As filed with the Securities and Exchange Commission on February 3, 1999.
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Biogen, Inc.
(Exact name of registrant as specified in its charter)
Massachusetts 04-3002117
(State or other jurisdiction (I.R.S. Employer
of incorporatin or organization) Identification Number)
14 Cambridge Center
Cambridge, Massachusetts 02142
(617) 679-2000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Michael J. Astrue, Esq.
Vice President - General Counsel
Biogen, Inc.
14 Cambridge Center
Cambridge, Massachusetts 02142
(617) 679-2000
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
With a copy to:
Peter S. Lawrence, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
Approximate date of commencement of proposed
sale to the public: As soon as practical after this
Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment, check the following box. _X_
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Title of Each Amount to be Proposed Maximum Proposed Amount of
Class of Securities Registered(1) Offering Price Maximum Registration
to be Registered per Share Aggregate Fee(3)
Offering Price
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 417,500 $97(2) $40,497,500(2) (3)
$.01 par value
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<FN>
(1) Consists of 417,500 shares of common stock to be issued upon exercise of
options and an indeterminate number of additional shares of common stock as
may from time to time become issuable upon exercise of the options by
reason of stock splits, stock dividends and other similar transactions,
which shares are registered hereunder pursuant to Rule 416.
(2) Calculated using the average of the high and low sales prices of the
Common Stock of Biogen, Inc. on NASDAQ as of January 29, 1999.
(3) A Registration Fee was previously paid with Registration Statement No.
33-37312 on Form S-8 and Registration Statement No. 33-69174 on Form S-8.
No additional shares are being registered hereby. Pursuant to Rule 429(b)
of the Securities Act of 1933, the registration fee relating to these
shares is being transferred to this registration statement and the Form S-8
will be amended to deregister these shares.
</FN>
</TABLE>
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
RED HERRING LANGUAGE
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
Subject to Completion, dated February 2, 1999
BIOGEN, INC.
417,500 Shares of Common Stock
- The shares offered hereby may be purchased pursuant to the exercise of
options by a current option holder which were transferred to her by
one of our officers. The options were issued to the officer pursuant
to the Biogen, Inc. 1985 Non-Qualified Stock Option Plan.
- The amount of the proceeds we receive upon exercise of the options
will depend upon the exercise price of the options and the extent to
which they are exercised. Currently, 117,500 of the options have an
exercise price of $22.063 per share, and 300,000 of the options have
an exercise price of $26.969 per share.
Our common stock trades on the Nasdaq National Stock Market under the
symbol "BGEN."
On February 1, 1999, the closing sale price of one share of our common
stock as quoted on the Nasdaq National Stock Market was $96.3125.
Our address is Biogen, Inc., 14 Cambridge Center, Cambridge,
Massachusetts 02142, and our telephone number is (617) 679-2000.
This Investment Involves A High Degree of Risk.
You Should Purchase Shares Only If You Can Afford A Complete Loss.
See "Risk Factors" Beginning on Page 3.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities, or determined
if this prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
February __, 1999
<PAGE>
BUSINESS
Biogen is a biopharmaceutical company principally engaged in the
business of developing, manufacturing and marketing drugs for human health care.
We currently derive revenues from sales of AVONEX(R)(Interferon Beta-1a) for the
treatment of relapsing forms of multiple sclerosis and from sales by our
licensees of a number of products, including alpha interferon and hepatitis B
vaccines and diagnostic products. We began marketing AVONEX(R) in the United
States in 1996 and in the fifteen member countries of the European Union in
1997. Our revenues from sales of AVONEX(R) in 1998 were approximately $395
million. During 1998, we also received approximately $163 million in royalty
revenue and license fees from our licensees.
We continue to devote significant resources to our ongoing research and
development efforts. We focus our efforts on areas where we have particular
scientific strengths, such as:
- multiple sclerosis,
- inflammatory diseases,
- cardiovascular diseases,
- developmental biology, and
- gene therapy.
In 1998, we continued clinical trials of several of our product
candidates, including initiation of:
- a Phase 2b clinical trial of LFA3TIP in patients with moderate to severe
psoriasis,
- a Phase 2b study of CVT-124, a diuretic being developed as a potential
treatment for edema associated with congestive heart failure, and
- a Phase 2 study of humanized 5c8 anti-CD40 ligand monoclonal antibody in
patients with immune thrombocytopenic purpura.
We have planned additional clinical trials of LFA3TIP, humanized 5c8 and
CVT-124. We also have ongoing clinical trials related to AVONEX(R). In addition,
we are pursuing early-stage research programs directed toward finding oral small
molecule drug candidates to inhibit certain inflammation pathways as a potential
treatment for multiple sclerosis, developing novel inhibitors of certain immune
response pathways as potential therapies for several autoimmune diseases such as
inflammatory bowel disease and arthritis, exploring ways to treat central
nervous system disorders and developing products for human gene therapy. We are
also exploring the use of functional genomics technology to find novel
therapeutics.
