ONCOTELIC THERAPEUTICS, INC.
10-Ks and 10-Qs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE
SECURITIES
EXCHANGE ACT OF 1934 (Amendment No.)
Filed by the Registrant
þ
Filed by a Party other than the Registrant
o
Check the appropriate box:
o Preliminary
Proxy Statement
o Confidential,
for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
þ Definitive
Proxy Statement
o Definitive
Additional Materials
o Soliciting
Material Under
Rule 14a-12
OXiGENE,
Inc.
(Name of Registrant as Specified
In Its Charter)
(Name of Person(s) Filing Proxy
Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
| þ | No fee required. |
| o | Fee computed on table below per Exchange Act Rules 14a-6(i) (1) and 0-11. |
| 1) | Title of each class of securities to which transaction applies: |
| 2) | Aggregate number of securities to which transaction applies: |
| 3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 |
0-11 (set forth the amount on which the filing fee is calculated
and state how it was determined):
| 4) | Proposed maximum aggregate value of transaction: |
| 5) | Total fee paid: |
| o | Fee paid previously with preliminary materials. |
| o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing: |
| 1) | Amount previously paid: |
| 2) | Form, Schedule or Registration Statement No: |
| 3) | Filing party: |
| 4) | Date Filed: |
Table of Contents
701 GATEWAY BOULEVARD, SUITE 210
SOUTH SAN FRANCISCO, CALIFORNIA 94080
SOUTH SAN FRANCISCO, CALIFORNIA 94080
NOTICE OF SPECIAL MEETING OF
STOCKHOLDERS
TO BE HELD ON TUESDAY,
DECEMBER 21, 2010
TO OUR STOCKHOLDERS:
Please take notice that a special meeting of stockholders of
OXiGENE, Inc., a Delaware corporation (the “Company”
or “OXiGENE”), will be held on Tuesday,
December 21, 2010, at 10:00 a.m., local time, at the
Company’s offices located at 701 Gateway Boulevard,
Suite 210, South San Francisco, California 94080, for
the following purposes:
1. To approve an amendment to our Restated Certificate of
Incorporation to effect a reverse stock split of our common
stock, $0.01 par value per share, at a ratio in the range
of 1:2 to 1:20, such ratio to be determined by the Board of
Directors;
2. To authorize an adjournment of the Special Meeting, if
necessary, if a quorum is present, to solicit additional proxies
if there are not sufficient votes in favor of
Proposal 1; and
3. To transact such other business as may be properly
brought before the Special Meeting and any adjournments thereof.
The Board of Directors has fixed the close of business on
November 8, 2010 as the record date for the determination
of stockholders entitled to notice of and to vote at the Special
Meeting and at any adjournments thereof. A list of stockholders
of record will be available at the meeting and, during the
10 days prior to the meeting, at the office of the
Secretary at the above address.
All stockholders are cordially invited to attend the Special
Meeting. Whether you plan to attend the Special Meeting or
not, you are requested to complete, sign, date and return the
enclosed proxy card as soon as possible in accordance with the
instructions on the proxy card. A pre-addressed, postage prepaid
return envelope is enclosed for your convenience.
BY ORDER OF THE BOARD OF DIRECTORS
Peter J. Langecker, M.D., Ph.D.
Chief Executive Officer
November 12, 2010
TABLE
OF CONTENTS
| 1 | ||||
| 5 | ||||
| 11 | ||||
| 11 | ||||
| 13 | ||||
| 13 | ||||
| 13 | ||||
| A-1 | ||||
|
APPENDIX B — PROXY CARD
|
B-1 |
Table of Contents
701
GATEWAY BOULEVARD, SUITE 210
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 635-7000
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 635-7000
PROXY
STATEMENT
SPECIAL
MEETING OF STOCKHOLDERS
TUESDAY,
DECEMBER 21, 2010
We have sent you this Proxy Statement and the enclosed proxy
card because our Board of Directors is soliciting your proxy to
vote at a Special Meeting of stockholders and any adjournments
of the Special Meeting. This Proxy Statement summarizes the
information you need to know to vote at the Special Meeting. You
do not need to attend the Special Meeting to vote your shares.
Instead, you may vote your shares by marking, signing, dating
and returning the enclosed proxy card. This Proxy Statement and
the proxy card were first mailed to stockholders on or about
November 22, 2010.
Who Can Vote. Record holders of our common
stock at the close of business on the record date,
November 8, 2010, may vote at the Special Meeting. On
November 8, 2010, approximately 81 record holders held
107,892,343 shares of our outstanding common stock. Holders
of common stock are entitled to one vote per share on all
matters to be voted on by stockholders.
How You Can Vote. You can only vote your
shares if you are either present in person or represented by
proxy at the Special Meeting. Whether you plan to attend the
Special Meeting or not, we urge you to complete, sign and date
the enclosed proxy card and to return it promptly in the
envelope provided. Returning the proxy card will not affect your
right to attend the Special Meeting and vote. If you properly
fill in your proxy card and send it to us in time, the
“proxy” (one of the individuals named on the proxy
card) will vote your shares as you have directed. If you sign
the proxy card but do not make specific choices, the proxy will
vote your shares as recommended by the Board of Directors.
| • | If your shares are held in a stock brokerage account. If your shares are held in a stock brokerage account, by a bank, broker, trustee or other nominee, you are considered the beneficial owner of shares held in street name. Stockholders holding OXiGENE shares in street name through their broker may receive instructions from their broker on internet and/or telephonic voting. These instructions should be followed very closely. | |
| • | In person at the meeting. If you attend the meeting, you may deliver your completed proxy card in person or you may vote by completing the ballot, which will be available at the meeting. |
Recommendation of the Board of Directors. The
Board of Directors recommends that you vote “FOR”
an amendment to our Restated Certificate of Incorporation to
effect a reverse stock split of our common stock at a ratio in
the range of 1:2 to 1:20, such ratio to be determined by the
Board of Directors, and “FOR” an adjournment of
the Special Meeting, if necessary, if a quorum is present, to
solicit additional proxies if there are not sufficient votes in
favor of Proposal 1.
If any other matter is properly presented, the proxy holders
will vote your shares in accordance with their best judgment. At
the time this Proxy Statement was printed, we knew of no matters
that needed to be acted on at the Special Meeting, other than
those discussed in this Proxy Statement.
Table of Contents
Revocation of Proxies. If you return your
proxy card, you may revoke your proxy at any time before it is
exercised. You may revoke your proxy in any one of the following
ways:
| • | by voting in person at the Special Meeting; | |
| • | by delivering a written notice of revocation before the Special Meeting with a date later than your previously delivered proxy card to our principal offices at 701 Gateway Boulevard, Suite 210, South San Francisco, California 94080 Attention — Secretary; | |
| • | by timely delivering another proxy card dated after the date of the proxy card that you wish to revoke; or | |
| • | by re-voting your shares by internet or telephone after you return your proxy card (only applicable to beneficial owners of shares held in street name). |
Your most current proxy card, or telephone or Internet vote if
allowed by your broker, is the one that is counted.
How to Vote if You Receive More Than One Proxy
Card. You may receive more than one proxy card or
voting instruction form if you hold shares of our common stock
in more than one account, which may be in registered form or
held in street name. Please vote in the manner described under
“How You Can Vote” for each account to ensure that all
of your shares are voted.
How Your Shares Will Be Voted if You Do Not
Vote. If your shares are registered in your name,
they will not be voted if you do not return your proxy card by
mail or vote as described under “How You Can Vote.” If
your shares are held in street name and you do not provide
voting instructions to the bank, broker or other holder of
record that holds your shares as described above under “How
You Can Vote,” the bank, broker or other holder of record
has the authority to vote your unvoted shares on
Proposals 1 and 2 even if it does not receive any
instructions from you.
We encourage you to provide voting instructions. This ensures
your shares will be voted at the meeting in the manner you
desire. If your broker cannot vote your shares on a particular
matter because it has not received instructions from you and
does not have discretionary voting authority on that matter or
because your broker chooses not to vote on a matter for which it
does have discretionary voting authority, this is referred to as
a “broker non-vote.”
Confidentiality of Votes. We will keep all the
proxies, ballots and voting tabulations private. We only let our
Inspector of Election, American Stock Transfer & Trust
Company, examine these documents. Management will not know how
you voted on a specific proposal unless it is necessary to meet
legal requirements. We will, however, forward to management any
written comments you make, on the proxy card or elsewhere.
Voting in Person. If you plan to attend the
Special Meeting and vote in person, we will give you a ballot
when you arrive. However, if your shares are held in the name of
your broker, bank or other nominee, you must bring an account
statement or letter from the nominee indicating that you were
the beneficial owner of the shares on November 8, 2010, the
record date for determining who is entitled to vote.
Required Votes. The affirmative vote of a
majority of our outstanding common stock is required for
approval of the amendment to our Restated Certificate of
Incorporation, set forth as Proposal 1. The affirmative
vote of a majority of the votes cast is required for approval of
Proposal 2.
Broker
Non-Votes and Abstentions.
| • | Broker Non-Votes: If your broker holds your shares in its name and cannot vote your shares on a particular matter because the broker does not have instructions from you or discretionary voting authority on that matter, this is referred to as a “broker non-vote.” Your broker will be entitled to vote your shares on Proposals 1 and 2. Broker non-votes will be counted towards the vote total for Proposal 1, and will have the same effect as “against” votes. Broker non-votes will have no effect and will not be counted towards the vote total for Proposal 2. |
2
Table of Contents
| • | Abstentions: Abstentions are not counted towards the vote total for Proposal 2 and will have no effect on this vote. Abstentions will be counted towards the vote total for Proposal 1 and will have the same effect as “against” votes. |
Quorum. The presence, in person or by proxy,
of the holders of a majority of the outstanding shares of our
common stock is necessary to constitute a quorum at the Special
Meeting. Votes of stockholders of record who are present at the
meeting in person or by proxy, abstentions, and broker non-votes
are counted for purposes of determining whether a quorum exists.
Householding
of Annual Disclosure Documents.
In December 2000, the Securities and Exchange Commission adopted
a rule concerning the delivery of annual disclosure documents.
The rule allows us or your broker to send a single set of our
annual report and proxy statement to any household at which two
or more of our stockholders reside, if we or your broker believe
that the stockholders are members of the same family. This
practice, referred to as “householding,” benefits both
you and OXiGENE. It reduces the volume of duplicate information
received at your household and helps to reduce OXiGENE’s
expenses. The rule applies to our annual reports, proxy
statements and information statements. Once you receive notice
from your broker or from us that communications to your address
will be “householded,” the practice will continue
until you are otherwise notified or until you revoke your
consent to the practice. Each stockholder will continue to
receive a separate proxy card or voting instruction card.
If your household received a single set of disclosure documents,
but you would prefer to receive your own copy, please contact
our transfer agent, American Stock Transfer & Trust
Company, by calling their toll free number,
1-800-937-5449.
If you do not wish to participate in “householding”
and would like to receive your own set of OXiGENE annual
disclosure documents in future years, follow the instructions
described below. Conversely, if you share an address with
another OXiGENE stockholder and together both of you would like
to receive only a single set of our annual disclosure documents,
follow these instructions:
| • | If your OXiGENE shares are registered in your own name, please contact our transfer agent, American Stock Transfer & Trust Company, and inform them of your request by calling them at 1-800-937-5449 or writing to them at 6201 15th Avenue, Brooklyn, NY 11219. | |
| • | If a broker or other nominee holds your OXiGENE shares, please contact the broker or other nominee directly and inform them of your request. Be sure to include your name, the name of your brokerage firm and your account number. |
Dissenters’ Right of Appraisal. There are
no dissenters’ rights of appraisal in connection with the
matters to be voted on at the Special Meeting.
Throughout this Proxy Statement, the terms
“OXiGENE,” “WE,” “US,”
“OUR” or “COMPANY” mean OXiGENE,
Inc.
Electronic
Delivery of Stockholder Communications
Important
Notice Regarding the Availability of Proxy Materials for the
Special Meeting of Stockholders of OXiGENE, Inc. to Be Held on
December 21, 2010.
| • | The proxy statement, annual report to security holders for the year ended December 31, 2009 and the proxy card are available at the Investor Relations section of our website, www.oxigene.com. | |
| • | The Special Meeting of stockholders of OXiGENE, Inc. will be held on December 21, 2010, at 10:00 a.m., local time, at the Company’s offices at 701 Gateway Boulevard, Suite 210, South San Francisco, California 94080. |
3
Table of Contents
The Special Meeting of stockholders will be held for the
following purposes:
| 1. | To approve an amendment to our Restated Certificate of Incorporation to effect a reverse stock split of our common stock at a ratio in the range of 1:2 to 1:20, such ratio to be determined by the Board of Directors; and | |
| 2. | To authorize an adjournment of the Special Meeting, if necessary, if a quorum is present, to solicit additional proxies if there are not sufficient votes in favor of Proposal 1. |
| • | You are urged to attend the Special Meeting and vote in person, but if you are unable to attend, the Board of Directors would appreciate your prompt vote either electronically via the internet or telephone or via regular mail. We strongly encourage you to vote electronically, if that option is available to you. | |
| • | OXiGENE’s Board of Directors recommends voting “FOR” all of the proposals listed above. |
4
Table of Contents
PROPOSAL 1
APPROVAL OF AMENDMENT TO OUR RESTATED CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT OF OUR COMMON STOCK, $0.01 PAR VALUE PER SHARE,
AT A RATIO IN THE RANGE OF 1:2 TO 1:20
APPROVAL OF AMENDMENT TO OUR RESTATED CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT OF OUR COMMON STOCK, $0.01 PAR VALUE PER SHARE,
AT A RATIO IN THE RANGE OF 1:2 TO 1:20
General
At our Special Meeting, holders of our common stock,
$0.01 par value per share, are being asked to approve the
proposal that Article Fourth of our Restated Certificate of
Incorporation be amended to effect a reverse stock split of the
issued and outstanding shares of common stock (such split to
combine a number of outstanding shares of our common stock
between two (2) and twenty (20), such number consisting of
only whole shares, into one (1) share of common stock). The
full text of the proposed amendment to our Restated Certificate
of Incorporation is attached to this proxy statement as
Appendix A. If approved by the stockholders, the reverse
stock split would become effective at a time, and at a ratio, to
be designated by the Board of Directors. The Board of Directors
may effect only one reverse stock split as a result of this
authorization. The Board’s decision as to whether and when
to effect the reverse stock split will be based on a number of
factors, including market conditions, existing and expected
trading prices for our common stock and the continued listing
requirements of the NASDAQ Global Market or the NASDAQ Capital
Market. Even if the stockholders approve the reverse stock
split, OXiGENE reserves the right not to effect the reverse
stock split if the Board does not deem it to be in the best
interests of OXiGENE and its stockholders to effect the reverse
stock split. The reverse stock split, if authorized pursuant to
this resolution and if deemed by the Board to be in the best
interests of OXiGENE and its stockholders, will be effected, if
at all, at a time that is not later than the later of
(1) the date of OXiGENE’s annual stockholders’
meeting to be held during 2011 and (2) June 14, 2011.
The proposed amendment to our Restated Certificate of
Incorporation to effect the reverse stock split, as more fully
described below, will effect the reverse stock split but will
not change the number of authorized shares of common stock or
preferred stock, or the par value of common stock or preferred
stock. As of the date of this proxy statement, we do not have
any current plans, arrangements or understandings relating to
the issuance of any additional shares of authorized common stock
that will become available following the reverse stock split,
other than the potential issuance, from time to time as market
conditions warrant, of shares of common stock pursuant to our
previously disclosed
at-the-market
offering arrangement with McNicoll, Lewis & Vlak LLC
as sales agent and underwriter, and the potential issuance from
time to time of shares of common stock pursuant to our
previously disclosed Committed Equity Financing Facility with
Kingsbridge Capital Limited.
Purpose
On November 1, 2010, the Board of Directors approved the
proposal authorizing the reverse stock split for the following
reasons:
| • | the Board of Directors believes that effecting the reverse stock split may be an effective means of regaining compliance with the bid price requirement for continued listing of our common stock on the NASDAQ Global Market or the NASDAQ Capital Market; and | |
| • | the Board of Directors believes that a higher stock price may help generate investor interest in the Company and help attract, retain and motivate employees. |
The Board of Directors further believes that some potential
employees are less likely to work for a company with a low stock
price, regardless of size of the company’s market
capitalization.
If the reverse stock split successfully increases the per share
price of our common stock, as to which no assurance can be
given, the Board of Directors believes this increase may
facilitate future financings and enhance our ability to attract,
retain and motivate employees and other service providers.
5
Table of Contents
NASDAQ
Requirements for Continued Listing
Our common stock is quoted on the NASDAQ Global Market under the
symbol “OXGN.” One of the requirements for continued
listing on the NASDAQ Global Market is maintenance of a minimum
closing bid price of $1.00. On November 11, 2010, the
closing market price per share of our common stock was
$0. , as reported by the NASDAQ Global Market, and
has been below $1.00 for more than 30 consecutive trading days.
On June 17, 2010, we received a letter from NASDAQ
indicating that for the last 30 consecutive business days, the
bid price of our common shares closed below the minimum $1.00
per share requirement pursuant to NASDAQ Listing
Rule 5450(a)(1) for continued inclusion on the NASDAQ
Global Market. In accordance with NASDAQ Listing
Rule 5810(c)(3)(A), we have an initial grace period of 180
calendar days, or until December 14, 2010, to regain
compliance with the minimum bid price requirement. The NASDAQ
Capital Market also has a minimum $1.00 per share bid price
requirement for continued listing. We cannot be sure that our
share price will comply with the requirements for continued
listing of our common shares on the NASDAQ Global Market in the
future or that we will comply with the other continued listing
requirements. If our common shares lose their status on the
NASDAQ Global Market, and we are not successful in obtaining a
listing on the NASDAQ Capital Market, our common shares would
likely trade in the
over-the-counter
market.
If our shares were to trade on the
over-the-counter
market, selling our common shares could be more difficult
because smaller quantities of shares would likely be bought and
sold, and transactions could be delayed. In addition, in the
event our common shares are delisted, broker-dealers have
certain regulatory burdens imposed upon them, which may
discourage broker-dealers from effecting transactions in our
common shares, further limiting the liquidity of our common
shares. These factors could result in lower prices and larger
spreads in the bid and ask prices for common shares.
Such delisting from the NASDAQ and continued or further declines
in our share price could also greatly impair our ability to
raise additional necessary capital through equity or debt
financing, and could significantly increase the ownership
dilution to shareholders caused by our issuing equity in
financing or other transactions.
In light of the factors mentioned above, out Board of Directors
unanimously approved the reverse stock split as a potential
means of increasing the share price of our common stock to above
$1.00 per share and of maintaining the share price of our common
stock above $1.00 per share in compliance with NASDAQ
requirements.
Potential
Increased Investor Interest
In approving the proposal authorizing the reverse stock split,
the Board of Directors considered that the Company’s common
stock may not appeal to brokerage firms that are reluctant to
recommend lower priced securities to their clients. Investors
may also be dissuaded from purchasing lower priced stocks
because the brokerage commissions, as a percentage of the total
transaction, tend to be higher for such stocks. Moreover, the
analysts at many brokerage firms do not monitor the trading
activity or otherwise provide coverage of lower priced stocks.
There are risks associated with the reverse stock split,
including that the reverse stock split may not result in a
sustained increase in the per share price of our common stock.
We cannot predict whether the reverse stock split will increase
the market price for our common stock on a sustained basis. The
history of similar stock split combinations for companies in
like circumstances is varied. There is no assurance that:
| • | the market price per share of our common stock after the reverse stock split will rise in proportion to the reduction in the number of shares of our common stock outstanding before the reverse stock split; | |
| • | the reverse stock split will result in a per share price that will attract brokers and investors who do not trade in lower priced stocks; |
6
Table of Contents
| • | the reverse stock split will result in a per share price that will increase our ability to attract and retain employees and other service providers; and | |
| • | the market price per share will either exceed or remain in excess of the $1.00 minimum bid price as required by NASDAQ, or that we will otherwise meet the requirements of NASDAQ for continued inclusion for trading on the NASDAQ Global Market or for the transfer of listing to the NASDAQ Capital Market. |
The market price of our common stock will also be based on our
performance and other factors, some of which are unrelated to
the number of shares outstanding. If the reverse stock split is
effected and the market price of our common stock declines, the
percentage decline as an absolute number and as a percentage of
our overall market capitalization may be greater than would
occur in the absence of a reverse stock split. Furthermore, the
liquidity of our common stock could be adversely affected by the
reduced number of shares that would be outstanding after the
reverse stock split.
Principal
Effects of the Reverse Stock Split
If the stockholders approve the proposal to authorize the Board
of Directors to implement the reverse stock split and the Board
of Directors implements the reverse stock split, we will amend
the existing provision of our Restated Certificate of
Incorporation relating to our authorized capital to add the
following paragraph at the end thereof:
“Upon the effectiveness (the “Effective Date”) of
the certificate of amendment to the restated certificate of
incorporation containing this sentence, each [*] shares of
the Common Stock issued and outstanding as of the date and time
immediately preceding [date on which the certificate of
amendment is filed], the effective date of a reverse stock
split, shall be automatically changed and reclassified, as of
the effective date of the split and without further action, into
one (1) fully paid and non-assessable share of Common
Stock. There shall be no fractional shares issued. A holder of
record of Common Stock on the effective date of the split who
would otherwise be entitled to a fraction of a share shall, in
lieu thereof, be entitled to receive a cash payment in an amount
equal to the fraction to which the stockholder would otherwise
be entitled multiplied by the closing price of the Common Stock,
as reported in the Wall Street Journal, on the last trading day
prior to the effective date of the split (or if such price is
not available, the average of the last bid and asked prices of
the Common Stock on such day or other price determined by the
Corporation’s Board of Directors).”
The reverse stock split will be effected simultaneously for all
issued and outstanding shares of common stock and the exchange
ratio will be the same for all issued and outstanding shares of
common stock. The reverse stock split will affect all of our
stockholders uniformly and will not affect any
stockholder’s percentage ownership interests in the
Company, except to the extent that the reverse stock split
results in any of our stockholders owning a fractional share.
Common stock issued pursuant to the reverse stock split will
remain fully paid and non-assessable. The reverse stock split
will not affect the Company continuing to be subject to the
periodic reporting requirements of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”).
Procedure
for Effecting Reverse Stock Split and Exchange of Stock
Certificates
If the certificate of amendment is approved by the
Company’s stockholders, and if at such time the Board of
Directors still believes that a reverse stock split is in the
best interests of the Company and its stockholders, the Board
will determine the ratio of the reverse stock split to be
implemented. The Company will file the certificate of amendment
with the Secretary of State of the State of Delaware at such
time as the Board of
* By approving this amendment
stockholders will approve the combination of any whole number of
shares of common stock between and including two (2) and
twenty (20) into one (1) share. The certificate of
amendment filed with the Secretary of State of the State of
Delaware will include only that number determined by the Board
of Directors to be in the best interests of the Company and its
stockholders. In accordance with these resolutions, the Board of
Directors will not implement any amendment providing for a
different split ratio.
7
Table of Contents
Directors has determined the appropriate effective time for the
reverse stock split. The Board of Directors may delay effecting
the reverse stock split without re-soliciting stockholder
approval. The reverse stock split will become effective on the
effective date of the split. Beginning on the effective date of
the split, each certificate representing pre-split shares will
be deemed for all corporate purposes to evidence ownership of
post-split shares.
As soon as practicable after the effective date of the split,
stockholders will be notified that the reverse stock split has
been effected. The Company expects that our transfer agent will
act as exchange agent for purposes of implementing the exchange
of stock certificates. Holders of pre-split shares will be asked
to surrender to the exchange agent certificates representing
pre-split shares in exchange for certificates representing
post-split shares in accordance with the procedures to be set
forth in a letter of transmittal to be sent by the Company. No
new certificates will be issued to a stockholder until such
stockholder has surrendered such stockholder’s outstanding
certificate(s) together with the properly completed and executed
letter of transmittal to the exchange agent. Any pre-split
shares submitted for transfer, whether pursuant to a sale or
other disposition, or otherwise, will automatically be exchanged
for post-split shares. STOCKHOLDERS SHOULD NOT DESTROY ANY
STOCK CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY CERTIFICATE(S)
UNTIL REQUESTED TO DO SO.
Fractional
Shares
No fractional shares will be issued in connection with the
reverse stock split. Stockholders of record who otherwise would
be entitled to receive fractional shares because they hold a
number of pre-split shares not evenly divisible by the number of
pre-split shares for which each post-split share is to be
exchanged, will be entitled, upon surrender to the exchange
agent of certificates representing such shares, to a cash
payment in lieu thereof at a price equal to the fraction to
which the stockholder would otherwise be entitled multiplied by
the closing price of the common stock, as reported in the Wall
Street Journal, on the last trading day prior to the effective
date of the split (or if such price is not available, the
average of the last bid and asked prices of the common stock on
such day or other price determined by the Board of Directors).
The ownership of a fractional interest will not give the holder
thereof any voting, dividend, or other rights except to receive
payment therefor as described herein.
Stockholders should be aware that, under the escheat laws of the
various jurisdictions where stockholders reside, where the
Company is domiciled, and where the funds will be deposited,
sums due for fractional interests that are not timely claimed
after the effective date of the split may be required to be paid
to the designated agent for each such jurisdiction, unless
correspondence has been received by the Company or the exchange
agent concerning ownership of such funds within the time
permitted in such jurisdiction. Thereafter, stockholders
otherwise entitled to receive such funds will have to seek to
obtain them directly from the state to which they were paid.
Accounting
Matters
The reverse stock split will not affect the common stock capital
account on our balance sheet. However, because the par value of
our common stock will remain unchanged on the effective date of
the split, the components that make up the common stock capital
account will change by offsetting amounts. Depending on the size
of the reverse stock split the Board of Directors decides to
implement, the stated capital component will be reduced to an
amount between one-half (1/2) and one-twentieth (1/20) of its
present amount, and the additional paid-in capital component
will be increased with the amount by which the stated capital is
reduced. The per share net income or loss and net book value of
our common stock will be increased because there will be fewer
shares of common stock outstanding. Prior periods’ per
share amounts will be restated to reflect the reverse stock
split.
Potential
Anti-Takeover Effect
Although the increased proportion of unissued authorized shares
to issued shares could, under certain circumstances, have an
anti-takeover effect (for example, by permitting issuances that
would dilute the stock
8
Table of Contents
ownership of a person seeking to effect a change in the
composition of the Board of Directors or contemplating a tender
offer or other transaction for the combination of the Company
with another company), the reverse stock split proposal is not
being proposed in response to any effort of which we are aware
to accumulate shares of our common stock or obtain control of
the Company, nor is it part of a plan by management to recommend
a series of similar amendments to the Board of Directors and
stockholders. Other than the reverse stock split proposal, the
Board of Directors does not currently contemplate recommending
the adoption of any other actions that could be construed to
affect the ability of third parties to take over or change
control of the Company.
No
Dissenters’ Rights
Under the Delaware General Corporation Law, the Company’s
stockholders are not entitled to dissenters’ rights with
respect to the reverse stock split, and the Company will not
independently provide stockholders with any such right.
Material
United States Federal Income Tax Consequences of the Reverse
Stock Split
To ensure compliance with Treasury Department Circular 230,
each holder of common stock is hereby notified that:
(a) any discussion of U.S. federal tax issues in this
proxy statement is not intended or written to be used, and
cannot be used, by such holder for the purpose of avoiding
penalties under any federal tax laws; (b) any such
discussion has been included by the Company in furtherance of
the reverse stock split on the terms described herein; and
(c) each such holder should seek advice based on his, her
or its particular circumstances from an independent tax
advisor.
The following discussion describes the anticipated material
United States federal income tax consequences to
“U.S. holders” (as defined below) of OXiGENE
capital stock relating to the reverse stock split. This
discussion is based upon the Internal Revenue Code of 1986, as
amended (the “Code”), Treasury Regulations, judicial
authorities, published positions of the Internal Revenue Service
(“IRS”), and other applicable authorities, all as
currently in effect and all of which are subject to change or
differing interpretations (possibly with retroactive effect). We
have not obtained a ruling from the IRS or an opinion of legal
or tax counsel with respect to the tax consequences of the
reverse stock split. The following discussion is for information
purposes only and is not intended as tax or legal advice. Each
holder should seek advice based on the holder’s particular
circumstances from an independent tax advisor.
For purposes of this discussion, the term
“U.S. holder” means a beneficial owner of OXiGENE
capital stock that is for United States federal income tax
purposes:
(i) an individual citizen or resident of the United States;
(ii) a corporation (or other entity treated as a
corporation for U.S. federal income tax purposes) organized
under the laws of the United States, any state or the District
of Columbia;
(iii) an estate with income subject to United States
federal income tax regardless of its source; or
(iv) a trust that (a) is subject to primary
supervision by a United States court and for which United States
persons control all substantial decisions or (b) has a
valid election in effect under applicable Treasury Regulations
to be treated as a United States person.
This discussion assumes that a U.S. holder holds OXiGENE
capital stock as a capital asset within the meaning of Code
Section 1221. This discussion does not address all of the
tax consequences that may be relevant to a particular OXiGENE
stockholder or to OXiGENE stockholders that are subject to
special treatment under United States federal income tax laws
including, but not limited to, financial institutions,
tax-exempt organizations, insurance companies, regulated
investment companies, persons that are broker-dealers, traders
in securities who elect the
mark-to-market
method of accounting for their securities, or OXiGENE
stockholders holding their shares of OXiGENE capital stock as
part of a “straddle,” “hedge,”
“conversion transaction” or other integrated
transaction. This discussion also does not address the tax
consequences to OXiGENE, or to OXiGENE stockholders that own 5%
or more of OXiGENE capital stock, are affiliates of
9
Table of Contents
OXiGENE or are not U.S. holders. In addition, this
discussion does not address other United States federal taxes
(such as gift or estate taxes or alternative minimum taxes), the
tax consequences of the reverse stock split under state, local
or foreign tax laws or certain tax reporting requirements that
may be applicable with respect to the reverse stock split. No
assurance can be given that the IRS would not assert, or that a
court would not sustain, a position contrary to any of the tax
consequences set forth below.
