Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GENOME THERAPEUTICS CORP.
(Exact name of issuer as specified in its charter)
MASSACHUSETTS 04-2297484
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Beaver Street
Waltham, Massachusetts 02154
(Address of Principal Executive offices including zip code)
STOCK OPTION AGREEMENTS
(Full title of the Plan)
Fenel M. Eloi
Genome Therapeutics Corp.
100 Beaver Street
Waltham, Massachusetts 02154
(Name and address of agent for service)
(617) 893-5007
(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
David C. Chapin, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
Telephone: (617) 951-7371
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price Per Offering Registration
Registered Registered Share<F1> Price<F1> Fee
Common Stock, 215,000 $8.3125 $1,787,187.50 $542
$.10 par value.
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<FN>
<F1>Estimated solely for the purpose of calculating the registration fee on the
basis of the average high and low prices of the Common Stock as reported by the
National Association of Securities Dealers Automated Quotation System on
June 27, 1997. Exhibit Index can be found on page 8.
</FN>
</TABLE>
This is page 1 of 16 pages.
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1996, the Company's amended Annual Report on Form 10-K/A-1 for the
fiscal year ended August 31, 1996, the Company's Quarterly Report on Form 10-Q
for the quarter ended November 30, 1996, the Company's Quarterly Report on Form
10-Q for the quarter ended March 1, 1997, all the reports filed by the Company
with the Securities and Exchange Commission pursuant to Sections 13(a) and (c),
14 and 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal
year covered by the Company's Annual Report referred to above, and the
description of the Company's Common Stock contained in its Form 10/A, File No.
0-10824 are incorporated by reference and made a part of this registration
statement.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities
Not Required.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
The Company is organized under the laws of The Commonwealth of
Massachusetts. The Massachusetts Business Corporation Law provides that
indemnification of directors, officers, employees, and other agents of another
organization, or who serve at its request is any capacity with respect to any
employee benefit plan, may be provided by the corporation to whatever extent
specified in its charter documents or votes adopted by its shareholders, except
that no indemnification may be provided for any person with respect to any
matter as to which the person shall have been adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation. Under Massachusetts law, a corporation can
purchase and maintain insurance on behalf of any person against any liability
incurred as a director, officer, employee, agent, or person serving at the
request of the corporation as a director, officer, employee, or other agent of
another organization or with respect to any employee benefit plan, in his
capacity as such, whether or not the corporation would have power to itself
indemnify him against such liability.
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The Company's Articles of Organization provide that its directors shall
not be liable to the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director, except to the extent that the exculpation from
liabilities is not permitted under the Massachusetts Business Corporation Law as
in effect at the time such liability is determined. The By-Laws provide that the
Company shall indemnify its directors and officers to the full extent permitted
by the laws of The Commonwealth of Massachusetts. In addition, the Company holds
a Directors and Officer Liability and Corporate Indemnification Policy.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits.
Exhibit 4(a). Form of Stock Option Agreements and Schedule
of Agreements.
Exhibit 4(b). The Company's Restated Articles of Organiza-
tion (filed as an exhibit to the Company's
Registration Statement on Form S-1
(No. 2-75230) and incorporated herein by
reference).
Exhibit 4(c). Amendment dated January 5, 1982 to
Restated Articles of Organization (filed as
an exhibit to the Company's Quarterly Report
on Form 10-Q for the quarter ended February
27, 1982 and incorporated herein by
reference).
Exhibit 4(d). Amendment dated January 24, 1983 to
Restated Articles of Organization (filed as
an exhibit to the Company's Quarterly Report
on Form 10-Q for the quarter ended February
26, 1983 and incorporated herein by
reference).
Exhibit 4(e). Amendment dated January 17, 1984 to
Restated Articles of Organization (filed as
an exhibit to the Company's Quarterly Report
on Form 10-Q for the quarter ended February
25, 1984 and incorporated herein by
reference).
Exhibit 4(f). Amendment dated December 9, 1987 to
Restated Articles of Organization (filed as
an exhibit to the Company's Quarterly Report
on Form 10-Q for the quarter ended November
28, 1987 and incorporated herein by
reference).
Exhibit 4(g). Amendment dated January 24, 1994 to
an exhibit to the Company's Annual Report on
Form 10-K for the year ended August 31, 1994
and incorporated herein by reference).
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Exhibit 4(h). Amendment dated August 31, 1994 to
Restated Articles of Organization (filed as
an exhibit to the Company's Annual Report on
Form 10-K for the year ended August 31, 1994
and incorporated herein by reference).