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RISK FACTORS
Investing in our common stock is very risky. You should be able to bear a
complete loss of your investment. This prospectus, including the documents
incorporated by reference, contains forward-looking statements that involve
risks or uncertainties. Actual events or results may differ materially from
those discussed in this prospectus and in the documents incorporated by
reference. Factors that could cause or contribute to such differences include,
but are not limited to, the factors discussed below as well as those discussed
elsewhere in this prospectus and in the documents incorporated by reference.
Dependence on AVONEX(R) Sales and Royalty Revenue
Our ability to sustain increases in revenues and profitability will primarily
depend on our revenues and profitability from AVONEX(R) sales. Our ability to
sustain profitability from sales of AVONEX(R) will depend on a number of
factors, including:
- continued market acceptance of AVONEX(R) worldwide;
- our ability to maintain a high level of patient satisfaction with
AVONEX(R);
- the nature of regulatory and pricing decisions related to
AVONEX(R) worldwide and the extent to which AVONEX(R) receives
and maintains reimbursement coverage;
- market acceptance of AVONEX(R) outside the United States;
- successful resolution of the lawsuit with Berlex Laboratories,
Inc. related to the U.S. "McCormick" patents, which if decided in
Berlex's favor could have a material adverse effect on our
financial position and results of operations;
- success in revoking the European patents granted to Dr.
Rentschler Biotechnologie GmbH since if the patents were to be
upheld and if Rentschler were to obtain, through legal
proceedings, a determination that our sale of AVONEX(R) in Europe
infringes a valid Rentschler patent, such result could have a
material adverse effect on our results of operation and financial
condition;
- our ability to sustain market share of AVONEX(R) in light of the
introduction of competitive products for the treatment of
multiple sclerosis;
- the success of ongoing development work related to AVONEX(R) in
expanded multiple sclerosis indications; and
- the continued accessibility of third parties to vial, label, and
distribute AVONEX(R) on acceptable terms.
We also receive royalty revenues which contribute significantly to our overall
profitability. Our ability to maintain the level of such royalty revenues will
depend on a number of factors, including: sustaining the scope and validity of
existing patents; the efforts of licensees in the clinical testing and marketing
of products from which we derive revenue; and the timing and extent of royalties
from additional licensing opportunities. In addition, licensee sales levels may
fluctuate from quarter to quarter due to the timing and extent of major events
such as new indication approvals or government sponsored vaccination programs.
We cannot assure you that we will achieve a positive outcome with respect to any
of the factors discussed in this Section or that the timing and extent of our
success with respect to any combination of these factors will be sufficient to
result in sustained increases in our revenues or profitability.
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Competition
We face increasing competition from other products for the treatment of
relapsing forms of multiple sclerosis. AVONEX(R)competes with interferon beta-1b
which is sold in the United States under the brand name Betaseron(R) by Berlex
Laboratories, Inc., a United States affiliate of Schering AG, Germany, and is
sold in Europe under the brandname Betaferon(R) by Schering AG. AVONEX(R) also
faces competition from Copaxone(R) glatiramer acetate (also known as
copolymer-l). In the United States, Copaxone(R) is marketed by a partnership
between Teva Pharmaceuticals and Hoechst Marion Roussel, Inc. In addition, Ares
Serono S.A. is selling another interferon beta-la product in Europe and Canada
under the brand name Rebif(R). Serono is also seeking approval to market
Rebif(R) in the United States but to be approved for relapsing forms of multiple
sclerosis would have to overcome the orphan drug status afforded AVONEX(R) and
Betaseron(R) by the FDA. We cannot assure you that we will be able to sustain
our share of the market for the treatment of multiple sclerosis in light of the
competition from other products.
New Products
AVONEX(R) is currently the only product we sell. Our long-term viability and
growth will depend on the successful development and commercialization of other
products from research activities and collaborations. We continue to expand our
development efforts related to other potential products in our pipeline. The
expansion of the pipeline may include increases in spending on internal
projects, the acquisition of third party technologies or products or other types
of investments. Product development involves a high degree of risk. Many
important factors affect our ability to successfully develop and commercialize
drugs, including the ability to obtain and maintain necessary patents and
licenses, to demonstrate safety and efficacy of drug candidates at each stage of
the clinical trial process, to meet applicable regulatory standards and to
receive required regulatory approvals, to be capable of producing drug
candidates in commercial quantities at reasonable costs, to obtain reimbursement
coverage for the products, to compete successfully against other products and to
market products successfully. We cannot assure you that we will be successful in
our efforts to develop and commercialize new products.
Patents and Other Proprietary Rights
We have numerous issued patents and patent applications pending on a number of
our processes and products. We have also obtained rights to certain patents
under licenses with third parties which provide for the payment of royalties. We
cannot assure you that our existing patents or others, if obtained, will be of
substantial protection or commercial benefit to us. In addition, we do not know
to what extent Biogen's pending patent applications or patent applications
licensed from third parties will be granted or whether any of our patents will
prevail if they are challenged in litigation. Also, we cannot assure you that
third parties will not be granted patents claiming subject matter necessary to
our business.
We have granted an exclusive worldwide license to Schering-Plough Corporation
under our alpha interferon patents, and receive royalties from Schering-Plough
on sales of its Intron(R) A brand of alpha interferon. While our U.S. alpha
interferon patent expires in 2002, under a settlement agreement entered into in
1998, Schering-Plough will pay us certain sums on U.S. sales of Intron(R) A
until the expiration of a patent on a recombinant form of the alpha interferon
protein expected to be issued to F. Hoffman LaRoche, Inc. and Genentech, Inc.
The Genentech/Roche patent is expected to have a term of 17 years from the date
of issue. Schering-Plough's royalty obligation to us on sales of Intron (R) A in
Europe will terminate upon the expiration of our European alpha interferon
patent in 2001, except that such obligation will not terminate in France until
2003 and in Italy until 2007.
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We have licensed our recombinant hepatitis B antigen patent rights to
manufacturers and marketers of hepatitis B vaccines and diagnostic test kits,
and receive royalties on sales of the vaccines and test kits by our licensees.
The obligation of SmithKline Beecham Biologicals s.a. and Merck & Co., Inc. to
pay royalties on sales of hepatitis B vaccines and the obligation of our other
licensees under our hepatitis B patents to pay royalties on sales of diagnostic
products will terminate upon expiration of our existing hepatitis B patents. Our
existing United States hepatitis B patents will expire in 2004. Our European
hepatitis B patents will expire at the end of 1999, except in those countries in
which we have or are able to obtain supplemental protection certificates. To
date, we have received supplemental protection certificates in France, Ireland,
Italy, Luxembourg, The Netherlands, Sweden and Switzerland, and we have a number
of additional applications pending. The additional coverage afforded by
supplemental protection certificates ranges from two to six years. We cannot
assure you as to the extent of coverage available under the supplemental
protection certificates, or that protection will be available in additional
countries.
There has been, and we expect that there may continue to be, significant
litigation in the industry regarding patents and other intellectual property
rights. Such litigation could create uncertainty and consume substantial
resources.
Foreign Exchange Rates
We have operations in several European countries in connection with the sale of
our product AVONEX(R). We also receive royalty revenues based on worldwide
product sales by our licensees. As a result, our financial position, results of
operations and cash flows can be affected by fluctuations in foreign currency
exchange rates, primarily the British pound, Eurodollar and Japanese yen. We use
foreign currency forward contracts to manage specifically identifiable foreign
currency risk but do not engage in currency speculation. We use these forward
contracts to hedge certain transactions denominated in foreign currencies.
Volatility of Stock Price
The stock prices of biotechnology companies such as ours are subject to
significant fluctuations. Our stock price may be affected by a number of factors
including, but not limited to clinical trial results and other product
development events, the financial impact of changes in the value of our
investments, the outcome of litigation, the decisions relating to intellectual
property rights and the entrance of competitive products into the market,
changes in reimbursement policies or other practices related to the
pharmaceutical industry or other industry and market changes or trends. In
addition, if our revenues or earnings in any quarter fail to meet the investment
community's expectations, there could be an immediate adverse impact on our
stock price.
Product Liability
Products or processes that are or may be developed, licensed, manufactured or
sold by us may expose us to potential liability from claims by end-users of such
products or of products manufactured using such processes, or by those selling
such products, either directly or as a component of other products. We also have
potential liability under indemnification arrangements relating to our clinical
trial programs. We have obtained limited product liability insurance coverage.
We cannot assure you that we will be able to maintain such coverage or obtain
additional coverage on acceptable terms, if at all, or that such insurance
coverage will be adequate to protect us against all claims.
5
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Attraction and Retention of Key Personnel
Although we believe that we have been successful in attracting skilled and
experienced management and scientific personnel, competition for such personnel
is intense and we cannot assure you that we will be able to continue to attract
and retain personnel of high caliber. The loss of key management or scientific
personnel might have an adverse impact on us. In general, we have not entered
into noncompetition agreements with our employees, and such employees therefore
would be able to leave and compete with us.
Anti-Takeover Effects of Certain Special Provisions of our Articles of
Organization and By-Laws, Preferred Stock and Shareholder Rights Plan
Certain provisions of our Articles of Organization and By-Laws may have the
effect (alone, or in conjunction with the authorized but unissued common stock
and preferred stock and our shareholder rights plan) of precluding or rendering
more difficult the acquisition of control of our company by means of a tender
offer, open market purchases, proxy fight or otherwise, of being adverse to
shareholders who desire to participate in a tender offer and of depriving
shareholders of possible opportunities to sell their shares at higher prices.
