sv3
As filed with the Securities and Exchange Commission on November 14, 2008
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
OXiGENE, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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13-3679168
(I.R.S. Employer
Identification Number) |
230 Third Avenue
Waltham, MA 02451
(781) 547-5900
(Address, including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
John A. Kollins
Chief Executive Officer
OXiGENE, Inc.
230 Third Avenue
Waltham, MA 02451
(781) 547-5900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With a copy to:
Jonathan L. Kravetz, Esq.
Megan N. Gates, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
Approximate date of commencement of proposed sale to the public: From time to time after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box. o
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. þ
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. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) 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. o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
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.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer o |
Accelerated filer þ |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
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Proposed Maximum |
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Title of each Class of |
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Aggregate Offering |
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Amount of |
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Securities to be Registered(1) |
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Price(2)(3) |
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Registration Fee(4)(5) |
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Common Stock, $0.01 par value per share(6) |
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(7 |
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(7 |
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Debt Securities |
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(7 |
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(7 |
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Warrants |
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(7 |
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(7 |
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Total |
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50,000,000 |
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$ |
1,965 |
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(1) |
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There are being registered hereunder such indeterminate number of shares of common stock,
such indeterminate number of warrants to purchase common stock or debt securities, and such
indeterminate principal amount of debt securities as shall have an aggregate initial offering
price not to exceed $50,000,000. If any debt securities are issued at an original issue
discount, then the offering price of such debt securities shall be in such greater principal
amount as shall result in an aggregate initial offering price not to exceed $50,000,000, less
the aggregate dollar amount of all securities previously issued hereunder. Any securities
registered hereunder may be sold separately or as units with other securities registered
hereunder. The securities registered also include such indeterminate amounts and numbers of
common stock and debt securities as may be issued upon conversion of or exchange for debt
securities that provide for conversion or exchange, upon exercise of warrants or pursuant to
the antidilution provisions of any such securities. |
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In United States dollars or the equivalent thereof in any other currency, currency unit or
units, or composite currency or currencies. |
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The proposed maximum per unit and aggregate offering prices per class of security will be
determined from time to time by the registrant in connection with the issuance by the
registrant of the securities registered hereunder. |
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Estimated solely for purposes of determining the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933, as amended (the “Securities Act”). |
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Pursuant to Rule 415(a)(6) and Rule 457(p) under the Securities Act, the registrant hereby
offsets the total registration fee due under this registration statement by the amount of the
filing fee associated with the unsold securities from the registrant’s Form S-3 registration
statement, filed with the Commission on September 23, 2005 (File No. 333-128528), registering
securities for a maximum aggregate offering price of $75,000,000 (the “Prior Registration
Statement”). Of that amount, the registrant sold common stock with an aggregate offering price
of $27,284,000, leaving a balance of unsold securities with an aggregate offering price of
$47,716,000. The associated filing fee of $1,875.24 for such unsold securities, calculated
under Rule 457(o), is hereby used to offset the current registration fee due. Accordingly, the
full amount of the $1,965 registration fee currently due for this registration statement has
been partially paid by offset against the balance of the fee paid for the Prior Registration
Statement and the registrant is paying $89.76 in filing fees for this registration statement.
Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the Prior
Registration Statement will be deemed terminated as of the date of effectiveness of this
registration statement. |
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Pursuant to the Stockholder Rights Agreement dated as of March 24, 2005, between the Company
and American Stock Transfer & Trust Company, as amended, each share of Common Stock has an
attached right to purchase one share of Common Stock, which rights are not currently
exercisable. |
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Not required to be included in accordance with General Instruction II.D. of Form S-3. |
The information in this prospectus is not complete and may be changed. We may not sell these
securities until the registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities and is not soliciting an offer
to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated November 14, 2008
PROSPECTUS
OXiGENE, INC.
$50,000,000
COMMON STOCK
DEBT SECURITIES
WARRANTS
We may from time to time issue up to $50,000,000 aggregate principal amount of common stock,
debt securities and/or warrants. We will specify in an accompanying prospectus supplement the terms
of the securities. We may issue or sell these securities to or through underwriters, directly to
purchasers, or through agents. We will set forth the names of any underwriters or agents in the
accompanying prospectus supplement.
Our common stock is listed on the NASDAQ Global Market under the symbol “OXGN.” The market
value of our outstanding common equity held by non-affiliates on October 31, 2008 was approximately
$22,724,000, based on 35,011,448 shares of outstanding common stock, of which 7,632,588 are held by
non-affiliates, and a per share price of $0.83 based on the closing sale price of our common stock
on October 31, 2008. We have not offered any securities pursuant to General Instruction I.B.6 of
Form S-3 during the 12 calendar months prior to and including the date hereof.
Investing in our securities involves risks.
See “Risk Factors” on page 4.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
This prospectus may not be used to consummate sales of securities unless it is accompanied by a
prospectus supplement.
The date of this prospectus is
.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission, or SEC, utilizing a “shelf” registration process. Under this shelf process, we
may sell any combination of the securities described in this prospectus in one or more offerings up
to a total dollar amount of $50,000,000. We have provided to you in this prospectus a general
description of the securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of that offering. In
any applicable prospectus supplements, we may add to, update or change any of the information
contained in this prospectus.
OUR BUSINESS
The following is only a summary. We urge you to read the entire prospectus, including the more
detailed financial statements, notes to the financial statements and other information incorporated
by reference from our other filings with the U.S. Securities and Exchange Commission (SEC).
Investing in our securities involves risk. Accordingly, please carefully consider the information
provided under the heading “Risk Factors” on page 4.
Our Business
OXiGENE, Inc. (“OXiGENE” or the “Company”) is a clinical-stage, biopharmaceutical company
developing novel therapeutics to treat cancer and eye diseases. The Company’s primary focus is the
development and commercialization of product candidates referred to as vascular disrupting agents
(VDAs) that selectively disrupt abnormal blood vessels associated with solid tumor progression and
visual impairment in a number of ocular diseases which are characterized by abnormal blood vessel
growth. Because its VDA product candidates act via a validated therapeutic mechanism, inhibition
of blood flow to tumors and neovascular lesions within the eye, the Company believes the risk
associated with its drug development programs is relatively low compared to compounds with
unvalidated or unknown mechanisms of action.
OXiGENE’s most advanced therapeutic product candidate, ZYBRESTAT™ (generic name fosbretabulin,
previously known as combretastatin A4 phosphate or CA4P), is currently being evaluated in a Phase
II/III pivotal registration study as a potential treatment for anaplastic thyroid cancer, a highly
aggressive and lethal malignancy for which there are currently no approved therapeutics and
extremely limited treatment options. In addition, ZYBRESTAT is being evaluated in Phase II
clinical trials as a potential treatment for: (i) non-small cell lung cancer (NSCLC) in
combination with the chemotherapeutic agents, carboplatin and paclitaxel, and the anti-angiogenic
agent, bevacizumab; and (ii) platinum resistant ovarian cancer in combination with carboplatin and
paclitaxel. The Company believes that these trials, if successful, will establish a compelling
rationale for further development of ZYBRESTAT as a treatment (i) for other forms of recurrent,
metastatic thyroid cancer; (ii) for other aggressive and difficult-to-treat malignancies; (iii) for
use in combination with chemotherapy in a variety of solid tumors in which carboplatin and
paclitaxel chemotherapy are commonly used; and (iv) for use in combination with anti-angiogenic
agents in other solid tumors in which anti-angiogenic therapies are commonly used. The Company
believes these areas for potential further development collectively represent a very large
potential commercial market opportunity. In addition, based upon preclinical results first
published by its collaborators in the November 2007 online issue of the journal Blood, OXiGENE
believes that ZYBRESTAT and its other VDA product candidates may also have utility in the treatment
of hematological malignancies or “liquid tumors.” Approximately 350 subjects have been treated to
date with ZYBRESTAT in human clinical trials. In light of the significant human clinical
experience with ZYBRESTAT to date, and because ZYBRESTAT acts via a validated therapeutic
mechanism, inhibition of tumor blood-flow, the Company believes that the development risks
associated with ZYBRESTAT are relatively low compared to compounds with unvalidated or unknown
mechanisms of action.
In addition to developing ZYBRESTAT as an intravenously administered therapy for cancer
indications, OXiGENE is developing a topical formulation of ZYBRESTAT for ophthalmological diseases
and conditions, such as age-related macular degeneration (AMD) that are characterized by abnormal
blood vessel growth within the eye that results in loss of vision. The Company believes that a
safe, effective, convenient topically-administered anti-vascular therapeutic would have advantages
over currently-approved anti-vascular, ophthalmological therapeutics, which must be injected
directly into patients’ eyes on a frequent basis. In addition to having potential utility for
treating ocular diseases and conditions such as AMD that affect tissues such as the choroid in the
back of the eye,
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the Company believes that a topical ophthalmological formulation of ZYBRESTAT could also have
utility for the treatment of other ocular diseases and conditions that affect tissues in the front
of the eye, such as the cornea and iris, which are characterized by abnormal growth of blood
vessels, or neovascularization. The Company currently plans to undertake a series of preclinical
studies and clinical trials with the objective of demonstrating the utility of a topical
formulation of ZYBRESTAT in an ophthalmologic indication.
OXiGENE is currently evaluating a second-generation VDA product candidate, OXi4503, in a Phase
I clinical trial in patients with advanced solid tumors. The Company refers to OXi4503 as an
ortho-quinone prodrug (OQP). In preclinical studies, OXi4503 has shown potent anti-tumor activity,
both as a single-agent and in combination with other cancer treatment modalities. The Company
believes that OXi4503 is differentiated from other VDAs by its ability to exert (i) potent vascular
disrupting effects on tumor vasculature; and (ii) direct cytotoxic effects on tumor cells. OXi4503
is currently in a Phase I clinical trial in patients with advanced solid tumors. Based on favorable
results in preclinical studies, the Company currently plans to undertake further clinical trials
with OXi4503 in acute myeloid leukemia (AML) and hepatic tumors.
As described below under “— Symphony Transaction,” ZYBRESTAT for use in ophthalmologic
indications and OXi4503 were exclusively licensed to Symphony ViDA, Inc. under the Novated and
Restated Technology License Agreement on October 1, 2008.
Finally, under a sponsored research agreement with Baylor University, the Company is pursuing
discovery and development of novel, small-molecule therapeutics for the treatment of cancer that it
believes will be complementary with its later-stage VDA product candidates.
Symphony Transaction
On October 1, 2008, OXiGENE entered into a series of related agreements with Symphony Capital
LLC, or Symphony, Symphony ViDA, Inc., or ViDA, Symphony ViDA Holdings LLC, or Holdings, and
related entities, including the following:
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Purchase Option Agreement; |
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Research and Development Agreement; |
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Amended and Restated Research and Development Agreement; |
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Technology License Agreement; |
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Novated and Restated Technology License Agreement; |
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Confidentiality Agreement; and |
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Additional Funding Agreement. |
In addition, on October 1, 2008, OXiGENE entered into a series of related agreements with
Holdings, including the following:
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Stock and Warrant Purchase Agreement; |
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Warrant to purchase up to 11,281,877 shares of OXiGENE common stock; and |
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Registration Rights Agreement. |
Pursuant to these agreements, Holdings has formed and capitalized ViDA, a newly formed
Delaware corporation, in order (a) to hold certain intellectual property related to two of
OXiGENE’s product candidates, ZYBRESTAT for use in ophthalmologic indications and OXi4503, referred
to as the “Programs,” which were
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exclusively licensed to ViDA under the Novated and Restated Technology License Agreement and (b) to
fund commitments in the amount of up to $25 million. The funding will support pre-clinical and
clinical development by OXiGENE, on behalf of ViDA, of the Programs. Under certain circumstances,
the Company may be required to commit up to $15 million to ViDA. The Company is developing a
topical formulation of ZYBRESTAT for ophthalmologic diseases and conditions, such as age-related
macular degeneration, that are characterized by abnormal blood vessel growth within the eye that
results in loss of vision. The Company currently plans to undertake a series of preclinical and
clinical studies with the objective of demonstrating the utility of a topical formulation of
ZYBRESTAT in an ophthalmologic indication. OXi4503 is currently in a Phase I clinical trial in
patients with advanced solid tumors. Based on favorable results in preclinical studies, the Company
currently plans to undertake further clinical trials with OXi4503 in AML and hepatic tumors.
The Purchase Option Agreement provides for the exclusive right, but not the obligation, of
OXiGENE to repurchase both Programs by acquiring 100% of the equity of ViDA at any time between
October 2, 2009 and March 31, 2012 for an amount equal to two times the amount of capital actually
invested by Holdings in ViDA, less certain amounts. The purchase price is payable in cash or a
combination of cash and shares of OXiGENE common stock (up to 20% of the purchase price or 10% of
the total number of shares of OXiGENE common stock outstanding at such time, whichever is less), in
OXiGENE’s sole discretion, subject to certain limitations. If OXiGENE does not exercise its
exclusive right with respect to the purchase of the Programs licensed under the agreement with
ViDA, rights to the Programs at the end of the development period will remain with ViDA.
OXiGENE has issued to Holdings, pursuant to the Stock and Warrant Purchase Agreement, (1) an
aggregate of 5,835,241 shares of OXiGENE common stock (the “Shares”), and (2) a ten-year warrant to
purchase 11,281,877 shares of OXiGENE common stock (the “Warrant”) at an exercise price of $1.11
per share, the closing price of OXiGENE common stock on The NASDAQ Global Market on September 30,
2008, the day before the consummation of the Symphony transaction. OXiGENE may issue additional
shares of its common stock and warrants in the event of specified events under the Additional
Funding Agreement, the Novated and Restated Technology License Agreement and the Purchase Option
Agreement. OXiGENE has agreed to provide certain registration rights under the Securities Act of
1933, as amended (the “Securities Act”) with respect to the shares issued and to be issued to
Holdings under these agreements.
The Amended and Restated Research and Development Agreement provides that the conduct of the
activities under the mutually agreed upon development plan and budget during the development period
will be undertaken primarily by OXiGENE with support from RRD International LLC, the clinical
development partner of Symphony, and provides that the development will be overseen by a
Development Committee which is comprised of six representatives, three representatives to be
designated by OXiGENE, one of which shall be Patricia A. Walicke, M.D., Ph.D., OXiGENE’s Vice
President and Chief Medical Officer, who shall serve as chairman of the Development Committee, and
three representatives to be designated by Holdings. The Development Committee will report to the
board of directors of ViDA, which will be comprised of John Kollins, OXiGENE’s Chief Executive
Officer, two representatives of Symphony, Mark Kessel and Jeffrey S. Edelman, and two independent
board members.
In addition, OXiGENE has given Holdings the right to appoint two members to its Board of
Directors. Holdings has designated Mark Kessel and Alastair J.J. Wood, M.D., both Managing
Directors of Symphony Capital LLC, as the Holdings representatives, who were appointed to the Board
on October 22, 2008.
