-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, R4YukqSV9aUpanfkmFREZZTWW9vWsfO9UVt48NRWexD2a7tgRahp22ZCuUJC/sST wpbPDbZnV60tHuK46lZizw== 0000950142-08-001663.txt : 20081010 0000950142-08-001663.hdr.sgml : 20081010 20081010123649 ACCESSION NUMBER: 0000950142-08-001663 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20081010 DATE AS OF CHANGE: 20081010 GROUP MEMBERS: HARRI V. TARANTO GROUP MEMBERS: MARK KESSEL GROUP MEMBERS: SYMPHONY CAPITAL GP, L.P. GROUP MEMBERS: SYMPHONY CAPITAL PARTNERS, L.P. GROUP MEMBERS: SYMPHONY GP, LLC GROUP MEMBERS: SYMPHONY VIDA HOLDINGS LLC FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: KESSEL MARK CENTRAL INDEX KEY: 0001222013 FILING VALUES: FORM TYPE: SC 13D MAIL ADDRESS: STREET 1: 950 PARK AVE APT. 11A CITY: NEW YORK STATE: NY ZIP: 10028 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: OXIGENE INC CENTRAL INDEX KEY: 0000908259 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 133679168 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-45691 FILM NUMBER: 081117713 BUSINESS ADDRESS: STREET 1: 321 ARSENAL STREET CITY: WATERTOWN STATE: MA ZIP: 02472 BUSINESS PHONE: 6176737800 SC 13D 1 sc13d_oxi.htm SCHEDULE 13D
 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

 

Washington, D.C. 20549

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

 

OXiGENE, Inc.

(Name of Issuer)


Common Stock, Par Value $0.01 Per Share

(Title of Class of Securities)



691828107

(CUSIP Number)

 

Mark Kessel
Symphony Capital Partners, L.P.
875 Third Avenue

18th Floor
New York, NY 10022
(212) 632-5400

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

October 1, 2008

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 691828107

Page 2 of 17 Pages

SCHEDULE 13D

 

1

NAME OF REPORTING PERSON

Symphony Capital Partners, L.P.

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP


(a)    o
(b)    x

3

SEC USE ONLY

 

 

 

4

SOURCE OF FUNDS

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)



        o

6

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH

7


8


9


10

SOLE VOTING POWER
-0-

SHARED VOTING POWER
5,835,241

SOLE DISPOSITIVE POWER
-0-

SHARED DISPOSITIVE POWER
5,835,241

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,835,241

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:



        o

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

16.67% (1)

14

TYPE OF REPORTING PERSON

PN

 

-------------------------

 

(1)

Based on the Issuer's representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to the Reporting Persons as described herein.

 


CUSIP No. 691828107

Page 3 of 17 Pages

SCHEDULE 13D

 

1

NAME OF REPORTING PERSON

Symphony Capital GP, L.P.

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP


(a)    o
(b)    x

3

SEC USE ONLY

 

 

 

4

SOURCE OF FUNDS

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)



        o

6

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH

7


8


9


10

SOLE VOTING POWER
-0-

SHARED VOTING POWER
5,835,241

SOLE DISPOSITIVE POWER
-0-

SHARED DISPOSITIVE POWER
5,835,241

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,835,241

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:



        o

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

16.67% (2)

14

TYPE OF REPORTING PERSON

PN

 

-------------------------

 

(2)

Based on the Issuer's representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to the Reporting Persons as described herein.

 


CUSIP No. 691828107

Page 4 of 17 Pages

SCHEDULE 13D

 

1

NAME OF REPORTING PERSON

Symphony GP, LLC

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP


(a)    o
(b)    x

3

SEC USE ONLY

 

 

 

4

SOURCE OF FUNDS

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)



        o

6

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH

7


8


9


10

SOLE VOTING POWER
-0-

SHARED VOTING POWER
5,835,241

SOLE DISPOSITIVE POWER
-0-

SHARED DISPOSITIVE POWER
5,835,241

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,835,241

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:



        o

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

16.67% (3)

14

TYPE OF REPORTING PERSON

PN

 

-------------------------

 

(3)

Based on the Issuer's representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to the Reporting Persons as described herein.