The Board of Directors is empowered under our Articles of Organization and
without further shareholder action to divide any or all shares of the authorized
preferred stock into series and to fix and determine the relative rights and
preferences of the shares of any series so established. The issuance of
preferred stock by the Board of Directors could adversely affect the rights of
holders of shares of our common stock. In addition, we have adopted a
shareholder rights plan. The shareholder rights plan may render more difficult
or tend to discourage a merger, tender offer or proxy contest, the assumption of
control by a holder of a large block of our securities or the removal of
incumbent management.
Year 2000 Issues
Year 2000 is the problem resulting from the use of a two-digit date field to
identify the year in computer software. Consequently, computer programs may not
accurately reflect the appropriate date, confusing "00" as the year 1900 rather
than the year 2000. Year 2000 is a pervasive problem affecting many information
technology systems and embedded technologies (e.g. microprocessors in
communications systems) in all companies, in all industries. Failure by us or
failure by third parties upon which we rely to effectively address Year 2000
issues could have a material adverse impact on our financial position or results
of operations.
We have developed a plan to address the Year 2000 issues. The plan is segregated
into four phases:
1. Information Collection - Identify all Year 2000 risk areas and assign
accountability.
2. Assess Risk - Assign each item a category of risk Commercial Risk - Has a
significant impact on sale, delivery and support of AVONEX(R) or
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significant impact on royalty revenues. Operational Risk - Has a
significant impact on productivity but does not materially impact our
results of operations. Convenience Risk - Has a minor impact on
productivity.
3. Remediate - Fix or replace, test and implement changes required for Year
2000 compliance.
4. Contingency Plan - Define procedures to be implemented should a disruption
due to Year 2000 occur.
We have completed the first two phases of the project and have completed the
testing and upgrading of all individual software applications that fall within
the Commercial Risk category. All of our major software applications are
purchased from major software vendors and we perform only minor customizations
to those applications. Our major software providers have attested to Year 2000
compliance. We have reviewed our operations equipment for embedded technologies
which may be Year 2000 susceptible and do not believe necessary modifications to
be material.
We are communicating with our significant vendors and customers to determine the
progress that those vendors and customers are making in remediating their own
Year 2000 issues. We are requiring that significant vendors and customers
certify those products and services to be Year 2000 compliant.
To date, Year 2000 costs have been minimal and we believe that future costs will
be immaterial. We expect the remainder of the Year 2000 compliance program to be
substantially complete by July 1999.
The most reasonably likely worst case scenario, if significant Year 2000 issues
arise, is that we would be hampered in our efforts to produce, package, and
deliver AVONEX(R), our only revenue generating product, and that third parties
from whom we receive royalty revenue would encounter similar difficulties in
their efforts to produce and sell products which generate royalty revenue for
us. To mitigate the risks of such events, we are developing contingency plans,
which include maintaining a sufficient level of inventory of AVONEX(R) in both
bulk and packaged format, developing secondary sources of packaging and
delivery, providing for manual backup processes, and working with third parties
on Year 2000 certification. To the extent that Year 2000 certification is
unsatisfactory, contingency plans will be developed or modified accordingly. In
the event that significant vendors do not achieve Year 2000 compliance in a
timely manner, and we are unable to replace them, our operations could be
materially adversely affected.
USE OF PROCEEDS
The amount of the proceeds we receive upon exercise of the options will depend
upon the exercise price of the options and the extent to which they are
exercised. We intend to use the net proceeds from the sale of the common stock
underlying the options for general corporate purposes.
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PLAN OF DISTRIBUTION
This Prospectus relates to up to 417,500 shares of common stock of Biogen (the
"Registered Stock") which may be offered and sold to an individual option holder
(the "Current Holder") pursuant to options (the "Options") transferred to her by
an officer of Biogen (the "Plan Participant"). The Options were issued to the
Plan Participant pursuant to the Biogen, Inc. 1985 Non-Qualified Stock Option
Plan (the "Plan"). Having been transferred to the Current Holder, the Options
are still governed by and subject to the terms and limitations of the Plan and
the grant to the Plan Participant, and the Current Holder is entitled to the
same rights as the Plan Participant under the Plan, as if no transfer had taken
place. Accordingly, the rights of the Current Holder are subject to the terms
and limitations of the original grant to the Plan Participant, including
provisions relating to expiration date, exercisability, exercise price and
forfeiture.
Introduction
The purpose of the Plan is to encourage ownership of Biogen by certain employees
and directors of Biogen and its affiliates and to provide an additional
incentive to them to promote the success of Biogen and its affiliates. Under the
Plan, employees and directors of Biogen and its affiliates are provided the
opportunity to purchase shares of Biogen common stock through the exercise of
non-qualified stock options.
Each option is set forth in an option agreement executed by both the Company and
the Plan Participant. Of the shares offered hereby, 117,500 underlie options
which expire on December 10, 2002, and 300,000 underlie options which expire on
September 22, 2005.
The Plan is not subject to the provisions of the Employee Retirement Income
Security Act of 1974 ("ERISA"), and options issued pursuant to the Plan are not
incentive stock options under Section 422 of the Internal Revenue Code of 1986,
as amended.
Administration
The Plan is administered by the Stock and Option Plan Administration Committee
(the "Committee") pursuant to authority delegated by the Board of Directors of
Biogen (the "Board"). The Committee presently consists of Roger H. Morley and
Harold W. Buirkle, both of whom have been non-employee directors of Biogen since
1987 and 1986, respectively. The Committee members, who must be directors of
Biogen, are selected by the Board and serve indefinitely at the pleasure of the
Board until their successors are appointed and qualified. Any vacancy occurring
in the membership of the Committee is filled by appointment by the Board.
The Committee is authorized to interpret the provisions of the Plan and of the
options granted thereunder and to make all rules and determinations necessary or
advisable for the administration of the Plan. Subject to the provisions of the
Plan, options may be granted upon such terms and conditions as the Committee may
prescribe.
The Plan is intended to comply in all respects with Rule 16b-3 or its successors
promulgated under the Securities Exchange Act of 1934 (the "Exchange Act") with
respect to participants who are subject to Section 16 of the Exchange Act, and
any provision in the Plan with respect to such persons contrary to Rule 16b-3
shall be deemed null and void to the extent permissible by law and deemed
appropriate by the Committee.
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Exercise of Options by the Current Holder
In order to exercise the Options, the Current Holder must (i) notify Biogen of
such exercise in writing, (ii) make such warranties as may be required by any
applicable securities law of any applicable jurisdiction, and (iii) pay the
exercise price of shares purchased in full in cash, shares or in such other form
as may be permitted by the Committee. In no event shall Biogen be obligated to
issue any shares upon the exercise of any of the Options if prohibited by
applicable law or regulation.
Tax Withholding
Upon the exercise of the Options by the Current Holder, any federal, state, or
local income taxes, employment taxes, Federal Insurance Contributions Act
("FICA") withholdings or other amounts required by applicable law or
governmental regulation to be withheld in connection with the exercise of an
option are the obligation of the Plan Participant. Either the Current Holder or
the Plan Participant must advance in cash to Biogen the amount of such
withholdings unless a different withholding arrangement, including the use of
shares of Biogen common stock, is authorized by the Committee (and permitted by
law). If the fair market value of the shares withheld is less than the amount of
payroll withholdings required, the Current Holder or Plan Participant may be
required to advance the difference in cash to the Company.
Effect of Termination of Employment of Plan Participant
Because the Options are still governed by the terms of the Plan and the terms of
their grant to the Plan Participant, the exercisability of the Options is still
affected by the Plan Participant's employment status with Biogen. The Current
Holder may only exercise the Options while the Plan Participant is employed by
or is a director of Biogen or within three months after he ceases to be an
employee or a director (but in no event later than the expiration of the
option), to the extent the Options are exercisable at the time of termination,
unless such termination is for cause, disability or death. If the Plan
Participant is terminated for cause or is removed from the Board for cause, the
Options shall terminate upon such termination or removal. The determination of
the Committee as to the existence of cause shall be conclusive. If, due to
disability (as determined by the Committee), the Plan Participant ceases to be
an employee or a director of Biogen, the Current Holder may exercise the Options
at any time within one year after such termination due to disability (but in no
event later than the expiration of the Options).
If the Plan Participant dies while employed by or a director of Biogen, the
Current Holder may exercise the Options for one-year after the date of death
(but in no event later than the expiration of the Options).
Transferability
The Current Holder may not transfer the Options other than (i) by will or by the
laws of descent and distribution or (ii) pursuant to a qualified domestic
relations order as interpreted under Rule 16b-3(a)(2) under the Exchange Act.
Under the terms of the Plan, any attempted transfer, assignment, pledge, or
other disposition of any option or of any rights granted thereunder contrary to
the Plan's provisions or the levy of any attachment or similar process upon an
option or such rights is prohibited.
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Amendment and Termination
The Plan will continue in existence until December 31, 2002 unless the Committee
decides to reduce or, subject to shareholder approval, extend the duration of
the Plan. The Plan may be amended by the Committee or the Board of Directors
provided, however, that if the scope of any amendment is such as to require
shareholder approval in order to comply with Rule 16b-3 under the Exchange Act
such amendment shall require approval by the shareholders. Any option holder who
is adversely affected by any such change must consent to the change in writing.
