Attached files
| file | filename |
|---|---|
| EX-4.1 - EX-4.1 - Oncotelic Therapeutics, Inc. | b89285exv4w1.htm |
| EX-10.2 - EX-10.2 - Oncotelic Therapeutics, Inc. | b89285exv10w2.htm |
| EX-10.1 - EX-10.1 - Oncotelic Therapeutics, Inc. | b89285exv10w1.htm |
| EX-99.1 - EX-99.1 - Oncotelic Therapeutics, Inc. | b89285exv99w1.htm |
United States
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): November 28, 2011
OXiGENE, INC.
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation) |
0-21990 (Commission File Number) |
13-3679168 (I.R.S. Employer Identification No.) |
701 Gateway Boulevard, Suite 210, South San Francisco, CA 94080
(Address of principal executive offices)
(Address of principal executive offices)
Registrant’s telephone number, including area code: (650) 635-7000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
obligation of the registrant under any of the following provisions:
o Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On November 28, 2011, OXiGENE, Inc. (the “Company”) entered into a purchase agreement (the
“Purchase Agreement”) with Lincoln Park Capital Fund, LLC (“LPC”), an Illinois limited liability
company, whereby LPC has agreed to purchase up to $20 million of the common stock, par value $0.01
per share, of the Company (“Common Stock”), subject to certain limitations, over a thirty-six (36)
month period. The Company also entered into a registration rights agreement (the “Registration
Rights Agreement”) with LPC pursuant to which the Company agreed to file a registration statement
with the U.S. Securities and Exchange Commission (the “SEC”) covering the resale by LPC of the
shares that have been issued or may be issued to LPC under the Purchase Agreement. Subject to the
SEC declaring the registration statement effective, the Company will have the right, in its sole
discretion, over a 36-month period to sell up to $20 million of its Common Stock to LPC (subject to
certain limitations), depending on certain conditions as set forth in the Purchase Agreement.
There are no upper limits to the price LPC may pay to purchase shares of Common Stock, and the
purchase price of the shares related to any future funding under the Purchase Agreement will be
based on the prevailing market prices of the Common Stock immediately preceding the time of sales
without any fixed discount in accordance with the pricing provisions set forth in the Purchase
Agreement. The Company will control the timing and amount of any future sales, if any, of shares to
LPC. LPC shall not have the right or the obligation to purchase any shares of Common Stock on any
business day that the price of the Common Stock is below the floor price as set forth in the
Purchase Agreement.
In consideration for entering into the Purchase Agreement, the Company issued to LPC 299,700 shares
of Common Stock as a commitment fee and is required to issue to LPC up to 599,401 additional shares
of Common Stock on a pro rata basis when and if LPC purchases, at the Company’s discretion, the $20
million of Common Stock over the 36-month period. The Company may terminate the Purchase Agreement
at any time at its discretion without any cost to it. The proceeds received by the Company under
the Purchase Agreement are expected to be used toward funding a portion of the costs of the
Company’s FACT 2 study in anaplastic thyroid cancer and for general corporate purposes, including
working capital and operational purposes.
The Purchase Agreement contains customary representations, warranties, covenants, closing
conditions, and indemnification and termination provisions by, among and solely for the benefit of,
the parties to the Purchase Agreement in the context of all of the terms and conditions thereof and
in the context of the specific relationship between the parties. LPC has covenanted not to cause or
engage in any manner whatsoever, any direct or indirect short selling or hedging of the Common
Stock. The provisions of the Purchase Agreement, including the representations and warranties
contained therein, are not for the benefit of any party other than the parties thereto and are not
intended to be relied upon by investors and the public. Investors and the public should review the
Company’s filings with the SEC for information regarding the Company.
The foregoing description of the Purchase Agreement and the Registration Rights Agreement is a
summary only, is not intended to be complete, and is qualified in its entirety by reference to the
full text of the Purchase Agreement and the Registration Rights Agreement, a copy of each of which
is attached to this Current Report as Exhibit 10.1 and 10.2, respectively, and each of which is
incorporated herein in its entirety by reference. The Company also issued a press release, dated
November 28, 2011, to disclose the transaction with LPC, a copy of which is attached to this
Current Report as Exhibit 99.1 and incorporated herein by reference.
In connection with the Company’s entry into the Purchase Agreement and the Registration Rights
Agreement, the Company has also entered into Amendment No. 5 to the Company’s Stockholder Rights
Agreement with American Stock Transfer & Trust Company, LLC, dated as of March 24, 2005, as amended
(the “Stockholder Rights Agreement”), in order to exempt the issuances of shares that have been
issued or may be issued to LPC under the Purchase Agreement from the operation of the Stockholder
Rights Agreement.
Item 3.02 Unregistered Sales of Equity Securities.
The information contained above in Item 1.01 is hereby incorporated by reference into this Item
3.02. The issuance and sale of shares by the Company to LPC under the Purchase Agreement is exempt
from registration pursuant to Section 4(2) of the Securities Act of 1933, as amended.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits:
| Exhibit No. | Description | |
4.1
|
Amendment No. 5 to Stockholder Rights Agreement, dated as of November 28, 2011, by and between the Company and American Stock Transfer & Trust Company, LLC. | |
10.1
|
Purchase Agreement, dated as of November 28, 2011, by and between the Company and Lincoln Park Capital Fund, LLC. | |
10.2
|
Registration Rights Agreement, dated as of November 28, 2011, by and between the Company and Lincoln Park Capital Fund, LLC. | |
99.1
|
Press release of the Company dated November 28, 2011. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| OXiGENE, Inc. |
|||||
| Date: November 28, 2011 | By: | /s/ Peter J. Langecker | |||
| Peter J. Langecker | |||||
| Chief Executive Officer | |||||