Our Development Programs and Product Candidates
The following table outlines the ongoing and planned clinical development programs for our
current product candidates:
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ZYBRESTAT for Oncology — Intravenous
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Combination Therapies |
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Phase |
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Status |
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Anaplastic Thyroid |
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Carboplatin / paclitaxel |
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OXiGENE |
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Pivotal Registration |
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Enrolling |
Cancer |
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Phase II/III |
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Platinum-resistant |
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Carboplatin / paclitaxel |
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UK CTC |
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Phase II |
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Enrolling |
Ovarian Cancer |
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Non-Small Cell Lung |
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Carboplatin / paclitaxel / bevacizumab |
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OXiGENE |
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Phase II |
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Enrolling |
Cancer |
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ZYBRESTAT for Ophthalmology
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Indication |
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Intravenous-route
proof-of-mechanism studies in
Age-related Macular Degeneration
and potential second
ophthalmological indication
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Monotherapy
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OXiGENE/ ViDA
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Phase I/IIa
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To be commenced 2009 |
OXi4503 for Oncology — Intravenous
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Indication |
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Refractory Tumors
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Monotherapy
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Cancer Research UK
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Phase I
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Enrolling |
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Acute Myeloid Leukemia
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Monotherapy
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OXiGENE/ ViDA
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Phase Ib/IIa
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To be commenced 2009 |
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Hepatic Tumors
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Monotherapy
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OXiGENE/ ViDA
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Phase Ib/IIa
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To be commenced 2009 |
Company Background
The Company is a Delaware corporation, incorporated in 1988 in the state of New York and
reincorporated in 1992 in the state of Delaware, with its corporate office in the United States at
230 Third Avenue, Waltham, Massachusetts 02451 (telephone: 781-547-5900; fax: 781-547-6800). We
also have offices located at 1001 Bay Hill Drive, San Bruno, California and in the United Kingdom
at Magdalen Centre, Robert Robinson Avenue, The Oxford Science Park, Oxford, OX4 4GA. The Company’s
Internet address is www.OXiGENE.com. The Company’s annual reports on Form 10-K, quarterly reports
on Form 10-Q, current reports on Form 8-K, and all amendments to those reports, are available to
you free of charge through the Investor Relations section of our website as soon as reasonably
practicable after such materials have been electronically filed with, or furnished to, the SEC.
RISK FACTORS
Investing in our securities is very risky. Please carefully consider the risk factors
described in our periodic reports filed with the SEC, including our Annual Report on Form 10-K for
the fiscal year ended December 31, 2007, which is incorporated by reference into this prospectus.
Before making an investment decision, you should carefully consider these risks as well as other
information we include or incorporate by reference into this prospectus or include in any
applicable prospectus supplement. Additional risks and uncertainties not presently known to us or
that we deem currently immaterial may also impair our business operations. You should be able to
bear a complete loss of your investment. See “Special Note Regarding Forward-Looking Statements.”
4
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The SEC encourages companies to disclose forward-looking information so that investors can
better understand a company’s future prospects and make informed investment decisions. This
prospectus contains such “forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements may be made directly in this prospectus, and they
may also be made a part of this prospectus by reference to other documents filed with the SEC,
which is known as “incorporation by reference.”
Words such as “may,” “anticipate,” “estimate,” “expects,” “projects,” “intends,” “plans,”
“believes” and words and terms of similar substance used in connection with any discussion of
future operating or financial performance identify forward-looking statements. All forward-looking
statements are management’s present expectations of future events and are subject to a number of
risks and uncertainties that could cause actual results to differ materially from those described
in the forward-looking statements. Forward-looking statements might include one or more of the
following:
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anticipated results of financing activities; |
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anticipated clinical trial timelines or results; |
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anticipated research and product development results; |
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projected regulatory timelines; |
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descriptions of plans or objectives of management for future operations, products or
services; |
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forecasts of future economic performance; and |
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descriptions or assumptions underlying or relating to any of the above items. |
Please also see the discussion of risks and uncertainties under the heading “Risk Factors” in
our Annual Report on Form 10-K for the fiscal year ended December 31, 2007.
In light of these assumptions, risks and uncertainties, the results and events discussed in
the forward-looking statements contained in this prospectus or in any document incorporated by
reference might not occur. Investors are cautioned not to place undue reliance on the
forward-looking statements, which speak only as of the date of this prospectus or the date of the
document incorporated by reference into this prospectus. We are not under any obligation, and we
expressly disclaim any obligation, to update or alter any forward-looking statements, whether as a
result of new information, future events or otherwise. All subsequent forward-looking statements
attributable to OXiGENE or to any person acting on its behalf are expressly qualified in their
entirety by the cautionary statements contained or referred to in this section.
USE OF PROCEEDS
Unless we indicate otherwise in the applicable prospectus supplement, we currently intend to
use the net proceeds from this offering for general corporate purposes, including our internal
discovery and development programs and the development of new technologies, general working capital
and possible future acquisitions.
We have not determined the amounts we plan to spend on any of the areas listed above or the
timing of these expenditures. As a result, our management will have broad discretion to allocate
the net proceeds from this offering. Pending application of the net proceeds as described above, we
intend to invest the net proceeds of the offering in short-term, investment-grade, interest-bearing
securities.
We may set forth additional information on the use of net proceeds from the sale of securities
we offer under this prospectus in a prospectus supplement relating to the specific offering.
5
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together with the applicable
prospectus supplements, summarize all the material terms and provisions of the various types of
securities that we may offer. We will describe in the applicable prospectus supplement relating to
any securities the particular terms of the securities offered by that prospectus supplement. If we
indicate in the applicable prospectus supplement, the terms of the securities may differ from the
terms we have summarized below. We will also include information in the prospectus supplement,
where applicable, about material United States federal income tax considerations relating to the
securities, and the securities exchange, if any, on which the securities will be listed.
We may sell from time to time, in one or more offerings:
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common stock; |
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debt securities; and/or |
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warrants to purchase any of the securities listed above. |
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a
prospectus supplement.
DESCRIPTION OF COMMON STOCK
The following description of our capital stock and certain provisions of our restated
certificate of incorporation, as amended, and our amended and restated by-laws is a summary and is
qualified in its entirety by the provisions of our restated certificate of incorporation, as
amended, and our amended and restated by-laws.
Our authorized capital stock consists of 100,000,000 shares of common stock, par value of
$0.01 per share.
Common Stock
We are authorized to issue 100,000,000 shares of common stock. Each stockholder of record is
entitled to one vote for each outstanding share of our common stock owned by that stockholder on
every matter properly submitted to the stockholders for their vote. Holders of common stock are
entitled to any dividend declared by our board out of funds legally available for that purpose.
Holders of common stock are entitled to receive, on a pro rata basis, all our remaining assets
available for distribution to stockholders in the event of our liquidation, dissolution or winding
up. Holders of common stock do not have any preemptive right to become subscribers or purchasers
of additional shares of any class of our capital stock.
Listing
Our common stock is listed on the NASDAQ Global Market under the symbol “OXGN.”
Transfer Agent and Registrar
American Stock Transfer & Trust Company is the transfer agent and registrar for our common
stock.
Delaware Law, Certain Charter and By-Law Provisions and Stockholder Rights Agreement
The provisions of Delaware law and of our restated certificate of incorporation, as amended,
and amended and restated by-laws discussed below could discourage or make it more difficult to
accomplish a proxy contest or other change in our management or the acquisition of control by a
holder of a substantial amount of our voting stock. It is possible that these provisions could make
it more difficult to accomplish, or could deter, transactions that stockholders may otherwise
consider to be in their best interests or the best interests of OXiGENE.
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Delaware Statutory Business Combinations Provision. In general, Section 203 prohibits a
publicly-held Delaware corporation from engaging in a “business combination” with an “interested
stockholder” for a period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is, or the transaction in which
the person became an interested stockholder was, approved in a prescribed manner or another
prescribed exception applies. For purposes of Section 203, a “business combination” is defined
broadly to include a merger, asset sale or other transaction resulting in a financial benefit to
the interested stockholder, and, subject to certain exceptions, an “interested stockholder” is a
person who, together with his or her affiliates and associates, owns (or within the prior three
years, did own) 15% or more of the corporation’s voting stock.
Special Meetings of Stockholders. Special meetings of the stockholders may be called by the
chairman of our board of directors, the president, or the entire board of directors pursuant to a
resolution adopted by a majority of directors present at a meeting at which a quorum is present.
The president or Secretary shall also call special meetings upon the written request of not less
than 10% in interest of the stockholders entitled to vote at the meeting.
Stockholder Rights Agreement. On March 24, 2005 our Board of Directors declared a dividend of
one common stock purchase right for each outstanding share of our voting common stock, $0.01 par
value per share, to stockholders of record at the close of business on April 4, 2005. Each right
entitles the registered holder to purchase from us one share of common stock, at a purchase price
of $50.00 in cash, subject to adjustment. The description and terms of the rights are set forth in
a Stockholder Rights Agreement, as amended, between us and American Stock Transfer & Trust Company,
as Rights Agent.
Initially, the rights will be attached to all common stock certificates representing shares
then outstanding, and no separate certificates for rights will be distributed. The rights will
separate from the common stock and a “Distribution Date” will occur upon the earlier of (i) 10 days
following a public announcement that a person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial ownership of 15% or more of the outstanding
shares of our common stock or (ii) 10 business days following the commencement of a tender offer or
exchange offer that may result in a person or group beneficially owning 15% or more of the
outstanding shares of our common stock.
Until the distribution date (or earlier redemption or expiration of the rights), (i) the
rights will be evidenced by the common stock certificates and will be transferred with and only
with such common stock certificates, (ii) new common stock certificates issued after the record
date will contain a notation incorporating the Stockholder Rights Agreement by reference, and (iii)
the surrender for transfer of any certificates for common stock outstanding, even without such
notation, will also constitute the transfer of the rights associated with the common stock
represented by such certificate.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we include in any
applicable prospectus supplement, summarizes the material terms and provisions of the debt
securities that we may offer under this prospectus. While the terms we have summarized below will
apply generally to any future debt securities we may offer, we will describe the particular terms
of any debt securities that we may offer in more detail in the applicable prospectus supplement. If
we so indicate in a prospectus supplement, the terms of any debt securities we offer under that
prospectus supplement may differ from the terms we describe below.
We will issue senior notes under a senior indenture, which we will enter into with a trustee
to be named in the senior indenture. We will issue subordinated notes under a subordinated
indenture, which we will enter into with a trustee to be named in the subordinated indenture. We
use the term “indentures” to refer to both the senior indenture and the subordinated indenture. The
indentures will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”). We use the term “debenture trustee” to refer to either the senior trustee or the
subordinated trustee, as applicable.
The following summaries of material provisions of the senior notes, the subordinated notes and
the indentures are subject to, and qualified in their entirety by reference to, all the provisions
of the indenture applicable
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to a particular series of debt securities. Except as we may otherwise indicate, the terms of
the senior indenture and the subordinated indenture will be identical.
General
We will describe in each prospectus supplement the following terms relating to a series of
notes:
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the title; |
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any limit on the amount that may be issued; |
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whether or not we will issue the series of notes in global form, the terms and who
the depository will be; |
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the maturity date; |
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the annual interest rate, which may be fixed or variable, or the method for
determining the rate and the date interest will begin to accrue, the dates interest
will be payable and the regular record dates for interest payment dates or the method
for determining such dates; |
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whether or not the notes will be secured or unsecured, and the terms of any secured
debt; |
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the terms of the subordination of any series of subordinated debt; |
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the place where payments will be made; |
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our right, if any, to defer payment of interest and the maximum length of any such
deferral period; |
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the date, if any, after which, and the price at which, we may, at our option, redeem
the series of notes pursuant to any optional redemption provisions; |
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the date, if any, on which, and the price at which we are obligated, pursuant to any
mandatory sinking fund provisions or otherwise, to redeem, or at the holder’s option to
purchase, the series of notes; |
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whether the indenture will restrict our ability to pay dividends, or will require us
to maintain any asset ratios or reserves; |
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whether we will be restricted from incurring any additional indebtedness; |
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a discussion of any material or special United States federal income tax
considerations applicable to the notes; |
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the denominations in which we will issue the series of notes, if other than
denominations of $1,000 and any integral multiple thereof; and |
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any other specific terms, preferences, rights or limitations of, or restrictions on,
the debt securities. |
Conversion or Exchange Rights
We will set forth in the prospectus supplement the terms on which a series of notes may be
convertible into or exchangeable for common stock or other securities of ours. We will include
provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of shares of common stock or other
securities of ours that the holders of the series of notes receive would be subject to adjustment.
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Consolidation, Merger or Sale
The indentures will not contain any covenant which restricts our ability to merge or
consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our
assets. However, any successor to or acquirer of such assets must assume all of our obligations
under the indentures or the notes, as appropriate.
Events of Default Under the Indenture
The following will be events of default under the indentures with respect to any series of
notes that we may issue:
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if we fail to pay interest when due and our failure continues for 90 days and the
time for payment has not been extended or deferred; |
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if we fail to pay the principal, or premium, if any, when due and the time for
payment has not been extended or delayed; |
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if we fail to observe or perform any other covenant contained in the notes or the
indentures, other than a covenant specifically relating to another series of notes, and
our failure continues for 90 days after we receive notice from the debenture trustee or
holders of at least 25% in aggregate principal amount of the outstanding notes of the
applicable series; and |
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if specified events of bankruptcy, insolvency or reorganization occur as to us. |
If an event of default with respect to notes of any series occurs and is continuing, the
debenture trustee or the holders of at least 25% in aggregate principal amount of the outstanding
notes of that series, by notice to us in writing, and to the debenture trustee if notice is given
by such holders, may declare the unpaid principal of, premium, if any, and accrued interest, if
any, due and payable immediately.
The holders of a majority in principal amount of the outstanding notes of an affected series
may waive any default or event of default with respect to the series and its consequences, except
defaults or events of default regarding payment of principal, premium, if any, or interest, unless
we have cured the default or event of default in accordance with the indenture. Any such waiver
shall cure the default or event of default.
Subject to the terms of the indentures, if an event of default under an indenture shall occur
and be continuing, the debenture trustee will be under no obligation to exercise any of its rights
or powers under such indenture at the request or direction of any of the holders of the applicable
series of notes, unless such holders have offered the debenture trustee reasonable indemnity. The
holders of a majority in principal amount of the outstanding notes of any series will have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with
respect to the notes of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the
applicable indenture; and |
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subject to its duties under the Trust Indenture Act, the debenture trustee need not
take any action that might involve it in personal liability or might be unduly
prejudicial to the holders not involved in the proceeding. |
A holder of the notes of any series will only have the right to institute a proceeding under
the indentures or to appoint a receiver or trustee, or to seek other remedies if:
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the holder has given written notice to the debenture trustee of a continuing event of
default with respect to that series; |
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the holders of at least 25% in aggregate principal amount of the outstanding notes of
that series have made written request, and such holders have offered reasonable
indemnity, to the debenture trustee to institute the proceeding as trustee; and |
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the debenture trustee does not institute the proceeding, and does not receive from
the holders of a majority in aggregate principal amount of the outstanding notes of that
series other conflicting directions within 60 days after the notice, request and offer. |
These limitations do not apply to a suit instituted by a holder of notes if we default in the
payment of the principal, premium, if any, or interest on, the notes.
We will periodically file statements with the debenture trustee regarding our compliance with
specified covenants in the indentures.
Modification of Indenture; Waiver
We and the debenture trustee may change an indenture without the consent of any holders with
respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the indenture; and |
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to change anything that does not materially adversely affect the interests of any
holder of notes of any series. |
In addition, under the indentures, the rights of holders of a series of notes may be changed
by us and the debenture trustee with the written consent of the holders of at least a majority in
aggregate principal amount of the outstanding notes of each series that is affected. However, we
and the debenture trustee may only make the following changes with the consent of each holder of
any outstanding notes affected:
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extending the fixed maturity of the series of notes; |
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reducing the principal amount, reducing the rate of or extending the time of payment
of interest, or any premium payable upon the redemption of any notes; or |
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reducing the percentage of notes, the holders of which are required to consent to
any amendment. |
Discharge
Each indenture provides that we can elect to be discharged from our obligations with respect
to one or more series of debt securities, except for obligations to:
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register the transfer or exchange of debt securities of the series; |
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replace stolen, lost or mutilated debt securities of the series; |
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maintain paying agencies; |
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hold monies for payment in trust; |
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compensate and indemnify the trustee; and |
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appoint any successor trustee. |
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In order to exercise our rights to be discharged, we must deposit with the trustee money or
government obligations sufficient to pay all the principal of, any premium, if any, and interest
on, the debt securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the notes of each series only in fully registered form without coupons and,
unless we otherwise specify in the applicable prospectus supplement, in denominations of $1,000 and
any integral multiple thereof. The indentures provide that we may issue notes of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on
behalf of, The Depository Trust Company or another depository named by us and identified in a
prospectus supplement with respect to that series. See “Legal Ownership of Securities” for a
further description of the terms relating to any book-entry securities.
At the option of the holder, subject to the terms of the indentures and the limitations
applicable to global securities described in the applicable prospectus supplement, the holder of
the notes of any series can exchange the notes for other notes of the same series, in any
authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to global securities set
forth in the applicable prospectus supplement, holders of the notes may present the notes for
exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security
registrar or at the office of any transfer agent designated by us for this purpose. Unless
otherwise provided in the notes that the holder presents for transfer or exchange, we will make no
service charge for any registration of transfer or exchange, but we may require payment of any
taxes or other governmental charges.
We will name in the applicable prospectus supplement the security registrar, and any transfer
agent in addition to the security registrar, that we initially designate for any notes. We may at
any time designate additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, except that we will be
required to maintain a transfer agent in each place of payment for the notes of each series.
If we elect to redeem the notes of any series, we will not be required to:
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issue, register the transfer of, or exchange any notes of that series during a
period beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of any notes that may be selected for redemption and ending at the
close of business on the day of the mailing; or |
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register the transfer of or exchange any notes so selected for redemption, in whole
or in part, except the unredeemed portion of any notes we are redeeming in part. |
Information Concerning the Debenture Trustee
The debenture trustee, other than during the occurrence and continuance of an event of default
under an indenture, undertakes to perform only those duties as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the debenture trustee must use
the same degree of care as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to this provision, the debenture trustee is under no obligation to exercise any of
the powers given it by the indentures at the request of any holder of notes unless it is offered
reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement, we will make payment of
the interest on any notes on any interest payment date to the person in whose name the notes, or
one or more predecessor securities, are registered at the close of business on the regular record
date for the interest.
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We will pay principal of and any premium and interest on the notes of a particular series at
the office of the paying agents designated by us, except that unless we otherwise indicate in the
applicable prospectus supplement, will we make interest payments by check which we will mail to the
holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate
trust office of the debenture trustee in the City of New York as our sole paying agent for payments
with respect to notes of each series. We will name in the applicable prospectus supplement any
other paying agents that we initially designate for the notes of a particular series. We will
maintain a paying agent in each place of payment for the notes of a particular series.
All money we pay to a paying agent or the debenture trustee for the payment of the principal
of or any premium or interest on any notes which remains unclaimed at the end of two years after
such principal, premium or interest has become due and payable will be repaid to us, and the holder
of the security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the notes will be governed by and construed in accordance with the laws of
the State of New York, except to the extent that the Trust Indenture Act is applicable.
Subordination of Subordinated Notes
The subordinated notes will be unsecured and will be subordinate and junior in priority of
payment to certain of our other indebtedness to the extent described in a prospectus supplement.
The subordinated indenture does not limit the amount of subordinated notes which we may issue. It
also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
The following description, together with the additional information we may include in any
applicable prospectus supplement, summarizes the material terms and provisions of the warrants that
we may offer under this prospectus and the related warrant agreements and warrant certificates.
While the terms summarized below will apply generally to any warrants that we may offer, we will
describe the particular terms of any series of warrants in more detail in the applicable prospectus
supplement. If we so indicate in the prospectus supplement, the terms of any warrants offered under
that prospectus supplement may differ from the terms described below.
General
We may issue warrants for the purchase of common stock and/or debt securities in one or more
series. We may issue warrants independently or together with common stock and/or debt securities,
and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates that we will issue under a
separate agreement. We may enter into the warrant agreement with a warrant agent. Each warrant
agent will be a bank that we select which has its principal office in the United States and a
combined capital and surplus of at least $50,000,000. We will indicate the name and address of the
warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We will describe in the applicable prospectus supplement the terms of the series of warrants,
including:
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the offering price and aggregate number of warrants offered; |
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the currency for which the warrants may be purchased; |
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if applicable, the designation and terms of the securities with which the warrants
are issued and the number of warrants issued with each such security or each principal
amount of such security; |
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if applicable, the date on and after which the warrants and the related securities
will be separately transferable; |
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in the case of warrants to purchase debt securities, the principal amount of debt
securities purchasable upon exercise of one warrant and the price at, and currency in
which, this principal amount of debt securities may be purchased upon such exercise; |
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in the case of warrants to purchase common stock, the number of shares of common
stock purchasable upon the exercise of one warrant and the price at which these shares
may be purchased upon such exercise; |
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the effect of any merger, consolidation, sale or other disposition of our business
on the warrant agreement and the warrants; |
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the terms of any rights to redeem or call the warrants; |
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any provisions for changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants; |
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the dates on which the right to exercise the warrants will commence and expire; |
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the manner in which the warrant agreement and warrants may be modified; |
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federal income tax consequences of holding or exercising the warrants; |
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the terms of the securities issuable upon exercise of the warrants; and |
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any other specific terms, preferences, rights or limitations of or restrictions on
the warrants. |
Before exercising their warrants, holders of warrants will not have any of the rights of
holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of
principal of, or premium, if any, or interest on, the debt securities purchasable upon
exercise or to enforce covenants in the applicable indenture; or |
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in the case of warrants to purchase common stock, the right to receive dividends, if
any, or, payments upon our liquidation, dissolution or winding up or to exercise voting
rights, if any. |
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the
applicable prospectus supplement at the exercise price that we describe in the applicable
prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to 5:00 P.M. New York City time on the
expiration date that we set forth in the applicable prospectus supplement. After the close of
business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information, and paying the
required amount to the warrant agent in immediately available funds, as provided in the applicable
prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the
applicable prospectus supplement the information that the holder of the warrant will be required to
deliver to the warrant agent upon exercise of the warrants.
Upon receipt of the required payment and the warrant certificate properly completed and duly
executed at the corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement,
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we will issue and deliver the securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are exercised, then we will issue a new warrant
certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus
supplement, holders of the warrants may surrender securities as all or part of the exercise price
for warrants.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and
will not assume any obligation or relationship of agency or trust with any holder of any warrant. A
single bank or trust company may act as warrant agent for more than one issue of warrants. A
warrant agent will have no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at
law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent
of the related warrant agent or the holder of any other warrant, enforce by appropriate legal
action its right to exercise, and receive the securities purchasable upon exercise of, its
warrants.
LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more global securities. We
describe global securities in greater detail below. We refer to those persons who have securities
registered in their own names on the books that we or any applicable trustee maintain for this
purpose as the “holders” of those securities. These persons are the legal holders of the
securities. We refer to those persons who, indirectly through others, own beneficial interests in
securities that are not registered in their own names, as “indirect holders” of those securities.
As we discuss below, indirect holders are not legal holders, and investors in securities issued in
book-entry form or in street name will be indirect holders.
Book-Entry Holders
We may issue securities in book-entry form only, as we will specify in the applicable
prospectus supplement. This means securities may be represented by one or more global securities
registered in the name of a financial institution that holds them as depositary on behalf of other
financial institutions that participate in the depositary’s book-entry system. These participating
institutions, which are referred to as participants, in turn, hold beneficial interests in the
securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the holder of that
security. Securities issued in global form will be registered in the name of the depositary or its
participants. Consequently, for securities issued in global form, we will recognize only the
depositary as the holder of the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its participants, which in turn
pass the payments along to their customers who are the beneficial owners. The depositary and its
participants do so under agreements they have made with one another or with their customers; they
are not obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities directly. Instead,
they will own beneficial interests in a global security, through a bank, broker or other financial
institution that participates in the depositary’s book-entry system or holds an interest through a
participant. As long as the securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
Street Name Holders
We may terminate a global security or issue securities in non-global form. In these cases,
investors may choose to hold their securities in their own names or in “street name.” Securities
held by an investor in street name would be registered in the name of a bank, broker or other
financial institution that the investor chooses, and the investor would hold only a beneficial
interest in those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary banks, brokers and
other financial institutions in whose names the securities are registered as the holders of those
securities, and we will make
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all payments on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they agree to do so in
their customer agreements or because they are legally required to do so. Investors who hold
securities in street name will be indirect holders, not holders, of those securities.
Legal Holders
Our obligations, as well as the obligations of any applicable trustee and of any third parties
employed by us or a trustee, run only to the legal holders of the securities. We do not have
obligations to investors who hold beneficial interests in global securities, in street name or by
any other indirect means. This will be the case whether an investor chooses to be an indirect
holder of a security or has no choice because we are issuing the securities only in global form.
For example, once we make a payment or give a notice to the holder, we have no further
responsibility for the payment or notice even if that holder is required, under agreements with
depositary participants or customers or by law, to pass the payment or notice along to the indirect
holders but does not do so. Similarly, we may want to obtain the approval of the holders to amend
an indenture, to relieve us of the consequences of a default or of our obligation to comply with a
particular provision of the indenture or for other purposes. In such an event, we would seek
approval only from the holders, and not the indirect holders, of the securities. Whether and how
the holders contact the indirect holders is the responsibility of the holders.
Special Considerations for Indirect Holders
If you hold securities through a bank, broker or other financial institution, either in
book-entry form or in street name, you should check with your own institution to find out:
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how it handles securities payments and notices; |
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whether it imposes fees or charges; |
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how it would handle a request for the holders’ consent, if ever required; |
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whether and how you can instruct it to send you securities registered in your own
name so you can be a holder, if that is permitted in the future; |
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how it would exercise rights under the securities if there were a default or other
event triggering the need for holders to act to protect their interests; and |
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if the securities are in book-entry form, how the depositary’s rules and procedures
will affect these matters. |
Global Securities
A global security is a security held by a depositary which represents one or any other number
of individual securities. Generally, all securities represented by the same global securities will
have the same terms.
Each security issued in book-entry form will be represented by a global security that we
deposit with and register in the name of a financial institution or its nominee that we select. The
financial institution that we select for this purpose is called the depositary. Unless we specify
otherwise in the applicable prospectus supplement, The Depository Trust Company, New York, New
York, known as DTC, will be the depositary for all securities issued in book-entry form.
A global security may not be transferred to or registered in the name of anyone other than the
depositary, its nominee or a successor depositary, unless special termination situations arise. We
describe those situations below under “Special Situations When a Global Security Will Be
Terminated.” As a result of these arrangements, the
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depositary, or its nominee, will be the sole registered owner and holder of all securities
represented by a global security, and investors will be permitted to own only beneficial interests
in a global security. Beneficial interests must be held by means of an account with a broker, bank
or other financial institution that in turn has an account with the depositary or with another
institution that does. Thus, an investor whose security is represented by a global security will
not be a holder of the security, but only an indirect holder of a beneficial interest in the global
security.
If the prospectus supplement for a particular security indicates that the security will be
issued in global form only, then the security will be represented by a global security at all times
unless and until the global security is terminated. If termination occurs, we may issue the
securities through another book-entry clearing system or decide that the securities may no longer
be held through any book-entry clearing system.
Special Considerations for Global Securities
As an indirect holder, an investor’s rights relating to a global security will be governed by
the account rules of the investor’s financial institution and of the depositary, as well as general
laws relating to securities transfers. We do not recognize an indirect holder as a holder of
securities and instead deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor should be aware of
the following:
|
• |
|
an investor cannot cause the securities to be registered in his or her name, and
cannot obtain non-global certificates for his or her interest in the securities, except
in the special situations we describe below; |
|
|
• |
|
an investor will be an indirect holder and must look to his or her own bank or
broker for payments on the securities and protection of his or her legal rights
relating to the securities, as we describe under “Legal Ownership of Securities” above; |
|
|
• |
|
an investor may not be able to sell interests in the securities to some insurance
companies and to other institutions that are required by law to own their securities in
non-book-entry form; |
|
|
• |
|
an investor may not be able to pledge his or her interest in a global security in
circumstances where certificates representing the securities must be delivered to the
lender or other beneficiary of the pledge in order for the pledge to be effective; |
|
|
• |
|
the depositary’s policies, which may change from time to time, will govern payments,
transfers, exchanges and other matters relating to an investor’s interest in a global
security. We and any applicable trustee have no responsibility for any aspect of the
depositary’s actions or for its records of ownership interests in a global security. We
and the trustee also do not supervise the depositary in any way; |
|
|
• |
|
the depositary may, and we understand that DTC will, require that those who purchase
and sell interests in a global security within its book-entry system use immediately
available funds, and your broker or bank may require you to do so as well; and |
|
|
• |
|
financial institutions that participate in the depositary’s book-entry system, and
through which an investor holds its interest in a global security, may also have their
own policies affecting payments, notices and other matters relating to the securities.
There may be more than one financial intermediary in the chain of ownership for an
investor. We do not monitor and are not responsible for the actions of any of those
intermediaries. |
Special Situations When a Global Security Will Be Terminated
In a few special situations described below, the global security will terminate and interests
in it will be exchanged for physical certificates representing those interests. After that
exchange, the choice of whether to hold securities directly or in street name will be up to the
investor. Investors must consult their own banks or brokers to
16
find out how to have their interests in securities transferred to their own name, so that they
will be direct holders. We have described the rights of holders and street name investors above.
The global security will terminate when the following special situations occur:
|
• |
|
if the depositary notifies us that it is unwilling, unable or no longer qualified to
continue as depositary for that global security and we do not appoint another
institution to act as depositary within 90 days; |
|
|
• |
|
if we notify any applicable trustee that we wish to terminate that global security;
or |
|
|
• |
|
if an event of default has occurred with regard to securities represented by that
global security and has not been cured or waived. |
The prospectus supplement may also list additional situations for terminating a global
security that would apply only to the particular series of securities covered by the prospectus
supplement. When a global security terminates, the depositary, and not we or any applicable
trustee, is responsible for deciding the names of the institutions that will be the initial direct
holders.
PLAN OF DISTRIBUTION
We may sell or issue the securities being offered hereby in one or more of the following ways
from time to time:
|
• |
|
through dealers or agents to the public or to investors; |
|
|
• |
|
to underwriters for resale to the public or to investors; |
|
|
• |
|
directly to investors or others with whom we have business relationships; or |
|
|
• |
|
through a combination of such methods. |
We will set forth in a prospectus supplement the terms of the offering of securities,
including:
|
• |
|
the name or names of any agents, dealers or underwriters; |
|
|
• |
|
the purchase price of the securities being offered and the proceeds we will receive
from the sale; |
|
|
• |
|
any over-allotment options under which underwriters may purchase additional
securities from us; |
|
|
• |
|
any agency fees or underwriting discounts and other items constituting agents’ or
underwriters’ compensation; |
|
|
• |
|
any initial public offering price; |
|
|
• |
|
any discounts or concessions allowed or reallowed or paid to dealers; and |
|
|
• |
|
any securities exchanges on which the securities may be listed. |
Underwriters, dealers and agents that participate in the distribution of the securities may be
deemed to be underwriters as defined in the Securities Act and any discounts or commissions they
receive from us and any profit on their resale of the securities may be treated as underwriting
discounts and commissions under the Securities Act. We will identify in the applicable prospectus
supplement any underwriters, dealers or agents and will describe their compensation. We may have
agreements with the underwriters, dealers and agents to indemnify them against specified civil
liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may
engage in transactions with or perform services for us or our subsidiaries in the ordinary course
of their businesses.
17
Certain persons that participate in the distribution of the securities may engage in
transactions that stabilize, maintain or otherwise affect the price of the securities, including
over-allotment, stabilizing and short-covering transactions in such securities, and the imposition
of penalty bids, in connection with an offering. Certain persons may also engage in passive market
making transactions as permitted by Rule 103 of Regulation M. Passive market makers must comply
with applicable volume and price limitations and must be identified as passive market makers. In
general, a passive market maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are lowered below the passive market
maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase
limits are exceeded.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Massachusetts, will provide us
with an opinion as to the legal matters in connection with the securities we are offering.
