ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On July 2, 2009, OXiGENE, Inc. ("OXiGENE" or the "Company"), Symphony ViDA
Holdings LLC ("Holdings") and Symphony ViDA, Inc. ("ViDA") entered into a series
of related agreements pursuant to which such parties agreed to amend the terms
of the Purchase Option (defined below), as set forth in an amended and restated
purchase option agreement (the "Amended Purchase Option Agreement"). In
connection with such amendment, OXiGENE and Holdings also entered into an
amended and restated registration rights agreement (the "Amended Registration
Rights Agreement" and together with the Amended Purchase Option Agreement, the
"Transaction Documents").
Under the Amended Purchase Option Agreement, upon the closing of the Purchase
Option, OXiGENE will acquire all of the equity of ViDA in exchange for six
million newly-issued shares of OXiGENE common stock, subject to adjustment as
described below. Based upon a price of $2.08 per share, the closing market price
of OXiGENE common stock on July 2, 2009, the stock has a value of approximately
$12.5 million. Under the Transaction Documents, the Company will re-acquire all
of the rights to the ZYBRESTAT for ophthalmology and OXi4503 programs that had
been licensed to ViDA. In addition, the approximately $12.5 million in cash
currently held by ViDA will become available for use for OXiGENE's general
corporate purposes.
In the event that OXiGENE issues additional securities prior to January 2, 2010
at a price lower than $2.08 per share, Symphony Capital LLC ("Symphony") will
have the right to receive additional securities in an amount reflecting the
difference in value of the securities at the time of such subsequent issuance
and $2.08 per share. The two members of the Company's Board of Directors
appointed by Symphony, Mr. Mark Kessel and Dr. Alastair Wood, will remain on the
Board, and the Company expects to maintain its advisory relationships with
Symphony and RRD International LLC. The Additional Funding Agreement, dated
October 1, 2008, has been terminated in connection with the execution of the
Transaction Documents pursuant to the Termination Agreement dated July 2, 2009.
The closing of the transaction is expected to occur within thirty days.
Concurrently with the execution of the Transaction Documents, OXiGENE notified
Holdings and ViDA of its exercise of the Purchase Option, pursuant to the
Amended Purchase Option Agreement.
On October 1, 2008, OXiGENE entered into a series of related agreements with
Symphony, ViDA, Holdings and related entities, pursuant to which Holdings formed
and capitalized ViDA in order (a) to hold certain intellectual property related
to two of OXiGENE's product candidates, ZYBRESTAT for use in ophthalmologic
indications and OXi4503 (the "Programs"), which were exclusively licensed to
ViDA under a technology license agreement and (b) to fund commitments in the
amount of up to $40 million. The funding supported pre-clinical and clinical
development by OXiGENE, on behalf of ViDA, of the Programs. In connection with
such transaction, OXiGENE, Holdings and ViDA entered into a purchase option
agreement that provided for the exclusive right, but not the obligation, of
OXiGENE to repurchase both Programs at specified points in the future (the
"Purchase Option"). OXiGENE issued to Holdings an aggregate of 17,117,118 shares
of OXiGENE common stock, including 3,603,604 shares of common stock as
consideration for the Purchase Option, pursuant to these agreements.
On July 6, 2009, OXiGENE issued a press release describing the transactions
described herein. A copy of the press release is attached as Exhibit 99.1 to
this Current Report on Form 8-K and incorporated herein by reference.
ITEM 3.02. UNREGISTERED SALES OF EQUITY SECURITIES.
The securities to be issued to Holdings pursuant to the Amended Purchase Option
Agreement will be issued in reliance upon the exemption from the registration
requirements under the Securities Act of 1933, as amended, pursuant to
Section 4(2) thereof. In agreeing to issue the securities to Holdings, the
Company relied upon the representations and warranties of Holdings, including
its agreement with respect to restrictions on resale, in support of the
satisfaction of the conditions of Section 4(2).
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