Exhibit 5
[Cadwalader, Wickersham & Taft Letterhead]
March 25, 2002
OXiGENE, Inc.
321 Arsenal Street
Watertown, MA 02472
Re: OXiGENE, Inc. S-8
-----------------
Ladies and Gentlemen:
We have acted as counsel to OXiGENE, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, dated as
of March 25, 2002, relating to the registration of up to 208,541 shares of the
Company's common stock, par value $.01 per share (the "Shares"). The Shares
represent the number of shares to be issued pursuant to restricted stock
agreements entered into between the Company and certain Company employees and
non-employees. We are rendering this opinion letter to you at the request of the
Company.
In rendering the opinions set forth below, we have examined and
relied upon the originals, copies or specimens, certified or otherwise
identified to our satisfaction, of the Transaction Documents (as defined below)
and such certificates, corporate and public records, agreements and instruments
and other documents, including, among other things, the documents delivered on
the date hereof, as we have deemed appropriate as a basis for the opinions
expressed below. In such examination we have assumed the genuineness of all
signatures, the authenticity of all documents, agreements and instruments
submitted to us as originals, the conformity to original documents, agreements
and instruments of all documents, agreements and instruments submitted to us as
copies or specimens, the authenticity of the originals of such documents,
agreements and instruments submitted to us as copies or specimens, and the
accuracy of the matters set forth in the documents, agreements and instruments
we reviewed. As to any facts material to such opinions that were not known to
us, we have relied upon statements and representations of officers and other
representatives of the Company and of public officials. Except as expressly set
forth herein, we have not undertaken any independent investigation (including,
without limitation, conducting any review, search or investigation of any public
files, records or dockets) to determine the existence or absence of the facts
that are material to our opinions, and no inference as to our knowledge
concerning such facts should be drawn from our reliance on the representations
of the Company and others in connection with the preparation and delivery of
this letter.
In particular, we have examined and relied upon:
1) the Restated Certificate of Incorporation of the Company,
amended as of June 21, 1995, and November 15, 1996;
2) the By-Laws of the Company, amended as of April 26, 1993;
3) the resolutions of the Compensation Committee of the Board of
Directors of the Company, dated as of October 30, 2001, approving
the establishment of the restricted stock award program;
4) the resolutions of the Board of Directors of the Company, dated
as of November 7, 2001, ratifying the establishment of the
restricted stock award program;
5) the form of restricted stock agreements for employees;
6) the form of restricted stock agreements for non-employees; and
7) the Registration Statement.
Items 1 to 7 above are referred to in this letter as the "Transaction
Documents".
We have also assumed (other than with respect to the Company) that
all documents, agreements and instruments have been duly authorized, executed
and delivered by all parties thereto, that all such parties had the power and
legal right to execute and deliver all such documents, agreements and
instruments, and that such documents, agreements and instruments are valid,
binding and enforceable obligations of such parties. As used herein, "to our
knowledge", "known to us" or words of similar import mean the actual knowledge,
without independent investigation, of any lawyer in our firm actively involved
in the transactions contemplated by the Agreement.
We express no opinion concerning the laws of any jurisdiction other
than the laws of the State of New York and, to the extent expressly referred to
in this opinion letter, the federal laws of the United States of America. While
we are not licensed to practice law in the State of Delaware, we have reviewed
applicable provisions of the Delaware General Corporation Law as we have deemed
appropriate in connection with the opinions expressed herein. Except as
described, we have neither examined nor do we express any opinion with respect
to Delaware law.
Based upon and subject to the foregoing, we are of the opinion that
the Shares, when issued in connection with the restricted stock agreements
described above, will be validly issued, fully paid and nonassessable.
We are furnishing this letter to you solely for your benefit in
connection with the transactions referred to herein. This letter is not to be
relied upon, used, circulated, quoted or otherwise referred to by any other
person or entity or for any other purpose without our prior written consent. In
addition, we disclaim any obligation to update this letter for changes in fact
or law, or otherwise.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby concede that
we are within the category of persons whose consent is required under the
Securities Act of 1933, as amended, or the Rules and Regulations thereunder.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft