As filed with the Securities and Exchange Commission
on July 8, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
POST-EFFECTIVE AMENDMENT NO. 3 ON FORM S-3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OXiGENE, INC.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
13-3679168
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(I.R.S. Employer Identification No.)
One Copley Place, Suite 602, Boston, MA 02116, (617) 536-9500
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(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Ms. Katherine Marks, One Copley Place, Suite 602, Boston,
MA 02116, (617) 536-9500
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(Name, Address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Gerald A. Eppner, Esq.
Cadwalader Wickersham & Taft
100 Maiden Lane
New York, New York 10038
(212) 504-6000
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this post-effective amendment.
<PAGE>
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |_|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_| 33-64968
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
--------------------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JULY ___, 1998
PROSPECTUS
847,135 Shares of Common Stock Underlying Outstanding Warrants
================================================================================
OXiGENE, INC.
This Prospectus relates to up to 847,135 shares of Common Stock, par value
$.01 per share (the "Common Stock"), of OXiGENE, Inc. (the "Company" or
"OXiGENE"), that may be issued by the Company upon the exercise of warrants (the
"Warrants") which were included in the Units (the "Units") originally issued by
the Company pursuant to a prospectus dated August 26, 1993 (the "Separation
Date"). The Warrant Agreement, dated August 26, 1993 (the "Warrant Agreement"),
between the Company and the Warrant Agent, pursuant to which the Warrants were
issued, provided that each Warrant entitles the holder thereof to purchase one
share of Common Stock for $7.00 during the first year of exercisability ending
on the first anniversary of the Separation Date, August 26, 1993, with the
exercise price thereafter increasing by $2.00 on each annual anniversary of the
Separation Date.
On August 29, 1994, the Company and the Warrant Agent amended the Warrant
Agreement in certain respects. As so amended, the Warrant Agreement currently
provides that each Warrant entitles the holder thereof to acquire upon exercise
of the Warrant 1.07 shares of Common Stock at an exercise price of $14.35 per
share. No fractional shares are to be issued. Unless extended, unexercised
Warrants were to expire by their terms at the close of business on August 26,
1998 (the "Original Expiration Date").
On July 8, 1998, the Company and the Warrant Agent amended the Warrant
Agreement to provide that (a) at 5:00 p.m., New York City time on August 26,
1998, with no action required to be taken by the holders of the Warrants, the
Original Expiration Date will be extended (the "Extension") to 5:00 p.m., New
York City time, December 31, 1999 (the "Amended Expiration Date"), (b) each
Warrant shall be exercisable on and after August 26, 1998, and until the Amended
Expiration Date, for 1.07 shares of Common Stock at a price of $14.35 (i.e., the
exercise price currently in effect), subject only to adjustment after that date
in accordance with the anti-dilution provisions set forth in the Warrant
Agreement (which are not being amended) (the "Price Amendment"), and (c) the
Company has the right, but not the obligation, at any time after the Original
Expiration Date, to redeem, at any time or from time to time, any or all of the
Warrants (the "Call" and, together with the Extension and the Price Amendment,
the "Amendments"); provided, however, the Company may exercise the Call only if
(i) the average trading price of the shares of the Company's Common Stock, as
reported by the National Market of the NASDAQ Stock Market, Inc.SM ("NASDAQ"),
for any period of ten consecutive trading days (not including any days on which
there are no purchases or sales of Common Stock but the NASDAQ is open for
trading) has traded at not less than $16.00 per share, and (ii) the Company has
given not less than 20 days written notice to the Warrantholders indicating the
Company's election to exercise the Call. Following a Call, any Warrants that
were called that remain unexercised at the end of the 20-day notice period will
be redeemed promptly thereafter at a redemption price of $.001 per Warrant,
payable by the Company in cash.
The Warrantholders need take no action in connection with the Amendments to
the Warrant Agreement, which apply to all outstanding Warrants. Warrantholders
need not turn in the certificates evidencing their Warrants that do not reflect
the Amendments (the "Original Warrant Certificates") even after the Original
Expiration Date. However, after the Original Expiration Date, any Warrantholder
has the right, but not the obligation, at the Warrantholder's election, to
surrender Original Warrant Certificates to the Warrant Agent which will
thereupon be replaced with certificates evidencing Warrants containing the
Amendments (the "Revised Warrant Certificates"). In addition, after the Original
Expiration Date, Revised Warrant Certificates will be issued in connection with
(a) any transfer of Warrants evidenced by Original Warrant Certificates or (b) a
partial exercise of Warrants evidenced by Original Warrant Certificates.
Other than the amendments to the Warrant Agreement specifically set forth
in Post-Effective Amendment No. 3 on Form S-3 to Form S-1 Registration
Statement, of which this Prospectus is a part, and other than as set forth in
Post-Effective Amendment No. 2 on Form S-3 to Form S-1 Registration Statement,
dated September 30, 1994, the Warrant Agreement has not been amended. The
Company will receive the full proceeds of any exercise of the Warrants.
The shares of Common Stock of the Company are traded on NASDAQ under the
symbol "OXGN." The last reported sale price of the Company's Common Stock as
reported by NASDAQ on July 6, 1998 was $11.8125.
The Securities Offered Hereby Involve a High Degree of Risk. See "Risk
Factors" beginning on page 7.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-----------------
The date of this Prospectus is July _____, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy and information statements and other information
with the Securities and Exchange Commission (the "SEC"). Copies of such reports,
proxy and information statements and other information can be inspected and
copied at the public reference facilities maintained by the SEC at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the following
Regional Offices of the SEC: Suite 1400, Northwestern Atrium Center, 500 West
Madison Street, 14th Floor, Chicago, Illinois 60661; and Seven World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of the SEC, 450
Fifth Street, N.W., Washington, D.C. 20549. The SEC maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding registrants, such as the Company, that File
electronically with the SEC.
The Company has filed with the SEC a post-effective amendment on Form S-3
to a registration statement originally filed on Form S-1 (collectively, and
together with any amendments thereto, the "Registration Statement") under the
Securities Act of 1933 (the "Securities Act"), with respect to the securities
offered pursuant to this Prospectus (the "Prospectus"), including the shares of
Common Stock underlying the Warrants described below. This Prospectus is part of
the Registration Statement and does not contain all the information set forth in
the Registration Statement, certain portions of which have been omitted pursuant
to the rules and regulations of the SEC. Such additional information may be
obtained from the SEC's principal office in Washington, D.C. Statements
contained in this Prospectus or in any document incorporated by reference in
this Prospectus as to the contents of any contract or other document referred to
herein or therein are not necessarily complete, and in each instance reference
is made to the copy of such contract or other document filed as an exhibit to
the Registration Statement or such other document, each such statement being
qualified in all respects by such reference.
INCORPORATED BY REFERENCE
This Prospectus incorporates by reference certain documents that are not
presented herein or delivered herewith. These documents are available upon
request from Ms. Katherine Marks, OXiGENE, Inc., One Copley Place, Suite 602,
Boston, MA 02116, telephone (617) 536-9500.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, upon the written or oral
request of any such person, a copy of any and all of the documents referred to
which have been or may be incorporated herein by reference, other than exhibits
to such documents, unless such exhibits are specifically incorporated herein by
reference. Requests for such documents should be directed to the person
indicated in the immediately preceding paragraph.
The following documents, which have been filed with the SEC pursuant to the
Exchange Act, are hereby incorporated by reference herein:
(a) OXiGENE's Annual Report on Form 10-K for the year ended December 31,
1997 (including all amendments thereto) (the "Annual Report").
(b) OXiGENE's Quarterly Reports on Form 10-Q for the quarter ended March
31, 1998 (including all amendments thereto).
All documents filed by OXiGENE pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of filing
of such documents. All information appearing in this Prospectus or in any
document incorporated herein by reference is not necessarily complete and is
qualified in its entirety by the information and financial statements (including
notes thereto) appearing in the documents incorporated by reference herein and
should be read together with such information and documents.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document that is deemed to be incorporated
herein by reference 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 Prospectus.
FORWARD-LOOKING STATEMENT
Certain statements in this Prospectus under the captions "The Company,"
"Use of Proceeds," "Risk Factors," "Plan of Distribution" and elsewhere
constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other important factors that
could cause the actual results, performance or achievements of the Company to
differ materially from any future results, performance or achievements expressed
or implied by such forward-looking statements. Such risks, uncertainties and
other important factors include, among others: general economic and business
conditions; patent protection, enforcement and infringement; proprietary
technology; industry trends; competition; material costs and availability;
ability to develop markets; changes in business strategy or development plans;
availability, terms and deployment of capital; availability of qualified
personnel; changes in, or the failure or inability to comply with, government
regulation; ability to develop and test its technology and products; ability to
continue its clinical trial program, research and development and collaborative
arrangements; ability to protect the Company's technology by patents and trade
secrets; and other factors referenced in this Prospectus. See "Risk Factors."
These forward-looking statements speak only as of the date of this Prospectus,
and there is no assurance that the forward-looking information will be accurate
or that the assumptions on which they are based will prove to be correct. The
Company expressly disclaims any obligation or undertaking to disseminate any
updates or revisions to any forward-looking statement contained herein to
reflect any change in the Company's expectations with regard thereto or any
change in events, conditions or circumstances on which any such statement is
based.
<PAGE>
RISK FACTORS
An investment in the shares of Common Stock offered hereby is speculative,
involves a high degree of risk and should only be made by persons or entities
capable to afford a loss of their entire investment. In addition to the other
information included elsewhere or incorporated by reference in this Prospectus,
the following risk factors should be considered carefully in evaluating an
investment in the shares of Common Stock offered hereby.
This Prospectus contains, in addition to historical information,
forward-looking statements that involve known and unknown risks and
uncertainties that may cause the Company's actual results or outcomes to be
materially different from those anticipated and discussed herein. Factors that
could cause or contribute to such differences include those discussed below as
well as those discussed elsewhere in this Prospectus.
History of Losses and Anticipated Future Financial Results; Uncertainty of
Future Profitability. The Company, as a development stage enterprise, has
experienced net losses every year since its inception and, as of December 31,
1997, had a deficit accumulated during the development stage of approximately
$25.5 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 products are in varying stages of development and testing.
The Company's ability to attain profitability will depend upon, inter alia, 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, can be sustained on an ongoing basis.
Early Stage of Product Development; Uncertainties of Clinical Trials;
Unproven Safety and Efficacy. The Company's products are in an early stage of
development. In order to achieve profitable operations on a continuing basis,
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 preclinical 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 earlier studies or
trials. Although the Company has obtained favorable results to date in
preclinical studies and clinical trials of certain of its 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 efficacious.
Additionally, there can be no assurance that the Company will not encounter
problems in its clinical trials that will cause the Company to delay, suspend or
terminate those clinical trials. 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 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.
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 and even to accelerate
over at least the next several years. The Company's capital requirements will
depend on numerous factors, including: the progress of preclinical testing and
clinical trials; the progress of the Company's research and development
programs; the time and costs required to obtain regulatory approvals; the
resources devoted to manufacturing methods and advanced technologies; the
ability to obtain licensing arrangements; the cost of filing, prosecuting and,
if necessary, enforcing patent claims; the cost of commercialization activities
and arrangements; and the demand for the Company's products if and when
approved. The Company will have to raise substantial additional funds to
complete development of any product or bring products to market. Issuance of
additional equity securities by the Company, for these or other purposes, could
result in dilution to then existing stockholders. There can be no assurance that
additional financing will be available on acceptable terms, if at all. If
adequate funds are not available on acceptable terms, the Company may be
required to delay, scale back or eliminate one or more of its product
development programs or obtain funds through arrangements with collaborative
partners or others that may require the Company to relinquish rights to certain
of its technologies or products that the Company would not otherwise relinquish,
which may have a material adverse effect on the Company.
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. Other than Dr. Ronald
W. Pero, Ph.D., the Company's Chief Scientific Officer, and Bjorn Nordenvall,
M.D. and Ph.D., the Company's Chief Executive Officer, Chairman and President,
the Company does not directly employ any scientists or other laboratory
personnel and all of its preclinical tests and clinical trials are subcontracted
to and performed at the University of Lund, Sweden and at other centers in
Europe and the United States, with the assistance of research and consulting
firms. Accordingly, OXiGENE has depended, and in the future is likely to
continue to depend, on others for assistance in many areas, including research,
conducting preclinical testing and clinical trials, the regulatory approval
process, manufacturing and marketing. Although the Company considers its
relations with existing collaborative partners to be satisfactory, all its
current arrangements are short term in nature. 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 explore
license and development opportunities for its technologies with other companies,
there can be no assurance that the Company will be successful in establishing
and maintaining 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; that any such arrangements will be on terms favorable to OXiGENE; or
that, if established, such future licensees will be successful in
commercializing products. Finally, if the Company's collaboration arrangements
are terminated 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.
See information in the Annual Report under the caption "Business", which is
incorporated by reference herein.
Clinical Trials; Government Regulation and Health Care Reform; Managed
Care. The Company's research and development activities, preclinical 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. See information in the Company's Annual Report in
Form 10-K for the year ended December 31, 1997, under the caption "Business",
which is incorporated by reference herein. Preclinical 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 products developed by OXiGENE or that a
product, if approved in one country, will be approved in other countries. See
information in the Annual Report under the caption "Business", which is
incorporated by reference herein. Moreover, if regulatory approval of a product
is granted, such approval may entail 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, further government regulation may be established which could
prevent or delay regulatory approval of the Company's 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.
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. The Company also competes with
universities and other research institutions in the development of products,
technologies and processes. 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. See information in the Annual Report under the
caption "Competition." There can be no assurance that the Company's competitors
will not 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, Sensamide(TM) and Neu-Sensamide(TM), have been based on
certain available compounds that are produced by others. The Company anticipates
that products it develops hereafter 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 is
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 8, 1998, the Company is the assignee
of four granted U.S. patents, five 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 three
of the granted U.S. patents and all five of the pending U.S. applications. In
addition, the Company will be the assignee of a U.S. provisional patent
application filed in 1997, and of international and foreign counterparts thereof
expected to be filed in 1998. 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 the Company's patent applications will result in patents being
issued, that any issued patents will provide the Company with competitive
protection or will not be challenged by others, or that the patents of others
will not have an adverse effect on the ability of the Company to do business.