Adjustment
In the event that the Common Stock of the Company is changed into or exchanged
for a different number or kind of shares or other securities of the Company or
of another corporation by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, stock split, stock dividend, or the like,
appropriate adjustment will be made to the number and kind of shares reserved
for issuance under the Plan and in the option price and the number and kind of
shares subject to outstanding options so that each option holder, including the
Current Holder, shall be in a position equivalent to the position the option
holder would have been in had the option holder exercised the options
immediately prior to the applicable event.
The options granted under the Plan terminate upon the dissolution or liquidation
of the Company (other than in connection with a transaction to which the
preceding paragraph applies). The option holder has the right, immediately prior
to any such dissolution or liquidation, to exercise the option to the extent the
right to purchase shares has accrued as of the date immediately prior to such
dissolution or liquidation.
FEDERAL INCOME TAX CONSEQUENCES
Prior to exercising the Options and selling the shares of common stock obtained
upon exercise, the Current Holder should consult with her personal tax advisors
concerning the possible tax consequences.
Income Tax Consequences for the Plan Participant of Exercise of Options
When the Current Holder exercises Options, the Plan Participant will recognize
ordinary compensation income in an amount equal to the excess of the fair market
value of the shares purchased (which will not necessarily be equal to the price
at which such shares are sold, even if sold on the same day as exercised) over
the exercise price at the time the Current Holder exercises the Options.
(Special rules may apply to the Plan Participant while he is subject to
potential liability under Section 16(b) of the Exchange Act, which may defer the
recognition of compensation income.) Moreover, such income will be subject to
payment and withholding of income and FICA taxes. Subject to certain
limitations, the Company will generally be entitled to claim a Federal income
tax deduction at such time and in the same amount that the Plan Participant
realizes ordinary income. If the Current Holder exercises Options after the
death of the Plan Participant, current Treasury Regulations provide that any
such ordinary income will be recognized by the estate or beneficiary of the Plan
Participant. It is anticipated, however, that the Internal Revenue Service will
soon clarify whether such ordinary income could instead be taxed to the Current
Holder.
Income Tax Consequences for the Current Holder of Exercise of Options
As described in the preceding paragraph, the Plan Participant and not the
Current Holder will recognize ordinary compensation income at the time the
Current Holder exercises Options if the Plan Participant is alive at the date
the Options are exercised. If the Current Holder exercises Options after the
death of the Plan Participant, current Treasury Regulations provide that any
such ordinary income will be recognized by the estate or beneficiary of the Plan
Participant. It is anticipated, however, that the Internal Revenue Service will
soon clarify whether such ordinary income could instead be taxed to the Current
Holder. If the Current Holder chooses to exercise Options in whole or in part by
delivery of Biogen common stock already owned by the Current Holder, she should
consult with her tax advisors concerning the tax consequences of such a
transaction.
10
<PAGE>
Income Tax Consequences on Subsequent Sales of Stock
When the Current Holder sells or exchanges shares acquired upon the exercise of
Options, the difference between the sales price and the Current Holder's tax
basis for the shares will generally be taxable as long-term or short-term
capital gain or loss (if the stock is a capital asset of the taxpayer) depending
upon whether the stock has been held for more than one year after the exercise
date. If the Current Holder exercises Options for cash while the Plan
Participant is alive, the tax basis for the shares in the hands of the Current
Holder would be the exercise price for the Options plus the amount of the income
recognized by the Plan Participant at the time of exercise. If the Current
Holder exercises the Options for cash after the Plan Participant's death, the
tax basis for the shares would be the exercise price for the Options plus the
amount of income recognized upon exercise by the Current Holder. Different basis
rules will apply if the Current Holder delivers Biogen common stock in payment
of all or a portion of the exercise price of the Options.
LEGAL MATTERS
The validity of the issuance of the shares of common stock registered pursuant
to this Prospectus has been passed upon for the Company by Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. ("Mintz Levin") of Boston, Massachusetts.
Members of Mintz Levin and certain members of their families and trusts for
their benefit own an aggregate of approximately 2,150 shares of Biogen common
stock. A former Member of Mintz Levin who is currently of counsel to the firm
owns 500 shares of Biogen common stock.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
Biogen's Annual Report on Form 10-K for the year ended December 31, 1997 have
been so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
11
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission.
You may read and copy any document we file at the SEC's public reference room at
450 Fifth Street, N.W., Washington, D.C. 20549. You can request copies of these
documents by writing to the SEC and paying a fee for the copying cost. Please
call the SEC at 1-800-SEC-0330 for more information about the operation of the
public reference room. Our SEC filings are also available to the public at the
SEC's web site at "http://www.sec.gov." In addition, you can read and copy our
SEC filings at the office of the National Association of Securities Dealers,
Inc. at 1735 K Street, Washington, DC 20006.