If a partnership (or other entity treated as a partnership for
United States federal income tax purposes) is an OXiGENE
stockholder, the tax treatment of a partner in the partnership
or any equity owner of such other entity will generally depend
upon the status of the person and the activities of the
partnership or other entity treated as a partnership for United
States federal income tax purposes.
Tax
Consequences of the Reverse Stock Split Generally
We believe that the reverse stock split will qualify as a
“reorganization” under Section 368(a)(1)(E) of
the Code. Accordingly, provided that the fair market value of
the post-reverse stock split shares is equal to the fair market
value of the pre-reverse stock split shares surrendered in the
reverse stock split:
| • | A U.S. holder will not recognize any gain or loss as a result of the reverse stock split (except to the extent of cash received in lieu of a fractional share). | |
| • | A U.S. holder’s aggregate tax basis in his, her or its post-reverse stock split shares will be equal to the aggregate tax basis in the pre-reverse stock split shares exchanged therefor, reduced by the amount of the adjusted basis of any pre-reverse stock split shares exchanged for such post-reverse stock split shares that is allocated to any fractional share for which cash is received. | |
| • | A U.S. holder’s holding period for the post-reverse stock split shares will include the period during which such stockholder held the pre-reverse stock split shares surrendered in the reverse stock split. |
Cash
Received Instead of a Fractional Share
A U.S. holder who receives cash instead of a fractional
share of post-reverse stock split shares will be treated as
having received the fractional share of post-reverse stock split
shares pursuant to the reverse stock split and then as having
exchanged the fractional share of post-reverse stock split
shares for cash in a redemption by OXiGENE. In general, this
deemed redemption will be treated as a sale or exchange,
provided the redemption is not essentially equivalent to a
dividend as discussed below. Gain or loss generally will be
recognized based on the difference between the amount of cash
received and the portion of the U.S. holder’s adjusted
tax basis of the pre-reverse stock split shares exchanged in the
reverse stock split which is allocable to such fractional share.
Such gain or loss generally will be long-term capital gain or
loss if the U.S. holder’s holding period for such
pre-reverse stock split shares is more than one year as of the
effective date of the reverse stock split, and otherwise will be
short-term capital gain or loss.
The receipt of cash is “not essentially equivalent to a
dividend” if the reduction in a U.S. holder’s
proportionate interest in OXiGENE resulting from the reverse
stock split (taking into account for this purpose shares of
common stock which such holder is considered to own under
certain attribution rules) is considered a “meaningful
reduction” given such U.S. holder’s particular
facts and circumstances. The IRS has ruled that a small
reduction by a minority stockholder whose relative stock
interest is minimal and who exercises no control over the
affairs of a corporation can satisfy this test. If the receipt
of cash in lieu of a fractional share is not treated as capital
gain or loss under the test just described, it will be treated
first as ordinary dividend income to the extent of a
U.S. holder’s ratable share of OXiGENE’s current
and accumulated earnings and profits, then as a tax-free return
of capital to the extent of the portion of the
U.S. holder’s adjusted tax basis of the pre-reverse
stock split shares which is allocable to such fractional share,
and any remaining amount will be treated as capital gain.
Information
Reporting and Backup Withholding
Cash payments received by a U.S. holder of OXiGENE capital
stock pursuant to the reverse stock split are subject to
information reporting, and may be subject to backup withholding
at the applicable rate (currently
10
Table of Contents
28%) if the holder fails to provide a valid taxpayer
identification number and comply with certain certification
procedures or otherwise establish an exemption from backup
withholding. Backup withholding is not an additional United
States federal income tax. Rather, the U.S. federal income
tax liability of the person subject to backup withholding will
be reduced by the amount of the tax withheld. If backup
withholding results in an overpayment of taxes, a refund may be
obtained provided that the required information is timely
furnished to the IRS.
Approval of the amendment to our Restated Certificate of
Incorporation to effect the reverse stock split requires an
affirmative vote of a majority of the common stock outstanding
and entitled to vote at the Special Meeting. Abstentions and
broker non-votes will be counted towards the vote total for this
proposal and will have the same effect as “against”
votes.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE
PROPOSAL TO AUTHORIZE THE BOARD OF DIRECTORS IN ITS
DISCRETION TO AMEND THE RESTATED CERTIFICATE OF INCORPORATION TO
EFFECT A REVERSE STOCK SPLIT OF THE ISSUED AND OUTSTANDING
SHARES OF OUR COMMON STOCK (SUCH SPLIT TO COMBINE A NUMBER
OF OUTSTANDING SHARES OF OUR COMMON STOCK BETWEEN TWO
(2) AND TWENTY (20), SUCH NUMBER CONSISTING OF ONLY WHOLE
SHARES, INTO ONE (1) SHARE OF OUR COMMON STOCK), AND
PROXIES SOLICITED BY THE BOARD WILL BE VOTED IN FAVOR OF THE
AMENDMENT UNLESS A STOCKHOLDER INDICATES OTHERWISE ON THE
PROXY.
PROPOSAL 2
THE ADJOURNMENT OF THE SPECIAL MEETING
THE ADJOURNMENT OF THE SPECIAL MEETING
Our stockholders are being asked to consider and vote upon an
adjournment of the Special Meeting, if necessary, if a quorum is
present, to solicit additional proxies if there are not
sufficient votes in favor of approval of a proposed amendment to
our Restated Certificate of Incorporation to effectuate a
reverse stock split as described in Proposal 1.
Approval of the adjournment of the Special Meeting requires an
affirmative vote of a majority of the votes cast on the proposal
at the Special Meeting. Abstentions and broker non-votes will
not be counted towards, and will have no effect on, the vote
total for this proposal.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE TO APPROVE THE
ADJOURNMENT OF THE SPECIAL MEETING, IF A QUORUM IS PRESENT, TO
SOLICIT ADDITIONAL PROXIES IF THERE ARE NOT SUFFICIENT VOTES TO
APPROVE PROPOSAL 1, AND PROXIES SOLICITED BY THE BOARD WILL
BE VOTED IN FAVOR OF THE ADJOURNMENT UNLESS A STOCKHOLDER HAS
INDICATED OTHERWISE ON THE PROXY.
