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EX-31.1 - EX-31.1 - Oncotelic Therapeutics, Inc. | b86239exv31w1.htm |
EX-31.2 - EX-31.2 - Oncotelic Therapeutics, Inc. | b86239exv31w2.htm |
Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K/A
(Amendment No. 1)
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2010
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 0-21990
OXiGENE, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 13-3679168 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
701 Gateway Boulevard, Suite 210 | 94080 | |
South San Francisco, CA | (Zip Code) | |
(Address of principal executive offices) |
Registrants telephone number, including area code: (650) 635-7000
Securities registered pursuant to Section 12(b) of the Act:
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class | Name of Each Exchange on Which Registered | |
Common Stock, par value $0.01 per share | The NASDAQ Stock Market, LLC | |
Common Stock Purchase Rights |
Securities registered pursuant to Section 12(g) of the Act:
None
(Title of class)
None
(Title of class)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes o No þ
Indicate by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Exchange Act.
Yes o No þ
Yes o No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). Yes
o No o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best of registrants
knowledge, in definitive proxy or information statements incorporated by reference in Part III of
this Form 10-K, or any amendment to this Form 10-K. þ
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 o | Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company þ |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2
of the Exchange Act). Yes o No þ
The aggregate market value of the registrants voting and non-voting common stock held by
non-affiliates of the registrant (without admitting that any person whose shares are not included
in such calculation is an affiliate) computed by reference to the price at which the common stock
was last sold, as of June 30, 2010 was $15,846,000.
As
of May 2, 2011, the aggregate number of outstanding shares of common stock of the
registrant was 9,542,035.
DOCUMENTS INCORPORATED BY REFERENCE
None
None
Table of Contents
EXPLANATORY NOTE
This Amendment No. 1 on Form 10-K/A, or the Amendment, amends OXiGENE, Inc.s Annual
Report on Form 10-K for the fiscal year ended December 31, 2010, originally filed on March 16,
2011, or the Original Filing. The purpose of this Amendment is to include information required by
Part III of the Annual Report on Form 10-K that was omitted from Part III of the Original Filing.
In addition, in connection with the filing of this Amendment and pursuant to the rules of the
Securities and Exchange Commission, the Chief Executive Officer and the Chief Financial Officer of
the Company have reissued their certifications. Item 15 of Part IV is being refiled and has been
amended to reflect the filing of such certifications.
Except as described above, no other changes have been made to the Original Filing. The
Original Filing continues to speak as of the dates described in the Original Filing, and we have
not updated the disclosures contained therein to reflect any events that occurred subsequent to
such dates. Accordingly, this Amendment should be read in conjunction with the Companys filings
made with the Securities and Exchange Commission subsequent to the filing of the Original Filing,
as information in such filings may update or supersede certain information contained in this
Amendment. In this Amendment, unless the context indicates otherwise, the terms Company, we,
us, and our refer to OXiGENE, Inc.
Table of Contents
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
BOARD OF DIRECTORS
Our Board of Directors currently consists of six members, and includes three members who
are Non-Employee Directors within the meaning of Rule 16b-3 under the Securities Exchange Act of
1934, as amended. We currently have one vacancy on our Board. Under our by-laws, the number of
members of our Board of Directors is fixed from time to time by the Board of Directors, and
directors serve in office until the next annual meeting of stockholders and until their successors
have been elected and qualified.
The following information with respect to each director has been furnished to us by that
director. The ages of the directors are as of February 28, 2011.
TAMAR D. HOWSON
Age:
|
62 | |
Director Since:
|
2010 | |
Principal Occupation:
|
Ms. Howson is currently a Partner with JSB-Partners, a transaction advisory firm serving the life sciences industry. |
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Business Experience:
|
Ms. Howson formerly served as Executive Vice President of Corporate Development for Lexicon Pharmaceuticals. Prior to Lexicon, she served as Senior Vice President of Corporate and Business Development and was a member of the executive committee at Bristol-Myers Squibb. During her tenure there, Ms. Howson was responsible for leading the companys efforts in external alliances, licensing and acquisitions. Earlier, Ms. Howson served as Senior Vice President and Director of Business Development at SmithKline Beecham. She also managed SR One Ltd., the $100 million venture capital fund of SmithKline Beecham. Ms. Howson has served as an independent business consultant and adviser to companies both in the United States and in Europe. She held the position of Vice President, Venture Investments at Johnston Associates, a venture capital firm, and earlier as Director of Worldwide Business Development and Licensing for Squibb Corporation. Ms. Howson received her M.B.A. in finance and international business from Columbia University. Educated as a chemical engineer, she holds a M.S. from the City College of New York and a B.S. from the Technion in Israel. | |
Other Directorships:
|
Ms. Howson currently serves on the boards of Idenix Pharmaceuticals, Inc. (Nasdaq:IDIX), a biopharmaceutical company engaged in the discovery and development of drugs for the treatment of human viral diseases, Soligenix, Inc., a biopharmaceutical company developing products to treat life-threatening side effects of cancer treatments and serious gastrointestinal diseases, Aradigm Corporation, a specialty pharmaceutical company developing and commercializing drugs delivered by inhalation for the treatment of severe respiratory disease, and S*Bio Pte Ltd, a company engaged in the discovery and development of drugs for the treatment of cancer. She also serves as a consultant to Pitango Venture Fund and is a member of the advisory board to Triana Venture Partners. She previously served on the boards of Ariad Pharmaceuticals, SkyePharma, NPS Pharma, Targacept, and HBA. | |
Director Qualifications:
|
The Board highly values Ms. Howsons significant business development and life sciences industry expertise, developed through her career as a senior professional at several leading pharmaceutical companies. The Board believes that these characteristics uniquely qualify Ms. Howson to serve as a director of the Company and led to the Boards conclusion that she should be a member of the Board of Directors. | |
MARK KESSEL |
||
Age:
|
69 | |
Director Since:
|
2008 | |
Principal Occupation:
|
Mr. Kessel, a partner of Symphony Capital LLC, co-founded Symphony in 2002 and is widely recognized as the leader in structuring product development investments for the biopharmaceutical industry. |
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Business Experience:
|
Mr. Kessel was formerly the Managing Partner of Shearman & Sterling LLP, with day-to-day operating responsibility for this large international law firm. He received a B.A. with honors in Economics from the City College of New York and a J.D. magna cum laude from Syracuse University College of Law. Mr. Kessel has written on financing for the biotech industry for Nature Reviews Drug Discovery, Nature Biotechnology and other publications, and on issues related to governance and audit committees for such publications as The Wall Street Journal, Financial Times, The Deal and Euromoney. | |
Other Directorships:
|
Mr. Kessel is a director of Dynavax Technologies Corporation, a Symphony portfolio company focused on infectious and inflammatory disease therapies. In addition, Mr. Kessel is a director of the Global Alliance for TB Drug Development and Fondation Santé. Mr. Kessel was previously a director of Symphony Dynamo, Inc. (acquired by Dynavax Technologies Corporation), a director and Chairman of Symphony Icon, Inc. (acquired by Lexicon Pharmaceuticals), and a director of Antigenics, Inc., a publicly traded drug development company. |
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Director Qualifications:
|
The Board believes that Mr. Kessels leadership and expertise in matters of strategic transactions and financing for life sciences companies, coupled with his extensive executive management experience leading one of the worlds premier professional services organizations, uniquely qualify Mr. Kessel to serve as a director of the Company and led to the Boards conclusion that Mr. Kessel should be a member of the Board of Directors. | |
PETER J. LANGECKER, M.D., PH.D. | ||
Age:
|
60 | |
Director Since:
|
2010 | |
Principal Occupation:
|
Dr. Langecker joined OXiGENE as Executive Vice President and Chief Development Officer in June 2009 and was appointed Chief Executive Officer in October 2009. | |
Business Experience:
|
Dr. Langecker served as Chief Medical Officer of DURECT Corporation from May 2006 until June 2009. Prior to joining DURECT, Dr. Langecker served as Chief Medical Officer and Vice President of Clinical Affairs at Intarcia Therapeutics, Inc. from October 1999 to April 2006. Prior to that, Dr. Langecker was Vice President of Clinical Affairs at Sugen, Inc. from 1997 to 1999, Vice President, Clinical Research at Coulter Pharmaceuticals from 1995 to 1997 and Director of Clinical Research, Oncology, at Schering-Plough from 1992 to 1995. Previously, Dr. Langecker worked as a Project Physician-Central Medical Advisor, Oncology at Ciba-Geigy (now Novartis) in Basel, Switzerland. He received his M.D. degree and his doctorate in medical sciences from the Ludwig-Maximilians University in Munich. | |
Director Qualifications:
|
The Board believes that Dr. Langeckers medical and scientific training, developed through his extensive career as a life sciences industry executive, uniquely qualify Dr. Langecker to serve as a director of the Company and led to the Boards conclusion that Dr. Langecker should be a member of the Board of Directors. | |
WILLIAM D. SCHWIETERMAN, M.D. | ||
Age:
|
53 | |
Director Since:
|
2007 | |
Principal Occupation:
|
Dr. Schwieterman has been the Chief Medical Officer of Chelsea Therapeutics, a biopharmaceutical development company, since November 2009. He has been an independent consultant to biotech and pharmaceutical companies specializing in clinical development since July 2002. | |
Business Experience:
|
Dr. Schwieterman is a board-certified internist and a rheumatologist who was formerly Chief of the Medicine Branch and Chief of the Immunology and Infectious Disease Branch in the Division of Clinical Trials at the FDA. In these capacities and others, |
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Dr. Schwieterman spent 10 years at the FDA in the Center for Biologics overseeing a wide range of clinical development plans for a large number of different types of molecules. Dr. Schwieterman holds a B.S. and M.D. from the University of Cincinnati. | ||
Director Qualifications:
|
The Board believes that Dr. Schwietermans medical training and his expertise with regulatory matters involving the Food and Drug Administration and the clinical trials process are invaluable skills that Dr. Schwieterman brings to his Board service and led to the Boards conclusion that Dr. Schwieterman should be a member of the Board of Directors. |
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WILLIAM N. SHIEBLER |
||
Age:
|
69 | |
Director Since:
|
2002; Chairman of the Board since May 2009 | |
Principal Occupation:
|
Mr. Shiebler is a principal in two family investment businesses Tree Tops Investment LLC and Tree Tops Corporation LLC. | |
Business Experience:
|
From March 2002 to March 2007, Mr. Shiebler was the Advisory Vice Chairman and CEO of the Americas of Deutsche Asset Management, the asset arm of Deutsche Bank. Prior to joining Deutsche Bank, Mr. Shiebler was the President and CEO of Putnam Mutual Funds and prior to that he was President and COO of Dean Witters Intercapital Division. | |
Other Directorships:
|
Mr. Shiebler is a non-executive Chairman and a Director of Nextalk, Inc. (private) a director of Sallie Mae Bank, and is an advisory board member of several corporations. Mr. Shiebler is currently chairman of the Park City Center for Public Policy, and a Trustee of the U.S. Ski and Snowboard Team Foundation, among other charitable and community organizations. Previously, Mr. Shiebler was a trustee or director of a number of other corporate and community organizations, including the Salt Lake Olympic Committee and Kean University. Mr. Shiebler was also a member of the Presidential Commission on Medicaid. | |
Director Qualifications:
|
The Board believes that Mr. Shieblers financial acumen, executive leadership skills, and his extensive experience developed in the course of his career as a senior executive in the financial services industry uniquely qualify Mr. Shiebler to serve as a director of the Company and led to the Boards conclusion that Mr. Shiebler should be a member of the Board of Directors. | |
ALASTAIR J.J. WOOD, M.D. |
||
Age:
|
64 | |
Director Since:
|
2008 | |
Principal Occupation:
|
Dr. Wood, a partner of Symphony Capital LLC, has worked with Symphony since its inception, initially as Chairman of Symphonys Clinical Advisory Council, and joined the firm full-time in September 2006 as a Managing Director. | |
Business Experience:
|
Prior to joining Symphony Capital LLC full-time, Dr. Wood completed more than 30 years at Vanderbilt University School of Medicine, most recently as Associate Dean of External Affairs, where he was also Attending Physician and Tenured Professor of Medicine and Pharmacology. Dr. Wood is currently Professor of Medicine (courtesy appointment) and Professor of Pharmacology (courtesy appointment) at Weill Cornell Medical School, appointments served |
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in an unpaid capacity. Dr. Wood has written or co-authored more than 300 scientific papers and won numerous honors including election to the National Academy of Sciences Institute of Medicine. He was until 2006 the chairman of the FDAs Nonprescription Drugs Advisory Committee. He previously served as a member of the Cardiovascular and Renal Advisory Committee of the FDA, and the FDAs Nonprescription Drugs Advisory Committee. Dr. Wood has been a member of and chaired National Institutes of Health study sections, served on the editorial boards of four major journals, and between 1992 and 2004 was the Drug Therapy Editor of The New England Journal of Medicine. Most recently, he was named to the Board of the Critical Path Institute. He earned his medical degree at the University of St. Andrews. |
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Other Directorships:
|
Dr. Wood is a director of Symphony Evolution, Inc., a Symphony portfolio company. He was previously a director of Antigenics, Inc., a publicly traded drug development company. | |
Director Qualifications:
|
The Board believes that Dr. Woods medical training and expertise in drug development, combined with his prior service as a member of several advisory committees to the Food and Drug Administration, uniquely qualify Dr. Wood to serve as a director of the Company and led to the Boards conclusion that Dr. Wood should be a member of the Board of Directors. |
BOARD AND COMMITTEE MEETINGS
During 2010, the Board of Directors held nineteen meetings. The Board of Directors has
established three committees whose functions and current members are noted below. The Audit
Committee, the Compensation Committee and the Nominating and Governance Committee (collectively,
the Board Committees) are committees of the Board of Directors and consist solely of members of
the Board of Directors. The Board Committees met a total of 7 times in 2010. Each director during
2010 attended 75% or more of the aggregate number of meetings of the Board of Directors and Board
Committees on which he or she served during 2010. The Board has also adopted a policy under which
each member of the Board is required to make every effort to attend each annual meeting of our
stockholders. Messrs. Shiebler and Langecker attended our annual meeting of stockholders in 2010.
