EXHIBIT 5
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
(212)504-6000
December 14, 1999
OXiGENE, Inc.
110 East 59th Street
New York, NY 10022
Re: OXiGENE, Inc.
Registration of Stock Incentive Plan on Form S-8
Ladies and Gentlemen:
We have acted as counsel for OXiGENE, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form S-8 (the "S-8 Registration Statement"), to which this opinion
is Exhibit 5, and pursuant to which the Company proposes to offer and sell up to
an aggregate of 1,260,419 shares ("Employee Option Shares") of its Common Stock,
par value $0.01 per share ("Common Stock"). You have requested that we furnish
our opinion as to the matters hereinafter set forth.
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: (i) the Restated Certificate of
Incorporation of the Company, as certified by the Secretary of State of the
State of Delaware on June 3, 1996; (ii) the By-Laws of the Company, as amended
on April 26, 1993; (iii) the resolutions of the Board of Directors of the
Company (the "Board"), dated November 16, 1999 (the "Resolutions"), approving
the filing of the S-8 Registration Statement and ratifying the reservation of
the Employee Option Shares; (iv) the OXiGENE, Inc. 1996 Stock Incentive Plan
(the "Plan"), as amended; and (v) the S-8 Registration Statement.
In such examination we have assumed the genuineness of all
signatures, the authenticity of all documents, certificates and instruments
submitted to us as originals, the conformity to original documents, certificates
and instruments of all documents, certificates and instruments submitted to us
as copies or specimens, the authenticity of the originals of such documents,
certificates and instruments submitted to us as copies or specimens, and the
accuracy of the matters set forth in the documents, certificates and instruments
we reviewed. 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 in connection with the
preparation and delivery of this letter.
We have relied upon the written representations of the Company as to
the accuracy and completeness of (1) the By-Laws of the Company; (2) the Plan;
(3) the S-8 Registration Statement; and (4) the Resolutions. We also have relied
upon the written
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OXiGENE, Inc. December 14, 1999
representations of the Company that the Resolutions and the By-Laws of the
Company have not been amended or revoked.
We have also assumed (other than with respect to the Company) that
all documents, certificates 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, certificates and
instruments, and that such documents, certificates and instruments are valid,
binding and enforceable obligations of such parties.
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
all of the Employee Option Shares have been duly authorized for issuance and
when (i) the S-8 Registration Statement shall have become effective, (ii) the
Employee Option Shares shall have been issued in the proposed form, and (iii)
the Employee Option Shares shall have been issued and delivered against payment
therefor as contemplated by the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
S-8 Registration Statement.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft