UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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OXiGENE, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3679168
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
321 Arsenal Street
Watertown, MA 02472
(617) 673-7800
(Address, including Zip Code, of principal executive offices)
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Compensation Award Stock Agreement
Between Registrant And A Company Director
(Full title of the Plans)
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Gerald A. Eppner, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
(212) 504-6000
(Name and address, including Zip Code, telephone number and area code, of agent
for service)
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CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Title of Securities to be Amount to be Registered Proposed Maximum Offering Proposed Maximum Amount of Registration
Registered Price Per Share Aggregate Offering Price Fee
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Common Stock, $0.01 par value 345,053 shares $2.07 $714,260 $66
===================================================================================================================================
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EXPLANATORY NOTE
OXiGENE, Inc. (the "Company") has prepared this registration statement in
accordance with the requirements of Form S-8 under the Securities Act of 1933,
as amended (the "Securities Act"), to register resales of certain shares of
Company common stock, par value $.01, issued under a compensation award stock
agreement entered into by the Company and a Company director for past services
rendered to the Company.
This registration statement contains two parts. The first part contains a
reoffer prospectus prepared in accordance with the requirements of Part I of
Form S-3 under the Securities Act. The second part contains information required
in the registration statement under Part II of Form S-8.
REOFFER PROSPECTUS
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OXiGENE, Inc.
321 Arsenal Street
Watertown, MA 02472
(617) 673-7800
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345,053 Shares of Common Stock
Up to an aggregate of 345,053 shares of common stock, par value $0.01 per
share, of OXiGENE, Inc., a Delaware corporation (the "Company" or "OXiGENE"),
may be offered and sold from time to time by the stockholder of the Company
identified in this reoffer prospectus (the "Common Stock"). See "Selling
Stockholder" beginning on page 7. The Company's common stock is traded on the
Nasdaq National Market under the symbol "OXGN."
The shares of Common Stock are "restricted securities" under the
Securities Act of 1933, as amended (the "Securities Act"), before their sale
under this reoffer prospectus. This reoffer prospectus has been prepared for the
purpose of registering the Common Stock under the Securities Act to allow future
sales by the selling stockholder. To the knowledge of the Company, the selling
stockholder has no arrangement with any brokerage firm for the sale of the
Common Stock. The selling stockholder and participating brokers and dealers may
be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any profit on the sale of the Common Stock by the selling
stockholder and any commissions or discounts received by brokers or dealers in
connection with the sale of the Common Stock may be deemed to be underwriting
compensation under the Securities Act.
YOU SHOULD CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE 1 OF THIS
REOFFER PROSPECTUS BEFORE PURCHASING ANY OF THE COMMON STOCK OFFERED.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
REOFFER PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
You should only rely on the information incorporated by reference or
provided in this reoffer prospectus or any supplement. We have not authorized
anyone else to provide you with different information. This reoffer prospectus
may only be used where it is legal to sell these securities. You should not
assume that the information in this reoffer prospectus or any supplement is
accurate as of any date other than the date on the front of those documents.
The date of this reoffer prospectus is April 8, 2002
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TABLE OF CONTENTS
Page
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THE COMPANY....................................................................1
RISK FACTORS...................................................................1
USE OF PROCEEDS................................................................7
SELLING STOCKHOLDER............................................................7
PLAN OF DISTRIBUTION...........................................................8
INTERESTS OF NAMED EXPERTS AND COUNSEL.........................................9
EXPERTS........................................................................9
LEGAL MATTERS.................................................................10
WHERE YOU CAN FIND MORE INFORMATION...........................................10
INCORPORATED DOCUMENTS BY REFERENCE...........................................10
INDEMNIFICATION...............................................................11
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FORWARD-LOOKING STATEMENTS
Our disclosure in this reoffer prospectus contains "forward-looking
statements." Forward-looking statements are our current expectations or
forecasts of future events. You can identify these statements by the fact that
they do not relate strictly to historic or current facts. They use words such as
"anticipate," "estimate," "expect," "project," "intend," "plan," "believe," and
other words and terms of similar meaning. These include statements, among
others, relating to our planned future actions, our research and development
plans, our prospective products or product approvals, our beliefs with respect
to the sufficiency of our cash and cash equivalents, plans with respect to
funding operations, projected expense levels and the outcome of contingencies,
such as future financial results.
Any or all of our forward-looking statements in this report may turn out
to be wrong. They can be affected by inaccurate assumptions we might make or by
known or unknown risks and uncertainties. Consequently, no forward-looking
statement can be guaranteed. Actual results may vary materially. The
uncertainties that may cause differences include, but are not limited to, the
ability of the Company to obtain collaborative or licensing arrangements; the
availability of necessary funds and our ability to raise capital when needed and
on reasonable terms, or at all; the efficacy of our potential products and their
efficacy at acceptable dosage
levels; developing or contracting for the necessary manufacturing processes;
gaining necessary regulatory approvals and protecting our intellectual property
and the impact of competition and technological advances on our planned
products.
