UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OXIGENE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3679168
- --------------------------------------------------------------------------------
(State or other jurisdiction of incorporation (I.R.S. employer
or organization) identification no.)
One Copley Place, Suite 602, Boston MA 02116
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
1996 Stock Incentive Plan
(Full title of the plan)
Gerald A. Eppner, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
(Name and address of agent for service)
(212) 504-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE FEE
- ----------------- ------------ -------------- -------------- ------------
Common Stock, par 239,581 $10.50 $2,515,600.50 $592.58
value $.01 per
share(2)
================================================================================
(1) Of the shares being registered, 10,000 shares are being offered at $8.3130
per share, 2,000 shares are being offered at $8.8750 per share, 119,581
shares are being offered at $8.9375, 40,000 shares are being offered at
$9.6880 per share, 49,144 shares are being offered at $10.00 per share,
8,000 shares are being offered at $10.25 per share, and 10,856 shares are
being offered at $10.50 per share.
- --------------------------------------------------------------------------------
(2) The indicated number of shares to be registered represents additional
shares issuable under the listed plan that are not covered by the prior
Registration Statement on Form S-8, filed with the Commission on December
14, 1999, as amended on January 13, 2000 (File Number 333-92747).
<PAGE>
STATEMENT UNDER GENERAL INSTRUCTION E - REGISTRATION
OF ADDITIONAL SECURITIES
The contents of the Registrant's earlier Registration Statement on Form
S-8, filed with the Commission on December 14, 1999, as amended on January 13,
2000, (File Number 333-92747) are incorporated by reference into this
Registration Statement pursuant to General Instruction E of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed on March 31, 1999 and April 1, 1999, as amended by Form
10-K/A-1, filed with the Commission on April 30, 1999.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999.
(4) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999.
(5) The Registrant's Current Report on Form 8-K, filed with the Commission
on October 6, 1999.
(6) The Registrant's Current Report on Form 8-K, filed with the Commission
on December 8, 1999.
(7) The Registrant's Current Report on Form 8-K, filed with the Commission
on December 20, 1999.
(8) The Registrant's Current Report on Form 8-K, filed with the Commission
on December 28, 1999.
(9) The Registrant's Current Report on Form 8-K, filed with the Commission
on March 7, 2000.
(10) The Registrant's Registration Statement on Form 8-A, filed with the
Commission on June 24, 1993 (File Number 0-21990) pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which
incorporates by reference the description of the shares of Common Stock, par
value $.01 per share, contained in the Registration Statement on Form S-1 (File
Number 33-64968) filed by the Registrant on June 24, 1993 and declared effective
by the Commission on August 25, 1993, and any amendment or report filed with the
Commission for purposes of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment, which indicates
that all securities offered have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 5. Interests of Named Experts and Counsel
The legality of the issuance of the Common Stock being registered hereby
is being passed upon by Cadwalader, Wickersham & Taft, 100 Maiden Lane, New
York, New York 10038, counsel for the Registrant and a director of the
Registrant. Gerald A. Eppner, a partner at the law firm of Cadwalader,
Wickersham & Taft, owns shares or options to purchase shares representing, in
the aggregate, less than 1% of the Common Stock of the Registrant.
Item 8. Exhibits
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4.2* OXiGENE, Inc. 1996 Stock Incentive Plan, as amended.
4.3** Restated Certificate of Incorporation as filed with the
Secretary of State of the State of
1
<PAGE>
Delaware on April 27, 1993, and as last amended on November
15, 1996.
4.4*** By-Laws, as amended through April 26, 1993.
5 Opinion of Cadwalader, Wickersham & Taft regarding the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cadwalader, Wickersham & Taft (included in, and
incorporated by reference to, Exhibit 5 hereto).
* Included in, and incorporated by reference to, Registrant's
Registration Statement on Form S-8 (File Number 333-92747)
filed with the Commission on December 14, 1999, as amended
by Form S-8 POS, filed with the Commission on January 13,
2000.
** Included in, and incorporated by reference to, Registrant's
Registration Statement on Form S-1 (File Number 33-64968)
filed with the Commission on June 24, 1993 and declared
effective on August 25, 1993 (the "IPO Registration
Statement"), and the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995, as amended by
Form 10-K/A-1, as filed with the Commission on April 30,
1996, and the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, as filed with the
Commission on March 20, 1997.
*** Included in, and incorporated by reference to, the IPO
Registration Statement.
2
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stockholm, Sweden or in the City of New York, State
of New York, on this 14th day of March 2000.
OXiGENE, INC.
By: /s/ Bjorn Nordenvall
------------------------------------
Bjorn Nordenvall
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on March 14, 2000.
Signature Title
/s/ Bjorn Nordenvall President, Chief
- -------------------- Executive Officer and
Bjorn Nordenvall Director (principal
executive officer)
/s/ Bo Haglund Chief Financial Officer
- ------------------- (Principal Accounting
Bo Haglund Officer)
Director
- --------------------
Marvin H. Caruthers
/s/ Michael Ionata Director
- --------------------
Michael Ionata
/s/ Arthur Laffer Director
- --------------------
Arthur Laffer
Director
- --------------------
Ronald W. Pero
Director
- --------------------
Per-Olof Soderberg
/s/ Gerald A. Eppner Director
- --------------------
Gerald A. Eppner
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page Number
----------- ---------------------- -----------
4.2* OXiGENE, Inc. 1996 Stock Incentive Plan, as
amended.