Exhibit 4(i). The Company's By-laws (filed as an exhibit
to the Company's Registration Statement on
Form S-1 (No. 2-75230) and incorporated
herein by reference).
Exhibit 4(j). Amendment dated October 20, 1987 to
the By-laws (filed as an exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended August 31, 1987 and
incorporated herein by reference).
Exhibit 4(k). Amendment dated October 16, 1989 to
the By-laws (filed as an exhibit to the
Company's Annual Report on Form 10-K for the
fiscal year ended August 31, 1989 and
incorporated herein by reference).
Exhibit 5. Opinion of Ropes & Gray.
Exhibit 23(a). Consent of Ropes & Gray (contained in
Exhibit 5).
Exhibit 23(b). Consent of Arthur Andersen LLP.
Exhibit 24. Power of Attorney (included as part of
the signature pages to this Registration
Statement).
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
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<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) will not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of any
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Waltham, Commonwealth of Massachusetts, on this 2nd
day of July, 1997.
Genome Therapeutics Corp.
By: /s/ Fenel M. Eloi
Title: Vice President, Treasurer and
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert J. Hennessey and Fenel M. Eloi and each of
them, with full power to act without the other, his true and lawful
attorneys-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities to sign any
or all amendments to this registration statement, including post-effective
amendments, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents and each of them full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any substitutes lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
Name Title Date
/s/ Robert J. Hennessey Chairman of the Board; July 2, 1997
- -------------------------- President and Chief
Robert J. Hennessey Executive Officer (Principal
Executive Officer)
/s/ Philip Leder Director July 2, 1997
__________________________
Philip Leder
/s/ Lawrence Levy Director July 2, 1997
__________________________
Lawrence Levy
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<PAGE>
Name Title Date
/s/ Donald J. McCarren Director July 2, 1997
- ----------------------------
Donald J. McCarren
/s/ Steven M. Rauscher Director July 2, 1997
- -----------------------------
Steven M. Rauscher
/s/ Michael Rosenblatt Director July 2, 1997
_____________________________
Michael Rosenblatt
/s/ Fenel M. Eloi Vice President; Treasurer and July 2, 1997
- ---------------------------------- Chief Financial Officer
Fenel M. Eloi (Principal Financial and
Accounting Officer)
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
EXHIBIT INDEX
Number Title of Exhibit Page
4(a). Form of Stock Option Agreements and Schedule 9
of Agreements
5. Opinion of Ropes & Gray 14
23(a). Consent of Ropes & Gray Contained in Exhibit 5
23(b). Consent of Arthur Andersen LLP 16
24. Power of Attorney Included as Part of Signature
Pages to this Registration
</TABLE>
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<PAGE>
EXHIBIT 4(a)
GENOME THERAPEUTICS CORP.
STOCK OPTION AGREEMENT
(Non-Statutory Option)
Non-Statutory Stock Option granted by Genome Therapeutics Corp., a Massachusetts
corporation (the "Company"), to [Optionee], a director of the Company (the
"Optionee").
1. Grant of Option
This agreement evidences the grant by the Company to the Optionee of an option
to purchase, on the terms provided herein, a total of ______ shares of the
Company's Common Stock, $.10 par value ("Common Stock"), at a price of $____ per
share. This option does not constitute an incentive stock option within the
meaning of Section 422A of the Internal Revenue Code. This option shall
terminate on __________, 200_, and is subject to earlier termination as provided
in Sections 5 and 6 below. Subject to the other terms hereof, this option is
exercisable as follows: as to ______ if the average closing price of the Common
Stock is, for a period of ten (10) out of twenty (20) consecutive trading days,
$_____ or higher, as reported on the NASDAQ National Market ("NASDAQ") (or such
principal securities exchange as the Common Stock may be traded; and as to an
additional ______ shares if the average closing price of the Common Stock is,
for a period of ten (10) out of twenty (20) consecutive trading days, $_____ or
higher, as reported on NASDAQ (or such principal securities exchange as the
Common Stock may be traded..
2. Exercise of Option
Each election to exercise this option shall be in writing, signed by the
Optionee or by his executor or administrator or the person or persons to whom
this option is transferred by will or the applicable laws of descent and
distribution (the "Legal Representative"), and received by the Company at its
principal office in Waltham, Massachusetts, accompanied by this agreement and
payment in full as provided in Section 3 below. In the event the option is
exercised by such Legal Representative, the Company shall be under no obligation
to deliver stock hereunder unless and until the Company is satisfied that the
person or persons exercising the option is or are the duly appointed executor or
administrator of the deceased Optionee or the person or persons to whom this
option has been transferred by Optionee's will or by the applicable laws of
descent and distribution.
