-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BI+2htqV//v1I11mLy31gWP1yKyzvV8UDWhNQCxzpFIxwwTw6E6xP++Z+y7qiQel oWrbppyxtZo5S+dFcgeFjw== 0000914121-00-000271.txt : 20000323 0000914121-00-000271.hdr.sgml : 20000323 ACCESSION NUMBER: 0000914121-00-000271 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000321 EFFECTIVENESS DATE: 20000321 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OXIGENE INC CENTRAL INDEX KEY: 0000908259 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 133679168 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-32958 FILM NUMBER: 575041 BUSINESS ADDRESS: STREET 1: ONE COPLEY PLACE STREET 2: SUITE 602 CITY: BOSTON STATE: MA ZIP: 02116 BUSINESS PHONE: 2124310001 MAIL ADDRESS: STREET 1: ONE COPLEY PLACE, SUITE 602 STREET 2: SUITE 602 CITY: BOSTON STATE: MA ZIP: 02116 S-8 1 REGISTRATION STATEMENT 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). 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 -------- 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 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 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 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. EX-5 2 OPINION OF CADWALADER, WICKERSHAM & TAFT [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. 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 EX-23 3 CONSENT OF ERNST & YOUNG LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----