This prospectus is only part of a Registration Statement on Form S-3 that we
have filed with the SEC under the Securities Act and therefore omits certain
information contained in the Registration Statement. We have also filed exhibits
and schedules with the Registration Statement that are excluded from this
prospectus, and you should refer to the applicable exhibit or schedule for a
complete description of any statement referring to any contract or other
document. You may:
- - inspect a copy of the Registration Statement, including the exhibits and
schedules, without charge at the public reference room or
- - obtain a copy from the SEC upon payment of the fees prescribed by the SEC.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information we file with it in
other documents, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered to be part of this prospectus and information we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act. The documents we
are incorporating by reference are:
- - Annual Report on Form 10-K for the fiscal year ended December 31, 1997;
- - Definitive Proxy Statement filed on April 29, 1998;
- - Quarterly Reports on Form 10-Q, for the quarters ended March 31, 1998, June
30, 1998 and September 30, 1998;
- - Reports on Form 8-K, filed on March 16, 1998, April 8, 1998, May 7, 1998
and December 23, 1998; - The description of the common stock contained in
our Registration Statement on Form 8-B filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
12
<PAGE>
We will provide any person to whom a copy of this Prospectus is delivered a copy
of any of these filings at no cost, if such person requests such filings by
writing or telephoning our Chief Financial Officer at the following address and
number:
Biogen, Inc.
14 Cambridge Center
Cambridge, Massachusetts 02142
(617) 679-2000
13
<PAGE>
============================================================ =================
You should rely only on the information contained in 417,500 shares
shares this prospectus. We have not authorized anyone to
provide you with information different from that contained
in this prospectus. This prospectus is not an offer to sell Biogen, Inc.
or a Biogen, Inc. solicitation of an offer to buy shares of
our common stock in any jurisdictions where offers and sale
are not permitted. The information contained in this Common Stock
prospectus is accurate only Common Stock as of February __ , ($.01 par value
1999. You should not assume that this ($.01 par value per per share)
share) prospectus is accurate as of any other date.
-------------
PROSPECTUS
-------------
TABLE OF CONTENTS
Page
Business........................................... 2
Risk Factors....................................... 3
Use of Proceeds.................................... 8
Plan of Distribution............................... 9
Federal Income Tax Consequences.................... 11
Legal Matters...................................... 12
Experts............................................ 12
Where You Can Find More Information................ 13
Incorporation of Documents by Reference............ 13
_____, 1999
============================================================= ===============
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth Biogen's estimates of the expenses
in connection with the issuance and distribution of the shares of common
stock being registered.
Item Amount
---- ------
Legal fees and expenses........................... 7,500
Accounting fees and expenses...................... 2,667
Miscellaneous fees and expenses................... 0
Total............................................. $10,167
Item 15. Indemnification of Directors and Officers.
Massachusetts General Laws, Chapter 156B, Section 67, empowers a
Massachusetts corporation to indemnify any person in connection with any
action, suit or proceeding brought or threatened by reason of the fact that
such person is or was a director, officer, employee or agent of the
corporation or was serving as such with respect to another corporation or
other entity at the request of such corporation, unless such person shall
have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that such action was in the best interests of the
corporation. Biogen's Articles of Organization, as amended, contains
provisions that require the Company to indemnify its directors and officers
to the fullest extent permitted by Massachusetts law.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits.
4.1 Form of Common Stock Share Certificate (Filed as Exhibit 4.1
to Registration Statement on Form S-3, File No. 33-51639, and
incorporated herein by reference).
4.2 Articles of Organization, as amended (Filed as Exhibit 3.1 to
Annual Report on Form 10-K for the fiscal year ended December 31,
1996, File No. 0-12042, and incorporated herein by reference).
4.3 By-Laws, as amended (Filed as Exhibit 3.2 to Annual Report on
Form 10-K for the year ended December 31, 1992, File No. 0-12042, and
incorporated herein by reference).
4.4 Rights Agreement, dated as of May 8, 1989, between the
Registrant and First National Bank of Boston as the Rights Agent,
including Certificate of Designation of Series A Junior Participating
Preferred Stock (Filed as Exhibit 1 to Registration Statement on Form
8-A, File No. 0-12042, filed May 26, 1989, and incorporated herein by
reference).
5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. as to the legality of the shares being registered.
II-2
<PAGE>
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. (included in opinion of counsel filed as Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this
Registration Statement).
Item 17. 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. Notwithstanding the foregoing, any
increase or any decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement; and
(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;provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the Registration Statement is on Form
S-3, Form S-8 or Form F-3, and 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 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.
II-3
<PAGE>
(b) 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.
(c) 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
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.
II-4
<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-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Cambridge, Massachusetts on the 1st day of
February, 1999.
BIOGEN, INC.