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
October 29, 2010, for (a) (1) our Chief Executive
Officer, (2) our former Chief Executive Officer, (3) our
Chief Financial Officer and (4) our next most highly
compensated executive officer who earned more than $100,000
during the fiscal year ended December 31, 2009,
(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
October 29, 2010 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
11
Table of Contents
these stockholders. Percentage of ownership is based on
106,893,720 shares of common stock outstanding on
October 29, 2010.
|
Number of Shares |
||||||||
|
Beneficially Owned |
||||||||
|
and Nature of |
Percent of |
|||||||
| Ownership | Class % | |||||||
|
David Chaplin(1)
|
595,600 | * | ||||||
|
Roy Fickling(2)
|
177,846 | * | ||||||
|
Tamar Howson
|
50,000 | * | ||||||
|
Mark Kessel(3)
|
27,207,118 | 25.5 | % | |||||
|
John Kollins(4)
|
— | * | ||||||
|
Peter Langecker(5)
|
181,250 | * | ||||||
|
Jim Murphy(6)
|
347,500 | * | ||||||
|
William Schwieterman(7)
|
154,208 | * | ||||||
|
William Shiebler(8)
|
427,002 | * | ||||||
|
Alastair J.J. Wood
|
90,000 | * | ||||||
|
All current directors and executive officers as a group
(9 persons)(9)
|
29,230,524 | 27.1 | % | |||||
| * | Less than 1%. | |
| (1) | Includes options to purchase 462,500 shares of common stock, which are exercisable within 60 days of October 29, 2010 (December 28, 2010). | |
| (2) | Includes 10,000 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. | |
| (3) | Includes 27,207,118 shares of common stock held by Symphony ViDA Holdings LLC. Mark Kessel is a Managing Member of Symphony GP LLC, which is the general partner of Symphony Capital GP, L.P., which is the general partner of Symphony Capital Partners, L.P., which is the manager of Symphony ViDA Holdings LLC. | |
| (4) | Pursuant to Mr. Kollins’ stock option agreement, all of Mr. Kollins’ unvested options were forfeited on the effective date of his resignation and his vested options, to the extent not exercised, were forfeited as of January 8, 2010. | |
| (5) | Includes options to purchase 181,250 shares of common stock, which are exercisable within 60 days of October 29, 2010 (December 28, 2010). | |
| (6) | Includes options to purchase 307,500 shares of common stock, which are exercisable within 60 days of October 29, 2010 (December 28, 2010). | |
| (7) | Includes 10,000 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. | |
| (8) | Includes options to purchase 135,000 shares of common stock, which are exercisable within 60 days of October 29, 2010 (December 28, 2010). | |
| (9) | Includes 40,000 shares of common stock subject to transfer restrictions, options to purchase 1,086,250 shares of common stock held by the directors and executive officers as a group and which are exercisable within 60 days of October 29, 2010 (December 28, 2010) and 20,000 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 October 29, 2010, the following is the only entity
(other than our employees as a group) known to us to be the
beneficial owner of more than 5% of our outstanding common stock.
12
Table of Contents
|
Number of Shares |
||||||||
|
Beneficially Owned |
||||||||
|
and Nature of |
Percent of |
|||||||
|
Name and Address of Beneficial Owner
|
Ownership | Class | ||||||
|
Symphony ViDA Holdings LLC
|
27,207,118 | 25.5 | % | |||||
|
875 Third Avenue
18th Floor New York, NY 10022 |
||||||||
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.
EXPENSES
OF SOLICITATION
We will bear the costs of soliciting proxies from our
stockholders. We currently estimate such costs to be
approximately $10,000. We will make this solicitation by mail,
and our directors, officers and employees may also solicit
proxies by telephone or in person, for which they will receive
no compensation other than their regular compensation as
directors, officers or employees. Arrangements will also be made
with brokerage houses and other custodians, nominees and
fiduciaries to send proxies and proxy materials to beneficial
owners of our voting securities. We will reimburse these
brokerage firms, custodians, nominees and fiduciaries for
reasonable
out-of-pocket
expenses that are incurred by them. We have engaged The Proxy
Advisory Group, LLC to assist in the solicitation of proxies and
provide related advice and informational support for a services
fee and the reimbursement of customary disbursements that are
not expected to exceed $20,000 in the aggregate.
STOCKHOLDER
PROPOSALS AND NOMINATIONS FOR DIRECTOR
Your eligibility as a stockholder to submit proposals and
director nominations, the proper subjects of such proposals and
other issues governing stockholder proposals and director
nominations are regulated by the rules adopted under
Section 14 of the Exchange Act. To be considered for
inclusion in the proxy statement relating to our annual meeting
of stockholders to be held in 2011, stockholder proposals and
nominations must be received no later than February 2,
2011. If we do not receive notice of any matter to be considered
for presentation at the annual meeting, although not to be
included in the Proxy Statement, between March 19, 2011 and
April 18, 2011 management proxies may confer discretionary
authority to vote on the matters presented at the annual meeting
by a stockholder in accordance with
Rule 14a-4
under the Exchange Act. All stockholder proposals should be
marked for the attention of The Secretary, OXiGENE, INC., 701
GATEWAY BOULEVARD, SUITE 210, SOUTH SAN FRANCISCO,
CALIFORNIA 94080.
OTHER
MATTERS
The Board of Directors knows of no other business that will be
presented at the Special Meeting. If any other business is
properly brought before the Special Meeting, it is intended that
proxies in the enclosed form will be voted in accordance with
the judgment of the persons voting the proxies.
South San Francisco, CA
November 12, 2010
13
Table of Contents
Appendix A
CERTIFICATE
OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
OXiGENE, INC.
RESTATED CERTIFICATE OF INCORPORATION OF
OXiGENE, INC.