We will not update forward-looking statements, whether as a result of new
information, future events or otherwise, unless required by law. You are advised
to consult any further disclosures we make in our reports to the Securities and
Exchange Commission including our 10-Q, 8-K and 10-K reports. Our filings list
various important factors that could cause actual results to differ materially
from expected results. We note these factors for investors as permitted by the
Private Securities Litigation Reform Act of 1995. You should understand that it
is not possible to predict or identify all such factors. Consequently, you
should not consider any such list to be a complete set of all potential risks or
uncertainties.
THE COMPANY
OXiGENE is an international biopharmaceutical company engaged principally
in research into and the development of products for use in the treatment of
cancer. The Company's activities initially were directed primarily towards
products designed to complement and enhance the clinical efficacy of radiation
and chemotherapy, which are the most common and traditional forms of
non-surgical cancer treatment. Recently, however, the Company's efforts have
focused on developing products for application as direct cancer treatment
agents, particularly vascular targeting agents ("VTA"). Certain Company
activities are conducted with third parties, either through licensing
arrangements, collaborations or joint ventures.
RISK FACTORS
History of Losses and Anticipated Future Financial Results; Uncertainty of
Future Profitability. The Company has experienced net losses every year since
its inception and, as of December 31, 2001, had an accumulated deficit of
approximately $60.6 million. The Company anticipates incurring substantial
additional losses over at least the next several years due to, among other
factors, the need to expend substantial amounts on its continuing clinical
trials and anticipated research and development activities and the general and
administrative expenses associated with those activities. The Company has not
commercially introduced any product and its potential products are in varying
early stages of development and testing. The Company's ability to attain
profitability will depend upon its ability to develop products that are
effective and commercially viable, to obtain regulatory approval for the
manufacture and sale of its products and to license or otherwise market its
products successfully. There can be no assurance that the Company will ever
achieve profitability or that profitability, if achieved, will be sustained on
an ongoing basis.
Early Stage of Product Development; Uncertainties of Clinical Trials;
Unproven Safety and Efficacy. OXiGENE's products are in an early stage of
development. In order to achieve profitable operations, the Company, alone or in
collaboration with others, must successfully develop, manufacture, introduce and
market its products. The time frame necessary to achieve market success for any
individual product is long and uncertain. The products currently under
development by the Company will require significant additional research and
development and extensive pre-clinical and clinical testing prior to application
for commercial use. A number of companies in the biotechnology and
pharmaceutical industries have suffered significant setbacks in clinical trials,
even after showing promising results in early or later stage studies or clinical
trials. Although the Company has obtained some favorable results to date in
pre-clinical studies and clinical trials of certain of its potential products,
such results may not be indicative of results that will ultimately be obtained
in or throughout such clinical trials, and there can be no assurance that
clinical testing will show any of the Company's products to be safe or capable
of producing a desired result. There can also be no assurance that the Company's
research or product development efforts or those of its collaborative partners
will be successfully completed, that any compounds currently under development
by the Company will be successfully
developed into drugs, or that any potential products will receive regulatory
approval on a timely basis, if at all. If any such problems occur, the Company
could be materially and adversely affected.
Sufficiency of Existing Capital Resources; Possible Need for Additional
Funds; Uncertainty of Future Funding. The Company's operations to date have
consumed substantial amounts of cash. Negative cash flow from the Company's
operations is expected to continue over at least the next several years. The
Company does not currently have any commitments or plans to raise additional
capital by selling equity, issuing debt or entering into any collaboration that
would provide material funding. The Company anticipates that its cash and cash
equivalents as of December 31, 2001, should be sufficient to satisfy the
Company's projected cash requirements as of that date for approximately 36
months. The Company's actual capital requirements will depend on numerous
factors, including: the progress of and results of its pre-clinical testing and
clinical trials of its VTAs under development, including CA4P, its lead
Combretastatin based compound; the progress of the Company's research and
development programs; the time and costs expended and required to obtain any
necessary or desired regulatory approvals; the resources, if any, that the
Company devotes to developing manufacturing methods and advanced technologies;
the ability of the Company to enter into licensing arrangements, including any
unanticipated licensing arrangements that may be necessary to enable the Company
to continue the Company's development and clinical trial programs; the costs and
expenses of filing, prosecuting and, if necessary, enforcing the Company's
patent claims, or defending the Company against possible claims of infringement
by the Company of third party patent or other technology rights; the cost of
commercialization activities and arrangements, if any, undertaken by the
Company; and, if and when approved, the demand for the Company's products, which
demand is dependent in turn on circumstances and uncertainties that cannot be
fully known, understood or quantified unless and until the time of approval, for
example the range of indications for which any product is granted approval.
