
whatsoever as a shareholder of the Company.
6. Amendments and Waivers. Any provision in this Warrant Certificate to the
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contrary notwithstanding, changes in or additions to this Warrant Certificate
may be made and compliance with any covenant or provision herein set forth may
be omitted or waived if the Company shall obtain consent thereto in writing from
the holder of this Warrant Certificate.
7. Transfer. (a) This Warrant Certificate and the Warrants evidenced hereby
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may not be sold, transferred, pledged, hypothecated or otherwise disposed of
unless and until:
(i) There is then in effect a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"),
covering such
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proposed disposition and such disposition is made in accordance with
such registration statement and all applicable state securities laws;
or
(ii) (A) The transferor shall have notified the Company of the
proposed disposition and shall have furnished the Company with a
statement of the circumstances surrounding the proposed disposition,
(B) if reasonably requested by the Company, such transferor shall have
furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require
registration of such shares under the Securities Act and that all
requisite action has been or will, on a timely basis, be taken under
any applicable state securities laws in connection with such
disposition: (C) the proposed transferee shall have agreed in writing
to be bound by the terms and provisions of this Section 8; and (D)
provided, however, that only two such transfers pursuant to this
Section 7(ii) may occur without the written consent of the Company.
(b) Notwithstanding the provisions of paragraphs (i) and (ii) above,
no such registration statement or opinion of counsel shall be necessary and
the provisions of subparagraph 7(ii)(a) shall not apply for a transfer to a
partner, former partner, subsidiary, shareholder or affiliate of such
transferor if the transferee agrees in writing to be subject to the terms
hereof to the same extent as if such transferee were an original holder of
this certificate or for transfers pursuant to Rule 144 or 144A promulgated
under the Securities Act.
8. Early Termination. If at any time the Company proposes to merge with or
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into any other entity, effect a reorganization or sell or convey all or
substantially all of its assets to any other entity in a transaction in which
the shareholders of the Company immediately prior to the transaction own
immediately after the transaction less than a majority of the outstanding voting
securities of the surviving entity (or its parent), then the Company shall give
the holder of this Warrant Certificate thirty days' prior written notice of the
effective date of the transaction and if the Warrants have not been exercised on
or prior to the effective date of such transaction the Warrants shall terminate.
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IN WITNESS WHEREOF, XENOGEN CORPORATION has caused this Warrant Certificate
to be signed by a duly authorized officer under its corporate seal, and this
Warrant Certificate to be dated November 13, 1997.
XENOGEN CORPORATION
By: _______________________
Name:
Title:
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