4.3** Restated Certificate of Incorporation as filed
with the Secretary of State of the State of
Delaware on April 27, 1993, and as last amended
on November 15, 1996.
4.4*** By-Laws, as amended through April 26, 1993.
5 Opinion of Cadwalader, Wickersham & Taft
regarding the legality of the securities being
registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Cadwalader, Wickersham & Taft
(included in, and incorporated by reference to,
Exhibit 5 hereto).
- ------------
* Included in, and incorporated by reference to, Registrant's Registration
Statement on Form S-8 (File Number 333-92747) filed with the Commission on
December 14, 1999, as amended by Form S-8 POS, filed with the Commission
on January 13, 2000.
** Included in, and incorporated by reference to, Registrant's Registration
Statement on Form S-1 (File Number 33-64968) filed with the Commission on
June 24, 1993 and declared effective on August 25, 1993 (the "IPO
Registration Statement"), and the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995, as amended by Form 10-K/A-1, as
filed with the Commission on April 30, 1996, and the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996, as filed
with the Commission on March 20, 1997.
*** Included in, and incorporated by reference to, the IPO Registration
Statement.
[LETTERHEAD OF CADWALADER, WICKERSHAM & TAFT]
EXHIBIT 5
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
(212) 504-6000
March 14, 2000
OXiGENE, Inc.
One Copley Place, Suite 602
Boston, MA 02116
Re: OXiGENE, Inc.
Registration of Stock Incentive Plan on Form S-8
Ladies and Gentlemen:
We have acted as counsel for OXiGENE, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form S-8 (the "S-8 Registration Statement"), to which this opinion
is Exhibit 5, and pursuant to which the Company proposes to register the offer
and sale of up to an aggregate of 239,581 shares ("Employee Option Shares") of
its Common Stock, par value $0.01 per share ("Common Stock"). You have requested
that we furnish our opinion as to the matters hereinafter set forth.
In rendering the opinions set forth below, we have examined and relied
upon the originals, copies or specimens, certified or otherwise identified to
our satisfaction, of: (i) the Restated Certificate of Incorporation of the
Company, as certified by the Secretary of State of the State of Delaware on June
3, 1996; (ii) the By-Laws of the Company, amended as of April 26, 1993 ("By-Laws
of the Company"); (iii) the resolutions of the Board of Directors of the Company
(the "Board"), dated November 16, 1999 (the "Resolutions"), approving the filing
of the S-8 Registration Statement and ratifying the reservation of the Employee
Option Shares; (iv) the OXiGENE, Inc. 1996 Stock Incentive Plan (the "Plan"), as
amended; and (v) the S-8 Registration Statement.
In such examination we have assumed the genuineness of all signatures, the
authenticity of all documents, certificates and instruments submitted to us as
originals, the conformity to original documents, certificates and instruments of
all documents, certificates and instruments submitted to us as copies or
specimens, the authenticity of the originals of such documents, certificates and
instruments submitted to us as copies or specimens, and the accuracy of the
matters set forth in the documents, certificates and instruments we reviewed.
Except as expressly set forth herein, we have not undertaken any independent
investigation (including, without limitation, conducting any review, search or
investigation of any public files, records or dockets) to determine the
existence or absence of the facts that are material to our opinions, and no
inference as to our knowledge concerning such facts should be drawn from our
reliance on the representations of the Company in connection with the
preparation and delivery of this letter.
We have relied upon the written representations of the Company as to the
accuracy and completeness of (1) the By-Laws of the Company; (2) the Plan; (3)
the S-8 Registration Statement; and (4) the Resolutions. We also have relied
upon the written representations of the Company that the Resolutions and the
By-Laws of the Company have not been amended or revoked.
We have also assumed (other than with respect to the Company) that all
documents, certificates and instruments have been duly authorized, executed and
delivered by all parties thereto, that all such parties had the power and legal
right to execute and deliver all such documents, certificates and instruments,
and that such documents, certificates and instruments are valid, binding and
enforceable obligations of such parties.
<PAGE>
We express no opinion concerning the laws of any jurisdiction other than
the laws of the State of New York and, to the extent expressly referred to in
this opinion letter, the federal laws of the United States of America. While we
are not licensed to practice law in the State of Delaware, we have reviewed
applicable provisions of the Delaware General Corporation Law as we have deemed
appropriate in connection with the opinions expressed herein. Except as
described, we have neither examined nor do we express any opinion with respect
to Delaware law.
Based upon and subject to the foregoing, we are of the opinion that all of
the Employee Option Shares have been duly authorized for issuance and when (i)
the S-8 Registration Statement shall have become effective, (ii) the Employee
Option Shares shall have been issued in the proposed form, and (iii) the
Employee Option Shares shall have been issued and delivered against payment
therefor as contemplated by the Plan and the S-8 Registration Statement, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the S-8
Registration Statement.
Very truly yours,
/s/ Cadwalader, Wickersham & Taft
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1996 Stock Incentive Plan of OXiGENE, Inc., as amended,
of our report dated January 13, 1999, with respect to the consolidated financial
statements of OXiGENE, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
---------------------
New York, New York
March 14, 2000