EXPERTS
The
financial statements of OXiGENE, Inc. appearing in OXiGENE,
Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2007, and the effectiveness of OXiGENE, Inc.’s internal
control over financial reporting as of December 31, 2007, have been audited by Ernst & Young LLP,
independent registered public accounting firm, as set forth in their reports thereon, included
therein, and incorporated herein by reference. Such financial statements are, and audited financial
statements to be included in subsequently filed documents will be, incorporated herein in reliance
upon the reports of Ernst & Young LLP pertaining to such financial statements and the effectiveness
of our internal control over financial reporting as of the respective dates (to the extent covered
by consents filed with the Securities and Exchange Commission) given on the authority of such firm
as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at the SEC’s Public
Reference Room at Station Place, 100 F Street, N.E., Washington, D.C. 20549. You can request copies
of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC
at 1-800-SEC-0330 for more information about the operation of the Public Reference Room. Our SEC
filings are also available to the public at the SEC’s web site at http://www.sec.gov, and on our
web site at http://www.oxigene.com. The information contained on our web site is not included or
incorporated by reference into this prospectus. In addition, our common stock is listed for trading
on The NASDAQ Global Market under the symbol “OXGN.” You can read and copy reports and other
information concerning us at the offices of the Financial Industry Reporting Authority located at
1735 K Street, N.W., Washington, D.C. 20006.
This prospectus is only part of a Registration Statement on Form S-3 that we have filed with
the SEC under the Securities Act, and therefore omits certain information contained in the
Registration Statement. We have also filed exhibits and schedules with the Registration Statement
that are excluded from this prospectus, and you should refer to the applicable exhibit or schedule
for a complete description of any statement referring to any contract or other document. You may:
|
• |
|
inspect a copy of the Registration Statement, including the exhibits and schedules,
without charge at the Public Reference Room, |
|
|
• |
|
obtain a copy from the SEC upon payment of the fees prescribed by the SEC, or |
|
|
• |
|
obtain a copy from the SEC’s web site or our web site. |
18
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with it, which means
that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this prospectus and information
we file later with the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made by us with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). The documents we are incorporating by reference as of their respective dates of
filing are:
|
• |
|
Our Annual Report on Form 10-K for the year ended December 31, 2007 filed on March
14, 2008 (File No. 000-21990); |
|
|
• |
|
Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2008
filed on May 12, 2008 (File No. 000-21990); |
|
|
• |
|
Our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2008 filed
on August 8, 2008 (File No. 000-21990); |
|
|
• |
|
Our Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2008
filed on November 7, 2008 (File No. 000-21990); |
|
|
• |
|
Our Current Report on Form 8-K filed on February 21, 2008 (File No. 000-21990); |
|
|
• |
|
Our Current Report on Form 8-K filed on July 15, 2008 (File No. 000-21990); |
|
|
• |
|
Our Current Report on Form 8-K filed on October 1, 2008 (File No. 000-21990); |
|
|
• |
|
Amendment No. 1 to our Current Report on Form 8-K/A filed on October 10, 2008 (File
No. 000-21990); |
|
|
• |
|
Our Current Report on Form 8-K filed on October 24, 2008 (File No. 000-21990); |
|
|
• |
|
Our Current Report on Form 8-K filed on October 27, 2008 (File No. 000-21990); |
|
|
• |
|
Our Definitive Proxy Statement on Schedule 14A for the 2008 annual meeting of
stockholders filed on April 28, 2008 (File No. 000-21990); |
|
|
• |
|
The description of our common stock contained in our Registration Statement on Form
8-A filed on June 24, 1993 (File No. 0-21990) pursuant to Section 12(g) of the Exchange
Act, which incorporates by reference the description of the shares of our common stock
contained in our Registration Statement on Form S-1 (File No. 33-64968) filed on June
24, 1993 and declared effective by the SEC on August 25, 1993, including any amendment
or reports filed for the purpose of updating such description; and |
|
|
• |
|
The description of the Rights under the Stockholder Rights Agreement (which are
currently transferred with the Registrant’s common stock) contained in the Registrant’s
Registration Statement on Form 8-A12G (File No. 000-21990) filed under the Exchange Act
on March 30, 2005, including any amendment or reports filed for the purpose of updating
such description. |
You may request, orally or in writing, a copy of these filings, which will be provided to you
at no cost, by contacting our investor relations department at our principal executive offices,
which are located at 230 Third Avenue, Waltham, MA 02451, Attention: Investor Relations, Telephone:
(781) 547-5900.
19
To the extent that any statements contained in a document incorporated by reference are
modified or superseded by any statements contained in this prospectus, such statements shall not be
deemed incorporated into this prospectus except as so modified or superseded.
We also incorporate by reference all documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, including all such documents filed after the date of
the initial registration statement and prior to effectiveness of the registration statement, and
all such documents filed after the date of this prospectus and prior to the termination of this
offering, which documents shall become a part of this prospectus from the date such documents are
filed. Any statement contained in this prospectus or in a document incorporated by reference is
modified or superseded for purposes of this prospectus to the extent that a statement contained in
any subsequent filed document modifies or supersedes such statement.
20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the Company’s estimates (other than the SEC registration fee)
of the expenses in connection with the issuance and distribution of the securities being
registered, other than underwriting discounts and commissions.
|
|
|
|
|
Item |
|
Amount |
|
|
SEC registration fee |
|
$ |
89.76 |
|
Legal fees and expenses |
|
|
30,000 |
|
Accounting fees and expenses |
|
|
10,000 |
|
Printing fees |
|
|
5,000 |
|
Miscellaneous fees and expenses |
|
|
5,000 |
|
|
Total |
|
$ |
50,089.76 |
|
|
|
|
|
Item 15. Indemnification of Directors and Officers
Subsection (a) of Section 145 of the General Corporation Law of Delaware (the “DGCL”) empowers
a corporation to indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in its favor by reason
of the fact that such person acted in any of the capacities set forth above, against expenses
(including attorneys’ fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and except that no
indemnification may be made with respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all of the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 145 of the DGCL further provides that to the extent a director, officer, employee or
agent of a corporation has been successful on the merits or otherwise in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and
reasonably incurred by him in connection therewith; that indemnification or advancement of expenses
provided for by Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and empowers the corporation to purchase and maintain insurance
on behalf of a director, officer, employee or agent of the corporation against any liability
asserted against
him or incurred by him in any such capacity or arising out of his status as such whether or
not the corporation would have the power to indemnify him against such liabilities under Section
145.
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 a director’s fiduciary duty, 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 which involve intentional misconduct or a knowing violation of law,
(iii) under 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 the
director derived an improper personal benefit.
Article Ninth of our restated certificate of incorporation, as amended, provides that, to the
fullest extent permitted by the DGCL, a director shall not 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 which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction
from which the director derived an improper personal benefit.
Article IX, Section 3 of our amended and restated by-laws provides that we shall, to the
fullest extent permitted by the DGCL, indemnify our directors and may, if authorized by our board
of directors, indemnify our officers, employees and agents and any and all persons whom we shall
have power to indemnify against any and all expenses, liabilities or other matters.
We have entered into an indemnification agreement with each of our directors, in order to
provide consistent indemnification arrangements for all directors. The indemnification agreement
provides that each director who was or is made a party or is threatened to be made a party to any
action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of
the fact that he is or was one of the Company’s directors, shall be indemnified by the Company to
the fullest extent authorized by the Delaware General Corporation Law against all expense,
liability and loss (including attorneys’ fees, judgments, fines or penalties and amounts paid in
settlement) reasonably incurred in connection with such legal proceedings. A director will not
receive indemnification under this agreement if he is found not to have acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the Company’s best interests.