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, particularly in Sweden, 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, although the Company is not aware of any such assertions or
any basis therefor. Furthermore, there can be no assurance that others will not
independently develop similar products, will not duplicate any of the Company's
products or, if patents are issued to the Company, will not design around such
patents. In addition, the Company may be required to obtain licenses to patents
or other proprietary rights of others. 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, or could find that the
development, manufacture or sale of products requiring such licenses is
foreclosed. 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 protect the Company's own patents against
infringement. The Company generally requires employees, Scientific Advisory
Board members and the institutions that perform its preclinical and clinical
tests (though not the employees of such institutions) 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. In the case
of employees, the agreements also provide that all inventions conceived by such
employees shall be the exclusive property of the Company. 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. See information in the
Annual report under the caption "Patents and Trade Secrets."
Dependence on Certain Officers and Directors 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 and directors, particularly Dr. Bjorn Nordenvall, its Chief Executive
Officer, Chairman and President, and Dr. Ronald Pero, its Chief Scientific
Officer. 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,
particularly the University of Lund, Lund, Sweden, which have historically
provided, and continue to provide, the Company with access to research
laboratories, clinical trials, facilities and patients. Dr. Pero is a Professor
of Molecular Ecogenetics at the University of Lund. The Company benefits
indirectly from certain research grants received by Dr. Pero. The Company is
materially dependent on the research and development efforts of Dr. Pero and his
various relationships and affiliations, the loss of which could have a material
adverse effect on the Company's business. 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 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 against
claims or recalls that 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.
Price Volatility of the Common Stock. The market price of the Common Stock
has been, and likely will continue to be, highly volatile as frequently is the
case with the publicly-traded securities of pharmaceutical research and
development companies. Factors such as results of clinical trials, announcements
of research developments and results by the Company or its competitors and
government regulatory action affecting the Company's products in both the United
States and foreign countries have had, and may continue to have, a significant
effect on the Company's business and on the market price of the Common Stock. As
of December 31, 1997, an aggregate of 49,612 Stock appreciation rights ("SARs"),
with a weighted average exercise price of $7.19 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 SARs 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,
substantially all of the shares of Common Stock issuable upon exercise of
outstanding options, SARs and warrants have been registered and may be sold from
time to time hereafter. Such sales, as well as future sales of Common Stock by
existing stockholders, or the perception that sales could occur, could adversely
affect the market price of the Common Stock. The price and liquidity of the
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 thereof 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.
Year 2000 Compliance. Many currently installed computer systems are not
capable of distinguishing 21st century dates from 20th century dates. As a
result, in less than two years, the computer systems and software used by many
companies may need to be updated to comply with such "Year 2000" requirements.
The Company believes its accounting and management information systems are Year
2000 compliant. The ability of third parties with whom the Company transacts
business to address adequately their Year 2000 compliance is beyond the
Company's control. The failure of such third parties to address adequately Year
2000 compliance could have a material adverse effect on the Company's business,
results of operations and financial conditions.
THE COMPANY
OXiGENE, Inc. ("OXiGENE" or the "Company") is an international
biopharmaceutical company developing a portfolio of products that focuses
primarily on combating cancer. The Company's initial product development is
based on proprietary DNA repair technology. The Company currently has three
product candidates in clinical development. Neu-Sensamide(TM), a
radiosensitizer, is in a Phase III clinical trial in patients with non-small
cell lung cancer and two Phase I studies in patients with glioblastoma. Oxi-104
is being developed as a chemosensitizer in Phase I studies in patients with
advanced stage cancers. Cordycepin is a compound in Phase I studies in patients
with TdT positive leukemia. The Company is also developing Combretastatin A-4
phosphate, a tumor vascular targeting agent that in pre-clinical studies
destroyed the blood vessels that enable a tumor to survive and grow.
Combretastatin is expected to enter clinical trials in the second half of 1998.
OXiGENE's principal products, Neu-Sensamide(TM) and Oxi-104 (proposed
generic name declopramide), are sensitizers, drugs that make a tumor more
susceptible to damage by radiation or chemotherapy. Both products are based on
the Company's proprietary knowledge of the processes by which certain enzymes
repair damaged DNA sites, a function essential to a cell's survival. The cell's
enzymes that normally repair DNA damage to the tumor cell counter the cytotoxic
(cell-killing) effects of radiation and chemotherapy by repairing the tumor
cell's DNA that has been damaged by either of those therapies. When administered
in accordance with its prescribed regimen, the Company believes, on the basis of
its clinical studies, that Neu-Sensamide(TM) should make cancerous tumor cells
more sensitive to radiation by inhibiting DNA repair activity, consequently
increasing tumor damage from radiation therapy in those cells. Accordingly, the
Company expects that patient response to radiation therapy should be improved
and may result in increased tumor shrinkage, reduced side effects, or both.
Based on the results of preclinical animal studies, OXiGENE believes that
Oxi-104 alone may induce tumor growth-inhibiting and tumor-killing effects.
Neu-Sensamide(TM) is a proprietary reformulation of Sensamide,(TM) a
prototype drug in which metoclopramide is the active ingredient. In September
1997, the Company announced the first preliminary results of its European,
randomized, controlled Phase II/III clinical trial of Sensamide(TM) in
combination with radiation therapy in 218 patients with inoperable non-small
cell lung cancer ("NSCLC"), which indicated an increased median survival time
for those patients who received a full dosage of Sensamide(TM) plus radiation.
In March 1998, the Company supplemented those preliminary results with tumor
response data. The additional study data indicate that more patients with
squamous cell carcinoma (the most common form of lung cancer) and a Karnofsky
score (a benchmark for assessing the degree of illness or terminally ill
patients) of 90 or higher, when receiving Sensamide(TM) plus radiation,
experienced tumor response. Forty-seven percent (47%) of those patients
experienced complete or partial (complete is 100% and partial is 50% or greater)
tumor response, compared to 30% for patients who received radiation only. A
significant number of patients did not complete the Sensamide(TM) treatment
because of either the Central Nervous System (CNS) side effects associated with
metoclopramide (approximately 25%) or the progressive deterioration of their
health (approximately 20%). These CNS side effects (sedation, anxiety,
restlessness and depression), however, are reversible, have been well documented
in the clinical literature for more than 30 years, and were not unexpected by
the Company. The Company believes those results constitute sufficient proof of
the theory underlying its principal scientific concept to provide a basis for it
to continue advanced clinical studies with respect to its later generation
drugs, which, the Company believes, have reduced side effects from those
experienced with Sensamide (TM) (as described above).
In the fourth quarter of 1996, OXiGENE commenced an additional randomized,
controlled Phase III clinical trial in 226 patients with NSCLC using
Neu-Sensamide(TM), the Company's second-generation sensitizer drug. Based on
preliminary preclinical studies and a Phase I clinical trial, the Company
believes that Neu-Sensamide(TM) will show a reduced CNS side effect profile
compared to Sensamide,(TM) resulting in an increase of the number of patients
completing treatment. The Company intends to use the results of the
Sensamide(TM) study to support a New Drug Application ("NDA") for
Neu-Sensamide(TM) as a radiation sensitizer for the treatment of patients with
NSCLC.
In the fourth quarter of 1997, a 15-patient, open-label, Phase I study of
Neu-Sensamide(TM) in patients with glioblastoma, a highly malignant form of
brain cancer, commenced in the United States. The European Phase I/II
counterpart of this study was initiated in Sweden in the second quarter of 1996.