 


CUSIP No. 691828107

Page 5 of 17 Pages

SCHEDULE 13D

 

1

NAME OF REPORTING PERSON

Mark Kessel

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP


(a)    o
(b)    x

3

SEC USE ONLY

 

 

 

4

SOURCE OF FUNDS

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)



        o

6

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH

7


8


9


10

SOLE VOTING POWER
-0-

SHARED VOTING POWER
5,835,241

SOLE DISPOSITIVE POWER
-0-

SHARED DISPOSITIVE POWER
5,835,241

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,835,241

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:



        o

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

16.67% (4)

14

TYPE OF REPORTING PERSON

IN

 

-------------------------

 

(4)

Based on the Issuer's representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to the Reporting Persons as described herein.

 


CUSIP No. 691828107

Page 6 of 17 Pages

SCHEDULE 13D

 

1

NAME OF REPORTING PERSON

Harri V. Taranto

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP


(a)    o
(b)    x

3

SEC USE ONLY

 

 

 

4

SOURCE OF FUNDS

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)



        o

6

CITIZENSHIP OR PLACE OF ORGANIZATION

United States

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH

7


8


9


10

SOLE VOTING POWER
-0-

SHARED VOTING POWER
5,835,241

SOLE DISPOSITIVE POWER
-0-

SHARED DISPOSITIVE POWER
5,835,241

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,835,241

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:



        o

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

16.67% (5)

14

TYPE OF REPORTING PERSON

IN

 

-------------------------

 

(5)

Based on the Issuer's representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to the Reporting Persons as described herein.

 

CUSIP No. 691828107

Page 7 of 17 Pages

SCHEDULE 13D

 

1

NAME OF REPORTING PERSON

Symphony ViDA Holdings LLC

2

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP


(a)    o
(b)    x

3

SEC USE ONLY

 

 

 

4

SOURCE OF FUNDS

OO

5

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)



        o

6

CITIZENSHIP OR PLACE OF ORGANIZATION

Delaware

NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH

7


8


9


10

SOLE VOTING POWER
-0-

SHARED VOTING POWER
5,835,241

SOLE DISPOSITIVE POWER
-0-

SHARED DISPOSITIVE POWER
5,835,241

11

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

5,835,241

12

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:



        o

13

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

16.67% (6)

14

TYPE OF REPORTING PERSON

PN

 

-------------------------

 

(6)

Based on the Issuer's representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to the Reporting Persons as described herein.

 


CUSIP No. 691828107

Page 8 of 17 Pages

SCHEDULE 13D

 

ITEM 1.

SECURITY AND ISSUER

 

This Statement on Schedule 13D (this “Statement”) relates to the common stock, par value $0.01 per share (the “Common Stock”), of OXiGENE, Inc., a Delaware corporation (the “Issuer”). The address of the principal executive offices of the Issuer is 230 Third Avenue, Waltham, MA 02451.

 

ITEM 2.

IDENTITY AND BACKGROUND.

 

(a)    The names of the persons filing under this Statement are Symphony Capital Partners, L.P. (“SCP”), Symphony Capital GP, L.P., Symphony GP, LLC, Mark Kessel, Harri V. Taranto and Symphony ViDA Holdings LLC (“Holdings” and collectively, the “Reporting Persons”).

(b)    The business address of each of the Reporting Persons is 875 Third Avenue, 18th Floor, New York, NY 10022.

(c)


Name of Reporting Person


Principal Business/Occupation

Symphony Capital Partners, L.P.

Manager of Symphony ViDA Holdings LLC and involved in purchasing, holding and selling securities and other investments.

 

Symphony Capital GP, L.P.

General Partner of Symphony Capital Partners, L.P.

 

Symphony GP, LLC

General Partner of Symphony Capital GP, L.P.

 

Mark Kessel

Managing Member of Symphony GP, LLC

 

Harri V. Taranto

Managing Member of Symphony GP, LLC

 

Symphony ViDA Holdings LLC

Involved in purchasing, holding and selling securities and other investments.

 

(d)    During the past five years, none of the persons referred to in paragraph (a) above has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e)    During the past five years, none of the persons referred to in paragraph (a) above has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 


CUSIP No. 691828107

Page 9 of 17 Pages

SCHEDULE 13D

 

Name of Reporting Person

Citizenship 

Symphony Capital Partners, L.P.

Delaware limited partnership.

 

Symphony Capital GP, L.P.

Delaware limited partnership.

 

Symphony GP, LLC

Delaware limited liability company.

 

Mark Kessel

United States citizen.

 

Harri V. Taranto

United States citizen.

 

Symphony ViDA Holdings LLC

Delaware limited liability company.

 

 

 

ITEM 3.

SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

 

On October 1, 2008, Holdings entered into a Stock and Warrant Purchase Agreement (the “SWPA”) with the Issuer. The SWPA contemplates Holdings purchasing 5,835,241 shares of Common Stock from the Issuer on October 17, 2008. Holdings will pay cash in the amount of $2,477,117.07 for 2,231,637 shares of Common Stock, based on the $1.11 closing market price for the Common Stock on September 30, 2008, and will receive 3,603,604 shares of Common Stock as consideration for entering into a Purchase Option Agreement, dated as of October 1, 2008 (the “Purchase Option Agreement”) with the Issuer and Symphony ViDA, Inc., a Delaware corporation (the “Symphony Collaboration”). The Purchase Option Agreement is described in greater detail in Item 6 below. Holdings will receive the cash to purchase the shares of Common Stock from Symphony ViDA Investors LLC, a Delaware limited liability company formed by SCP (“Investors”). Investors will receive capital contributions from its members, which it in turn will contribute to Holdings in consideration for its admission as a member of Holdings.


 

ITEM 4.

PURPOSE OF TRANSACTION.

 

On July 31, 2008, Holdings formed and capitalized the Symphony Collaboration in order (a) to hold certain intellectual property related to two of the Issuer’s product candidates, ZYBRESTAT for use in ophthalmologic indications and OXi4503 (the “Programs”), which were exclusively licensed to the Symphony Collaboration under the Novated Technology License Agreement (described below) and (b) to fund commitments in the amount of up to $40 million, which will support pre-clinical and clinical development by the Issuer, on behalf of the Symphony Collaboration, of the Programs.

 

 

 


CUSIP No. 691828107

Page 10 of 17 Pages

SCHEDULE 13D

 

As described in Item 3, the Issuer has agreed to issue and sell to Holdings, pursuant to the SWPA, (1) an aggregate of 5,835,241 shares of Common Stock, and (2) a ten-year warrant to purchase 11,281,877 shares of Common Stock (the “Warrant”) at an exercise price of $1.11 per share, the closing price of the Common Stock on the Nasdaq Global Market on September 30, 2008. Holdings may not exercise the Warrant (subject to limited exceptions) until the Issuer’s stockholders have approved the issuance and sale to Holdings of the Common Stock underlying the Warrant (the “Stockholder Approval”). Pursuant to the SWPA, the Issuer has agreed to hold a special meeting of its stockholders to obtain the Stockholder Approval prior to December 15, 2008. The Issuer may issue additional shares of Common Stock and warrants in the event of specified events under the Additional Funding Agreement, the Novated Technology License Agreement and the Purchase Option Agreement (each described below). In addition, the Issuer has given Holdings (or its affiliates) the right to appoint two members to the Issuer’s Board of Directors (subject to certain ownership thresholds).

With respect to the Common Stock, each of the Reporting Persons expects to evaluate on an ongoing basis the Issuer’s financial condition and prospects and their interest in, and intentions with respect to, the Issuer. Accordingly, each of the Reporting Persons reserves the right to change their plans and intentions at any time, as they deem appropriate. As a result, each of the Reporting Persons may suggest or take a position (including by contacting management and other stockholders of the Issuer) with respect to potential changes in the operations, management, or capital structure of the Issuer as a means of enhancing shareholder value. Such suggestions or positions may include one or more plans or proposals that relate to or would result in any of the actions required to be reported herein.


 

ITEM 5.  

INTEREST IN SECURITIES OF THE ISSUER.

 

(a)    Upon the issuance and sale of the Common Stock contemplated by the SWPA on October 17, 2008, each the Reporting Persons may be deemed to own the following shares of Common Stock:

 

(i)

Symphony Capital Partners, L.P.