Audit Committee. From January 1 through March 11, 2010, the Audit Committee consisted of
Messrs. Arthur B. Laffer (Chairman), Roy H. Fickling and William N. Shiebler. During 2010, the
Audit Committee held five meetings. Dr. Laffer resigned from the Board of Directors on March 11,
2010. Ms. Howson was appointed to the Audit Committee on April 2, 2010. Mr. Fickling resigned from
the Board of Directors on March 31, 2011. Currently, the Audit Committee consists of William N.
Shiebler (Chairman) and Tamar D. Howson. Our Audit Committee has the authority to retain and
terminate the services of our independent registered public accounting firm, reviews annual
financial statements, considers matters relating to accounting policy and internal controls and
reviews the scope of annual audits. The Board has determined that William N. Shiebler is an audit
committee financial expert, as the Securities and Exchange Commission has defined that term in
Item 407 of Regulation S-K. The Board of Directors has adopted a charter for the Audit Committee,
which is reviewed and reassessed annually by the Audit Committee. A copy of the Audit Committees
written charter is publicly available on our website at www.oxigene.com.
Securities and Exchange Commission rules require that we disclose our compliance with
NASDAQ listing standards regarding the independence of our Audit Committee members and inclusion in
the Audit Committee of any non-independent director. Currently, all of our Audit Committee members
are independent as defined under NASDAQ listing standards. Roy H. Fickling resigned from our Board
of Directors on March 31, 2011. On April 6, 2011, The Nasdaq Stock Market notified us that, as a
result of Mr. Ficklings resignation, we no longer comply with Nasdaqs independent director
requirement for the Audit Committee as set forth in The Nasdaq Listing Rules. These rules require
that our Audit Committee consist of at least three independent directors. Pursuant to The Nasdaq
Listing Rules, we have been provided a cure period until the earlier of our next annual
shareholders meeting or March 31, 2012; or if our next annual shareholders meeting is held before
September 27, 2011, then we must evidence compliance no later than September 27, 2011. We have
indicated that we intend to comply with Nasdaqs independent Audit Committee requirements within
the cure period provided by Nasdaq.
Compensation Committee. From January 1 through March 11, 2010, the Compensation
Committee consisted of Messrs. Arthur B. Laffer (Chairman), Roy H. Fickling, William N. Shiebler
and Dr. William D. Schwieterman. Dr. Laffer resigned from the Board of Directors on March 11, 2010.
On April 27, 2010, Mr. Fickling was appointed Chairman of the Compensation Committee. During 2010,
the Compensation Committee held one meeting. Roy H. Fickling resigned from our Board of Directors
on March 31, 2011. Currently, the Compensation Committee consists of William N. Shiebler. The Board
of Directors intends to appoint an independent director to the Compensation Committee in 2011. The
Compensation Committee
makes recommendations to the Board of Directors regarding the compensation philosophy and
compensation guidelines for our executives, the role and performance of our executive officers,
appropriate compensation levels for our Chief Executive Officer, which are determined without the
Chief Executive Officer present, and other executives based on a comparative review of compensation
practices of similarly situated businesses. The Compensation Committee also makes
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recommendations to the Board regarding the design and implementation of our compensation plans and
the establishment of criteria and the approval of performance results relative to our incentive
plans. The Compensation Committee has adopted the following processes and procedures for the
consideration and determination of executive and director compensation. Each year, the Compensation
Committee reviews and assesses the three main components of each named executive officers
compensation: base salary, incentive compensation and equity compensation. Adjustments to base
salary are generally only made when there has been a change in the scope of the responsibilities of
the named executive officer or when, based on a review of the base salary component of executive
officers in companies of a similar size and stage of development, the Committee members believe
that an adjustment is warranted in order to remain competitive. Each year, the executive management
of the Company determines and agrees with the Compensation Committee on its corporate goals and
objectives for the ensuing year. At the end of each year, the attainment of each objective is
assessed and incentive awards are made to each executive based on his contribution to achieving the
objectives and at a percentage of base salary outlined in the executives employment agreement. In
addition, equity compensation is reviewed annually. Awards are made based on either provisions of
an executives employment agreement, or an assessment of each executives equity compensation
position relative to the Companys other executives. All members of the Compensation Committee
qualify as independent under the definition promulgated by NASDAQ. A copy of the Compensation
Committees written charter is publicly available on our website at www.oxigene.com.
Compensation Committee Interlocks and Insider Participation. Our Compensation Committee
currently consists of Mr. William N. Shiebler. Mr. Shiebler neither is nor has been employed by us.
Nominating and Governance Committee. From January 1 through March 11, 2010, the
Nominating and Governance Committee consisted of Messrs. William N. Shiebler (Chairman), Roy H.
Fickling and Arthur B. Laffer. Dr. Laffer resigned from the Board of Directors on March 11, 2010.
On April 27, 2010, Dr. Schweiterman (Chairman) and Ms. Howson were appointed to the Nominating and
Governance Committee and Mr. Shiebler was re-nominated to this committee. During 2010, the
Nominating and Governance Committee met once. Currently, the Nominating and Governance Committee
consists of William D. Schwieterman (Chairman), Tamar D. Howson and William N. Shiebler. This
committees role is to make recommendations to the full Board as to the size and composition of the
Board and to make recommendations as to particular nominees. All members of the Nominating and
Governance Committee qualify as independent under the definition promulgated by NASDAQ. The
Nominating and Governance Committee may consider candidates recommended by stockholders, as well as
from other sources, such as current directors or officers, third-party search firms or other
appropriate sources. For all potential candidates, the Nominating and Governance Committee may
consider all factors it deems relevant, such as a candidates personal integrity and sound
judgment, business and professional skills and experience, independence, knowledge of the
biotechnology industry, possible conflicts of interest, diversity, the extent to which the
candidate would fill a present need on the Board, and concern for the long-term interests of the
stockholders. In general, persons recommended by stockholders will be considered on the same basis
as candidates from other sources. If a stockholder wishes to nominate a candidate to be considered
for election as a director at the 2011 annual meeting of stockholders using the procedures set
forth in the Companys by-laws, it must follow the procedures described under Stockholder
Proposals and Nominations for Director in the proxy statement on Schedule 14A for our 2010 annual
meeting of stockholders. If a stockholder wishes simply to propose a candidate for consideration as
a nominee by the Nominating and Governance Committee, it should submit any pertinent information
regarding the candidate to the Chairman of the Nominating and Governance Committee by mail at 701
Gateway Boulevard, Suite 210, South San Francisco, California 94080. The Nominating and Governance
Committee considers issues of diversity among its members in identifying and considering nominees
for director, and strives where appropriate to achieve a diverse balance of backgrounds,
perspectives, experience, age, gender, ethnicity and country of citizenship of the Board and its
committees. A copy of the Nominating and Governance Committees written charter is publicly
available on our website at www.oxigene.com.
Board of Directors Leadership Structure
The Board does not have a policy regarding the separation of the roles of Chief Executive
Officer and Chairman of the Board, as the Board believes it is in the best interests of the Company
to make that
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determination based on the position and direction of the Company and the membership of the Board.
The Board has determined that having a non-employee director serve as Chairman is in the best
interest of the Companys stockholders at this time. The Board believes this leadership structure
enhances the Boards oversight of, and independence from, Company management, the ability of the
Board to carry out its roles and responsibilities on behalf of our stockholders, and our overall
corporate governance compared to a combined Chairman/Chief Executive Officer leadership structure.
Mr. Shiebler has served as non-executive Chairman of the Board of Directors since 2009.
The Chairman of the Board of Directors provides leadership to the Board and works with the Board to
define its activities and the calendar for fulfillment of its responsibilities. The Chairman of the
Board of Directors approves the meeting agendas after input from management, facilitates
communication among members of the Board and presides at meetings of our Board and stockholders.
The Chairman of the Board of Directors, the Chairman of the Audit Committee, the Chief
Executive Officer and the other members of the Board work in concert to provide oversight of our
management and affairs. The leadership of Mr. Shiebler fosters a culture of open discussion and
deliberation, with a thoughtful evaluation of risk, to support our decision-making. Our Board
encourages communication among its members and between management and the Board to facilitate
productive working relationships. Working with the other members of the Board, Mr. Shiebler also
works to ensure that there is an appropriate balance and focus among key board responsibilities
such as strategic development, review of operations and risk oversight.
The Board of Directors Role in Risk Oversight
The Board plays an important role in risk oversight through direct decision-making
authority with respect to significant matters and the oversight of management by the Board and its
committees. In particular, the Board administers its risk oversight function through (1) the review
and discussion of regular periodic reports to the Board and its committees on topics relating to
the risks that we face, (2) the required approval by the Board (or a committee of the Board) of
significant transactions and other decisions, (3) the direct oversight of specific areas of our
business by the Audit and Compensation committees, and (4) regular periodic reports from our
auditors and outside advisors regarding various areas of potential risk, including, among others,
those relating to our internal control over financial reporting. The Board also relies on
management to bring significant matters impacting us to the Boards attention.
Pursuant to the Audit Committees charter, the Audit Committee is responsible for
discussing the guidelines and policies that govern the process by which our exposure to risk is
assessed and managed by management. As part of this process, the Audit Committee discusses our
major financial risk exposures and steps that management has taken to monitor and control such
exposure. In addition, we, under the supervision of the Audit Committee, have established
procedures available to all employees for the anonymous and confidential submission of complaints
relating to any matter to encourage employees to report questionable activities directly to our
senior management and the Audit Committee.
Because of the role of the Board in risk oversight, the Board believes that any
leadership structure that it adopts must allow it to effectively oversee the management of the
risks relating to our operations. The Board recognizes that there are different leadership
structures that could allow it to effectively oversee the management of the risks relating to our
operations. The Board believes its current leadership structure enables it to effectively provide
oversight with respect to such risks.
Stockholder Communications to the Board
Generally, stockholders who have questions or concerns should contact our Investor
Relations department at (650) 635-7000. However, any stockholders who wish to address questions
regarding our business directly with the Board of Directors, or any individual director, should
submit his or her questions to the appropriate director using the contact information and
instructions for this purpose set forth on the Companys website at www.oxigene.com. Communications
will be distributed to the Board, or to any individual director or directors
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as appropriate, depending on the facts and circumstances outlined in the communications. Items that
are unrelated to the duties and responsibilities of the Board may be excluded, such as:
| junk mail and mass mailings | ||
| resumes and other forms of job inquiries | ||
| surveys | ||
| solicitations or advertisements. |
In addition, any material that is unduly hostile, threatening, or illegal in nature may
be excluded, provided that any communication that is filtered out will be made available to any
outside director upon request.
EXECUTIVE OFFICERS OF THE COMPANY
See Board of Directors above for the biography of our Chief Executive Officer, Peter J.
Langecker.
David Chaplin, Ph.D., 55, has served as our Chief Scientific Officer and Head of Research
and Development since July 2001. From 1999 to 2000, Dr. Chaplin served as Vice President of
Oncology at Aventis Pharma in Paris. Prior to the merger of Rhone Poulenc Rorer (RPR) with
Hoechst Marion Roussell, Dr. Chaplin was Senior Director of Oncology at RPR from 1998 to 1999. From
1992 to 1998, Dr. Chaplin headed up the Cancer Research Campaigns (CRC) Tumor Microcirculation
Group, based at the Gray Laboratory Cancer Research Trust, Mount Vernon Hospital, London. During
this time, he was also a member of the CRC Phase I/II clinical trials committee. Dr. Chaplin also
served as Section Head of Cancer Biology at Xenova in the U.K. from 1990 to 1992, and held a senior
staff appointment at the British Columbia Cancer Research Centre from 1982 to 1990.
James B. Murphy, 54, was appointed as our Vice President and Chief Financial Officer in
March 2004. From 2001 until May 2003, Mr. Murphy was Vice President of Finance for Whatman Inc., of
Marlborough, Massachusetts, a subsidiary of U.K.-based Whatman plc (LSE: WHM), a publicly traded
manufacturer of filtration and separation products for the pharmaceutical industry. From 1994
through 2001, Mr. Murphy worked at HemaSure (NASDAQ: HMSR), a spin-off of Sepracor, Inc., serving
as the companys Senior Vice President of Finance and Administration, and later as Senior Vice
President and Chief Financial Officer. From 1990 to 1994, he was Corporate Controller at Sepracor
(NASDAQ: SEPR), a diversified pharmaceutical, medical device and biotechnology products company
based in Marlborough, Massachusetts. Mr. Murphy holds a B.A. in economics and accounting from the
College of the Holy Cross and is registered as a Certified Public Accountant.
CODE OF CONDUCT AND ETHICS
We have adopted a code of conduct and ethics that applies to all of our employees,
including our Chief Executive Officer and Chief Financial Officer. The text of the code of conduct
and ethics has been filed as an exhibit to our Annual Report on Form 10-K. A copy of the code of
conduct and ethics is also publicly available on our website at www.oxigene.com. Disclosure
regarding any amendments to, or waivers from provisions of the code of conduct and ethics that
apply to our directors, principal executive and financial officers will be included in a Current
Report on Form 8-K within four business days following the date of the amendment or waiver, unless
website posting of such amendments or waivers is then permitted by the rules of the NASDAQ Stock
Market.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934, as amended (the Exchange Act)
requires our directors and executive officers, and persons who own more than 10% of our common
stock to file with the Securities and Exchange Commission and us initial reports of beneficial
ownership and reports of changes in beneficial ownership of common stock and other of our equity
securities. For these purposes, the term other equity securities would include options granted
under our 2005 Stock Plan. To our knowledge, based solely
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on a review of the forms and written representations received by us from our Section 16 reporting
persons, during the fiscal year ended December 31, 2010, all Section 16(a) filing requirements
applicable to the reporting persons were properly and timely satisfied.
ITEM 11. EXECUTIVE COMPENSATION
Summary Compensation Table
The following table shows the total compensation paid or accrued during the fiscal years ended
December 31, 2010 and December 31, 2009 to (1) our Chief Executive Officer, (2) our Chief Financial
Officer and, (3) our next most highly compensated executive officer who earned more than $100,000
during the fiscal year ended December 31, 2010.
All Other | ||||||||||||||||||||||||
Stock Award s | Option Awards | Compensation | ||||||||||||||||||||||
Name | Year | Salary ($) | Bonus ($) | ($) (1) | ($) (1) | ($) | ||||||||||||||||||
David Chaplin(2) |
2010 | 278,124 | | | 74,966 | | ||||||||||||||||||
Vice President and Chief Scientific Officer |
2009 | $ | 282,220 | $ | | $ | 74,298 | $ | 27,530 | $ | | |||||||||||||
Peter Langecker(3) |
2010 | $ | 350,000 | $ | | $ | | $ | 132,825 | $ | 929 | |||||||||||||
Chief Executive Officer |
2009 | $ | 236,923 | $ | | $ | | $ | 41,926 | $ | 464 | |||||||||||||
James Murphy |
2010 | $ | 245,000 | $ | | $ | | $ | 101,759 | $ | 690 | |||||||||||||
Vice President and Chief Financial Officer |
2009 | $ | 245,000 | $ | | $ | 37,151 | $ | 63,244 | $ | 663 |
(1) | See Note 5 to our Condensed Consolidated Financial Statements included in our Annual Report on Form 10-K for the year ended December 31, 2010 for details as to the assumptions used to determine the fair value of each of the stock awards and option awards set forth in this table, as well as a description of all forfeitures during fiscal year 2010. See also our discussion of stock-based compensation under Managements Discussion and Analysis of Financial Condition and Results of Operations Critical Accounting Policies and Estimates in the Form 10-K. | |
(2) | Dr. Chaplins employment agreement provides that his salary be paid in British Pounds. The salary amounts presented above represent his annual salary of £180,257 converted into U.S. dollars at the average monthly conversion rate for the year presented. | |
(3) | Dr. Langecker commenced employment in June 2009 as Executive Vice President and Chief Development Officer. In October 2009, he was appointed as Chief Executive Officer. |
Narrative Disclosure to Summary Compensation Table
Employment Agreement with David Chaplin. In July 2000, we entered into an employment agreement
with Dr. Chaplin, our Chief Scientific Officer and Head of Research and Development. Effective in
January 2007, Dr. Chaplins employment agreement was amended such that he currently receives an
annual base salary of £180,257 per year (or $279,398, using January 3, 2011 exchange rates). In
2009, Dr. Chaplins employment agreement was further amended to (1) set the period for which Dr.
Chaplin would be paid in the event of his termination of employment other than for cause of with
good reason at sixteen (16) months and (2) provide for the immediate vesting of all stock options,
stock appreciation rights, restricted stock and other incentive compensation granted to him in the
event of a change in control. We may terminate the employment agreement on six months prior
notice, and Dr. Chaplin may terminate the agreement on six months prior notice. OXiGENE may also
terminate the agreement without prior notice for cause, as defined in the agreement. If Dr.
Chaplins employment is terminated by OXiGENE other than for cause, or in a case of a termination
with good reason, as defined in the agreement, Dr. Chaplin
will be entitled to receive a payment of sixteen (16) months of his then-current base salary,
and all stock
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options and other incentive compensation granted to Dr. Chaplin by OXiGENE shall, to
the extent vested, remain exercisable in accordance with the 2005 Stock Plan and any related
agreements. In the event of a termination other than for cause of Dr. Chaplins employment or a
termination with good reason within one year following a change in control of OXiGENE, as such
term is defined in the agreement, Dr. Chaplin will be entitled to receive a payment of twelve
months then-current base salary plus any salary owed to him but unpaid as of the date of
termination. In addition, all of Dr. Chaplins unvested equity compensation outstanding on the date
of termination shall vest and remain exercisable in accordance with the terms of the applicable
plan and related agreements and all stock options and other incentive compensation granted to Dr.
Chaplin by OXiGENE shall, to the extent vested, remain exercisable in accordance with the 2005
Stock Plan and any related agreements. All payments made and benefits available to Dr. Chaplin in
connection with his employment agreement will comply with Internal Revenue Code Section 409A in
accordance with the terms of his employment agreement.
Employment Agreement with Dr. Peter J. Langecker. In June 2009, we entered into an employment
agreement with Dr. Langecker with respect to his service as our Executive Vice President and Chief
Development Officer. In October 2009, Dr. Langecker was appointed our Chief Executive Officer.
Pursuant to his agreement, Dr. Langecker currently receives an annual base salary of $350,000 per
year. In addition, Dr. Langecker may be awarded an annual bonus of up to 40% of his then-current
annual base salary, at the sole discretion of OXiGENE, based on our assessment of his and OXiGENEs
performance. Pursuant to his employment agreement, on June 29, 2009, we granted to Dr. Langecker
options to purchase 250,000 shares of the Companys common stock at an exercise price of $2.32 per
share. The options shall vest in equal annual installments over four years beginning one year from
the date of grant.
Dr. Langecker may terminate the agreement upon written notice to us. We may also terminate the
agreement without prior written notice for cause, as defined in the agreement, as long as, in
certain circumstances, we give Dr. Langecker a minimum period of 30 days to cure the act or
omission constituting cause (if reasonably subject to cure), as described in the agreement. If Dr.
Langeckers employment is terminated by us for cause, or by Dr. Langecker without good reason (as
defined in the agreement), we will pay to Dr. Langecker the amount of accrued obligations as of the
date of such termination, consisting of accrued and unpaid salary, value of accrued vacation days,
annual bonus related to the most recently completed calendar year if not already paid and amount of
unreimbursed and incurred expenses. If Dr. Langeckers employment is terminated by us other than
for cause or Dr. Langeckers disability, we will pay to Dr. Langecker the accrued obligations, as
described above, an amount equal to 12 months of his then-current base salary, the annual bonus
related to the most recently completed calendar year, if not already paid, and will also pay COBRA
premiums, should Dr. Langecker timely elect and be eligible for COBRA coverage, for Dr. Langecker
and his immediate family for 12 months (provided that OXiGENE shall have no obligation to provide
such coverage if Dr. Langecker becomes eligible for medical and dental coverage with another
employer).
If Dr. Langeckers employment is terminated by us (other than for cause or Dr. Langeckers
disability) within one year following a change in control of the Company (as defined in the
agreement), or by Dr. Langecker with good reason within one year following a change in control of
the Company, we will pay to Dr. Langecker the accrued obligations, as described above, an amount
equal to 12 months of his then-current base salary, the annual bonus related to the most recently
completed calendar year, if not already paid, and will also pay COBRA premiums for a period of 12
months on the same conditions as described above. In addition, all of Dr. Langecker unvested
equity compensation outstanding on the date of termination shall vest and remain exercisable in
accordance with the terms of the applicable plan and related agreements. Dr. Langecker has also
agreed not to engage in activities competitive with the Company during his employment and for a 12
month period following the termination of his employment. All payments made and benefits available
to Dr. Langecker in connection with his employment agreement will comply with Internal Revenue Code
Section 409A in accordance with the terms of his employment agreement.
Employment Agreement with James B. Murphy. In February 2004, we entered into an employment
agreement with Mr. Murphy, our Vice President and Chief Financial Officer and amended the agreement
in January 2009. Pursuant to the agreement as amended, Mr. Murphy currently receives a base salary
of $245,000 per year. We may terminate the agreement on thirty days prior notice, and Mr. Murphy
may also
terminate the agreement on thirty days prior notice. We may also terminate the agreement
prior to the end
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of its term for cause, as defined in the agreement. If Mr. Murphys employment
is terminated by OXiGENE other than for cause, or in a case of a termination with good reason, as
defined in the agreement, Mr. Murphy will be entitled to receive a payment of twelve months
then-current base salary and the Company will also pay COBRA premiums, should Mr. Murphy timely
elect and be eligible for COBRA coverage, for Mr. Murphy and his immediate family for 12 months
(provided that OXiGENE shall have no obligation to provide such coverage if Mr. Murphy becomes
eligible for medical and dental coverage with another employer). In addition, all stock options and
other incentive compensation granted to Mr. Murphy by OXiGENE shall, to the extent vested, remain
exercisable in accordance with the 2005 Stock Plan and any related agreements.
In the event of a termination other than for cause of Mr. Murphys employment or a
termination with good reason within one year following a change in control of OXiGENE, as such
term is defined in the agreement, Mr. Murphy will be entitled to receive a payment of twelve
months then-current base salary plus any salary owed to him but unpaid as of the date of
termination and the Company will also pay COBRA premiums, should Mr. Murphy timely elect and be
eligible for COBRA coverage, for Mr. Murphy and his immediate family for 12 months (provided that
OXiGENE shall have no obligation to provide such coverage if Mr. Murphy becomes eligible for
medical and dental coverage with another employer). In addition, all of Mr. Murphys unvested
equity compensation outstanding on the date of termination shall vest and remain exercisable in
accordance with the terms of the applicable plan and related agreements and all stock options and
other incentive compensation granted to Mr. Murphy by OXiGENE shall, to the extent vested, remain
exercisable in accordance with the 2005 Stock Plan and any related agreements. All payments made
and benefits available to Mr. Murphy in connection with his employment agreement will comply with
Internal Revenue Code Section 409A in accordance with the terms of his employment agreement.
In February 2011, our board of directors voted unanimously to implement a 1:20 reverse stock
split of our common stock, following authorization of the reverse split by a shareholder vote on
December 21, 2010. The reverse split became effective on February 22, 2011. All of the share and
per share amounts discussed in this Form 10-K/A have been adjusted to reflect the effect of this
reverse split.
Outstanding Equity Awards at Fiscal Year-End
The following table shows grants of stock options and grants of unvested stock awards
outstanding on the last day of the fiscal year ended December 31, 2010, including both awards
subject to performance conditions and non-performance-based awards, to each of the executive
officers named in the Summary Compensation Table.
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Option Awards (1) | Stock Awards | |||||||||||||||||||||||
Number of | Market Value of | |||||||||||||||||||||||
Number of Securities | shares or Units | Shares or Units | ||||||||||||||||||||||
Number of Securities | Underlying | Option | of Stock That | of Stock That | ||||||||||||||||||||
Underlying Unexercised | Unexercised Options | Exercise | Option | Have Not Vested | Have Not Vested | |||||||||||||||||||
Name | Options Exerciseable # | Unexerciseable # | Price $ | Expiration Date | # | (2) $ | ||||||||||||||||||
David Chaplin |
2,250 | | $ | 101.20 | 7/12/2010 | | $ | | ||||||||||||||||
Vice President and Chief Scientific Officer |
5,000 | | $ | 44.80 | 3/15/2012 | |||||||||||||||||||
5,000 | | $ | 158.80 | 7/24/2013 | ||||||||||||||||||||
2,500 | | $ | 100.60 | 7/28/2014 | ||||||||||||||||||||
938 | 313 | $ | 83.60 | 1/25/2017 | ||||||||||||||||||||
1,500 | 4,500 | $ | 13.00 | 1/20/2019 | ||||||||||||||||||||
2,500 | 17,500 | $ | 21.20 | 4/27/2020 | ||||||||||||||||||||
3,438 | 6,563 | $ | 5.60 | 9/15/2020 | ||||||||||||||||||||
Peter Langecker |
3,125 | 9,375 | $ | 46.40 | 6/29/2019 | | $ | | ||||||||||||||||
Chief Executive Officer |
2,500 | 17,500 | $ | 21.20 | 4/27/2020 | |||||||||||||||||||
3,438 | 6,563 | $ | 5.60 | 9/15/2020 | ||||||||||||||||||||
James Murphy |
3,750 | | $ | 181.00 | 2/23/2014 | | $ | | ||||||||||||||||
Vice President and Chief Financial Officer |
1,000 | | $ | 100.60 | 7/28/2014 | |||||||||||||||||||
1,250 | | $ | 70.20 | 6/14/2016 | ||||||||||||||||||||
1,875 | 625 | $ | 83.60 | 1/25/2017 | ||||||||||||||||||||
1,563 | 4,688 | $ | 13.00 | 1/20/2019 | ||||||||||||||||||||
2,500 | 17,500 | $ | 21.20 | 4/27/2020 | ||||||||||||||||||||
3,438 | 6,563 | $ | 5.60 | 9/15/2020 |
(1) | Generally, option awards vest in equal annual installments over four years beginning on the first anniversary of the date of grant and the exercise price is the closing price of our common stock as quoted on The NASDAQ Capital Market on the date of grant. On September 15, 2010, we granted options to each of the named executive officers included in the table above that vest in equal annual installments over two years beginning on the first anniversary of the date of grant. | |
(2) | The market value of the stock awards is determined by multiplying the number of shares times $4.60, the closing price of our common stock on The NASDAQ Global Market on December 31, 2010, the last day of our fiscal year. |
Pension Benefits
We do not have any qualified or non-qualified defined benefit plans.
Nonqualified Deferred Compensation
We do not have any non-qualified defined contribution plans or other deferred compensation
plans.
Potential Payments Upon Termination or Change-In-Control
We have entered into certain agreements and maintain certain plans that may require us to make
certain payments and/or provide certain benefits to our named executive officers in the event of a
termination of employment or a change of control of the Company. The following tables summarize the
potential payments to each named executive officer assuming that one of the described termination
events occurs. The tables assume that the event occurred on December 31, 2010, the last day of our
fiscal year. On December 31, 2010, the last trading day of 2010, the closing price of our common
stock as listed on The NASDAQ Global Market was $4.60 per share.
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David Chaplin, Ph.D.
Involuntary Not for | ||||||||||||||||
Termination within 12 | Cause Termination or | |||||||||||||||
Executive Benefits and Payments Upon | months Following | Voluntary Termination | Termination by Executive | |||||||||||||
Termination | Change in Control | by Executive or Death | with Good Reason | For Cause Termination | ||||||||||||
Base Salary |
$ | 289,749 | $ | | $ | 386,332 | $ | | ||||||||
Annual Bonus (x% of Base Salary) |
N/A | N/A | N/A | N/A | ||||||||||||
Acceleration of Vesting of Equity |
100 | % | 0 | % | 0 | % | 0 | % | ||||||||
Number of Stock Options and Value
upon Termination |
52,000 | 23,125 | 23,125 | 23,125 | ||||||||||||
$ | 239,200 | $ | 106,375 | $ | 106,375 | $ | 106,375 | |||||||||
Number of Shares of Vested Stock Received and Value upon Termination |
6,250 | 6,250 | 6,250 | 6,250 | ||||||||||||
$ | 28,750 | $ | 28,750 | $ | 28,750 | $ | 28,750 | |||||||||
Relocation Reimbursement |
N/A | N/A | N/A | N/A | ||||||||||||
Deferred Compensation Payout |
N/A | N/A | N/A | N/A | ||||||||||||
Post-Term Health Care |
N/A | N/A | N/A | N/A | ||||||||||||
Excise Tax Gross Up |
N/A | N/A | N/A | N/A |
The information set forth above is described in more detail in the narrative following the
Summary Compensation Table.
Dr. Chaplins employment agreement references the definition of a Change in Control in our
1996 Stock Incentive Plan. For this purpose, Change in Control means the occurrence of either of
the following events: (a) any person (as such term is used in Section 13(c) and 14(d) of the
Exchange Act), other than a trustee or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company, is or
becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 40% or more of the total voting power
represented by the Companys then outstanding voting securities; or (b) during any period of two
consecutive years, individuals who at the beginning of such period constitute the Board and any new
director whose election by the Board or nomination for election by the Companys stockholders was
approved by a vote of at least two-thirds of the directors who either were directors at the
beginning of the two-year period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof.
Dr. Chaplin will be entitled to certain benefits as described in the table above if his
employment is terminated by the Company for reasons other than cause or by him with good reason.
Cause shall mean any of the following:
(a) the (i) continued failure by the executive to perform
substantially his duties on behalf of OXIGENE if the executive fails to remedy that breach within
ten (10) days of OXiGENEs written notice to the executive of such breach; or (ii) material breach
of any other provision of Dr. Chaplins employment agreement by the executive, if the executive
fails to remedy that breach within ten (10) days of OXiGENEs written notice to the executive of
such breach; or
(b) any act of fraud, material misrepresentation or material omission,
misappropriation, dishonesty, embezzlement or similar conduct against OXiGENE or any affiliate, or
conviction of executive for a felony or any crime involving moral turpitude.
Termination with Good Reason shall mean termination following a material breach of Dr.
Chaplins employment agreement by the Company, which breach remains uncured ten (10) days after
written notice thereof is received by the Company.
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All payments made and benefits available to Dr. Chaplin in connection with his employment
agreement will comply with Internal Revenue Code Section 409A in accordance with the terms of his
employment agreement.
Peter J. Langecker
Involuntary Not for | ||||||||||||||||||||
Termination | Voluntary | Cause Termination or | ||||||||||||||||||
within 12 months | Termination by | Termination by | ||||||||||||||||||
Executive Benefits and | Following Change | Executive or | Executive with Good | For Cause | ||||||||||||||||
Payments Upon Termination | in Control | Death | Reason | Termination | Disability | |||||||||||||||
Base Salary |
$ | 350,000 | $ | | $ | 350,000 | $ | | $ | | ||||||||||
Annual Bonus (x% of Base Salary) |
Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | N/A | Executive entitled to Annual Bonus related to most recently completed calendar year if not already paid | |||||||||||||||
Acceleration of Vesting of Equity |
100 | % | 0 | % | 0 | % | 0 | % | 0 | % | ||||||||||
Stock Options: |
||||||||||||||||||||
Number of Stock Options |
42,500 | 9,063 | 9,063 | 9,063 | | |||||||||||||||
Value upon Termination |
$ | 195,500 | $ | 41,688 | $ | 41,688 | $ | 41,688 | $ | | ||||||||||
Vested Stock Received: |
||||||||||||||||||||
Number of Shares |
| | | | | |||||||||||||||
Value upon Termination |
$ | | $ | | $ | | $ | | $ | | ||||||||||
Relocation Reimbursement |
N/A | N/A | N/A | N/A | N/A | |||||||||||||||
Deferred Compensation Payout |
N/A | N/A | N/A | N/A | N/A | |||||||||||||||
Post-Term Health Care |
Up to 12 months for Executive and family family | N/A | Up to 12 months for Executive and family | |||||||||||||||||
$ | 37,044 | $ | | $ | 37,044 | $ | | $ | | |||||||||||
Excise Tax Gross Up |
N/A | N/A | N/A | N/A | N/A |
The information set forth above is described in more detail in the narrative following the
Summary Compensation Table.
A Change in Control as defined in Dr. Langeckers employment agreement shall mean the
occurrence during the term of his employment of the following:
(i) Ownership. Any Person (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
becomes the Beneficial Owner (as defined in Rule 13d-3 under said Act), directly or indirectly,
of securities of OXiGENE representing 50% or more of the total voting power represented by
OXiGENEs then outstanding voting securities (excluding for this purpose any such voting securities
held by OXiGENE or its affiliates or by any employee benefit plan of OXiGENE) pursuant to a
transaction or a series of related transaction which the Board of Directors does not approve; or
18
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(ii) Merger/Sale of Assets. (A) A merger or consolidation of OXiGENE whether or not approved by the
Board of Directors, other than a merger or consolidation which would result in the voting
securities of OXiGENE outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the surviving entity or the
parent of such corporation) at least 50% of the total voting power represented by the voting
securities of OXiGENE or such surviving entity or parent of such corporation, as the case may be,
outstanding immediately after such merger or consolidation; or (B) the stockholders of OXiGENE
approve an agreement for the sale or disposition by OXiGENE of all or substantially all of
OXiGENEs assets; or
(iii) Change in Board Composition. A change in the composition of the Board of
Directors, as a result of which fewer than a majority of the directors are Incumbent Directors.