After the filing of an Investigational New Drug ("IND") application with
the U.S. Food and Drug Administration ("FDA") in March 1997, the Company
commenced Phase I/II clinical tests of Oxi-104, the Company's third generation
sensitizer, in combination with 5-FU and Cisplatin (chemotherapeutic agents) in
patients with advanced stages of cancer. Oxi-104 is an N-substituted benzamide
but, unlike Sensamide(TM) and Neu-Sensamide,(TM) it is not based on
metoclopramide (an N-substituted benzamide). Oxi-104 has been designed with a
molecular structure that, the Company believes, may reduce side effects while
maintaining the sensitizing properties of other N-substituted benzamides.
The first of the Company's products being developed, under a collaborative
arrangement, as a direct treatment of cancer is Cordycepin. A Phase I clinical
study of Cordycepin in combination with Pentostatin in patients with refractory
TdT-positive acute lymphoid leukemia started in the first quarter of 1997, in
collaboration with Boston Medical Center Corporation, an affiliate of Boston
University Medical Center ("BMC"), and the National Cancer Institute. The
collaboration with BMC was expanded with the appointment of Dr. Ronald Pero,
OXiGENE's Chief Scientific Officer, as a professor and member of BMC's
scientific staff and the creation of an OXiGENE-sponsored research facility that
will conduct research into, among other things, the potential therapeutic
synergies between N-substituted benzamides and Cordycepin and related compounds.
OXiGENE has an option to acquire an exclusive, world-wide, royalty-bearing
license with respect to any invention or product, including Cordycepin,
conceived in the course of work performed under the BMC agreement.
In May 1997, OXiGENE entered into an agreement with Arizona State
University ("ASU") to develop and test certain Combretastatin compounds,
including Combretastatin A-4 Prodrug (hereinafter generally referred to as
"Combretastatin"). Combretastatins are naturally-occurring substances, that were
identified and isolated by Dr. George R. Pettit, Regents Professor of Chemistry,
and his colleagues at ASU, from the South African bushwillow tree.
Combretastatin is believed to block the growth of new blood vessels into the
tumor and to destroy recently-formed blood vessels within the tumor. OXiGENE has
an option to acquire an exclusive, world-wide, royalty-bearing license with
respect to the commercial rights to Combretastatin.
The Company has also developed proprietary assays (tests) that measure
levels of the DNA repair enzyme PARP (Poly (ADP Ribose) Polymerase) in blood,
thereby suggesting DNA repair activity that the Company believes correlates to
immune function and status, and has identified a mixture of compounds, Nicoplex,
that it believes may be capable of stimulating DNA repair. Based on preclinical
studies to date, OXiGENE has commenced the clinical development of these product
areas.
There can be no assurance that the Company's existing and planned product
development efforts and clinical trials for Sensamide,(TM) Neu-Sensamide(TM) or
any other compounds, will be successful or completed within anticipated time
frames, or at all; that regulatory approvals will be obtained or will be as
broad as sought; or that any products, if introduced, will achieve market
acceptance. In addition, there can be no assurance that the Company's technology
will prove effective, that the Company will be able to enter into strategic
alliances or joint ventures or that the terms thereof will be favorable to the
Company, or that the Company will be profitable.
The Company was incorporated in New York in 1988, and subsequently was
re-incorporated in Delaware in 1992. The Company established a Swedish
subsidiary, OXiGENE Europe AB, in December 1994. The Company's principal
executive office is located at One Copley Place, Suite 602, Boston, MA 02116
(phone no.: 617-536-9500; fax no.: 617-536-4700, and in Sweden at
Blasieholmsgatan 2C, S-111 48 Stockholm, Sweden (phone no.: 011 46 8 678 8720;
fax no.: 011 46 8 678 8605) and at Scheelevagen 17, S-223 70 Lund, Sweden
(telephone no.: 011 46 46 16 8860; fax no.: 011 46 46 16 8866). Any references
in this Prospectus to "OXiGENE" or the "Company" shall mean OXiGENE, Inc. and
its wholly-owned Swedish subsidiary, OXiGENE Europe AB.
PLAN OF DISTRIBUTION
Shares of Common Stock will be issued upon exercise of Warrants as
evidenced by the surrender of the Warrant certificate or certificates on or
prior to the expiration date of such Warrants at the offices of American Stock
Transfer & Trust Company, as warrant agent (the "Warrant Agent"), with the form
of "Election to Purchase" on the reverse side of the Warrant certificate
completed and executed as indicated, accompanied by payment of the full exercise
price (by certified check payable to the order of the Warrant Agent) for each
Warrant being exercised. No soliciting agent has been engaged by the Company for
the purpose of soliciting the exercise of the Warrants.
INFORMATION AGENT
The Company has engaged the services of Innisfree M&A Incorporated
("Innisfree") to serve as information agent for the purpose of answering
inquiries from Warrantholders. Additional copies of this Prospectus may also be
obtained from Innisfree. Innisfree's address and telephone number are:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
(888) 750-5834 in the U.S. or
(212) 750-5834 from outside the U.S.
USE OF PROCEEDS
The Company will use the net proceeds of any exercise of Warrants
(approximately $______________* if all Warrants are exercised, after deducting
the expenses of this offering estimated to be $_____________,* all of which are
payable by the Company) to finance its ongoing clinical trials for drugs and
assays, regulatory applications, research and development and working capital
and general corporate purposes. Exact allocation of the net proceeds for any of
such purposes and the timing of such expenditures will depend on various
factors, including primarily the exact number of Warrants exercised at any given
time, the Company's timing of its regulatory applications and the timing and
results of research and development activities. The net proceeds of the exercise
of the Warrants may also be used to finance OXiGENE's participation in certain
research and development projects with third parties or to acquire new or
additional technologies or companies that complement OXiGENE's business,
although no such transactions are presently being discussed or negotiated.
- --------
[FN]
* If all 847,135 Warrants are exercised, the amount of proceeds to the
Company will equal $12,156,387.25, minus the expenses of this offering
which will be filed by amendment.
The Company anticipates that it may need additional financing to carry out
its activities until such time as (i) it can commercialize its technologies,
either through licensing arrangements or through the sale of products based on
its technology, and (ii) revenues from such commercial activities become
sufficient to cover the Company's expenditures. The amount and timing of the
Company's financing requirements is highly uncertain, and no guarantee can be
given that additional financing will be available on terms acceptable to the
Company, if at all.
Pending application of the net proceeds of this offering in the manner set
forth above, the Company will invest the net proceeds in short-term,
interest-bearing obligations issued by the U.S. Government, its agencies or
instrumentalities.
DESCRIPTION OF SECURITIES
Common Stock. The Company is authorized to issue 15,000,000 shares of
Common Stock, par value $.01 per share, of which 10,204,049 shares of Common
Stock are outstanding as of July 6, 1998. The holders of Common Stock are
entitled to one vote for each share held of record on all matters to be voted on
by stockholders. There is no cumulative voting with respect to the election of
directors. As a consequence, the holders of more than 50% of the shares voting
for the election of directors can elect all the directors. The By-Laws provide
that only a majority of the issued and outstanding shares of Common Stock need
to be represented for a quorum, and to transact business at a stockholders'
meeting. The holders of Common Stock are entitled to receive dividends when, as
and if declared by the Board of Directors out of the funds legally available
therefor. The Company has no present plans to pay dividends with respect to the
shares of Common Stock. In the event of liquidation, dissolution or the winding
up of the Company, the holders of Common Stock are entitled to share ratably in
all assets remaining available for distribution after payment of liabilities and
after provision has been made for each class of stock, if any, having preference
over the Common Stock. Holders of shares of Common Stock, as such, have no
conversion, preemptive or other subscription rights, and there are no redemption
provisions applicable to the Common Stock. All the outstanding shares of Common
Stock are, and the shares of Common Stock underlying the Warrants, when issued
in accordance with the terms of the Warrants, will be, validly authorized and
issued, fully paid and nonassessable.
Warrants. In August 1993, the Company completed an initial public offering
of 1,605,000 Units (the "Units"), each Unit consisting of one share of Common
Stock, par value $.01 per share (the "Common Stock"), and one Warrant to
purchase one share of Common Stock (the "Warrants"). The Common Stock and the
Warrants included in the Units became separately transferable on August 26, 1993
(the "Separation Date"). The Warrant Agreement, dated August 26, 1993 (the
"Warrant Agreement"), between the Company and the Warrant Agent, pursuant to
which the Warrants were issued provides that each Warrant entitles the holder
thereof to purchase one share of Common Stock for $7.00 during the first year of
exercisability ending on the first anniversary of the Separation Date, with the
exercise price thereafter increasing by $2.00 on each annual anniversary of the
Separation Date.
On August 29, 1994, the Company and the Warrant Agent amended the Warrant
Agreement to provide that, for a period of 65 days from the date of the
Prospectus related thereto (the "Reduced Exercise Price Period"), each Warrant
would entitle the registered holder thereof to purchase one share of Common
Stock, at a price of $7.00 per share. From and after the end of the Reduced
Exercise Price Period and until August 26, 1995, the exercise price of the
Warrants was $9.00 per share, with the exercise price increasing by $2.00 on
each annual anniversary of the Separation Date thereafter. Unless exercised, the
Warrants were automatically set to expire under the current Warrant Agreement at
5:00 p.m. New York City time on August 26, 1998.
The holders of the Warrants have certain anti-dilution protection upon the
occurrence of certain events, including stock dividends, stock splits, mergers
and reclassifications. The holders of the Warrants have no right to vote on
matters submitted to the stockholders of the Company, have no right to receive
dividends, and have none of the other rights conferred upon stockholders of the
Company. The holders of the Warrants are not entitled to share in the assets of
the Company in the event of liquidation, dissolution or the winding up of the
Company's affairs.
On July 8, 1998, the Company and the Warrant Agent amended the Warrant
Agreement to provide that (a) at 5:00 p.m., New York City time on August 26,
1998, with no action required to be taken by the holders of the Warrants, the
Original Expiration Date will be extended (the "Extension") to 5:00 p.m., New
York City time, December 31, 1999 (the "Amended Expiration Date"), (b) each
Warrant shall be exercisable on and after August 26, 1998, and until the Amended
Expiration Date, for 1.07 shares of Common Stock at a price of $14.35 (i.e., the
exercise price currently in effect), subject only to adjustment after that date
in accordance with the anti-dilution provisions set forth in the Warrant
Agreement (which are not being amended) (the "Price Amendment"), and (c) the
Company has the right, but not the obligation, at any time after the Original
Expiration Date, to redeem, at any time or from time to time, any or all of the
Warrants (the "Call" and, together with the Extension and the Price Amendment,
the "Amendments"); provided, however, the Company may exercise the Call only if
(i) the average trading price of the shares of the Company's Common Stock, as
reported by NASDAQ, for any period of ten consecutive trading days (not
including any days on which there are no purchases or sales of Common Stock but
the NASDAQ is open for trading) has traded at not less than $16.00 per share,
and (ii) the Company has given not less than 20 days written notice to the
Warrantholders indicating the Company's election to exercise the Call. Following
a Call, any Warrants that were called that remain unexercised at the end of the
20-day notice period will be redeemed promptly thereafter at a redemption price
of $.001 per Warrant, payable by the Company in cash.
The Warrantholders need take no action in connection with the Amendments to
the Warrant Agreement, which apply to all outstanding Warrants. Warrantholders
need not turn in the certificates evidencing their Warrants that do not reflect
the Amendments (the "Original Warrant Certificates") even after the Original
Expiration Date. However, after the Original Expiration Date, any Warrantholder
has the right, but not the obligation, at the Warrantholder's election, to
surrender Original Warrant Certificates to the Warrant Agent which will
thereupon be replaced with certificates evidencing Warrants containing the
Amendments (the "Revised Warrant Certificates"). In addition, after the Original
Expiration Date, Revised Warrant Certificates will be issued in connection with
(a) any transfer of Warrants evidenced by Original Warrant Certificates or (b) a
partial exercise of Warrants evidenced by Original Warrant Certificates.
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal U.S. federal income tax
considerations relevant to a Warrantholder in connection with the adoption of
the Amendments and the ownership, disposition and exercise or lapse of a Warrant
following adoption of the Amendments. This summary deals only with the
beneficial owner of a Warrant that is for U.S. federal income tax purposes (i) a
citizen or resident of the United States, (ii) a corporation, partnership or
other business entity created or organized in or under the laws of the United
States or any State or political subdivision thereof (including the District of
Columbia), (iii) an estate the income of which is subject to United States
federal income taxation regardless of its source, or (iv) a trust with respect
to which a court within the United States is able to exercise primary
supervision over its administration, and one or more United States persons have
the authority to control all of its substantial decisions (each, a "U.S.
Holder").
This discussion is based on interpretations of the Internal Revenue Code of
1986, as amended (the "Code"), regulations issued thereunder, and rulings and
decisions currently in effect (or in some cases proposed), all of which are
subject to change. Any such change may be applied retroactively and may
adversely affect the U.S. federal income tax consequences described herein.
This summary does not purport to be a comprehensive description of all of
the tax considerations that may be relevant in respect of the adoption of the
Amendments or a decision to hold, buy, sell, exercise or let lapse a Warrant.
This summary addresses only U.S. Holders that own Warrants and any Common Stock
received upon exercise thereof as capital assets and does not discuss all of the
tax consequences that may be relevant to particular investors or to investors
subject to special treatment under the U.S. federal income tax laws (such as
insurance companies, financial institutions, retirement plans, regulated
investment companies, securities dealers, or investors whose functional currency
is not the U.S. dollar), and persons that will hold a Warrant as part of a
"straddle" or "conversion transaction" for federal income tax purposes or
otherwise as part of an integrated transaction. No ruling from the Internal
Revenue Service ("IRS") will be sought with respect to the Warrants and the IRS
could take a contrary view with respect to the matters described below.
ALL HOLDERS OF THE WARRANTS SHOULD CONSULT THEIR TAX ADVISORS AS TO THE U.S.
FEDERAL, STATE, LOCAL AND OTHER TAX CONSEQUENCES TO THEM OF THE ADOPTION OF THE
AMENDMENTS, THE OWNERSHIP, DISPOSITION AND EXERCISE OR LAPSE OF THE WARRANTS,
AND OF THE OWNERSHIP OF ANY COMMON STOCK RECEIVED UPON EXERCISE OF THE WARRANTS.
Adoption of the Amendments
A U.S. Holder generally should not recognize gain or loss upon the adoption
of the Amendments, should have a tax basis in the Warrants after the adoption of
the Amendments (the "Amended Warrants") equal to that U.S. Holder's tax basis in
the Warrants prior to the adoption of the Amendments (the "Pre-Amendment
Warrants"), and should have a holding period in the Amended Warrants that
includes that U.S. Holder's holding period in the Pre-Amended Warrants. However,
if the Company pays a dividend or makes a distribution to its shareholders or
holders of warrants (other than the Warrants), or pays interest on any
convertible debt that may be outstanding, each within a 36 month period
beginning on the effective date of the adoption of the Amendments or subsequent
to such 36 month period if pursuant to a plan, the adoption of the Amendments
could be treated as a taxable distribution. The Company does not anticipate the
payment of dividends or any other such distributions or payments within the
36-month period beginning on the effective date of the adoption of the
Amendments and does not plan otherwise to make such a distribution or payment.
Under section 305(c) of the Code, certain adjustments to the exercise price
of the Amended Warrants or the number of shares of Common Stock purchasable upon
exercise of the Amended Warrants that occur pursuant to the terms of the Amended
Warrants could result in a deemed distribution to U.S. Holders or to the holders
of Common Stock, which could be taxable to such U.S. Holders or holders of
Common Stock.
Sale, Exchange, or Redemption of Amended Warrant
A sale, exchange, or redemption of an Amended Warrant will generally result
in taxable gain or loss equal to the difference between the amount realized and
the U.S. Holder's tax basis in the Amended Warrant. Such gain or loss will be
long-term capital gain or loss if the U.S. Holder's holding period in the
Amended Warrant exceeds one year. In the case of a U.S. Holder that is a
noncorporate taxpayer, any such long-term capital gain will generally be subject
to U.S. federal income tax at a maximum rate of (i) 20%, if the noncorporate
U.S. Holder's holding period in respect of the Amended Warrant is more than 18
months at the time of such disposition, or (ii) 28%, if the noncorporate U.S.
Holder's holding period in respect of the Amended Warrant is more than one year,
but not more than 18 months, at the time of such disposition. Certain pending
legislation would reduce the holding period for the maximum 20% rate from more
than 18 months to more than one year. The ability to use capital losses to
offset ordinary income in determining taxable income generally is limited.
Exercise of Amended Warrant
In general, no gain or loss will be recognized on the receipt of Common
Stock pursuant to an exercise of an Amended Warrant, except to the extent a U.S.
Holder receives cash in lieu of fractional shares of stock. The tax basis for
the Common Stock received upon such exercise will be equal to the sum of the
U.S. Holder's tax basis in the Amended Warrant exercised (reduced by the portion
of such tax basis allocable to any fractional shares paid in cash) and the
exercise price. The holding period for any Common Stock received on exercise of
an Amended Warrant will begin on the date the Amended Warrant is exercised.
Lapse of Amended Warrant
If an Amended Warrant lapses unexercised, the U.S. Holder will recognize
loss in an amount equal to the U.S. Holder's tax basis in the Amended Warrant.
Such loss will be long-term capital loss if the U.S. Holder's holding period
exceeds one year.
Sale, Exchange, or Redemption of Common Stock Received on Exercise of
Amended Warrant
A sale, exchange, or redemption of Common Stock received on the exercise of
an Amended Warrant generally will result in taxable gain or loss equal to the
difference between the amount realized and the U.S. Holder's tax basis in the
Common Stock. Such gain or loss will be long-term capital gain or loss if the
U.S. Holder's holding period in the Common Stock exceeds one year. In the case
of a U.S. Holder that is a noncorporate taxpayer, any such long-term capital
gain will generally be subject to U.S. federal income tax at a maximum rate of
(i) 20%, if the noncorporate U.S. Holder's holding period in respect of the
Common Stock is more than 18 months at the time of such disposition, or (ii)
28%, if the noncorporate U.S. Holder's holding period in respect of the Common
Stock is more than one year, but not more than 18 months, at the time of such
disposition. Certain pending legislation would reduce the holding period for the
maximum 20% rate from more than 18 months to more than one year. The ability to
use capital losses to offset ordinary income in determining taxable income
generally is limited.
Backup Withholding
A U.S. Holder may be subject to backup withholding tax at the rate of 31%
with respect to dividends paid on or the proceeds of a sale, exchange, or
redemption of a share of Common Stock or an Amended Warrant unless (i) such U.S.
Holder is a corporation or comes within certain other exempt categories and,
when required, demonstrates this fact or (ii) provides a taxpayer identification
number, certifies as to no loss of exemption from backup withholding, and
otherwise complies with applicable backup withholding rules. The Company, its
agent, a broker or a paying agent, as the case may be, will be required to
deduct and withhold any such backup withholding tax. Backup withholding is not
an additional tax and may be credited against the taxpayer's U.S. federal income
tax liability, provided that the required information is furnished.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby and certain other
matters will be passed upon for the Company by Cadwalader, Wickersham & Taft,
New York, New York.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report (Form 10-K) for the year ended December 31, 1997 have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such term as experts in
accounting and auditing.
No dealer, salesman or any other person is authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus, and if given or made, such
information or representations should not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy the shares of Common Stock offered by this
Prospectus, by anyone in any jurisdiction in which such offer to sell or
solicitation is not authorized, or in which the person making such offer is not
qualified to do so or to any person to whom it is unlawful to make such offer or
sell or solicitation. Neither the delivery of the Prospectus nor any
distribution of shares pursuant to this Prospectus shall, under any
circumstances, create any implication that there has been no change in the
information set forth or incorporated by reference herein or in the affairs of
the Company since the date of this Prospectus.
<PAGE>
Table of Contents
AVAILABLE INFORMATION
INCORPORATED BY REFERENCE
RISK FACTORS
THE COMPANY
PLAN OF DISTRIBUTION
INFORMATION AGENT
USE OF PROCEEDS
DESCRIPTION OF SECURITIES
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
LEGAL MATTERS
EXPERTS
<PAGE>
PART II
5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
Effective November 19, 1996, the Company's Common Stock and Warrants
commenced trading on the NASDAQ Market under the symbols "OXGN" and "OXGNW,"
respectively. Prior thereto, since the completion of the Company's initial
public offering in August 1993, the Company's securities had been listed for
quotation on the Nasdaq Small-Cap Market. The Company's shares of Common Stock
are also traded on the Stockholm Stock Exchange in Sweden. The following table
sets forth the high and low per share and per warrant prices for the Company's
Common Stock and Warrants for each quarterly period within the two most recent
fiscal years.
Common Stock
------------
Calendar Year High Low
- ------------- ---- ---
1996
First Quarter $23.38 $ 9.25
Second Quarter 32.63 17.63
Third Quarter 27.00 17.00
Fourth Quarter 26.70 22.00
1997
First Quarter $36.25 $22.63
Second Quarter 35.00 26.25
Third Quarter 41.88 24.00
Fourth Quarter 29.25 15.25
1998
First Quarter $18.75 $14.25
Second Quarter 19.88 9.50
Third Quarter (through 12.88 11.75
July 6, 1998)
Warrants
--------
Calendar Year High Low
- ------------- ---- ---
1996
First Quarter $15.50 $ 2.88
Second Quarter 24.00 10.25
Third Quarter 18.00 8.63
Fourth Quarter 15.50 11.00
1997
First Quarter $26.25 $12.25
Second Quarter 25.25 15.56
Third Quarter 29.25 15.25
Fourth Quarter 18.50 6.50
1998
First Quarter $9.38 $5.00
Second Quarter 7.00 2.38
Third Quarter (through 3.00 2.50
July 6, 1998)
On July 6, 1998, the last sale price for the Warrants was $2.50 per Warrant
and the last sale price for the Common Stock was $11.8125 per share, all as
reported by NASDAQ.
As of July 6, 1998, there were 41 holders of record of the Company's Common
Stock and three holders of record of the Company's Warrants. The Company
believes, based on the number of proxy statements and related materials
distributed in connection with its 1997 Annual Meeting of Stockholders, that
there are more than 9,000 beneficial owners of its Common Stock.
The Company has not declared any cash dividends on its Common Stock since
its inception in 1988, and does not intend to pay cash dividends in the
foreseeable future. The Company presently intends to retain future earnings, if
any, to finance the growth and development of its business.
Item 14. Other Expenses of Issuance and Distribution.
The fees and expenses payable by the Company in connection with the
issuance and distribution of the shares of Common Stock being registered are
estimated as follows:
Amount
Accounting Fees and Expenses......................... $ *
----
Legal Fees and Expenses.............................. *
----
Blue Sky Filing Fees and Expenses.................... *
----
Miscellaneous expenses, including the Information
Agent and Warrant Agent fees and expenses *
----
Total.................... *
----
- ---------
[FN]
* To be supplied by amendment.
Item 15. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Reference is made to Section 145 of
the Delaware General Corporate Law (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 an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such officer,
director, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests and, for
criminal proceedings, had no reasonable cause to believe that his conduct was
unlawful. A Delaware corporation may indemnify officers and directors in an
action by or in the right of the 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 or 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 the
director's fiduciary duty, except (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) pursuant to 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 a director derived an
improper personal benefit.
Article IX, Section 3 of the Company By-Laws provides as follows:
"SECTION 3. Indemnification. The Corporation shall, to the
fullest extent permitted by the General Corporation Law of the State
of Delaware, indemnify members of the Board and may, if authorized by
the Board, indemnify its officers, employees and agents and any and
all persons whom it shall have power to indemnify against any and all
expenses, liabilities or other matters."
ARTICLE NINTH of the Company's Restated Certificate of Incorporation
provides as follows:
"To the fullest extent permitted by the General Corporation Law
of the State of Delaware, no director of the Corporation shall be
personally liable to the Corporation 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 that involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation
Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. Any repeal or
modification of this Article Ninth by the stockholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification with respect to acts or omissions occurring prior to such
repeal or modification."
The Underwriting Agreement dated August 26, 1993 between the Company and
RAS Securities Corp. and ABD Securities Corporation, as representatives of the
several underwriters named in Schedule A thereto (the "Underwriters"), contains
provisions under which the Company and the Underwriters have agreed to indemnify
each other (including officers and directors of the Company) against certain
liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company 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 and is therefore
unenforceable.
Item 16. Exhibits
4.1* Form of Warrant Agreement between the Company and American Stock
Transfer Trust Company as Transfer Agent and Warrant Registrant
("AST") (including form of Warrant Certificate)
4.2** Amendment to Warrant Agreement dated September 19, 1994, between the
Company and AST amending the Warrant Agreement
4.3 Amendment to Warrant Agreement dated July 8, 1998, between the
Company and AST amending the Warrant Agreement
23.1 Consent of Ernst & Young LLP, New York, New York
23.2 Consent of Cadwalader, Wickersham & Taft
99.1 Form of Letter to Warrantholders
99.2 Form of Questions and Answers about the Amendments of the Warrants
- -------------
[FN]
* Incorporated by reference to the Company's Registration Statement on
Form S-1 (File No. 33-64968) and any amendments thereto.
** Incorporated by reference to the Company's Post-Effective Amendment
No. 2 on Form S-3 to Form S-1 Registration Statement, dated September
30, 1994.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described above in Item 15, the Company has been
advised that in the opinion of the Securities and Exchange 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 the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 of 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.
The undersigned Company 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 the registration statement or
any material change to such information in the registration statement:
(2) That, for the purpose of determining any liability under the
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; and
(3) To remove from registration by means of post-effective
amendment any of the securities which remain unsold at the termination
of the offering.
The undersigned Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Company's annual
report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to section 15(d) of the Securities 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.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the
time its was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
<PAGE>
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-3 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, New
York, on July 8, 1998.
OXiGENE, INC.
By: /s/ Bjorn Nordenvall
-----------------------------------
Bjorn Nordenvall
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------ ------------------------------------- -----------
<S> <C> <C>
President, Chief Executive Officer July 8, 1998
/s/ Bjorn Nordenvall and Director (principal executive
- ----------------------- officer)
Bjorn Nordenvall
/s/ Bo Haglund Chief Financial Officer July 8, 1998
- -----------------------
Bo Haglund
/s/ Marvin H. Caruthers Director July 8, 1998
- -----------------------
Marvin H. Caruthers
/s/ Michael Ionata Director July 8, 1998
- ------------------------
Michael Ionata
Director July __, 1998
- ------------------------
Arthur Laffer
/s/ Ronald W. Pero Director July 8, 1998
- ------------------------
Ronald W. Pero
/s/ Per-Olaf Soderberg Director July 8, 1998
- ------------------------
Per-Olof Soderberg
/s/ Gerald A. Eppner Director July 8, 1998
- ------------------------
Gerald A. Eppner
</TABLE>
Exhibit 4.2
OXiGENE, INC.
One Copley Place, Suite 602,
Boston, MA 02116
July 8, 1998
American Stock Transfer & Trust Company
6201 15th Avenue
3rd Fl.
Brooklyn, New York 11219
Attn: Herb Lemmer
Re: Amendment to Warrant Agreement
------------------------------
Gentlemen:
Reference is made to the Warrant Agreement, dated August 26, 1994 (the
"Agreement"), by and between OXiGENE, Inc., a Delaware corporation (the
"Company") and American Stock Transfer & Trust Company (the "Warrant Agent") in
its capacity as the Company's transfer agent and warrant registrar, as amended
by letter agreement dated September 19, 1994.
Pursuant to Section 10 of the Agreement, the Company hereby solicits your
consent to an amendment of the terms of the Warrants as follows.
On July 8, 1998, the Company and the Warrant Agent amended the Warrant
Agreement to provide that (a) at 5:00 p.m., New York City time on August 26,
1998, with no action required to be taken by the holders of the Warrants, the
Original Expiration Date will be extended (the "Extension") to 5:00 p.m., New
York City time, December 31, 1999 (the "Amended Expiration Date"), (b) each
Warrant shall be exercisable on and after August 26, 1998, and until the Amended
Expiration Date, for 1.07 shares of Common Stock at a price of $14.35 (i.e., the
exercise price currently in effect), subject only to adjustment after that date
in accordance with the anti-dilution provisions set forth in the Warrant
Agreement (which are not being amended) (the "Price Amendment"), and (c) the
Company has the right, but not the obligation, at any time after the Original
Expiration Date, to redeem, at any time or from time to time, any or all of the
Warrants (the "Call" and, together with the Extension and the Price Amendment,
the "Amendments"); provided, however, the Company may exercise the Call only if
(i) the average trading price of the shares of the Company's Common Stock, as
reported by the National Market of the NASDAQ Stock Market, Inc.SM ("NASDAQ"),
for any period of ten consecutive trading days (not including any days on which
there are no purchases or sales of Common Stock but the NASDAQ is open for
trading) has traded at not less than $16.00 per share, and (ii) the Company has
given not less than 20 days written notice to the Warrantholders indicating the
Company's election to exercise the Call. Following a Call, any Warrants that
were called that remain unexercised at the end of the 20-day notice period will
be redeemed promptly thereafter at a redemption price of $.001 per Warrant,
payable by the Company in cash.