Number of Shares of Common Stock: 5,835,241

Percentage Outstanding Common Stock: 16.67%

 

(ii)

Symphony Capital GP, L.P.

Number of Shares of Common Stock: 5,835,241

Percentage Outstanding Common Stock: 16.67%

 

(iii)

Symphony GP, LLC

Number of Shares of Common Stock: 5,835,241

Percentage Outstanding Common Stock: 16.67%

 


CUSIP No. 691828107

Page 11 of 17 Pages

SCHEDULE 13D

 

 

(iv)

Mark Kessel

Number of Shares of Common Stock: 5,835,241

Percentage Outstanding Common Stock: 16.67%

 

(v)

Harri V. Taranto

Number of Shares of Common Stock: 5,835,241

Percentage Outstanding Common Stock: 16.67%

 

(vi)

Symphony ViDA Holdings LLC

Number of Shares of Common Stock: 5,835,241

Percentage Outstanding Common Stock: 16.67%

The percentage of the Common Stock beneficially owned or deemed to be beneficially owned by each of the Reporting Persons as set forth above is based on the Issuer’s representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to Holdings as described herein.

(b)    Upon the issuance and sale of Common Stock contemplated by the SWPA on October 17, 2008, each of the Reporting Persons may be deemed to hold the following voting and investment power:

 

(i)

Symphony Capital Partners, L.P.

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 5,835,241 shares

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or to direct the disposition: 5,835,241 shares

 

(ii)

Symphony Capital GP, L.P.

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 5,835,241 shares

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or to direct the disposition: 5,835,241 shares

 

(iii)

Symphony GP, LLC

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 5,835,241 shares

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or to direct the disposition: 5,835,241 shares

 

(iv)

Mark Kessel

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 5,835,241 shares

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or to direct the disposition: 5,835,241 shares

 


CUSIP No. 691828107

Page 12 of 17 Pages

SCHEDULE 13D

 

 

(v)

Harri V. Taranto

Sole power to vote or direct the vote: 0

Shared power to vote or direct the vote: 5,835,241 shares

Sole power to dispose or to direct the disposition: 0

Shared power to dispose or to direct the disposition: 5,835,241 shares

 

(vi)

Symphony ViDA Holdings LLC

Sole power to vote or direct the vote: 5,835,241 shares

Shared power to vote or direct the vote: 0

Sole power to dispose or to direct the disposition: 5,835,241 shares

Shared power to dispose or to direct the disposition: 0

The voting and disposition power of the Common Stock beneficially owned or deemed to be beneficially owned by each of the Reporting Persons as set forth above is based on the Issuer’s representation that it had 29,176,207 shares outstanding as of October 1, 2008, plus the 5,835,241 shares that will be issued and sold to Holdings as described herein.

(c)    During the last 60 days, none of the Reporting Persons has held any shares of the Common Stock.

(d)    Not applicable.

(e)    Not applicable.


 

ITEM 6.

CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIP WITH RESPECT TO SECURITIES OF THE ISSUER.

 

The disclosure under Item 3 and Item 4 hereof is incorporated by reference.

Novated and Restated Technology License Agreement

On October 1, 2008, the Issuer entered into a Technology License Agreement, which was immediately amended and restated by a Novated and Restated Technology License Agreement (the “Novated Technology License Agreement”), with Holdings and the Symphony Collaboration, pursuant to which the Issuer granted to the Symphony Collaboration an exclusive right to develop and commercialize the Programs. Under the Novated Technology License Agreement, if the Issuer believes in good faith that the licensing and/or commercialization of a Zybrestat Compound (as defined therein) for use in any oncology indication will be benefited by prohibiting the Symphony Collaboration from conducting IV Commercialization Activities (as defined therein), the Issuer shall give a written notice to the Symphony Collaboration stating that the Symphony Collaboration shall be prohibited from conducting any future IV Commercialization Activities (the “Non-IV Notice”).