Incumbent Directors shall mean directors who either (A) are directors of OXiGENE as of the date
of this
Agreement, or (B) are elected, or nominated for election, to the Board of Directors with the
affirmative votes of at least a majority of the Incumbent Directors at the time of such election or
nomination (but shall not include an individual whose election or nomination is in connection with
an actual or threatened proxy contest relating to the election of directors to OXiGENE).
Dr. Langecker will be entitled to certain benefits as described in the table above if his
employment is terminated by the Company for reasons other than cause or by him with good reason.
Cause shall mean any of the following:
(a) the Executives substantial failure to perform any of
his duties hereunder or to follow reasonable, lawful directions of the Board or any officer to whom
the Executive reports;
(b) the Executives willful misconduct or willful malfeasance in connection
with his employment;
(c) the Executives conviction of, or plea of nolo contendre to, any crime
constituting a felony under the laws of the United States or any state thereof, or any other crime
involving moral turpitude;
(d) the Executives material breach of any of the provisions of this
Agreement, OXiGENEs bylaws or any other agreement with OXiGENE; or
(e) the Executives engaging in
misconduct which has caused significant injury to OXiGENE, financial or otherwise, or to OXiGENEs
reputation; or
(f) any act, omission or circumstance constituting cause under the law governing
this Agreement.
Termination with Good Reason shall mean:
(i) without the Executives express written consent, any material reduction in Executives
title, or responsibilities compared to those prior to a Change in Control (as such term is defined
in the employment agreement);
(ii) relocation of more than 60 miles;
(iii) without the Executives
express written consent, a material reduction by OXiGENE in the Executives total compensation as
in effect on the date hereof or as the same may be increased from time to time, provided that it
shall not be deemed a material reduction if (a) the amount of Executives Annual Bonus is less than
the amount of any previously awarded Annual Bonuses or (b) a benefit is amended and such amendment
affects all eligible executive participants; or
(iv) OXiGENE breaches a material term of this
Agreement and such breach has remained uncured for a minimum of thirty (30) days after Executive
has notified OXiGENE of breach. To be effective, such notice must be in writing and set forth the
specific alleged Good Reason for termination and the factual basis supporting the alleged Good
Reason.
All payments made and benefits available to Dr. Langecker in connection with his employment
agreement will comply with Internal Revenue Code Section 409A in accordance with the terms of his
employment agreement.
James B. Murphy
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Involuntary Not for | ||||||||||||||||
Termination within 12 | Cause Termination or | |||||||||||||||
Executive Benefits and Payments | months Following | Voluntary Termination | Termination by Executive | |||||||||||||
Upon Termination | Change in Control | by Executive or Death | with Good Reason | For Cause Termination | ||||||||||||
Base Salary |
$ | 245,000 | $ | | $ | 245,000 | $ | | ||||||||
Annual Bonus (x% of Base Salary) |
N/A | N/A | N/A | N/A | ||||||||||||
Acceleration of Vesting of Equity |
100 | % | 0 | % | 0 | % | 0 | % | ||||||||
Number of Stock Options and Value |
44,750 | 15,375 | 15,375 | 15,375 | ||||||||||||
upon Termination |
$ | 205,850 | $ | 70,725 | $ | 70,725 | $ | 70,725 | ||||||||
Number of Shares of Vested Stock |
||||||||||||||||
Received and Value upon |
2,000 | 2,000 | 2,000 | 2,000 | ||||||||||||
Termination |
$ | 9,200 | $ | 9,200 | $ | 9,200 | $ | 9,200 | ||||||||
Relocation Reimbursement |
N/A | N/A | N/A | N/A | ||||||||||||
Deferred Compensation Payout |
N/A | N/A | N/A | N/A | ||||||||||||
Post-Term Health Care |
Up to 12 months for Executive and family |
N/A | Up to 12 months for Executive and family |
N/A | ||||||||||||
$ | 27,084 | $ | | $ | 27,084 | $ | | |||||||||
Excise Tax Gross Up |
N/A | N/A | N/A | N/A |
The information set forth above is described in more detail in the narrative following
the Summary Compensation Table.
Mr. Murphys employment agreement references the definition of a Change in Control in our
1996 Stock Incentive Plan. A Change in Control means the occurrence of either of the following:
(a) any person (as such term is used in Section 13(c) and 14(d) of the Exchange Act), other than
a trustee or other fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company, is or becomes the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 40% or more of the total voting power represented by the Companys then
outstanding voting securities; or (b) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board and any new director whose election by the
Board or nomination for election by the Companys stockholders was approved by a vote of at least
two-thirds of the directors who either were directors at the beginning of the two-year period or
whose election or nomination for election was previously so approved, cease for any reason to
constitute a majority thereof.
Mr. Murphy will be entitled to certain benefits as described in the table above if his
employment is terminated by the Company for reasons other than cause or by him with good reason.
Cause shall mean any of the following:
(a) the (i) continued failure by the executive to perform substantially his duties on behalf
of OXIGENE if the executive fails to remedy that breach within ten (10) days of OXiGENEs written
notice to the executive of such breach; or (ii) material breach of any other provision of Mr.
Murphys employment agreement by the executive, if the executive fails to remedy that breach within
ten (10) days of OXiGENEs written notice to the executive of such breach; or
(b) any act of fraud, material misrepresentation or material omission, misappropriation,
dishonesty, embezzlement or similar conduct against OXiGENE or any affiliate, or conviction of
executive for a felony or any crime involving moral turpitude.
Termination with Good Reason shall mean termination following a material breach of Mr.
Murphys employment agreement by the Company, which breach remains uncured thirty (30) days after
written notice thereof is received by the Company.
20
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All payments made and benefits available to Mr. Murphy in connection with his employment
agreement will comply with Internal Revenue Code Section 409A in accordance with the terms of his
employment agreement.
Director Compensation
The following table shows the total compensation paid or accrued during the fiscal year ended
December 31, 2010 to each of our non-employee directors.
Fees Earned or | Stock Awards ($) | Option Awards | All Other | |||||||||||||
Name | Paid in Cash ($) | (1) | ($) | Compensation ($) | ||||||||||||
Roy H. Fickling (3) |
$ | | $ | 53,303 | $ | | $ | | ||||||||
Tamar Howson |
$ | | $ | 38,753 | $ | | $ | | ||||||||
Mark Kessel |
$ | | $ | 49,403 | $ | | $ | | ||||||||
Arthur Laffer (2) |
$ | | $ | 39,900 | $ | | $ | | ||||||||
William D. Schwieterman |
$ | | $ | 53,303 | $ | | $ | | ||||||||
William Shiebler |
$ | 95,000 | $ | 49,403 | $ | | $ | | ||||||||
Alastair J.J. Wood |
$ | | $ | 49,403 | $ | | $ | |
(1) | See Note 1 to our Consolidated Financial Statements included in our Annual Report on Form 10-K for the year ended December 31, 2010 for details as to the assumptions used to determine the fair value of each of the stock awards set forth in this table, and Note 3 describing all forfeitures during fiscal year 2010. See also our discussion of stock-based compensation under Managements Discussion and Analysis of Financial Condition and Results of Operations Critical Accounting Policies and Estimates in the Form 10-K. | |
(2) | Effective March 11, 2010, Dr. Laffer resigned as a member of the Companys Board of Directors. | |
(3) | Effective March 31, 2011, Mr. Fickling resigned as a member of the Companys Board of Directors. |
The following is a description of the standard compensation arrangements under which our
non-employee directors are compensated for their service as directors, including as members of the
various Committees of our Board.
Fees. The Board of Directors adopted an amended and restated director compensation policy,
effective January 1, 2010. In accordance with the policy, prior to the commencement of each
calendar year, the Board of Directors establishes the number of shares of our common stock to be
granted as the annual retainer for the upcoming calendar year for all outside directors. The annual
retainer is paid in the form of semi-annual grants, under the OXiGENE, Inc. 2005 Stock Plan (the
Stock Plan), of fully-vested shares of our common stock in the amount established by the Board of
Directors for such calendar year. Shares of common stock to be issued to each outside director on
the date of grant are automatically granted without further action by the Board of Directors or the
Compensation Committee semi-annually on and as of January 2 and July 1, or the first business day
thereafter. Shares granted pursuant to the policy have a
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purchase price equal to the par value of
our common stock on the date of grant and are subject to the terms and conditions of the Stock
Plan.
During an interim period beginning in May 2009 and ending on January 31, 2010, following his
assumption of the duties of Chairman, Mr. Shiebler received: $40,000 in cash for the first month of
service; $20,000 in cash for each month thereafter during such interim period; $1,200 per month for
secretarial expenses to be incurred by him; and an option to purchase 100,000 shares of our common
stock, vesting in equal amounts over four years, starting one year from the date of grant, at an
exercise price of $2.23 per share. Mr. Shiebler received these amounts in connection with the
services he provided as Chairman, and in recognition of the level of services he provided in that
capacity. Mr. Shiebler did not receive any separate compensation under the director compensation
policy in addition to these amounts. Effective February 2010, Mr. Shieblers cash compensation was
reduced to $10,000 per month. Effective June 2010, Mr. Shieblers cash compensation was reduced
further to $5,000 per month.
Equity Incentives. Under the terms of our 2005 Stock Plan, directors may be granted shares of
common stock, stock-based awards and/or stock options to purchase shares of common stock.
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ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following tables set forth certain information with respect to the beneficial ownership of
our common stock as of March 18, 2011, for (a) (1) our Chief Executive Officer, (2) our Chief
Financial Officer and (3) our next most highly compensated executive officer who earned more than
$100,000 during the fiscal year ended December 31, 2010, (b) each of our directors, (c) all of our
current directors and executive officers as a group and (d) each stockholder known by us to own
beneficially more than 5% of our common stock. Beneficial ownership is determined in accordance
with the rules of the Securities and Exchange Commission and includes voting or investment power
with respect to the securities. We deem shares of common stock that may be acquired by an
individual or group within 60 days of March 18, 2011 pursuant to the exercise of options or
warrants to be outstanding for the purpose of computing the percentage ownership of such individual
or group, but such shares are not deemed to be outstanding for the purpose of computing the
percentage ownership of any other person shown in the tables. Except as indicated in footnotes to
these tables, we believe that the stockholders named in these tables have sole voting and
investment power with respect to all shares of common stock shown to be beneficially owned by them
based on information provided to us by these stockholders. Percentage of ownership is based on
7,005,517 shares of common stock outstanding on March 18, 2011.
Number of Shares | ||||||
Beneficially Owned | ||||||
and Nature of | Percent of | |||||
Ownership | Class % | |||||
David Chaplin (1) |
35,655 | * | ||||
Tamar Howson |
3,750 | * | ||||
Mark Kessel (2) |
1,361,606 | 19.4% | ||||
Peter Langecker (3) |
13,125 | * | ||||
Jim Murphy (4) |
21,625 | * | ||||
William Schweiterman (5) |
6,960 | * | ||||
William Shiebler (6) |
20,600 | * | ||||
Alastair J.J. Wood |
5,750 | * | ||||
All current
directors and executive officers as a group (8 persons) (7) |
1,469,071 | 20.8% |
* | Less than 1%. | |
(1) | Includes options to purchase 29,000 shares of common stock, which are exercisable within 60 days of March 18, 2011 (May 17, 2011). | |
(2) | Includes 1,355,856 shares of common stock held by Symphony ViDA Holdings LLC. Mark Kessel is a partner of Symphony GP LLC, which is the general partner of Symphony Capital GP, L.P., which is |
23
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the general partner of Symphony Capital Partners, L.P., which is the manager of Symphony ViDA Holdings LLC. | ||
(3) | Includes options to purchase 13,125 shares of common stock, which are exercisable within 60 days of March 18, 2011 (May 17, 2011). | |
(4) | Includes options to purchase 21,625 shares of common stock, which are exercisable within 60 days of March 18, 2011 (May 17, 2011). | |
(5) | Includes 500 shares of unvested restricted common stock granted in 2007, which vest in equal annual installments over a four-year period, all of which are subject to transfer and forfeiture restrictions. | |
(6) | Includes options to purchase 6,750 shares of common stock, which are exercisable within 60 days of March 18, 2011 (May 17, 2011). | |
(7) | Includes 2,000 shares of common stock subject to transfer restrictions, options to purchase 70,500 shares of common stock held by the directors and executive officers as a group and which are exercisable within 60 days of March 18, 2011 (May 17, 2011) and 1,000 shares of unvested restricted common stock, all of which were granted in 2007, which vest in equal annual installments over a four-year period, and which are subject to transfer and forfeiture restrictions. |
As of March 18, 2011, the following are the only entities known to us to be the beneficial
owners of more than 5% of our outstanding common stock.
