Exhibit 5.1
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One Financial Center Boston, MA 02111 617-542-6000 617-542-2241 fax www.mintz.com |
June 29, 2011
OXiGENE, Inc.
701 Gateway Boulevard, Suite 210
South San Francisco, CA 94080
OXiGENE, Inc.
701 Gateway Boulevard, Suite 210
South San Francisco, CA 94080
Ladies and Gentlemen:
This opinion is furnished to you in connection with the filing of a prospectus supplement,
dated June 29, 2011 (the “Prospectus Supplement”), to a Registration Statement on Form S-3,
Registration No. 333-155371 (the “Registration Statement”) filed by OXiGENE, Inc., a Delaware
corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under
the Securities Act of 1933, as amended (the “Securities Act”), with respect to the sale of shares
(the “Shares”) of the Company’s common stock, $0.01 par value per share, having an aggregate
offering price of up to $4,000,000, pursuant to the At Market Issuance Sales Agreement (the “Sales
Agreement”), dated July 21, 2010, by and between the Company and McNicoll, Lewis & Vlak LLC. The
Shares are to be sold pursuant to the Prospectus Supplement and the base prospectus included in the
Registration Statement, dated December 1, 2008 (together with the Prospectus Supplement, the
“Prospectus”). The Sales Agreement has been filed as an exhibit to a Current Report on Form 8-K
and has been incorporated by reference into the Registration Statement.
In connection with this opinion, we have examined the Company’s Restated Certificate of
Incorporation and Amended and Restated By-laws, both as amended to date and as currently in effect;
the minutes of all pertinent meetings of the board of directors of the Company relating to the
Registration Statement, the Prospectus and the transactions contemplated thereby; such other
records of the corporate proceedings of the Company and certificates of the Company’s officers as
we deemed relevant for the purposes of rendering the opinions in this letter; the Registration
Statement and the exhibits thereto filed with the Commission; the Prospectus; and the Sales
Agreement.
In our examination, we have assumed the genuineness of all signatures, the legal capacity of
natural persons, the authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified, photostatic or facsimile copies
and the authenticity of the originals of such copies.
Based upon the foregoing, and subject to the limitations set forth below, we are of the
opinion that the Shares, when issued by the Company and delivered by the Company against
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Boston | Washington | New York | Stamford | Los Angeles | Palo Alto | San Diego | London
Boston | Washington | New York | Stamford | Los Angeles | Palo Alto | San Diego | London
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
June 29, 2011
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payment therefor as contemplated by the Sales Agreement and a Placement Notice (as defined in the
Sales Agreement), will be duly and validly issued, fully paid and non-assessable.
Our opinion is limited to the General Corporation Law of the State of Delaware (including the
applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting
such laws) and the Federal laws of the United States, and we express no opinion with respect to the
laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification
of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. To
the extent that any applicable document is stated to be governed by the laws of another
jurisdiction, we have assumed for purposes of this opinion that the laws of such jurisdiction are
identical to the state laws of the State of Delaware.
We have relied as to certain matters on information obtained from public officials, officers
of the Company and other sources believed by us to be reliable.
Please note that we are opining only as to the matters expressly set forth herein, and no
opinion should be inferred as to any other matters. This opinion is based upon currently existing
statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you
of any change in any of these sources of law or subsequent legal or factual developments which
might affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion with the Commission as an exhibit to a Current
Report on Form 8-K (and its incorporation by reference into the Registration Statement) in
accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the
Securities Act and to the use of this Firm’s name therein and in the Prospectus under the caption
“Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.
P.C.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.