 


CUSIP No. 691828107

Page 13 of 17 Pages

SCHEDULE 13D

 

Stock and Warrant Purchase Agreement

Concurrently with the execution and delivery of the Novated Technology License Agreement, Holdings entered into the SWPA with the Issuer, pursuant to which the Issuer agreed to issue to Holdings an aggregate of 3,603,604 shares of Common Stock (such shares, the “Option Premium Shares”) as consideration for entering into the Purchase Option Agreement (as described below). In addition, pursuant to the terms of the SWPA, Holdings agreed to purchase for cash, in the amount of up to $15,000,000, and the Issuer agreed to issue and sell to Holdings (1) an aggregate of 2,231,637 shares of Common Stock, and (2) the Warrant.

The SWPA further provides that, if the Issuer issues a Non-IV Notice to the Symphony Collaboration, Holdings shall have the right to purchase, subject to certain conditions, either 2,000,000 shares or 4,000,000 shares of Common Stock (the “Non-IV Shares”) at a price equal to $1.22 per share. If the issuance and purchase of the Non-IV Shares is not permitted under the applicable exchange rules or other laws, the Issuer will issue warrants to Holdings to purchase the applicable number of Non-IV Shares.

The Issuer’s issuance of the 11,281,877 shares of Common Stock underlying the Warrant to Holdings, as contemplated in the SWPA, is subject to Stockholder Approval. The Issuer has agreed to hold a special meeting of its stockholders to obtain Stockholder Approval prior to December 15, 2008. In addition, the Issuer has given Holdings (or its affiliates) the right to appoint two members to the Issuer’s Board of Directors (subject to certain ownership thresholds).

The SWPA contains customary representations and warranties and indemnification provisions.

Purchase Option Agreement

Concurrently with the execution and delivery of the Novated Technology License Agreement and the SWPA, Holdings, the Issuer and the Symphony Collaboration entered into a Purchase Option Agreement, pursuant to which the Issuer has been granted an exclusive right, but not the obligation, to repurchase both Programsby acquiring 100% of the equity of the Symphony Collaboration 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 the Symphony Collaboration, less certain amounts. The purchase price is payable in cash or a combination of cash and shares of Common Stock (up to 20% of the purchase price or 10% of the total number of shares of Common Stock outstanding at such time), in the Issuer’s sole discretion, subject to certain limitations. If the Issuer does not exercise its exclusive right with respect to the purchase of the Programs licensed under the agreement with the Symphony Collaboration, rights to the Programs at the end of the development period will remain with the Symphony Collaboration.

Registration Rights Agreement

Concurrently with the execution and delivery of the Novated Technology License Agreement, the SWPA and the Purchase Option Agreement, Holdings and the Issuer entered into a Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which the Issuer has agreed to provide certain registration rights under the Securities Act of 1933, as amended, with respect to the Common Stock to be issued to Holdings under the SWPA.

 


CUSIP No. 691828107

Page 14 of 17 Pages

SCHEDULE 13D

 

Additional Funding Agreement

Concurrently with the execution and delivery of the Novated Technology License Agreement, the SWPA, the Purchase Option Agreement and the Registration Rights Agreement, the Issuer has entered into an Additional Funding Agreement with Holdings, Symphony ViDA Investors LLC and the Symphony Collaboration (the “Additional Funding Agreement”). If determined to be required in accordance with the Additional Funding Agreement, Holdings will make an additional capital contribution of up to $10,000,000 to the Symphony Collaboration and in exchange the Issuer will issue additional shares of Common Stock and warrants having a value of up to $1,000,000 pursuant to the terms thereof and the terms of the SWPA (the “Additional Investment Shares”). If Holdings’ additional capital contribution is less than $10,000,000, the number of Additional Investment Shares will be proportionately reduced. If Stockholder Approval is not obtained for the issuance of the Additional Investment Shares, and Holdings does make an additional capital contribution to the Symphony Collaboration, the Issuer will issue to Holdings a warrant to purchase the applicable number of shares, at an exercise price of $0.01 per share, at the time of the additional capital contribution.

Amendment No. 1 to the Stockholder Rights Agreement

Pursuant to the SWPA, on October 1, 2008, the Issuer also executed Amendment No. 1 to the Stockholder Rights Agreement with American Stock Transfer & Trust Company (the “Rights Agent”), in order to exempt the transactions contemplated by the SWPA from the operation of the Stockholder Rights Agreement, dated as of March 24, 2005, between the Issuer and the Rights Agent.