Number of Shares | ||||||||
Beneficially Owned | ||||||||
and Nature of | Percent of | |||||||
Name and Address of Beneficial Owner | Ownership | Class | ||||||
Capital Ventures International*
One Capitol Place P.O Box 1787 GT Grand Cayman, Cayman Islands British West Indies |
412,653 | 5.83 | % | |||||
Symphony ViDA Holdings LLC
875 Third Avenue 18th Floor New York, NY 10022 |
1,361,606 | 19.24 | % |
* Heights Capital Management, Inc., 101 California Street, Suite 3250, San Francisco,
California 94111 is the investment manager to Capital Ventures International and as such may
exercise voting and dispositive power over these shares.
The determination that there were no other persons, entities or groups known to us to
beneficially own more than 5% of our outstanding common stock was based on a review of all
statements filed with respect to us since the beginning of the past fiscal year with the Securities
and Exchange Commission pursuant to Section 13(d) or 13(g) of the Exchange Act.
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Equity Compensation Plan Information
The following table provides certain aggregate information with respect to all of the
Companys equity compensation plans in effect as of December 31, 2010.
Number of Securities | ||||||||||||
Remaining Available for | ||||||||||||
Number of Securities to be | Weighted-Average | Future Issuance Under Equity | ||||||||||
Issued Upon Exercise of | Exercise Price of | Compensation Plans | ||||||||||
Outstanding Options, | Outstanding Options, | (Excluding Securities | ||||||||||
Plan Category | Warrants and Rights | Warrants and Rights | Reflected in Column (a)) | |||||||||
Equity compensation plans
approved by security holders (the
1996 Stock Incentive Plan) |
25,800 | $ | 132.70 | | ||||||||
Equity compensation plans
approved by security holders (the
2005 Stock Plan) |
299,252 | $ | 19.50 | 52,777 | ||||||||
Equity compensation plans not
approved by security holders |
| | | |||||||||
Total |
325,052 | $ | 28.49 | 52,777 |
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
Our Audit Committee reviews and approves in advance all related person transactions.
We did not engage in any related person transactions during the year ended December 31, 2010.
Symphony Transaction
In October 2008, we announced a strategic collaboration with Symphony Capital Partners,
L.P. (Symphony), a private-equity firm, under which Symphony agreed to provide up to $40 million in
funding to support the advancement of ZYBRESTAT for oncology, ZYBRESTAT for ophthalmology and
OXi4503. In connection with the collaboration, we granted Symphony ViDA, Inc., a newly-created drug
development company, exclusive licenses to ZYBRESTAT for use in ophthalmologic indications and
OXi4503. As part of this transaction, we maintained the exclusive purchase option, but not the
obligation, to purchase all of the equity of Symphony ViDA (Purchase Option) 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 Symphony ViDA, less certain amounts.
Under the collaboration, we entered into a series of related agreements with Symphony
Capital LLC, Symphony ViDA, Symphony ViDA Holdings LLC (Holdings) and related entities, including a
Purchase Option Agreement, a Research and Development Agreement, a Technology License Agreement and
an Additional Funding Agreement. In addition, we entered into a series of related agreements with
Holdings, including a Stock and Warrant Purchase Agreement and a Registration Rights Agreement.
Pursuant to these agreements, Holdings formed and capitalized Symphony ViDA in order
(a) to hold certain intellectual property related to the programs which were exclusively licensed
to Symphony ViDA under the Technology License Agreement and (b) to fund commitments of up to $25
million. The funding was intended to support preclinical and clinical development by us, on behalf
of Symphony ViDA, of the programs.
We issued to Holdings, pursuant to the Stock and Warrant Purchase Agreement, an aggregate
of 675,675 shares of our common stock and warrants at a price of $22.20 per share, which was the
closing
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price of our common stock on the NASDAQ Global Market on September 30, 2008, the day before
we entered into the Symphony transaction. In addition, pursuant to the Purchase Option Agreement,
we issued to Holdings an aggregate of 180,180 shares of our common stock with a fair value of $4
million as consideration for the Purchase Option.
On July 2, 2009, OXiGENE, Holdings and Symphony ViDA entered into a series of related
agreements pursuant to which we exercised the Purchase Option under terms set forth in an amended
and restated purchase option agreement (the Amended Purchase Option Agreement), and OXiGENE and
Holdings also entered into an amended and restated registration rights agreement.
We closed on the amended Purchase Option on July 20, 2009 and issued 500,000 shares of
our common stock to Holdings at the closing in exchange for all of the equity of Symphony ViDA,
subject to further adjustment under the rights described in the paragraph above. In addition, upon
the closing of the Purchase Option, we re-acquired all of the rights to the programs, and the
approximately $12,400,000 in cash held by Symphony ViDA at the time of the closing became available
for use for our general corporate purposes.
For as long as Symphony Capital LLC owns at least 10% of our common stock, it has the
right to appoint two members to our Board of Directors, and has appointed Mr. Mark Kessel and
Dr. Alastair Wood to serve as directors pursuant to this right. We also maintain our advisory
relationships with Symphony and RRD International LLC. The Additional Funding Agreement, dated
October 1, 2008, has been terminated.
Director Independence
Our Board has determined that the following members of the Board qualify as independent
directors under the current independence standards promulgated by the Securities and Exchange
Commission and the NASDAQ Stock Market: Tamar D. Howson, William D. Schwieterman and William N.
Shiebler.
On April 6, 2011, we filed a Current Report on Form 8-K disclosing that Roy H. Fickling
resigned from our Board of Directors on March 31, 2011. Later on April 6, 2011, The Nasdaq Stock
Market notified us that, as a result of Mr. Ficklings resignation, we no longer comply with
Nasdaqs independent director requirement as set forth in The Nasdaq Listing Rules. These rules
require that a majority of our Board of Directors be composed of independent directors. Pursuant to
The Nasdaq Listing Rules, we have been provided a cure period until the earlier of our next annual
shareholders meeting or March 31, 2012; or if our next annual shareholders meeting is held before
September 27, 2011, then we must evidence compliance no later than September 27, 2011. We have
indicated that we intend to comply with Nasdaqs independent director requirements within the cure
period provided by Nasdaq.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The following table presents fees for professional audit services rendered by Ernst &
Young LLP for the audit of the Companys annual financial statements for the years ended
December 31, 2010 and December 31, 2009, and fees billed for other services rendered by Ernst &
Young LLP during those periods.
2010 | 2009 | |||||||
Audit fees:(1) |
$ | 334,000 | $ | 503,900 | ||||
Audit related:(2) |
2,000 | 43,500 | ||||||
Tax Fees:(3) |
15,000 | 17,200 | ||||||
All other fees:(4) |
| | ||||||
Total |
$ | 351,000 | $ | 564,600 | ||||
(1) | Audit fees consisted of audit work performed in the preparation and audit of the annual financial statements, review of quarterly financial statements, as well as work that generally only the independent auditor can reasonably be expected to provide, such as the provision of consents and comfort letters in connection with the filing of registration statements and statutory audits. |
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(2) | Audit-related fees in 2010 consisted of fees for access to technical accounting information. Audit-related fees in 2009 consisted of fees for due diligence services in connection with our attempted merger with VaxGen Inc. as well as fees for access to technical accounting information. | |
(3) | Tax fees consisted principally of assistance with tax compliance and reporting, as well as certain tax planning consultations. | |
(4) | There were no fees incurred in this category in either 2010 or 2009. |
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Policy on Audit Committee Pre-Approval of Audit and Permissible
Non-audit Services of Independent Registered Public Accounting Firm
Non-audit Services of Independent Registered Public Accounting Firm
Consistent with SEC policies regarding auditor independence, the Audit Committee has
responsibility for appointing, setting compensation and overseeing the work of the independent
registered public accounting firm. In recognition of this responsibility, the Audit Committee has
established a policy to pre-approve all audit and permissible non-audit services provided by the
independent registered public accounting firm.
Prior to engagement of the independent registered public accounting firm for the next
years audit, management will submit an aggregate of services expected to be rendered during that
year for each of four categories of services to the Audit Committee for approval.
1. Audit services include audit work performed in the preparation and audit of the annual
financial statements, fees for the audit of the effectiveness of the Companys system of internal
control over financial reporting, as well as the audit of managements assessment of the
effectiveness thereof, review of quarterly financial statements, as well as work that generally
only the independent auditor can reasonably be expected to provide, such as the provision of
consents and comfort letters in connection with the filing of registration statements.
2. Audit-related services are for assurance and related services that are traditionally
performed by the independent auditor, including due diligence related to mergers and acquisitions,
employee benefit plan audits, and special procedures required to meet certain regulatory
requirements.
3. Tax services consist principally of assistance with tax compliance and reporting, as
well as certain tax planning consultations.
4. Other Fees are those associated with services not captured in the other categories.
The Company generally does not request such services from the independent auditor.
Prior to engagement, the Audit Committee pre-approves these services by category of
service. The fees are budgeted, and the Audit Committee requires the independent registered public
accounting firm and management to report actual fees versus the budget periodically throughout the
year by category of service. During the year, circumstances may arise when it may become necessary
to engage the independent registered public accounting firm for additional services not
contemplated in the original pre-approval. In those instances, the Audit Committee requires
specific pre-approval before engaging the independent registered public accounting firm.
The Audit Committee may delegate pre-approval authority to one or more of its members.
The member to whom such authority is delegated must report, for informational purposes only, any
pre-approval decisions to the Audit Committee at its next scheduled meeting.
PART IV
Item 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Item 15 (a) The following documents were filed as part of the Annual Report on Form 10-K
that was filed on March 16, 2011.
(1) Financial Statements:
Page | ||
Report of Independent Registered Public Accounting Firm |
F-2 | |
Consolidated Balance Sheets |
F-3 | |
Consolidated Statements of Operations |
F-4 | |
Consolidated Statements of Stockholders (Deficit) Equity |
F-5 | |
Consolidated Statements of Cash Flows |
F-6 | |
Notes to Consolidated Financial Statements |
F-7 |
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(2) Financial Statement Schedules:
None.
(3) Exhibits:
The following is a list of exhibits filed as part of this Annual Report on Form 10-K/A.