Under the Company's current operating plan and capital budget, and based on
current costs' expectations, the Company believes its existing capital as of the
end of fiscal year 2001 is sufficient to fund operations through the period of
approximately the next 36 months and completion of clinical trials and the FDA
approval process of CA4P, its lead compound, whether or not such approval is
ultimately obtained. The Company cannot predict with any certainty the success
of any clinical trials, whether or not FDA approval will ultimately be obtained
and if obtained whether such approval will take longer than expected. Due to the
numerous risks and uncertainties of the drug development and FDA approval
process, the Company cannot guarantee that its current cash, cash equivalents
and capital will be sufficient to fund operations for the period of
approximately the next 36 months and through the completion of the development
of CA4P and the FDA approval process related to CA4P. If its existing funds are
not sufficient, the Company would be required to seek additional funding and/or
take other measures. In addition, the Company is certain it will have to raise
substantial additional funds: (i) if FDA approval is obtained on the CA4P
compound, to bring such compound to market, including arranging for or
developing manufacturing capabilities and completing marketing and other
commercialization activities related to CA4P; (ii) to complete the development
of any additional products other than the development and FDA approval process
related to CA4P; and (iii) to bring any other potential product to market.
Issuance of additional equity securities by the Company, for these or any other
purpose, would result in dilution to then existing stockholders. If additional
financing is
-2-
needed, there can be no assurance that additional financing will be available on
acceptable terms when needed, if at all. If adequate funds are not available on
acceptable terms when needed, the Company would be required to delay, scale back
or eliminate one or more of its product development programs or seek to obtain
funds through arrangements with collaborative partners (or others) which
arrangements may include a requirement that the Company relinquish rights to
certain of its technologies or products or rights related to its technologies or
products that the Company would not otherwise relinquish. The failure by the
Company to obtain funding when and in the amounts needed and/or the Company's
acceptance of funding on terms that are not favorable to the Company or less
favorable to the Company than the Company would ordinarily desire, would have a
material adverse effect on the Company's financial position and results of
operations.
Dependence on Others for Clinical Development and Manufacturing and
Marketing. The Company has limited experience in drug development, the
regulatory approval process, manufacturing and marketing. Accordingly, OXiGENE
has depended, and in the future is likely to continue to depend, on others for
assistance in many areas, including research, conducting pre-clinical testing
and clinical trials, the regulatory approval process, manufacturing and
marketing. Although the Company considers its relations with existing
collaborative partners to be satisfactory, some of its current arrangements are
short-term in nature.
On February 28, 2002, the Company entered into an agreement with Peregrine
Pharmaceuticals, Inc. ("Peregrine") to conclude their Arcus Therapeutics LLC
joint venture. Under the terms of the agreement, Peregrine paid OXiGENE $2.0
million and both Peregrine and OXiGENE reacquired full rights and interest to
the vascular targeting platforms they contributed to the joint venture.
In October 2001, the Company announced that it had regained its rights to
the Combretastatin anti-tumor compounds licensed to Bristol-Myers Squibb ("BMS")
upon the agreement of the parties to conclude the Research Collaboration and
Licensing Agreement established in December 1999. The Company recognized
approximately $6.9 million of deferred revenue as revenue in the fourth quarter
of 2001 as a result of the agreement. In addition, the Company recorded an
accrued liability of approximately $0.5 million related to certain inventory and
royalty payments negotiated with BMS. The Company may incur future liability to
BMS upon the in-license of certain technologies related to the agreement. In
February of 2002, the Company and BMS finalized their termination agreement.
Funding requirements, competitive factors or prioritization of other
opportunities may lead the Company to seek additional arrangements with third
parties. While OXiGENE is likely to continue to explore other licensing and
development opportunities for its technologies with other companies, there can
be no assurance that the Company will be successful in establishing new,
collaborative agreements or licensing arrangements; that any collaborative
partner will not be pursuing alternative technologies or developing alternative
compounds either on its own or in collaboration with others, directed at the
same diseases as those involved in its collaborative arrangements with the
Company; that any such collaborative partners will devote resources to the
Company's technologies or compounds on a basis favorable to the Company and thus
undermining any collaboration with the Company; that any such arrangements will
be on terms favorable to OXiGENE; or that any future licensees will be
successful marketing or in commercializing licensed products. Finally, if the
Company's collaboration arrangements are terminated
-3-
prior to their expiration or if the other parties to such arrangements fail to
adequately perform, there can be no assurance that submission of product
candidates for regulatory approval will not be delayed.