 

ITEM 7.

MATERIAL TO BE FILED AS EXHIBITS.

 

Exhibit No.

Description

1

Joint Filing Agreement, dated as of October 10, 2008, by and among the Reporting Persons.

 

 

2

Novated and Restated Technology License Agreement, dated as of October 1, 2008, by and among the Issuer, the Symphony Collaboration and Holdings. * +

 

 

3

Stock and Warrant Purchase Agreement, dated as of October 1, 2008, by and between the Issuer and Holdings. *

 

 

4

Form of Direct Investment Warrant to Purchase Common Stock of the Issuer, to be dated as of October 17, 2008. *

 

 

 

 


CUSIP No. 691828107

Page 15 of 17 Pages

SCHEDULE 13D

 

 

5

Purchase Option Agreement, dated as of October 1, 2008, by and among the Issuer, Holdings and the Symphony Collaboration. *

 

 

6

Registration Rights Agreement, dated as of October 1, 2008, by and between the Issuer and Holdings. *

 

 

7

Additional Funding Agreement, dated as of October 1, 2008, by and among the Issuer, Holdings, Investors and the Symphony Collaboration. *

 

 

8

Amendment No. 1 to the Stockholder Rights Agreement, dated as of October 1, 2008, by and between the Issuer and the Rights Agent. *

 

_______________________________

*

Previously filed as an exhibit to the Issuer’s Current Report on Form 8-K/A filed October 10, 2008 and incorporated herein by reference.

+

Confidential treatment was requested by the Issuer for portions of this exhibit pursuant to Rule 24(b) (2) of the Exchange Act.

 

 

 


CUSIP No. 691828107

Page 16 of 17 Pages

SCHEDULE 13D

 

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated: October 10, 2008

 

 

 

SYMPHONY CAPITAL PARTNERS, L.P.

 

 


By:


Symphony Capital GP, L.P.
its general partner

 

 


By:


Symphony GP, LLC
its general partner

 

 

By: 


/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

SYMPHONY CAPITAL GP, L.P.

 

 


By:


Symphony GP, LLC
its general partner

 

 

By: 


/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

SYMPHONY GP, LLC

 

 

By: 



/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

MARK KESSEL

 

 

By: 



/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 


CUSIP No. 691828107

Page 17 of 17 Pages

SCHEDULE 13D

 

 

 

 

HARRI V. TARANTO

 

 

By: 



/s/ Harri V. Taranto

 

 

 

Name: Harri V. Taranto
Title:   Managing Member

 

 

 

 

SYMPHONY ViDA HOLDINGS LLC

 

 


By:


Symphony Capital Partners, L.P.
its Manager

 

 


By:


Symphony Capital GP, L.P.
its general partner

 

 


By:


Symphony GP, LLC
its general partner

 

 

By: 



/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

 

 

EX-99 2 exh1-sc13d_oxi.htm JOINT FILING AGREEMENT

EXHIBIT 1

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of the Schedule 13D (and any further amendment filed by them) with respect to the common stock, par value $0.01 per share, of OXiGENE, Inc., a Delaware corporation.

Dated: October 10, 2008

 

 

 

SYMPHONY CAPITAL PARTNERS, L.P.

 

 


By:


Symphony Capital GP, L.P.
its general partner

 

 


By:


Symphony GP, LLC
its general partner

 

 

By: 


/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

SYMPHONY CAPITAL GP, L.P.

 

 


By:


Symphony GP, LLC
its general partner

 

 

By: 


/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

SYMPHONY GP, LLC

 

 

By: 



/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

MARK KESSEL

 

 


 

 

 

By: 



/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 


 

 

 

HARRI V. TARANTO

 

 

By: 



/s/ Harri V. Taranto

 

 

 

Name: Harri V. Taranto
Title:   Managing Member

 

 

 

 

SYMPHONY ViDA HOLDINGS LLC

 

 


By:


Symphony Capital Partners, L.P.
its Manager

 

 


By:


Symphony Capital GP, L.P.
its general partner

 

 


By:


Symphony GP, LLC
its general partner

 

 

By: 



/s/ Mark Kessel

 

 

 

Name: Mark Kessel
Title:   Managing Member

 

 

 

 

 

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