It is hereby certified that:
| FIRST: | The name of the corporation is OXiGENE, Inc. (the “Corporation”). | |
| SECOND: | The Restated Certificate of Incorporation of the Corporation, as amended to date, is hereby further amended by striking out Section A of Article Fourth in its entirety and by substituting in lieu of the following: | |
| “A. Designation and Number of Shares. | ||
| The aggregate number of shares of all classes of stock which the Corporation is authorized to issue is Three Hundred and Fifteen Million (315,000,000) shares, of which Three Hundred Million (300,000,000) shares are designated Common Stock, of the par value of One Cent ($0.01) per share, and Fifteen Million (15,000,000) shares are designated Preferred Stock, of the par value of One Cent ($0.01) per share. Upon the effectiveness of the certificate of amendment to the restated certificate of incorporation containing this sentence, each [*] (*) shares of the Common Stock issued and outstanding as of the date and time immediately preceding [ ], 20[ ], the effective date of a reverse stock split (the “Split Effective Date”), shall be automatically changed and reclassified, as of the Split Effective Date and without further action, into one (1) fully paid and non-assessable share of Common Stock. There shall be no fractional shares issued. A holder of record of Common Stock on the Split Effective Date who would otherwise be entitled to a fraction of a share shall, in lieu thereof, be entitled to receive a cash payment in an amount equal to the fraction to which the stockholder would otherwise be entitled multiplied by the closing price of the Common Stock, as reported in the Wall Street Journal, on the Split Effective Date (or if such price is not available, the average of the last bid and asked prices of the Common Stock on such day or such other price as may be determined by the Corporation’s Board of Directors).” | ||
| THIRD: | The amendment of the Restated Certificate of Incorporation herein certified has been duly adopted in accordance with the provisions of Section 228 and Section 242 of the General Corporation Law of the State of Delaware. |
EXECUTED, effective as of this day
of
20[ ].
OXiGENE, Inc.
| By: |
James B. Murphy
Vice President and Chief Financial Officer
A-1
Table of Contents
APPENDIX B
0 n
OXiGENE, INC.
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS FOR THE SPECIAL MEETING
OF STOCKHOLDERS TO BE HELD ON TUESDAY, DECEMBER 21, 2010
OF STOCKHOLDERS TO BE HELD ON TUESDAY, DECEMBER 21, 2010
The undersigned hereby appoints Peter J. Langecker and James B. Murphy, and each of them (with full
power to act alone), proxies, with full power of substitution, to vote all shares of common stock
of OXiGENE, Inc., a Delaware corporation (the “Company”), owned by the undersigned at the Special
Meeting of Stockholders of the Company to be held at the Company’s offices located at 701 Gateway
Boulevard, Suite 210, South San Francisco, California 94080 on
Tuesday, December 21, 2010, at
10:00 a.m., local time, and at any and all adjournments or postponements thereof.
THE SHARES REPRESENTED BY THIS
PROXY WILL BE VOTED IN THE MANNER DIRECTED AND, IF NO INSTRUCTIONS
TO THE CONTRARY ARE INDICATED, WILL BE VOTED FOR PROPOSALS 1 AND 2. IN THEIR DISCRETION, THE
PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING OR
ANY ADJOURNMENTS OR POSTPONEMENTS OF THE MEETING.
THE UNDERSIGNED HEREBY ACKNOWLEDGES RECEIPT OF THE NOTICE OF SPECIAL MEETING OF STOCKHOLDERS AND
THE PROXY STATEMENT FURNISHED HEREWITH.
PLEASE MARK, SIGN, DATE AND PROMPTLY
RETURN THIS PROXY CARD USING THE ENCLOSED ENVELOPE. YOU MAY
REVOKE THIS PROXY AT ANY TIME PRIOR TO THE TAKING OF A VOTE ON THE MATTERS SPECIFIED HEREIN.
(Continued and to be signed on reverse side.)
n
|
14475 n |
B-1
Table of Contents
SPECIAL MEETING OF STOCKHOLDERS OF
OXiGENE, INC.
701 Gateway Boulevard, Suite 210
South San Francisco, CA 94080
South San Francisco, CA 94080
December 21,
2010
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIAL:
The Notice of Meeting, Proxy Statement and 2009 Annual Report
are available at www.oxigene.com
Please date, sign and mail
your proxy card in the
envelope provided as soon
as possible.
your proxy card in the
envelope provided as soon
as possible.
ê Please detach along perforated line and mail in the envelope provided. ê
| n 20700000000000000000 1 | 061307 |
|
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSALS 1 AND 2. PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE |
|||
| IN BLUE OR BLACK INK AS SHOWN HERE x | |||
| 1. Approval of an amendment to our Restated Certificate of Incorporation to effect a reverse stock split of our common stock at a ratio in the range of 1:2 to 1:20, such ratio to be determined by the Board of Directors. | FOR o |
AGAINST o |
ABSTAIN
o
|
|||||||||
| 2. Approval of an adjournment of the Special Meeting, if necessary, if a quorum is present, to solicit additional proxies if there are not sufficient votes in favor of Proposal 1. | o | o | o | |||||||||
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS DIRECTED. IF NO DIRECTION IS GIVEN WITH RESPECT TO A PARTICULAR PROPOSAL, THIS PROXY WILL BE VOTED FOR SUCH PROPOSAL.
|
||
PLEASE MARK, DATE, SIGN, AND RETURN THIS PROXY CARD PROMPTLY, USING THE ENCLOSED ENVELOPE. NO POSTAGE IS REQUIRED IF MAILED IN THE UNITED STATES.
|
|
To change the
address on your account, please check the box at right and indicate your new address
in the address space above. Please note that changes to the registered name(s)
on the account may not be submitted via this method. |
o |
|
Signature of Stockholder |
|
Date: |
|
Signature of Stockholder |
|
Date: |
|
|||||||||
| Note: |
Please sign exactly as your name or names appear on this Proxy.
When shares are held jointly, each holder should sign. When signing as executor,
administrator, attorney, trustee or guardian, please give full title as
such. If the signer is a corporation, please sign full corporate name by
duly authorized officer, giving full title as such. If signer is a partnership,
please sign in partnership name by authorized person. |
||||||
B-2
TABLE OF CONTENTS
NOTICE OF SPECIAL MEETING OF STOCKHOLDERSPROXY STATEMENTPROPOSAL 1PROPOSAL 2SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENTEXPENSES OF SOLICITATIONSTOCKHOLDER PROPOSALS AND NOMINATIONS FOR DIRECTOROTHER MATTERSAPPENDIX A PROPOSED CERTIFICATE OF AMENDMENT TO RESTATED CERTIFICATE OF INCORPORATION A-1