Clinical Trials; Government Regulation and Health Care Reform; Managed
Care. The Company's research and development activities, pre-clinical testing
and clinical trials, and the manufacturing and marketing of its products are
subject to extensive regulation by numerous governmental authorities in the
United States and other countries. Pre-clinical testing and clinical trials and
manufacturing and marketing of OXiGENE's products are and will continue to be
subject to the rigorous testing and approval processes of the FDA, the Swedish
Medical Products Agency and other corresponding foreign regulatory authorities.
Clinical testing and the regulatory process generally take many years and
require the expenditure of substantial resources. In addition, delays or
rejections may be encountered during the period of product development, clinical
testing and FDA regulatory review of each submitted application. Similar delays
may also be encountered in foreign countries. There can be no assurance that,
even after such time and expenditures, regulatory approval will be obtained for
any potential products developed by OXiGENE or that a potential product, if
approved in one country, will be approved in other countries. Moreover, if
regulatory approval of a potential product is granted, such approval may entail
significant limitations on the indicated uses for which that product may be
marketed. Further, even if such regulatory approval is obtained, a marketed
product, its manufacturer and its manufacturing facilities are subject to
continual review and periodic inspections, and later discovery of previously
unknown problems (such as previously undiscovered side effects) with a product,
manufacturer or facility may result in restrictions on such product,
manufacturer or facility, including a possible withdrawal of the product from
the market. Failure to comply with the applicable regulatory requirements can,
among other things, result in fines, suspensions of regulatory approvals,
product recalls, operating restrictions, injunctions and criminal prosecution.
Additionally, new government regulations may be established that could prevent
or delay regulatory approval of the Company's potential products. Further, the
U.S. Congress continues to debate various health care reform proposals which, if
adopted, may have a material adverse effect on the Company. Moreover, continued
cost control initiatives by health care maintenance organizations and similar
programs may affect the financial ability and willingness of patients and their
health care providers to utilize certain therapies which, in turn, could have a
material adverse effect on the Company.
Competition and Risk of Technological Obsolescence. The Company is engaged
in a rapidly evolving field. Competition from other pharmaceutical companies,
biotechnology companies and research and academic institutions is intense and
expected to increase. Many of those companies and institutions have
substantially greater financial, technical and human resources than the Company.
Those companies and institutions also have substantially greater experience in
developing products, in conducting clinical trials, in obtaining regulatory
approval and in manufacturing and marketing pharmaceutical products.
Accordingly, competitors may succeed in obtaining regulatory approval for their
products more rapidly than the Company. Competitors have developed or are in the
process of developing technologies that are, or in the future may be, the basis
for competitive products. Some of those products may have an entirely different
approach or means of accomplishing the desired therapeutic effect than products
being developed by the Company. There can be no assurance that the Company's
competitors will not
-4-
succeed in developing technologies and products that are more effective and/or
cost competitive than those being developed by the Company or that would render
the Company's technology and products less competitive or even obsolete. In
addition, one or more of the Company's competitors may achieve product
commercialization or patent protection earlier than the Company, which could
materially adversely affect the Company.
Dependence on Patents and Proprietary Technology. To date, OXiGENE's
principal products have been based on certain previously known compounds. The
Company anticipates that the products it develops in the future may include or
be based on the same or other compounds owned or produced by unaffiliated
parties, as well as synthetic compounds it may discover. Although the Company
expects to seek patent protection for any compounds it discovers and/or for any
specific uses it discovers for new or previously known compounds, there is no
assurance that any or all of them will be subject to effective patent
protection. Further, the development of regimens for the administration of
pharmaceuticals, which generally involve specifications for the frequency,
timing and amount of dosages, has been, and the Company believes, may continue
to be, important to the Company's efforts, although those processes, as such,
may not be patentable.
The Company's success will depend, in part, on its ability to obtain
patents, protect its trade secrets and operate without infringing on the
proprietary rights of others. As of March 25, 2002, the Company is the assignee
of seven granted U.S. patents, nine pending U.S. patent applications, and of
granted patents and/or pending applications in other countries (and/or
international applications designating other countries) corresponding to five of
the granted U.S. patents and eight of the pending U.S. applications, and is also
the exclusive licensee of a number of U.S. and foreign patents and pending
applications and pending international applications. The patent position of
pharmaceutical and biotechnology firms like OXiGENE generally is highly
uncertain and involves complex legal and factual questions, resulting in both an
apparent inconsistency regarding the breadth of claims allowed in U.S. patents
and general uncertainty as to their legal interpretation and enforceability.
Accordingly, there can be no assurance that patent applications assigned or
exclusively licensed to the Company will result in patents being issued, that
any issued patents assigned or exclusively licensed to the Company will provide
the Company with competitive protection or will not be challenged by others, or
that the current or future granted patents of others will not have an adverse
effect on the ability of the Company to do business and achieve profitability.