Item 16. Exhibits
(a) Exhibits.
|
|
|
Exhibit |
|
|
Number |
|
Description of Document |
|
|
|
1.1*
|
|
The form of equity underwriting agreement will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference. |
|
|
|
1.2*
|
|
The form of debt underwriting agreement will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference. |
|
|
|
4.1#
|
|
Stockholder Rights Agreement. |
|
|
|
4.2##
|
|
Amendment No. 1 to Stockholder Rights Agreement. |
|
|
|
4.3%
|
|
Warrant for the purchase of shares of common stock, dated February 19, 2008, issued by the Registrant to Kingsbridge Capital Limited. |
|
|
|
4.4##
|
|
Warrant for the purchase of shares of common stock, dated October 17, 2008, issued by the Registrant to Symphony ViDA Holdings LLC. |
|
|
|
Exhibit |
|
|
Number |
|
Description of Document |
|
4.5*
|
|
Form of Indenture relating to senior debt securities. |
|
|
|
4.6*
|
|
Form of Indenture relating to subordinated debt securities. |
|
|
|
4.7**
|
|
Specimen Common Stock Certificate. |
|
|
|
4.8*
|
|
The form of any senior note with respect to each particular series of senior notes issued hereunder will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference. |
|
|
|
4.9*
|
|
The form of any subordinated note with respect to each particular series of subordinated notes issued hereunder will be filed as an exhibit to a Current Report on the Registrant on Form 8-K and
incorporated hereby by reference. |
|
|
|
4.10*
|
|
The form of any warrant will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference. |
|
|
|
5.1
|
|
Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding legality of securities being registered. |
|
|
|
23.1
|
|
Consent of Ernst & Young LLP. |
|
|
|
24.1
|
|
Power of Attorney (included on signature page). |
|
|
|
25.1*
|
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture will be incorporated herein by reference from a subsequent
filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939. |
|
|
|
25.2*
|
|
The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture will be incorporated herein by reference from a
subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939. |
|
|
|
* |
|
To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act. |
|
** |
|
Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No.
33-64968) and any amendments thereto. |
|
# |
|
Incorporated by reference to the Registrant’s Registration Statement on Form 8-A12G. |
|
## |
|
Incorporated by reference to Amendment No. 1 to the Registrant’s Current Report on Form 8-K/A
filed on October 10, 2008. |
|
% |
|
Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed on February
21, 2008. |
Item 17. Undertakings
(a) |
|
The undersigned Registrant hereby undertakes: |
|
(1) |
|
To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: |
|
(i) |
|
To include any prospectus required by Section 10(a)(3) of the Securities Act of
1933; |
|
(ii) |
|
To reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement; and |
|
(iii) |
|
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; |
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not
apply if the registration statement is on Form S-3 (§239.13
of this chapter) or Form F-3 (§239.33
of this chapter) and the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) (§230.424(b) of this chapter) that is part of the registration
statement.
|
(2) |
|
That, for the purpose of determining any liability under the Securities Act of
1933, 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. |
|
|
(3) |
|
To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering. |
|
|
(4) |
|
That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser: |
|
(i) |
|
If the registrant is relying on Rule 430B (§230.430B of this chapter): |
|
(A) |
|
Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) (§230.424(b)(3) of this chapter) shall be
deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration
statement; and |
|
|
(B) |
|
Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5), or (b)(7) (§230.424(b)(2), (b)(5), or (b)(7)
of this chapter) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii), or (x) (§230.415(a)(1)(i), (vii), or (x) of this chapter) for
the purpose of providing the information required by section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such form
of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to
which that prospectus relates, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
Provided, however, that no statement made in a registration statement
or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration |
|
|
|
statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such
effective date; or |
|
(ii) |
|
If the registrant is subject to Rule 430C (§230.430C of this
chapter), each prospectus filed pursuant to Rule 424(b) as part of a
registration statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses filed in reliance on
Rule 430A (§230.430A of this chapter), shall be deemed to be part of and
included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such first use, supersede
or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use. |
|
(5) |
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That, for the purpose of determining liability of the registrant under the
Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
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The undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser: |
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(i) |
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Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to Rule 424
(§230.424 of this chapter); |
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(ii) |
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Any free writing prospectus relating to the offering prepared
by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant; |
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(iii) |
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The portion of any other free writing prospectus relating to
the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
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Any other communication that is an offer in the offering made
by the undersigned registrant to the purchaser. |
(b) |
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the 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. |
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(c) |
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant 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 Registrant will, unless in the opinion
of its counsel the |
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matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue. |
(d) |
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The undersigned registrant hereby undertakes to file an application for the purpose of
determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act. |
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 Waltham, Commonwealth of Massachusetts on the 14th day of
November, 2008.
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OXiGENE, INC.
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By: |
/s/ James B. Murphy
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James B. Murphy |
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Vice President and Chief Financial Officer |
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POWER OF ATTORNEY
The registrant and each person whose signature appears below constitutes and appoints John A.
Kollins and James B. Murphy, and each of them singly, his, her or its true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution, for him, her or
it and in his, her or its name, place and stead, in any and all capacities, to sign and file any
and all amendments (including post-effective amendments) to this Registration Statement, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as he, she, or it might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them,
or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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Chairman of the Board and Director
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November 14, 2008 |
Joel-Tomas Citron |
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Chief Executive Officer and Director
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November 14, 2008 |
John A. Kollins
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(Principal executive officer) |
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Vice President and Chief Financial
Officer
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November 14, 2008 |
James B. Murphy
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(Principal financial and accounting
officer) |
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Director
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November 14, 2008 |
Roy H. Fickling |
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Director
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November 14, 2008 |
Mark Kessel |
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Director
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November 14, 2008 |
Arthur B. Laffer, Ph.D. |
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Signature |
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Title |
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Date |
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/s/ William D. Schwieterman
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Director
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November 14, 2008 |
William D. Schwieterman, M.D. |
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Director
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November 14, 2008 |
William N. Shiebler |
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Director
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November 14, 2008 |
Per-Olof Söderberg |
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Director
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November 14, 2008 |
Alastair J.J. Wood, M.D. |
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EXHIBIT INDEX
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Exhibit |
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Number |
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Description of Document |
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1.1*
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The form of equity underwriting agreement will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference. |
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1.2*
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The form of debt underwriting agreement will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference. |
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4.1#
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Stockholder Rights Agreement. |
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4.2##
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Amendment No. 1 to Stockholder Rights Agreement. |
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4.3%
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Warrant for the purchase of shares of common stock, dated February 19, 2008, issued by the Registrant to Kingsbridge Capital Limited. |
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4.4##
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Warrant for the purchase of shares of common stock, dated October 17, 2008, issued by the Registrant to Symphony ViDA Holdings LLC. |
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4.5*
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Form of Indenture relating to senior debt securities. |
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4.6*
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Form of Indenture relating to subordinated debt securities. |
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4.7**
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Specimen Common Stock Certificate. |
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4.8*
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The form of any senior note with respect to each particular series of senior notes issued hereunder will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference. |
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4.9*
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The form of any subordinated note with respect to each particular series of subordinated notes issued hereunder will be filed as an exhibit to a Current Report on the Registrant on Form 8-K and
incorporated hereby by reference. |
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4.10*
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The form of any warrant will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference. |
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5.1
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. regarding legality of securities being registered. |
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23.1
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Consent of Ernst & Young LLP. |
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24.1
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Power of Attorney (included on signature page). |
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25.1*
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The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture will be incorporated herein by reference from a subsequent
filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939. |
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25.2*
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The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture will be incorporated herein by reference from a
subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939. |
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* |
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To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d)
of the Exchange Act. |
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** |
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Incorporated by reference to the Registrant’s Registration Statement on Form S-1 (File No.
33-64968) and any amendments thereto. |
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# |
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Incorporated by reference to the Registrant’s Registration Statement on Form 8-A12G. |
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## |
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Incorporated by reference to Amendment No. 1 to the Registrant’s Current Report on Form 8-K/A
filed on October 10, 2008. |
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Incorporated by reference to the Registrant’s Current Report on Form 8-K, filed on February
21, 2008. |