3. Payment for Stock
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Shares shall be issued only upon receipt by the Company of full payment of the
purchase price for the shares as to which the option is exercised. The purchase
price is payable by the Optionee to the Company either (i) in cash or by
certified check or cashier's check payable to the order of the Company; or (ii)
through the delivery of shares of Common Stock (duly owned by the Optionee and
as to which the Optionee has good title free and clear of any liens and
encumbrances) having a fair market value (as determined by the Board of
Directors of the Company) equal to the purchase price; or (iii) by a combination
of cash and Common Stock as provided above. The Company will not be obligated to
deliver any shares unless and until, in the opinion of the Company's counsel,
all applicable federal and state laws and regulations have been complied with,
nor, in the event the outstanding common stock is at the time listed upon any
stock exchange, unless and until the shares to be delivered have been listed or
authorized to be added to the list upon official notice of legal matters in
connection with the issuance and delivery of shares have been approved by the
Company's counsel. Without limiting the generality of the foregoing, the Company
may require from the Optionee such investment representation or such agreement,
if any, as counsel for the Company may consider necessary in order to comply
with the Securities Act of 1933, as amended and may require that the Optionee
agree that he will notify the Company when he makes any disposition of the
shares whether by sale, gift or otherwise. The Company will use its best efforts
to effect any such compliance or listing, and the Optionee will take any action
reasonably requested by the Company in such connection. The Optionee will have
the rights of a shareholder only as to shares actually acquired by him upon
exercise of the option granted hereby.
4. Non-transferability of Option
This option may not be transferred by the Optionee otherwise than by will or by
the laws of descent and distribution; and during the Optionee's lifetime this
option may be exercised only by him.
5. Termination of Service as a Director
If the Optionee ceases to be a director of the Company for any reason other than
his death, he may thereafter exercise this option to the extent he was entitled
to exercise it on the date when his service as a director terminated, but only
within three months after the date of such termination (unless a longer period
is allowed by the Board of Directors of the Company). In no event, however, may
the Optionee exercise this option at a time when the option would not be
exercisable had the Optionee's service as a director continued. For purposes of
this provision, the Optionee's service as a director will not be considered
terminated in the case of a bona fide leave of absence approved by the Board of
Directors of the Company.
6. Death
If the Optionee dies at a time when he is entitled to exercise this option, then
at any time or times within three years after his death (or such longer period
as the Board of Directors of the Company may allow) such option may be
exercised, as to all or any of the shares that the Optionee was entitled to
purchase immediately prior to his death, by his executor or administrator or the
person or persons to
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whom the option is transferred by will or the applicable laws of descent and
distribution, and except as so exercised such option will expire at the end of
such period. In no event, however, may this option be exercised after the
termination of the option.
7. Administration
The option granted by this agreement will be administered by the Board of
Directors of the Company which will have the authority to interpret this
agreement and to decide all questions and settle all controversies and dispute
which may arise in connection therewith. All decisions, determinations and
interpretations of the Board of Directors will be binding on all parties
concerned. A majority of the members of the Board of Directors will constitute a
quorum, and all determinations of the Board of Directors will be made by a
majority of its members. Any determination of the Board of Directors under this
agreement may be made without notice or meeting of the Board of Directors by a
written instrument signed by a majority of the members of the Board of
Directors.
8. Stock to be Delivered
Stock to be delivered upon exercised of this option will be common stock of the
Company and may constitute an original issue of authorized but unissued stock or
may consist of previously issued stock acquired by the Company as determined
from time to time by the Board of Directors. The Board of Directors and the
proper officers of the Company will take any appropriate action required for
such delivery.
9. Changes in Stock
In the event of a stock dividend, split-up or combination of shares,
recapitalization or merger in which the Company is the surviving corporation, or
other similar capital change, the number and kind of shares of stock or
securities of the Company subject to the option granted hereby, the option price
and other relevant provisions will be appropriately adjusted by the Board of
Directors of the Company, whose determination will be binding on the Optionee.
In the event of a consolidation or merger in which the Company is not the
surviving corporation, or in the event of complete liquidation of the Company,
the option granted hereby will thereupon terminate, provided that at least
twenty days prior to the effective date of any such consolidation or merger, the
Board of Directors shall either (a) make the option granted hereby immediately
exercisable, or (b) arrange to have the surviving corporation grant a
replacement option to the Optionee.