Moreover, since some of the basic research relating to one or more of the
Company's patent applications and/or patents was performed at various
universities and/or funded by grants, there can be no assurance that one or more
universities, employees of such universities and/or grantors will not assert
that they have certain rights in such research and any resulting products.
Furthermore, there can be no assurance that others will not independently
develop similar products, will not duplicate any of the Company's products or,
around the patent rights of the Company. In addition, as a result of assertion
of rights by a third party or otherwise, the Company may be required to obtain
licenses to patents or other proprietary rights of others in or outside of the
United States. No assurance can be given that any licenses required under any
such patents or proprietary rights would be made available on terms acceptable
to the Company, if at all. If the Company does not obtain such licenses, it
could encounter delays in product market introductions while it attempts to
design around such patents. In addition, the Company could incur substantial
costs in defending itself in suits brought against it or in connection with
patents to which it holds a license or in bringing suit to
-5-
protect the Company's own patents against infringement. The Company requires
employees, consultants and the institutions that perform its pre-clinical and
clinical tests to enter into confidentiality agreements with the Company. Those
agreements provide that all confidential information developed or made known to
the individual during the course of the relationship with the Company is to be
kept confidential and not to be disclosed to third parties, except in specific
circumstances. There can be no assurance, however, that any such agreement will
provide meaningful protection for the Company's trade secrets or other
confidential information in the event of unauthorized use or disclosure of such
information.
Dependence on Certain Officers, Directors, Principal Consultants and
Others. The Company believes that its success is, and will likely continue to
be, materially dependent upon its ability to retain the services of certain of
its current officers, directors, principal consultants and others, particularly
Joel-Tomas Citron, Dr. Bjorn Nordenvall, Dr. David Chaplin and Frederick
Driscoll. The loss of the services of any of these individuals could have a
material adverse effect on the Company. In addition, the Company has established
relationships with universities, hospitals and research institutions, which have
historically provided, and continue to provide, the Company with access to
research laboratories, clinical trials, facilities and patients. Additionally,
the Company believes that it may, at any time and from time to time, be
materially dependent on the services of consultants and other unaffiliated third
parties.
Product Liability Exposure; Limited Insurance Coverage. The use of the
Company's potential products in clinical trials and for commercial applications,
if any, may expose the Company to liability claims, in the event such products
cause injury, disease or result in adverse effects. These claims could be made
directly by health care institutions, contract laboratories, patients or others
using such products. Although the Company has obtained liability insurance
coverage for its ongoing clinical trials, and there can be no assurance that
such coverage will be in amounts sufficient to protect the Company and the
occurrence of any product liability claims or product recalls could have a
material adverse effect on the financial condition and prospects of the Company.
Further, adverse product and similar liability claims could negatively impact
the Company's ability to obtain or maintain regulatory approvals for its
technology and products under development.
Price Volatility of the Common Stock. The market price of the common stock
has been, and likely will continue to be highly volatile. Factors including the
Company's or its competitors results, clinical trials, research development
announcements by the Company or its competitors and government regulatory action
affecting the Company's potential products in both the United States and foreign
countries have had, and may continue to have, a significant effect on the
Company's results of operations and on the market price of the Company's common
stock. As of December 31, 2001, an aggregate of 25,100 stock appreciation rights
("SAR's"), with a weighted average exercise price of $7.51 per SAR, had been
granted to certain clinical investigators and consultants. The Company is not
required to make any cash payments upon exercise of any such SAR. If and when
the spread between the market price of the Company's common stock and the
exercise price of the SAR's changes, the charge for financial reporting purposes
to research and development will be adjusted to reflect an increase or decrease,
as the case may be, in the market price of the Company's common stock. In
addition, as of December 31, 2001, the Company had issued options to purchase an
aggregate of 12,000 shares of its common stock to certain consultants and
advisory board members who are not
-6-
employees. Such options are accounted for at their fair value and also result in
a charge for financial reporting purposes. The future charge related to these
options are also influenced by changes in the market price of the Company's
common stock. In addition, substantially all of the shares of the Company's
common stock issuable upon exercise of outstanding options, SAR's have been
registered for sale and may be sold from time to time hereafter. Such sales, as
well as future sales of the Company's common stock by existing stockholders, or
the perception that sales could occur, could adversely affect the market price
of the Company's common stock. The price and liquidity of the Company's common
stock may also be significantly affected by trading activity and market factors
related to the Nasdaq and Stockholm Stock Exchange markets, which factors and
the effects may differ between those markets.
No Dividends. The Company has not declared or paid dividends on its common
stock since its inception and does not intend to declare or pay any dividends to
its stockholders in the foreseeable future.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Common
Stock by the selling stockholder to others. All sales proceeds will be received
by the selling stockholder.
