SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OXiGENE, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-3679168
(I.R.S. employer identification no.)
One Copley Place, Suite 602, Boston MA 02116
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(Address of principal executive offices) (Zip code)
1996 Stock Incentive Plan
(Full title of the plan)
Gerald A. Eppner, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
(Name and address of agent for service)
(212) 504-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate registration
to be registered registered per share(1) offering price(1) fee
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Common Stock, par value
$.01 per share 1,260,419 $28.8125 $18,895,004 $4,989
=======================================================================================
(1) Of the shares being registered, 12,000 shares are being offered at $6.00
per share, 16,000 shares are being offered at $8.50 per share, 186,804
shares are being offered at $8.9375 per share, 8,000 shares are being
offered at $9.00 per share, 2,000 shares are being offered at $9.438 per
share, 184,431 shares are being offered at $10.00 per share, 58,500 shares
are being offered at $10.25 per share, 55,569 shares are being offered at
$10.50 per share, 45,000 shares are being offered at $12.00 per share,
30,000 shares are being offered at $22.125 per share, and 100,000 shares
are being offered at $28.8125 per share. In addition, 552,115 shares are
to be offered at prices not presently determinable. Pursuant to Rule
457(h), the offering price of such 552,115 shares is estimated solely for
the purpose of determining the registration fee and is based on the
average of the bid and asked prices of the Common Stock (approximately
$17.625) quoted on The Nasdaq Stock Market, Inc. National Market on
December 9, 1999.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to employees who have been granted awards under the 1996 Stock
Incentive Plan, as amended (the "Plan"), of OXiGENE, Inc., a Delaware
corporation (the "Registrant"), and are not being filed with, or included in,
this Registration Statement on Form S-8 (the "Registration Statement") in
accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given to employees who have been granted awards under the Plan and are
not being filed with, or included in, this Registration Statement in accordance
with the rules and regulations of the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, as amended by Form 10-K/A-1, filed with the Commission on
April 30, 1999.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999.
(5) The Registrant's Current Report on Form 8-K, filed with the Commission
on February 17, 1999.
(6) The Registrant's Current Report on Form 8-K, filed with the Commission
on October 6, 1999.
(7) The Registrant's Current Report on Form 8-K, filed with the Commission
on December 8, 1999.
(8) The description of the shares of common stock, par value $.01 per
share (the "Common Stock"), 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 Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference the description of the
shares of Common Stock 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
hereof and prior to the filing of a post-effective amendment, which indicates
that all securities offered have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein 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 incorporated or 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.
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Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Reference is made to Section 145 of the Delaware General Corporation Law,
as amended (the "DGCL"), which provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation in such capacity of another corporation or
business organization. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such director, officer, employee or agent in connection with such
action, suit or proceeding if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interest of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that such person's conduct was unlawful. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of a corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such officer or
director actually and reasonably incurred.
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 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
and Article IX, Section 3 of the Registrant's By-laws provide for the
elimination of personal liability of a director for breach of fiduciary duty as
permitted by Section 102(b)(7) of the DGCL, and provide that the Registrant
indemnify its directors and officers to the full extent permitted by Section 145
of the DGCL.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
4.2 OXiGENE, Inc. 1996 Stock Incentive Plan, as amended.
3
4.3* Restated Certificate of Incorporation as filed with the Secretary of
State of the State of Delaware on April 27, 1993, and as amended on
June 22, 1995.
4.4** By-Laws, as amended through April 26, 1993.
5 Opinion of Cadwalader, Wickersham & Taft regarding 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).
* Included in, and incorporated by reference to, the IPO Registration
Statement and the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, as amended by Form 10-K/A-1, as
filed with the Commission on April 30, 1996.
** Included in, and incorporated by reference to, Registrant's
Registration Statement on Form S-1 (File Number 33-64968) filed with
the Commission on June 24, 1993 and declared effective on August 25,
1993 (the "IPO Registration Statement").
Item 9. Undertakings.
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 ("Securities Act"), each such post-effective amendment
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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered hereby which remain unsold at the
termination of the offering.
(4) 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
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act of 1934) 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.
(5) 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 foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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
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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.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Stockholm, Sweden or in the City of New York, State
of New York, on this 13th day of December 1999.
OXiGENE, INC.
By: /s/ Bjorn Nordenvall
------------------------------------
Bjorn Nordenvall
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 indicated on December 13, 1999.
Signature Title
/s/ Bjorn Nordenvall President, Chief Executive Officer
- ----------------------- and Director (principal executive
Bjorn Nordenvall officer)
/s/ Bo Haglund Chief Financial Officer
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Bo Haglund
Director
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Marvin H. Caruthers
/s/ Michael Ionata Director
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Michael Ionata
/s/ Arthur Laffer Director
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Arthur Laffer
Director
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Ronald W. Pero
Director
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Per-Olof Soderberg
/s/ Gerald A. Eppner Director
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Gerald A. Eppner
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page Number
4.2 OXiGENE, Inc. 1996 Stock Incentive Plan, as amended.
4.3* Restated Certificate of Incorporation as filed with the Secretary of
State of the State of Delaware on April 27, 1993, and as amended on
June 22, 1995.
4.4** By-Laws, as amended through April 26, 1993.
5 Opinion of Cadwalader, Wickersham & Taft regarding 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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* Included in, and incorporated by reference to, the IPO Registration
Statement and the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, as amended by Form 10-K/A-1, as
filed with the Commission on April 30, 1996.
** Included in, and incorporated by reference to, the Registrant's
Registration Statement on Form S-1 (File Number 33-64968) filed with
the Commission on June 24, 1993 and delared effective on August 25,
1993 (the "IPO Registration Statement").