10. Amendments
The Board of Directors of the Company may at any time or times amend the option
granted hereby for the purpose of satisfying the requirements of any changes in
applicable laws or regulations or for any other purpose which may at the time be
permitted by law, provided that (except to the extent explicitly required or
permitted hereinabove) no such amendment will, without the approval of the
stockholders
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of the Company, (a) increase the number of shares issuable upon exercise of the
option, (b) reduce the exercise price of the option, (c) extend the period
within which the option may be exercised, or (d) amend the provisions of this
Section 10, and no such amendment will adversely affect the rights of the
Optionee without his consent.
11. Governing Law
This agreement shall be governed by and construed in accordance with the
internal laws of The Commonwealth of Massachusetts.
12. Stockholder Approval
This agreement shall not become effective unless and until the option granted
hereby is approved by the stockholders of the Company.
IN WITNESS WHEREOF, the Company has caused this agreement to
be executed by its duly authorized officer, under its corporate seal. This
option is granted at the Company's office, on the date stated below.
GENOME THERAPEUTICS CORP.
By:___________________________
President
Date: As of ____________, 1997
Accepted and Agreed:
- -----------------------------
[Optionee]
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SCHEDULE OF STOCK OPTION AGREEMENTS
Price Per Grant Expiration Shares Exercise
Optionee Share Date Date Granted Dates
Barry
Eisenstein $7.06 3/31/97 3/31/07 7500 <F1>
Christopher Kelly $9.06 3/14/97 3/14/07 150000 <F2>
James Gusella $7.06 3/31/97 3/31/07 7500 <F1>
Michael
Rosenblatt $9.50 2/7/97 2/7/07 50000 <F3>
[FN]
<F1>The options are exercisable by their terms in equal installments over four
years, the first installment of 12,500 exercisable commencing on March 31, 1998.
<F2>The options are exercisable by their terms as follows: (i) an aggregate of
75,000 options are exercisable with respect to equal installments over four
years, the first installment of 18,750 options are exercisable commencing on
March 14, 1998; (ii) 25,000 options shall be exercisable if the closing price of
the Common Stock for a period of 20 out of 40 consecutive trading days after the
date of grant is $14.25 or higher; (iii) 25,000 options shall be exercisable if
the closing price of the Common Stock for a period of 20 out of 40 consecutive
trading days after the date of grant is $18.25 or higher; (iv) and the remaining
25,000 options shall be exercisable if the closing price of the Common Stock for
a period of 20 out of 40 consecutive trading days after the date of grant is
$20.25 or higher.
<F3>The options are exercisable by their terms in equal installments over four
years, the first installment of 12,500 exercisable commencing on February 7,
1998.
[/FN]
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EXHIBIT 5
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
(617) 951-7000
FAX: (617) 951-7050
July 2, 1997
Genome Therapeutics Corp.
100 Beaver Street
Waltham, Massachusetts 02154
Ladies and Gentlemen:
We have acted as counsel for Genome Therapeutics Corp., a Massachusetts
corporation (the "Company") in connection with the preparation of a registration
statement on Form S-8 and all exhibits thereto (the "Registration Statement")
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, for the registration of 215,000 shares of Common Stock, $.10
par value (the "Shares").
The 215,000 shares being registered are issuable upon the exercise of
options granted pursuant to certain stock option agreements (the "Agreements")
between the Company and the respective holders. The Company has informed us that
the Shares issuable upon the exercise of options granted under the Agreements
may be authorized but unissued shares or shares held from time to time in its
treasury.
For purposes of this opinion, we have examined a copy of the
Registration Statement; copies of the Agreements; the Restated Articles of
Organization of the Company, as amended to date; the By-laws of the Company, as
amended to date; the votes of the Board of Directors and the stockholders of the
Company approving and adopting the Agreements; and such other documents and
records as we deem necessary for purposes of this opinion.
We have assumed that the Shares will be issued only against payment
therefor as provided in the Agreements and that the purchase price for such
shares will not be less than the par value per share of the Company's Common
Stock. We have also assumed that the issuance of any such shares will not result
in the issuance by the Company of more than its authorized shares of Common
Stock.
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Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a duly organized and validly existing
corporation under the laws of The Commonwealth of Massachusetts.
2. The Shares, when issued and paid for upon the exercise of options,
pursuant to the terms and conditions of the Agreements, will be validly issued
and will be fully paid and nonassessable.
In connection with any issue and sale of the Shares, steps should be
taken to effect compliance with all applicable laws, rules and regulations of
governmental authorities regulating sales and offerings of securities.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name therein.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
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EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
October 18, 1996 in Genome Therapeutic Corp.'s Form 10-K for the year ended
August 31, 1996 and to all references to our Firm included in this Registration
Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
June 27, 1997
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