SELLING STOCKHOLDER
The shares of Common Stock to which this reoffer prospectus relates are
being registered for reoffers and resales by the selling stockholder, who
acquired the Common Stock pursuant to a compensation award stock agreement with
the Company for past services rendered to the Company. Separately, on March 25,
2002, the Company filed two registration statements on Form S-8 under the
Securities Act, for 475,977 and 208,541 shares of Company common stock,
respectively, covering possible resales by certain Company directors, employees
and non-employees.
The table below sets forth with respect to the selling stockholder, based
upon information available to the Company as of April 1, 2002, the number of
shares of Company common stock owned (including, where applicable, the Common
Stock covered by this reoffer prospectus, Company common stock not covered by
this reoffer prospectus and options to purchase Company common stock), the
number of shares of Common Stock registered by this reoffer prospectus and the
number and percent of outstanding shares of Company common stock that will be
owned after the sale of the registered Common Stock assuming the sale of all of
the registered Common Stock.
NUMBER OF PERCENTAGE OF
NUMBER OF SHARES OF NUMBER OF SHARES OF SHARES OF SHARES OF
COMPANY COMMON COMPANY COMMON STOCK COMPANY COMPANY
SELLING STOCK OWNED BEFORE REGISTERED BY THIS REOFFER COMMON STOCK COMMON STOCK
STOCKHOLDER SALE PROSPECTUS OWNED AFTER SALE OWNED AFTER SALE
----------- ------------------- -------------------------- ---------------- ----------------
Bjorn Nordenvall(1) 430,053 345,053 85,000 0.7%
<FN>
(1) Dr. Nordenvall is the vice chairman of our board of directors. Of the shares
listed in the table, 85,000 represent options to purchase Company common stock
which are subject to transfer and forfeiture restrictions.
</FN>
-7-
PLAN OF DISTRIBUTION
The selling stockholder and any of his pledgees, donees, assignees,
transferees, may sell any or all of the shares of Common Stock for value from
time to time under this reoffer prospectus in one or more transactions on the
Nasdaq Stock Market or any stock exchange, market or trading facility on which
the Common Stock is traded, in a negotiated transaction or in a combination of
such methods of sale, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at prices otherwise negotiated. The
selling stockholder will act independently of the Company in making decisions
with respect to the timing, manner and size of each sale. The selling
stockholder may use any one or more of the following methods when selling
shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell
the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o underwritten offerings;
o short sales;
o agreements by the broker-dealer and the selling stockholder to
sell a specified number of such shares at a stipulated price
per share;
o a combination of any such methods of sale; and
o any other method permitted by applicable law.
The selling stockholder may also sell shares under Rule 144 under the
Securities Act, if available, under Section 4(1) of the Securities Act or
directly to the Company in certain circumstances rather than under this reoffer
prospectus.
Unless otherwise prohibited, the selling stockholder may enter into
hedging transactions with broker-dealers or other financial institutions in
connection with distributions of the shares or otherwise. In such transactions,
broker-dealers or financial institutions may engage in short sales of the shares
in the course of hedging the position they assume with the selling stockholder.
The selling stockholder may also engage in short sales, puts and calls,
forward-exchange contracts, collars and other transactions in our securities or
derivatives of our securities and may sell or
-8-
deliver shares in connection with these trades. If the selling stockholder sells
shares short, he may redeliver the shares to close out such short positions. The
selling stockholder may also enter into option or other transactions with
broker-dealers or financial institutions which require the delivery to the
broker-dealer or the financial institution of the shares. The broker-dealer or
financial institution may then resell or otherwise transfer such shares pursuant
to this reoffer prospectus. In addition, the selling stockholder may loan his
shares to broker-dealers or financial institutions who are counterparties to
hedging transactions and the broker-dealers, financial institutions or
counterparties may sell the borrowed shares into the public market. The selling
stockholder may also pledge his shares to his brokers or financial institutions
and under the margin loan the broker or financial institution may, from time to
time, offer and sell the pledged shares. The selling stockholder has advised us
that he has not entered into any agreements, understandings or arrangements with
any underwriters, broker-dealers or financial institutions regarding the sale of
his shares other than ordinary course brokerage arrangements, nor is there an
underwriter or coordinating broker acting in connection with the proposed sale
of shares by the selling stockholder.
The selling stockholder and any broker-dealers that participate in the
distribution of the Common Stock may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act, and any commissions received by
them and any profit on the resale of the Common Stock sold by them may be deemed
to be underwriting discounts and commissions under the Securities Act. All
selling and other expenses incurred by the selling stockholder will be borne by
the selling stockholder.
There is no assurance that the selling stockholder will sell all or any
portion of the shares of Common Stock offered.