Exhibit | ||
Number | Description | |
2.1
|
Agreement and Plan of Merger by and among OXiGENE, Inc., OXiGENE Merger Sub, Inc., VaxGen, Inc. and James P. Panek, as representative of VaxGen stockholders, dated as of October 14, 2009. £(1) | |
3.1
|
Restated Certificate of Incorporation of the Registrant.* | |
3.2
|
Amended and Restated By-Laws of the Registrant.%%% | |
3.3
|
Certificates of Amendment of Certificate of Incorporation, dated June 21, 1995 and November 15, 1996.** | |
3.4
|
Certificate of Amendment of Restated Certificate of Incorporation, dated July 14, 2005. ! | |
3.5
|
Certificate of Amendment of Restated Certificate of Incorporation, dated June 2, 2009. | |
3.6
|
Certificate of Amendment of Restated Certificate of Incorporation, dated February 8, 2010. Ω | |
3.7
|
Certificate of Amendment of Restated Certificate of Incorporation, dated August 5, 2010. ΩΩΩ | |
3.8
|
Certificate of Amendment of Restated Certificate of Incorporation, dated February 22, 2011. αααα | |
4.1
|
Specimen Common Stock Certificate.* | |
4.2
|
Warrant for the purchase of shares of common stock, dated February 19, 2008, issued by the Registrant to Kingsbridge Capital Limited. | |
4.3
|
Registration Rights Agreement, dated February 19, 2008, by and between the Registrant and Kingsbridge Capital Limited. | |
4.4
|
Form of Direct Investment Warrant, dated as of October 17, 2008. § | |
4.5
|
Registration Rights Agreement by and between the Company and Symphony ViDA Holdings LLC, dated as of October 1, 2008. § | |
4.6
|
Amended and Restated Registration Rights Agreement by and between the Company and Symphony ViDA Holdings LLC, dated as of July 2, 2009. | |
4.7
|
Form of Five-year Warrant, dated as of July 15, 2009. | |
4.8
|
Registration Rights Agreement, dated as of March 10, 2010, by and among the Company and the Buyers named therein. ΩΩΩΩ | |
4.9
|
Form of Series E Warrant. ααα | |
10.1
|
OXiGENE 1996 Stock Incentive Plan, as amended.+@ | |
10.2
|
Technology Development Agreement, dated as of May 27, 1997, between the Registrant and the Arizona Board of Regents, acting for and on behalf of Arizona State University.*** | |
10.3
|
Research Collaboration and License Agreement, dated as of December 15, 1999, between OXiGENE Europe AB and Bristol-Myers Squibb Company.++ | |
10.4
|
Independent Contractor Agreement For Consulting Services, dated as of April 1, 2001, between Registrant and David Chaplin Consultants, Ltd. #@ |
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Exhibit | ||
Number | Description | |
10.5
|
Employment Agreement, dated as of April 1, 2001, between the Registrant and Dr. David Chaplin. #@ | |
10.6
|
Restricted Stock Agreement for Employees, dated as of January 2, 2002, between the Registrant and Dr. David Chaplin. #@ | |
10.7
|
Form of Compensation Award Stock Agreement for Non-Employee Directors, dated as of January 2, 2002. #@ | |
10.8
|
Amendment and Confirmation of License Agreement No. 206-01.LIC, dated as of June 10, 2002, between the Registrant and the Arizona Board of Regents, acting for and on behalf of Arizona State University. # | |
10.9
|
License Agreement No. 206-01.LIC by and between the Arizona Board of Regents, acting on behalf of and for Arizona State University, and OXiGENE Europe AB, dated August 2, 1999. & | |
10.10
|
Research and License Agreement between the Company and Baylor University, dated June 1, 1999. & | |
10.11
|
Agreement to Amend Research and License Agreement between the Company and Baylor University, dated April 23, 2002. & | |
10.12
|
Addendum to Research and License Agreement between the Company and Baylor University, dated April 14, 2003. & | |
10.13
|
Employment Agreement, dated as of February 23, 2004, between the Registrant and James B. Murphy.%@ | |
10.14
|
Stockholder Rights Agreement dated as of March 24, 2005, between the Company and American Stock Transfer and Trust Company. !! | |
10.15
|
OXiGENE 2005 Stock Plan. !!!@ | |
10.16
|
Form of Incentive Stock Option Agreement under OXiGENE 2005 Stock Plan. $@ | |
10.17
|
Form of Non-Qualified Stock Option Agreement under OXiGENE 2005 Stock Plan. $@ | |
10.18
|
Form of Restricted Stock Agreement under OXiGENE 2005 Stock Plan. $@ | |
10.19
|
Amendment No. 1 to Employment Agreement, dated as of January 1, 2007, between the Registrant and David Chaplin.%%%%@ | |
10.20
|
Common Stock Purchase Agreement, dated February 19, 2008, by and between the registrant and Kingsbridge Capital Limited. | |
10.21
|
Amendment No. 1 to the Stockholder Rights Agreement by and between the Company and American Stock Transfer & Trust Company, dated as of October 1, 2008. § | |
10.22
|
Form of Indemnification Agreement between the Company and its Directors.§§@ | |
10.23
|
OXiGENE, Inc. Amended and Restated Director Compensation Policy, effective January 1, 2010. ΩΩ@ | |
10.24
|
409A Amendment to Employment Agreement by and between the Company and Dr. Chaplin, dated as of December 30, 2008. §§§§@ | |
10.25
|
409A Amendment to Employment Agreement by and between the Company and Mr. Murphy, dated as of December 30, 2008. §§§§@ | |
10.26
|
Amendment No. 2 to Employment Agreement by and between the Company and Dr. Chaplin, dated as of January 20, 2009. §§§§@ | |
10.27
|
Amendment No. 2 to Employment Agreement by and between the Company and Mr. Murphy, dated as of January 20, 2009. §§§§@ | |
10.28
|
Lease between Broadway 701 Gateway Fee LLC, A Delaware Limited Liability Company, as Landlord, and the Company, as Tenant, dated October 10, 2008. §§§§ | |
10.29
|
Office Lease Agreement, dated April 21, 2009, between the Registrant and King Waltham LLC. §§§§§ | |
10.30
|
Separation Agreement between OXiGENE and Dr. Walicke dated as of June 10, 2009. $$$$@ | |
10.31
|
Employment Agreement by and between the Company and Dr. Langecker, dated as of June 10, 2009. $$$$$@ | |
10.32
|
Amended and Restated Purchase Option Agreement by and among the Company, Symphony ViDA, Inc. and Symphony ViDA Holdings LLC, dated as of July 2, 2009. | |
10.33
|
Termination Agreement by and among the Company, Symphony ViDA Holdings LLC, Symphony ViDA Investors LLC and Symphony ViDA, Inc., dated as of July 2, 2009. | |
10.34
|
Form of Voting Agreement by and among OXiGENE, Inc., VaxGen, Inc. and certain VaxGen stockholders, dated as of October 14, 2009. £ | |
10.35
|
Form of Voting Agreement by and among VaxGen, Inc., OXiGENE, Inc., and certain OXiGENE |
30
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Exhibit | ||
Number | Description | |
stockholders, dated as of October 14, 2009. £ | ||
10.36
|
Amendment No. 2 to Stockholder Rights Agreement by and between OXiGENE, Inc. and American Stock Transfer & Trust Company, LLC, dated as of October 14, 2009. £ | |
10.37
|
Separation Agreement between OXiGENE, Inc. and John A. Kollins, dated as of October 28, 2009. ££@ | |
10.38
|
Amendment No. 1 to Common Stock Purchase Agreement by and between OXiGENE, Inc. and Kingsbridge Capital Limited, dated as of February 9, 2010. £££ | |
10.39
|
Amendment No. 3 to Stockholder Rights Agreement, dated as of March 10, 2010, by and between the Company and American Stock Transfer and Trust Company. ΩΩΩΩ | |
10.40
|
Securities Purchase Agreement, dated as of March 10, 2010, by and among the Company and the Buyers named therein. ΩΩΩΩ | |
10.41
|
Voting Agreement, dated as of March 10, 2010, by and between the Company and Symphony ViDA Holdings LLC. ΩΩΩΩ | |
10.42
|
Form of Amendment and Exchange Agreement, dated as of March 25, 2010, by and among the Company and the Investors named therein. α | |
10.43
|
Sales Agreement, dated July 21, 2010, between OXiGENE, Inc. and McNicoll, Lewis & Vlak LLC. αα | |
10.44
|
Form of Warrant Exchange Agreement, dated as of January 18, 2011, by and between the Company and each Investor named therein. ααα | |
10.45
|
Form of Voting Agreement, dated as of January 18, 2011, by and between the Company and each of its directors, executive officers and Symphony ViDA Holdings LLC. ααα | |
10.46
|
Form of Amendment No. 4 to Stockholder Rights Agreement, dated as of January 18, 2011, by and between the Company and American Stock Transfer and Trust Company. ααα | |
14.1
|
Code of Conduct. #### | |
23.1
|
Consent of Ernst & Young LLP. X | |
31.1
|
Certification of Chief Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a). XX | |
31.2
|
Certification of Chief Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a). XX | |
32.1
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. X |
* | Incorporated by reference to the Registrants Registration Statement on Form S-1 (file no. 33-64968) and any amendments thereto. | |
** | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 1996. | |
*** | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 1997. | |
**** | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 1999. | |
# | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2002. | |
## | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2002. | |
#### | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2002. | |
+ | Incorporated by reference to the Registrants Registration Statement on Form S-8 (file no. 333-92747) and any amendments thereto. | |
++ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on December 28, 1999. |
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& | Incorporated by reference to Amendment No. 3 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2002. | |
&& | Incorporated by reference to Amendment No. 4 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2002. | |
&& | Incorporated by reference to the Registrants Registration Statement on Form S-3 (file no. 333-106307) and any amendments thereto. | |
&&&& | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2003. | |
% | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2004. | |
! | Incorporated by reference to the Registrants Registration Statement on Form S-8 (file no. 333-126636) and any amendments thereto. | |
!! | Incorporated by reference to the Registrants Registration Statement on Form 8-A, dated March 30, 2005 and any amendments thereto. | |
!!! | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 11, 2005. | |
$ | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2005. | |
%%% | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on December 20, 2007. | |
%%%% | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2007. | |
| Incorporated by reference to the Registrants Current Report on Form 8-K, filed on February 21, 2008. | |
§ | Incorporated by reference to the Registrants Amendment No. 1 to its Current Report on Form 8-K/A, filed on October 10, 2008. | |
§§ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on October 24, 2008. | |
§§§§ | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2008. | |
§§§§§ | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2009. | |
$$$$ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on June 12, 2009. | |
$$$$$ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on June 17, 2009. |
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| Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 7, 2009. | |
| Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 15, 2009. | |
| Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2009. |
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£ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on October 16, 2009. | |
££ | Incorporated by reference to the Registrants Amendment to its Current Report on Form 8-K/A, filed on November 2, 2009. | |
£££ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on February 12, 2010. | |
Ω | Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended December 31, 2009. | |
ΩΩ | Incorporated by reference to the Registrants Amendment No. 1 to Annual Report on Form 10-K/A for the year ended December 31, 2009. | |
ΩΩΩ | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2010. | |
ΩΩΩΩ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on March 11, 2010. | |
α | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on March 26, 2010. | |
αα | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 21, 2010. | |
ααα | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on January 19, 2011. | |
αααα | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on February 22, 2011. | |
+++ | Confidential treatment requested as to certain portions of the document, which portions have been omitted and filed separately with the Securities and Exchange Commission. | |
@ | Management contract or compensatory plan or arrangement. | |
X | Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended December 31, 2010, filed on March 16, 2011. | |
XX | Filed with this report. | |
(1) | Pursuant to Item 601(b)(2) of Regulation S-K, certain schedules and/or exhibits have been omitted from the Agreement and Plan of Merger. OXiGENE will furnish copies of any such schedules or exhibits to the Securities and Exchange Commission upon request. |
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the Registrant has duly caused this Amendment No. 1 to this Annual Report on Form 10-K/A to
be signed on its behalf by the undersigned, thereunto duly authorized.
