S-1MEF

As filed with the Securities and Exchange Commission on February 12, 2014

Registration No. 333-            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

OXiGENE, INC.

(Exact name of registrant as specified in its charter)

Delaware	2836	13-3679168
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification No.)

701 Gateway Blvd., Suite 210

South San Francisco, California 94080

(650) 635-7000

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Peter J. Langecker, M.D., Ph.D.

Chief Executive Officer

OXiGENE, Inc.

701 Gateway Blvd., Suite 210

South San Francisco, California 94080

(650) 635-7000

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Megan N. Gates, Esq. Mintz, Levin, Cohn, Ferris Glovsky and Popeo, P.C. One Financial Center Boston, MA 02111 Telephone: (617) 542-6000 Fax: (617) 542-2241 Joseph Smith, Esq. Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, NY 10105 Telephone: (212) 931-8719 Fax: (212) 401-4741

Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.

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, check the following box:  x

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  x File No. 333-190464

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ¨

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	¨	Accelerated filer	¨
Non-accelerated filer	¨ (Do not check if a smaller reporting company)	Smaller reporting company	x

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered (1)	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee (2)
Units Consisting of Common Stock and Warrants	$2,000,000	$257.60
Common Stock Underlying Units (3)(4)	—	—
Warrants Underlying Units (4)	—	—
Common Stock Issuable Upon Exercise of Warrants in the Units(3)	$1,250,000	$161.00
Warrants to be issued to Placement Agent (4)	—	—
Common Stock Issuable Upon Exercise of Placement Agent Warrants (3)(5)	$125,000	$16.10
Total(6)	$3,375,000	$434.70

(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the securities registered also include such indeterminate amounts and numbers of shares of common stock issuable to cover additional securities that may be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(2) Calculated pursuant to Rule 457(o) under the Securities Act based on an estimate of the proposed maximum aggregate offering price.

(3) 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, on the terms set forth in the Rights Agreement.

(4) No separate fee required pursuant to Rule 457 under the Securities Act. See “Plan of Distribution.”

(5) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(g) under the Securities Act.

(6) Based on the public offering price. The registrant previously registered securities at an aggregate offering price not to exceed $16,875,000 on a Registration Statement on Form S-1 (File No. 333-190464), which was declared effective on February 11, 2014. In accordance with Rule 462(b) under the Securities Act, an additional amount of securities having a proposed maximum aggregate offering price of $3,375,000 is hereby registered.

This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) promulgated under the Securities Act.

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

This registration statement is being filed with respect to the registration of additional shares of OXiGENE, Inc.’s common stock, $0.01 par value (the “Common Stock”), and warrants to purchase Common Stock (“Warrants”), which will be offered together in units with each unit consisting of one share of Common Stock and one half of a Warrant, pursuant to Rule 462(b) under the Securities Act of 1933, as amended. The contents of the earlier registration statement on Form S-1 (File No. 333-190464), which was declared effective by the Securities and Exchange Commission on February 11, 2014, are incorporated in this registration statement by reference.

The required opinion and consents are listed on an Exhibit Index attached hereto and filed herewith.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of South San Francisco, State of California, on February 12, 2014.

OXiGENE, INC.
By:	/s/ Peter J. Langecker
	Peter J. Langecker
	Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ Peter J. Langecker Peter J. Langecker	Director and Chief Executive Officer (Principal executive officer)	February 12, 2014
/s/ Barbara Riching Barbara Riching	Chief Financial Officer (Principal financial and accounting officer)	February 12, 2014
/s/ Frederick W. Driscoll Frederick W. Driscoll	Chairman of the Board	February 12, 2014
/s/ David Chaplin David Chaplin	Director	February 12, 2014
/s/ Tamar D. Howson Tamar D. Howson	Director	February 12, 2014
/s/ Gerald McMahon Gerald McMahon	Director	February 12, 2014
/s/ William D. Schwieterman William D. Schwieterman	Director	February 12, 2014

EXHIBIT INDEX

Exhibit Number	Description
5.1	Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
23.1	Consent of independent registered public accounting firm.
23.2	Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).

EX-5.1

Exhibit 5.1

One Financial Center Boston, MA 02111 617-542-6000 617-542-2241 fax www.mintz.com

February 12, 2014

OXiGENE, Inc.

701 Gateway Boulevard, Suite 210

South San Francisco, CA 94080

Re: OXiGENE, Inc. 2014 Registered Offering

Ladies and Gentlemen:

We have acted as legal counsel to OXiGENE, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing with the Securities and Exchange Commission (the “Commission”) of (i) a Registration Statement (No. 333-190464) on Form S-1 (the “Initial Registration Statement”) and (ii) a Registration Statement on Form S-1 (the “462(b) Registration Statement,” and together with the Initial Registration Statement, the “Registration Statements”) to be filed pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). This opinion is being furnished to you in connection with the filing of the 462(b) Registration Statement with the Commission under the Securities Act with respect to the offer and sale (the “Offering”) of up to an aggregate of $3,375,000 in securities to be comprised of (A) units (the “Units”), each Unit consisting of (i) one share of the Company’s common stock, $0.01 par value per share (the “Common Stock”); and (ii) one half of a warrant (the “Unit Warrants”) to purchase shares of Common Stock, and (B) warrants to be issued to H.C. Wainwright & Co., LLC as compensation for its services as placement agent in the Offering, to purchase that number of shares of Common Stock equal to five percent of the shares of Common Stock sold in the Offering (the “HCW Warrants,” and together with the Unit Warrants, the “Warrants”). The Units, the shares of stock underlying the Unit Warrants, the HCW Warrants, and the shares of Common Stock underlying the HCW Warrants will be offered and sold pursuant to an Engagement Letter Agreement, dated September 18, 2013, between the Company and H.C. Wainwright & Co., LLC (the “Engagement Letter Agreement”) and a Securities Purchase Agreement between the Company and the purchasers in the Offering, which Engagement Letter Agreement and Securities Purchase Agreement, together with the forms of the Warrants, have been filed as exhibits to the Initial Registration Statement. The shares of Common Stock to be issued by the Company as components of the Units are hereinafter collectively referred to as the “Unit Shares” and the shares of Common Stock to be issued by the Company upon the exercise of the Warrants are hereinafter collectively referred to as the “Warrant Shares” (together with the Unit Shares, the “Shares”). The Shares also include share purchase rights (the “Share Purchase Rights”) under the Company’s Stockholder Rights Agreement dated March 24, 2005, as amended, by and between the Company and American Stock Transfer & Trust Company, as Rights Agent (the “Stockholder Rights Agreement”) that may be issued at a future date in accordance with the terms of the Stockholder Rights Agreement.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

BOSTON | WASHINGTON | NEW YORK | STAMFORD | LOS ANGELES | SAN FRANCISCO | SAN DIEGO | LONDON

MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.

February 12, 2014

Page 2

In connection with this opinion, we have examined the Company’s Restated Certificate of Incorporation, as amended, and Amended and Restated Bylaws, both as currently in effect; the Stockholder Rights Agreement, as amended; the minutes of all pertinent meetings of the directors of the Company relating to the Registration Statements, the Engagement Letter Agreement and the transactions contemplated thereby; such other records of the corporate proceedings of the Company and certificates of the Company’s officers as we have deemed relevant; and the Registration Statements and the exhibits thereto.

In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies.

Based upon the foregoing, and subject to the limitations set forth below, we are of the opinion that (i) the Units, when issued and delivered by the Company against payment therefor, will be duly and validly issued; (ii) the Unit Shares, when issued and delivered by the Company against payment therefor, will be duly and validly issued, fully paid and non-assessable; (iii) the Warrants, when issued and delivered by the Company against payment therefor, will be duly and validly issued, and will represent binding obligations of the Company pursuant to the laws of the State of Delaware; (iv) the Warrant Shares, when issued and delivered by the Company against payment therefor as contemplated by the Warrants, will be duly and validly issued, fully paid and non-assessable; and (v) the Share Purchase Rights will be duly and validly issued.

In rendering our opinion regarding the Share Purchase Rights, we have assumed that the Board of Directors of the Company has acted and will act in accordance with its fiduciary duties with respect to the administration of the Stockholder Rights Agreement and the issuance of the Share Purchase Rights thereunder. In connection with the foregoing, our opinion does not address the determination a court of competent jurisdiction may make regarding whether the Board of Directors of the Company would be required to redeem or terminate, or take other action with respect to, the Share Purchase Rights at some future time. Further, our opinion addresses the Stockholder Rights Agreement and the Share Purchase Rights in their entirety and not any particular provision of them, and it is not settled whether the invalidity of any particular provision would invalidate the Share Purchase Rights in their entirety.

Our opinion is limited to the General Corporation Law of the State of Delaware (including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting such laws) and the United States Federal Laws, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. To the extent that any applicable document is stated to be governed by the laws of another jurisdiction, we have assumed for purposes of this opinion that the laws of such jurisdiction are identical to the state laws of the State of Delaware.

MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.

February 12, 2014

Page 3

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon statutes, rules, regulations and judicial decisions existing on the date hereof, and we disclaim any obligation to advise you of any change in any of these sources of law or legal or factual developments after the date hereof which might affect any matters or opinions set forth herein.

We hereby consent to the filing of this opinion with the Commission as an exhibit to the 462(b) Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act and to the use of this Firm’s name in the related prospectus under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

Very truly yours,

/s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in this Registration Statement on Form S-1 filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, our report dated March 15, 2013, with respect to the financial statements of OXiGENE, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2012, filed with the Securities and Exchange Commission, and to the references to our firm under the heading “Experts” in the prospectus.

/s/ Ernst & Young LLP

Redwood City, California

February 10, 2014