The Company will pay all expenses in connection with this offering and
will not receive any proceeds from sales of any Common Stock by the selling
stockholder.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Mr. Gerald Eppner is a director of the Company and a member of its audit
committee and is a partner in Cadwalader, Wickersham & Taft, a New York law firm
that provides certain legal services to the Company. Cadwalader, Wickersham &
Taft rendered a legal opinion as to the legality of the Common Stock offered
under this reoffer prospectus and prepared this reoffer prospectus and related
registration statement on Form S-8 under the Securities Act with respect to the
Common Stock. In his capacity as a director of the Company, Mr. Eppner received
80,000 shares of Common Stock pursuant to a compensation award stock agreement
with the Company for his past services rendered as a director to the Company.
EXPERTS
The consolidated financial statements and schedule of OXiGENE, Inc.
appearing in OXiGENE Inc.'s Annual Report (Form 10-K) for the year ended
December 31, 2001, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such financial statements and schedule
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are incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Cadwalader, Wickersham & Taft, New York, New York.
WHERE YOU CAN FIND MORE INFORMATION
We file annual and quarterly reports, proxy statements and other
information required by the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Securities and Exchange Commission (the "SEC"). You
may read and copy any document the Company files at the SEC's public reference
rooms located at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference rooms. The
Company's SEC filings are also available to the public from the SEC's web site
at http://www.sec.gov. Additional information about the Company may also be
obtained at the Company's web site at http://www.oxigene.com.
The Company has filed with the SEC a registration statement on Form S-8
(the "Registration Statement") under the Securities Act with respect to the
Common Stock. This reoffer prospectus, which constitutes a part of that
Registration Statement, does not contain all the information contained in that
Registration Statement and its exhibits. For further information with respect to
the Company and the Common Stock, you should consult the Registration Statement
and its exhibits. Statements contained in this reoffer prospectus concerning the
provisions of any documents are necessarily summaries of those documents, and
each statement is qualified in its entirety by reference to the copy of the
document filed with the SEC. The Registration Statement and any of its
amendments, including exhibits filed as a part of the Registration Statement or
an amendment to the Registration Statement, are available for inspection and
copying through the entities listed above.
INCORPORATED DOCUMENTS BY REFERENCE
The SEC allows the Company to "incorporate by reference" the information
that we file with them, which means that we can disclose important information
to you by referring you to the other information we have filed with the SEC. The
information that we incorporate by reference is considered to be part of this
reoffer prospectus, and information that we file later with the SEC will
automatically update and supersede this information.
The following documents filed by us with the SEC pursuant to Section 13 of
the Exchange Act (File No. 0-21990) and any future filings under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act made before the termination of the
offering are incorporated by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001, filed with the Commission pursuant to the
Securities
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Exchange Act of 1934, as amended (the "Exchange Act"), on March 29,
2002, and the exhibits therein;
(2) The description of the shares of common stock, par value $.01 per
share, contained in the Registrant's registration statement on Form
8-A filed with the Commission on June 24, 1993 (File Number 0-21990)
pursuant to Section 12(g) of the Exchange Act, which incorporates by
reference the description of the shares of common stock, par value
$.01 per share, contained in the registration statement on Form S-1
(File Number 33-64968) filed by the Registrant on June 24, 1993 and
declared effective by the Commission on August 25, 1993, and any
amendment or report filed with the Commission for purposes of
updating such description.
All documents that we have filed with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this reoffer
prospectus and prior to the completion of the offering shall be deemed to be
incorporated by reference into this reoffer prospectus and to be part of this
reoffer prospectus from the date of filing of these documents.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this reoffer prospectus is delivered a copy
of any or all documents incorporated by reference into this reoffer prospectus
except the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents. You may request copies by writing
or telephoning Tammy Bishop, Director of Investor Relations and Corporate
Communications, OXiGENE, Inc., 321 Arsenal Street, Watertown, Massachusetts
02472; telephone number (617) 673-7800.