OXiGENE, Inc. |
||||
By: | /s/ Peter J. Langecker | |||
Peter J. Langecker | ||||
Chief Executive Officer | ||||
Date: May 2, 2011
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EXHIBIT INDEX
Exhibit | ||
Number | Description | |
2 .1
|
Agreement and Plan of Merger by and among OXiGENE, Inc., OXiGENE Merger Sub, Inc., VaxGen, Inc. and James P. Panek, as representative of VaxGen stockholders, dated as of October 14, 2009. £(1) | |
3 .1
|
Restated Certificate of Incorporation of the Registrant.* | |
3 .2
|
Amended and Restated By-Laws of the Registrant.%%% | |
3 .3
|
Certificates of Amendment of Certificate of Incorporation, dated June 21, 1995 and November 15, 1996.** | |
3 .4
|
Certificate of Amendment of Restated Certificate of Incorporation, dated July 14, 2005. ! | |
3 .5
|
Certificate of Amendment of Restated Certificate of Incorporation, dated June 2, 2009. | |
3 .6
|
Certificate of Amendment of Restated Certificate of Incorporation, dated February 8, 2010. Ω | |
3 .7
|
Certificate of Amendment of Restated Certificate of Incorporation, dated August 5, 2010. ΩΩΩ | |
3 .8
|
Certificate of Amendment of Restated Certificate of Incorporation, dated February 22, 2011. αααα | |
4 .1
|
Specimen Common Stock Certificate.* | |
4 .2
|
Warrant for the purchase of shares of common stock, dated February 19, 2008, issued by the Registrant to Kingsbridge Capital Limited. | |
4 .3
|
Registration Rights Agreement, dated February 19, 2008, by and between the Registrant and Kingsbridge Capital Limited. | |
4 .4
|
Form of Direct Investment Warrant, dated as of October 17, 2008. § | |
4 .5
|
Registration Rights Agreement by and between the Company and Symphony ViDA Holdings LLC, dated as of October 1, 2008. § | |
4 .6
|
Amended and Restated Registration Rights Agreement by and between the Company and Symphony ViDA Holdings LLC, dated as of July 2, 2009. | |
4 .7
|
Form of Five-year Warrant, dated as of July 15, 2009. | |
4 .8
|
Registration Rights Agreement, dated as of March 10, 2010, by and among the Company and the Buyers named therein. ΩΩΩΩ | |
4 .9
|
Form of Series E Warrant. ααα | |
10 .1
|
OXiGENE 1996 Stock Incentive Plan, as amended.+@ | |
10 .2
|
Technology Development Agreement, dated as of May 27, 1997, between the Registrant and the Arizona Board of Regents, acting for and on behalf of Arizona State University.*** | |
10 .3
|
Research Collaboration and License Agreement, dated as of December 15, 1999, between OXiGENE Europe AB and Bristol-Myers Squibb Company.++ | |
10 .4
|
Independent Contractor Agreement For Consulting Services, dated as of April 1, 2001, between Registrant and David Chaplin Consultants, Ltd. #@ |
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Exhibit | ||
Number | Description | |
10 .5
|
Employment Agreement, dated as of April 1, 2001, between the Registrant and Dr. David Chaplin. #@ | |
10 .6
|
Restricted Stock Agreement for Employees, dated as of January 2, 2002, between the Registrant and Dr. David Chaplin. #@ | |
10 .7
|
Form of Compensation Award Stock Agreement for Non-Employee Directors, dated as of January 2, 2002. #@ | |
10 .8
|
Amendment and Confirmation of License Agreement No. 206-01.LIC, dated as of June 10, 2002, between the Registrant and the Arizona Board of Regents, acting for and on behalf of Arizona State University. # | |
10 .9
|
License Agreement No. 206-01.LIC by and between the Arizona Board of Regents, acting on behalf of and for Arizona State University, and OXiGENE Europe AB, dated August 2, 1999. & | |
10 .10
|
Research and License Agreement between the Company and Baylor University, dated June 1, 1999. & | |
10 .11
|
Agreement to Amend Research and License Agreement between the Company and Baylor University, dated April 23, 2002. & | |
10 .12
|
Addendum to Research and License Agreement between the Company and Baylor University, dated April 14, 2003. & | |
10 .13
|
Employment Agreement, dated as of February 23, 2004, between the Registrant and James B. Murphy.%@ | |
10 .14
|
Stockholder Rights Agreement dated as of March 24, 2005, between the Company and American Stock Transfer and Trust Company. !! | |
10 .15
|
OXiGENE 2005 Stock Plan. !!!@ | |
10 .16
|
Form of Incentive Stock Option Agreement under OXiGENE 2005 Stock Plan. $@ | |
10 .17
|
Form of Non-Qualified Stock Option Agreement under OXiGENE 2005 Stock Plan. $@ | |
10 .18
|
Form of Restricted Stock Agreement under OXiGENE 2005 Stock Plan. $@ | |
10 .19
|
Amendment No. 1 to Employment Agreement, dated as of January 1, 2007, between the Registrant and David Chaplin.%%%%@ | |
10 .20
|
Common Stock Purchase Agreement, dated February 19, 2008, by and between the registrant and Kingsbridge Capital Limited. | |
10 .21
|
Amendment No. 1 to the Stockholder Rights Agreement by and between the Company and American Stock Transfer & Trust Company, dated as of October 1, 2008. § | |
10 .22
|
Form of Indemnification Agreement between the Company and its Directors.§§@ | |
10 .23
|
OXiGENE, Inc. Amended and Restated Director Compensation Policy, effective January 1, 2010. ΩΩ@ | |
10 .24
|
409A Amendment to Employment Agreement by and between the Company and Dr. Chaplin, dated as of December 30, 2008. §§§§@ | |
10 .25
|
409A Amendment to Employment Agreement by and between the Company and Mr. Murphy, dated as of December 30, 2008. §§§§@ | |
10 .26
|
Amendment No. 2 to Employment Agreement by and between the Company and Dr. Chaplin, dated as of January 20, 2009. §§§§@ | |
10 .27
|
Amendment No. 2 to Employment Agreement by and between the Company and Mr. Murphy, dated as of January 20, 2009. §§§§@ | |
10 .28
|
Lease between Broadway 701 Gateway Fee LLC, A Delaware Limited Liability Company, as Landlord, and the Company, as Tenant, dated October 10, 2008. §§§§ | |
10 .29
|
Office Lease Agreement, dated April 21, 2009, between the Registrant and King Waltham LLC. §§§§§ | |
10 .30
|
Separation Agreement between OXiGENE and Dr. Walicke dated as of June 10, 2009. $$$$@ |
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Exhibit | ||
Number | Description | |
10 .31
|
Employment Agreement by and between the Company and Dr. Langecker, dated as of June 10, 2009. $$$$$@ | |
10 .32
|
Amended and Restated Purchase Option Agreement by and among the Company, Symphony ViDA, Inc. and Symphony ViDA Holdings LLC, dated as of July 2, 2009. | |
10 .33
|
Termination Agreement by and among the Company, Symphony ViDA Holdings LLC, Symphony ViDA Investors LLC and Symphony ViDA, Inc., dated as of July 2, 2009. | |
10 .34
|
Form of Voting Agreement by and among OXiGENE, Inc., VaxGen, Inc. and certain VaxGen stockholders, dated as of October 14, 2009. £ | |
10 .35
|
Form of Voting Agreement by and among VaxGen, Inc., OXiGENE, Inc., and certain OXiGENE stockholders, dated as of October 14, 2009. £ | |
10 .36
|
Amendment No. 2 to Stockholder Rights Agreement by and between OXiGENE, Inc. and American Stock Transfer & Trust Company, LLC, dated as of October 14, 2009. £ | |
10 .37
|
Separation Agreement between OXiGENE, Inc. and John A. Kollins, dated as of October 28, 2009. ££@ | |
10 .38
|
Amendment No. 1 to Common Stock Purchase Agreement by and between OXiGENE, Inc. and Kingsbridge Capital Limited, dated as of February 9, 2010. £££ | |
10 .39
|
Amendment No. 3 to Stockholder Rights Agreement, dated as of March 10, 2010, by and between the Company and American Stock Transfer and Trust Company. ΩΩΩΩ | |
10 .40
|
Securities Purchase Agreement, dated as of March 10, 2010, by and among the Company and the Buyers named therein. ΩΩΩΩ | |
10 .41
|
Voting Agreement, dated as of March 10, 2010, by and between the Company and Symphony ViDA Holdings LLC. ΩΩΩΩ | |
10 .42
|
Form of Amendment and Exchange Agreement, dated as of March 25, 2010, by and among the Company and the Investors named therein. α | |
10 .43
|
Sales Agreement, dated July 21, 2010, between OXiGENE, Inc. and McNicoll, Lewis & Vlak LLC. αα | |
10 .44
|
Form of Warrant Exchange Agreement, dated as of January 18, 2011, by and between the Company and each Investor named therein. ααα | |
10 .45
|
Form of Voting Agreement, dated as of January 18, 2011, by and between the Company and each of its directors, executive officers and Symphony ViDA Holdings LLC. ααα | |
10 .46
|
Form of Amendment No. 4 to Stockholder Rights Agreement, dated as of January 18, 2011, by and between the Company and American Stock Transfer and Trust Company. ααα | |
14 .1
|
Code of Conduct. #### | |
23 .1
|
Consent of Ernst & Young LLP. X | |
31 .1
|
Certification of Chief Executive Officer pursuant to Rule 13a-14(a) and 15d-14(a). XX | |
31 .2
|
Certification of Chief Financial Officer pursuant to Rule 13a-14(a) and 15d-14(a). XX | |
32 .1
|
Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. X |
* | Incorporated by reference to the Registrants Registration Statement on Form S-1 (file no. 33-64968) and any amendments thereto. | |
** | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 1996. | |
*** | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 1997. | |
**** | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 1999. | |
# | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2002. | |
## | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2002. | |
#### | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2002. | |
+ | Incorporated by reference to the Registrants Registration Statement on Form S-8 (file no. 333-92747) and any amendments thereto. | |
++ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on December 28, 1999. | |
& | Incorporated by reference to Amendment No. 3 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2002. |
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&& | Incorporated by reference to Amendment No. 4 to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2002. | |
&& | Incorporated by reference to the Registrants Registration Statement on Form S-3 (file no. 333-106307) and any amendments thereto. | |
&&&& | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2003. | |
% | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2004. | |
! | Incorporated by reference to the Registrants Registration Statement on Form S-8 (file no. 333-126636) and any amendments thereto. | |
!! | Incorporated by reference to the Registrants Registration Statement on Form 8-A, dated March 30, 2005 and any amendments thereto. | |
!!! | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 11, 2005. | |
$ | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2005. | |
%%% | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on December 20, 2007. | |
%%%% | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2007. | |
| Incorporated by reference to the Registrants Current Report on Form 8-K, filed on February 21, 2008. | |
§ | Incorporated by reference to the Registrants Amendment No. 1 to its Current Report on Form 8-K/A, filed on October 10, 2008. | |
§§ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on October 24, 2008. | |
§§§§ | Incorporated by reference to the Registrants Annual Report on Form 10-K for the fiscal year ended December 31, 2008. | |
§§§§§ | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2009. | |
$$$$ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on June 12, 2009. | |
$$$$$ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on June 17, 2009. | |
| Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 7, 2009. | |
| Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 15, 2009. | |
| Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2009. |
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£ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on October 16, 2009. | |
££ | Incorporated by reference to the Registrants Amendment to its Current Report on Form 8-K/A, filed on November 2, 2009. | |
£££ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on February 12, 2010. | |
Ω | Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended December 31, 2009. | |
ΩΩ | Incorporated by reference to the Registrants Amendment No. 1 to Annual Report on Form 10-K/A for the year ended December 31, 2009. | |
ΩΩΩ | Incorporated by reference to the Registrants Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2010. | |
ΩΩΩΩ | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on March 11, 2010. | |
α | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on March 26, 2010. | |
αα | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on July 21, 2010. | |
ααα | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on January 19, 2011. | |
αααα | Incorporated by reference to the Registrants Current Report on Form 8-K, filed on February 22, 2011. | |
+++ | Confidential treatment requested as to certain portions of the document, which portions have been omitted and filed separately with the Securities and Exchange Commission. | |
@ | Management contract or compensatory plan or arrangement. | |
X | Incorporated by reference to the Registrants Annual Report on Form 10-K for the year ended December 31, 2010, filed on March 16, 2011. | |
XX | Filed with this report. | |
(1) | Pursuant to Item 601(b)(2) of Regulation S-K, certain schedules and/or exhibits have been omitted from the Agreement and Plan of Merger. OXiGENE will furnish copies of any such schedules or exhibits to the Securities and Exchange Commission upon request. |
40