The Warrantholders need take no action in connection with the Amendments to
the Warrant Agreement, which apply to all outstanding Warrants. Warrantholders
need not turn in the certificates evidencing their Warrants that do not reflect
the Amendments (the "Original Warrant Certificates") even after the Original
Expiration Date. However, after the Original Expiration Date, any Warrantholder
has the right, but not the obligation, at the Warrantholder's election, to
surrender Original Warrant Certificates to the Warrant Agent which will
thereupon be replaced with certificates evidencing Warrants containing the
Amendments (the "Revised Warrant Certificates"). In addition, after the Original
Expiration Date, Revised Warrant Certificates will be issued in connection with
(a) any transfer of Warrants evidenced by Original Warrant Certificates or (b) a
partial exercise of Warrants evidenced by Original Warrant Certificates.
<PAGE>
Please signify your agreement with the terms hereof by signing and
returning this original to the Company, keeping a duplicate copy for your files.
Yours truly,
OXiGENE, Inc.
By: /s/ Bjorn Nordenvall
---------------------
Bjorn Nordenvall
President and Chief Executive Officer
ACCEPTED AND AGREED TO
this 8th day of July, 1998
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
---------------------
Name: Herbert J. Lemmer
Title: Vice President
File No. 33-64968
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
post-effective amendment No. 3 on Registration Statement (Form S-3) to
Registration Statement (Form S-1 No. 33-64968) and related Prospectus of
OXiGENE, Inc. for the registration of shares of common stock underlying
outstanding warrants and to the incorporation by reference therein of our report
dated January 12, 1998, with respect to the financial statements of OXiGENE,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
July 6, 1998
Exhibit 23.2
CONSENT OF CADWALADER, WICKERSHAM & TAFT
Cadwalader, Wickersham & Taft hereby consents to the reference to our firm under
the caption "Legal Matters" in the form of Prospectus included in Post-Effective
Amendment No. 3 on Form S-3 to Form S-1 Registration Statement (File No.
33-64968) of OXiGENE, Inc.
/s/ Cadwalader, Wickersham & Taft
New York, New York
July 8, 1998
Exhibit 99.1
[OXiGENE LETTERHEAD]
[Name]
[Address]
Dear [Name]:
OXiGENE, Inc. is pleased to inform its Warrantholders that, as more fully set
forth in the accompanying prospectus, certain terms of the Warrants have been
amended, including: (a) at 5:00 p.m., New York City time on August 26, 1998,
with no action required to be taken by the holders of the Warrants, the original
expiration date of the Warrants (August 26, 1998) (the "Original Expiration
Date") will be extended to 5:00 p.m., New York City time, December 31, 1999, (b)
each Warrant will be exercisable on and after August 26, 1998, for 1.07 shares
of Common Stock at a price of $14.35 (i.e., the exercise price currently in
effect), subject only to adjustment after that date in accordance with the
anti-dilution provisions set forth in the Warrant Agreement (which are not being
amended), and (c) the Company has the right, but not the obligation, at any time
after the Original Expiration Date, to redeem, at any time or from time to time,
any or all of the Warrants; provided, however, that outstanding Warrants can be
called for redemption by the Company only if (i) the average trading price of
the shares of the Company's Common Stock, as reported by the National Market of
the NASDAQ Stock Market, Inc.SM ("NASDAQ"), for any period of ten consecutive
trading days (not including any days on which there are no purchases or sales of
Common Stock but the NASDAQ is open for trading) has been not less than $16.00
per share, and (ii) the Company has given not less than 20 days written notice
to the Warrantholders indicating the Company's election to exercise its call for
redemption of Warrants. All other terms and conditions applicable to the
Warrants remain unchanged and no action is required to be taken on your part.
If you have any questions regarding these changes, you may contact Innisfree M&A
Incorporated, 501 Madison Avenue, 20th Floor, New York, New York, 10022, (888)
750-5834.
Best regards,
OXiGENE, Inc.
By: ____________________________
Name:
Title:
Exhibit 99.2
QUESTIONS AND ANSWERS ABOUT THE AMENDMENTS OF THE WARRANTS
Q: What are the terms of the Warrant amendments?
A: The primary amendments are: (i) the expiration date of the Warrants of
OXiGENE, Inc. (the "Company") is extended from August 26, 1998, to December
31, 1999, and (ii) the Company will have the right to redeem the Warrants
at any time after the close of business (5:00 p.m., New York City time) on
August 26, 1998 (the "Original Expiration Date"), provided certain
conditions are met. These conditions are that the market price of the
Common Stock be at least $16.00 per share for ten consecutive trading days
and that the Warrantholders receive not less than 20 days advance notice in
order that they have the time to consider whether they wish to exercise
their Warrants for Common Stock before the Warrants are redeemed.
Q: Are there any other changes of the terms of the Warrants?
A: All other terms of the Warrants remain the same.
Q: Can the Warrantholders exercise the Warrants after the Company has called
the Warrants for redemption?
A: Yes, the Company may give its Warrantholders not less than 20 days written
notice indicating its election to redeem the Warrants. During such 20-day
period, the Warrantholders shall have the right, but not the obligation, to
exercise their Warrants. It is the Company's expectation that
Warrantholders would exercise their Warrants following such notice if the
market price is greater than the price at which the Warrants can be
exercised for Common Stock.
Q: If I do not exercise my Warrants after the Company exercises its call and
the notice period has expired (which is not less than 20 days), what will I
receive?
A: Unexercised Warrants that have been called will be redeemed promptly after
the 20-day notice period at a redemption price of $.001 per Warrant,
payable by the Company in cash.
Q: Is any action required to be taken by Warrantholders or the Company's
stockholders?
A: Neither Warrantholders nor the Company's stockholders are required to take
any action in connection with or as a result of these amendments.
Q. Will new Warrant certificates be issued?
A: New Warrant certificates will not automatically be issued. However, after
August 26, 1998, new Warrant certificates will be issued in connection with
(i) any transfer of Warrants evidenced by the certificates that do not
reflect the amendments (the "Original Warrant Certificates"), (ii) a
partial exercise of Warrants evidenced by the Original Warrant Certificates
or (iii) upon the election of the Warrantholders.
Q: When will the extension become effective?
A: The extension will become effective at the close of business (5:00 p.m.,
New York City time) on August 26, 1998. Prior to that time and date,
existing Warrants and the current Warrant Agreement remain in full force
and effect.
Q: What are the federal income tax consequences of the extension of Warrants?
A: The Company believes that there are no U.S. federal income tax consequences
related to the amendments discussed herein. However, Warrantholders should
read the Prospectus carefully and, in any event, should consult with their
own tax advisors.
Q: Who can I talk to if I have more questions?
A: If you have more questions about the Warrant extension, please contact our
Information Agent:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, New York 10022
(888) 750-5834 in the U.S. or
(212) 750-5834 from outside the U.S.