INDEMNIFICATION
Our amended and restated certificate of incorporation provides for us to
indemnify our directors and officers to the fullest extent authorized by
Delaware law. This indemnification would cover all expenses and liabilities
reasonably incurred in connection with their services for or on behalf of us. In
addition, our amended and restated certificate of incorporation provides that
our directors will not be personally liable for monetary damages to us for
breaches of their fiduciary duty as directors, unless they violated their duty
of loyalty to us or our stockholders, acted in bad faith, knowingly or
intentionally violated the law, authorized illegal dividends or redemptions or
derived an improper personal benefit from their action as directors.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is therefore unenforceable.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by the Registrant with the
Commission, are incorporated in the Registration Statement by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001, filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on
March 29, 2002, and the exhibits therein;
(2) The description of the shares of common stock, par value $.01 per
share, contained in the Registrant's registration statement on Form
8-A filed with the Commission on June 24, 1993 (File Number 0-21990)
pursuant to Section 12(g) of the Exchange Act, which incorporates by
reference the description of the shares of common stock, par value
$.01 per share, contained in the registration statement on Form S-1
(File Number 33-64968) filed by the Registrant on June 24, 1993 and
declared effective by the Commission on August 25, 1993, and any
amendment or report filed with the Commission for purposes of
updating such description.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment indicating that all securities offered hereby have been sold or
deregistering all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein and to be
a part hereof shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Mr. Gerald Eppner is a director of the Company and a member of its audit
committee and is a partner in Cadwalader, Wickersham & Taft, a New York law firm
that provides certain legal services to the Company. Cadwalader, Wickersham &
Taft rendered a legal opinion as to the legality of the Common Stock registered
under this Registration Statement and prepared this Registration Statement and
reoffer prospectus filed with this Registration Statement with respect to the
Common Stock. In his capacity as a director of the Company, Mr. Eppner received
80,000
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shares of Common Stock pursuant to a compensation award stock agreement with the
Company for his past services rendered as a director to the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of Delaware
(the "DGCL") empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party 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 corporation) by
reason of the fact that he is or was a director, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person 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
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification may be made
in respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery 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 of the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director,
officer, employee or agent of a corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) or in the defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith; that indemnification or
advancement of expenses provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and empowers the corporation to purchase and maintain insurance on behalf of a
director, officer, employee or agent of the corporation against any liability
asserted against him or incurred by him in any such capacity or arising out of
his status as such whether or not the corporation would have the power to
indemnify him against such liabilities under Section 145.
Reference is also made to Section 102(b)(7) of the DGCL, which enables a
corporation in its certificate of incorporation to eliminate or limit the
personal liability of a director for monetary damages for violations of a
director's fiduciary duty, except for liability (i) for any
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breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
the director derived an improper personal benefit.
Article Ninth of the Registrant's Restated Certificate of Incorporation
provides that a director shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit.
Article IX, Section 3 of the Registrant's By-laws provides that the
Registrant shall, to the fullest extent permitted by the DGCL, indemnify its
directors and may, if authorized by the Registrant's board of directors,
indemnify its officers, employees and agents and any and all persons whom the
Registrant shall have power to indemnify against any and all expenses,
liabilities or other matters.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The shares of Company Common Stock to be offered and sold under the
reoffer prospectus were initially issued by the Company in a transaction deemed
exempt from registration under the Securities Act in reliance on the exemption
from the registration requirements of the Securities Act contained in Section
4(2) thereof covering transactions by an issuer not involving any public
offering.
ITEM 8. EXHIBITS.
Exhibit
No. Document
--- --------
4.1 Form of Compensation Award Stock Agreement for Employee
Directors
5 Opinion of Cadwalader, Wickersham & Taft, counsel for
the Registrant, as to the legality of the securities
being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cadwalader, Wickersham & Taft (included in,
and incorporated by reference to, Exhibit 5 hereto).
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereto) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement. Notwithstanding the foregoing,
any increase or decrease in the volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement; provided, however, that the undertakings set
forth in paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the SEC by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment will be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time will be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(d) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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(e) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
(f) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions referred to in Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Watertown, State of Massachusetts, on April 8,
2002.
OXiGENE, INC.
(Registrant)
By: /s/ Frederick Driscoll
------------------------------------
Frederick Driscoll
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Frederick W. Driscoll President and Chief Executive Officer April 8, 2002
- ----------------------------------------
Frederick W. Driscoll
/s/ Richard St. Germain Controller April 8, 2002
- ---------------------------------------- (Principal Financial and Accounting Officer)
Richard St. Germain
/s/ Joel-Tomas Citron Chairman of the Board of Director April 8, 2002
- ----------------------------------------
Joel-Tomas Citron
/s/ Gerald A. Eppner Director April 8, 2002
- ----------------------------------------
Gerald A. Eppner
/s/ Michael Ionata Director April 8, 2002
- ----------------------------------------
Michael Ionata
/s/ Arthur B. Laffer Director April 8, 2002
- ----------------------------------------
Arthur B. Laffer
/s/ Bjorn Nordenvall Vice-Chairman of the Board of Directors April 8, 2002
- ----------------------------------------
Bjorn Nordenvall
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EXHIBIT INDEX
Exhibit
No. Document
- --- --------
4.1 Form of Compensation Award Stock Agreement for Employee
Directors
5 Opinion of Cadwalader, Wickersham & Taft, counsel for the
Registrant, as to the legality of the securities being
registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cadwalader, Wickersham & Taft (included in, and
incorporated by reference to, Exhibit 5 hereto).
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