By: s/ James L. Vincent
James L. Vincent
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
The registrant and each person whose signature appears below
constitutes and appoints Timothy M. Kish and Michael J. Astrue, and each of
them singly, his, her or its true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him, her or it and
in his, her or its name, place and stead, in any and all capacities, to
sign and file (i) any and all amendments (including post-effective
amendments) to this Registration Statement, with all exhibits thereto, and
other documents in connection therewith, and (ii) any registration
statement, and any and all amendments thereto, relating to the offering
covered hereby filed pursuant to Rule 462(b) under the Securities Act of
1933, 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 or necessary to be
done in and about the premises, as fully to all intents and purposes as he,
she, or it might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his
substitute or substitutes, may 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 below by the following persons and
in the capacities and on the dates indicated.
II-5
<PAGE>
Signature Title Date
s/ Jame sL. Vincent Chairman of the Board February 1, 1999
James L. Vincent and Chief Executive Officer
(principal executive officer)
s/ Timothy M. Kish Vice President-Finance and February 1, 1999
Timothy M. Kish Chief Financial Officer
(principal financial and
accounting officer)
s/ Alexander G. Bearn Director February 1, 1999
Alexander G. Bearn
s/ Alan Belzer Director February 1, 1999
Alan Belzer
s/ Harold W. Buirkle Director February 1, 1999
Harold W. Buirkle
s/ Mary L. Good Director February 1, 1999
Mary L. Good
s/ Thomas F. Keller Director February 1, 1999
Thomas F. Keller
s/ Roger H. Morley Director February 1, 1999
Roger H. Morley
s/ Kenneth Murray Director February 1, 1999
Kenneth Murray
s/ Phillip A. Sharp Director February 1, 1999
Philip A. Sharp
s/ Alan K. Simpson Director February 1, 1999
Alan K. Simpson
s/ James W. Stevens Director February 1, 1999
James W. Stevens
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
4.1 Form of Common Stock Share Certificate (Filed as Exhibit 4.1 to
Registration Statement on Form S-3, File No. 33-51639, and
incorporated herein by reference).
4.2 Articles of Organization, as amended (Filed as Exhibit 3.1 to
Annual Report on Form 10-K for the fiscal year ended December 31,
1996, File No. 0-12042, and incorporated herein by reference).
4.3 By-Laws, as amended (Filed as Exhibit 3.2 to Annual Report on
Form 10-K for the year ended December 31, 1992, File No. 0-12042,
and incorporated herein by reference).
4.4 Rights Agreement, dated as of May 8, 1989, between the Registrant
and First National Bank of Boston as the Rights Agent, including
Certificate of Designation of Series A Junior Participating
Preferred Stock (Filed as Exhibit 1 to Registration Statement on
Form 8-A, File No. 0-12042, filed May 26, 1989, and incorporated
herein by reference).
5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as
to the legality of the shares being registered.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5.1)
24.1 Power of Attorney (included on signature page of this
Registration Statement)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 13, 1998 (except as to the fourth paragraph of Note 8, which is as of
March 16, 1998), appearing on page 50 of the 1997 Annual Report to Shareholders
of Biogen, Inc., which is incorporated by reference in Biogen, Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1997. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PricewaterhouseCoopers LLP
Boston, Massachusetts
February 1, 1999
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Biogen, Inc.
February 2, 1999
Page 3
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000
Washington, D.C. 20004 Fax: 617/542-2241
Telephone: 202/434-7300
Fax: 202/434-7400
February 2, 1999
Biogen, Inc.
14 Cambridge Center
Cambridge, Massachusetts 02142
Gentlemen:
We have acted as counsel to Biogen, Inc., a Massachusetts corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission (the "Commission") of a Registration Statement on Form
S-3 (the "Registration Statement"), pursuant to which the Company is registering
under the Securities Act of 1933, as amended, a total of 417,500 shares (the
"Shares") of its common stock, $.01 par value per share (the "Common Stock"), to
be offered for sale by the Company from time to time under the Biogen, Inc. 1985
Non-Qualified Stock Option Plan (the "Plan"). This opinion is being rendered in
connection with the filing of the Registration Statement.
In connection with this opinion, we have examined the Company's Articles of
Organization and By-Laws, as amended to date; such records of the corporate
proceedings of the Company as we have deemed material; and the Registration
Statement and the exhibits thereto filed with the Commission.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies.
Based upon the foregoing, we are of the opinion that,(i) the Shares have
been duly and validly authorized by the Company, and (ii) the Shares, when
issued and paid for in accordance with the terms of the Plan and any applicable
agreements thereto, will be duly and validly issued, fully paid and
non-assessable shares of Common Stock, free of preemptive rights.
Our opinion is limited to the laws of the Commonwealth of Massachusetts,
and we express no opinion with respect to the laws of any other jurisdiction. No
opinion is expressed herein with respect to the qualification of the Shares
under the securities or blue sky laws of any state or any foreign jurisdiction.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto. We hereby further consent
to the reference to us under the caption "Legal Matters" in the prospectus
included in the Registration Statement.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
