As filed with the Securities and Exchange Commission on February 3, 1999
REGISTRATION NO. 333-42887
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
POST-EFFECTIVE AMENDMENT NO. 2 TO
REGISTRATION STATEMENT NO. 33-63015
POST-EFFECTIVE AMENDMENT NO. 2 TO
REGISTRATION STATEMENT NO. 33-69174
POST-EFFECTIVE AMENDMENT NO. 3 TO
REGISTRATION STATEMENT NO. 33-37312
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT NO. 333-42887
under the
SECURITIES ACT OF 1933
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Biogen, Inc.
(Exact name of Registrant as specified in its charter)
Massachusetts 04-3002117
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
14 Cambridge Center
Cambridge, MA 02142
(617) 679-2000
(Address of Principal Executive Offices)
BIOGEN, INC. 1985 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
Michael J. Astrue, Esq.
Vice President - General Counsel
Biogen, Inc.
14 Cambridge Center
Cambridge, MA 02142
(617) 679-2000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment relates to the filing of a resale
prospectus with respect to previously registered shares of Common Stock
authorized for issuance under the Biogen, Inc. 1985 Non-Qualified Stock Option
Plan (the "Plan"). These previously registered shares were registered on
Registration Statements Nos. 33-63015 (filed September 28, 1995), 33-69174
(filed September 21, 1993), 33-37312 (filed October 17, 1990) and 333-42887
(filed December 22, 1998). In accordance with the instructional Note to Part I
of Form S-8 as promulgated by the Securities and Exchange Commission, the
information specified by Part I of Form S-8 has been omitted from this
Registration Statement on Form S-8 for offers of Common Stock pursuant to the
Plan. The Prospectus filed as part of this Registration Statement has been
prepared in accordance with the requirements of Form S-3 and may be used for
reofferings and resales of shares of Common Stock which have been and/or may
hereafter be issued upon the exercise of options which have been and/or may
hereafter be granted under the Plan.
<PAGE>
PROSPECTUS
BIOGEN, INC.
634,300 Shares of Common Stock
- We have registered up to 634,300 shares of our common stock for sale by the
selling stockholders listed on page 9 of this prospectus.
- Each of the shares to be sold either were issued or are issuable upon
the exercise of options held by the selling stockholders.
- The selling stockholders may offer their common stock:
- through transactions on the Nasdaq National Stock Market or
- in private transactions at current market prices or
- at negotiated prices.
- We will not receive any of the proceeds from the selling stockholders'
sale of their common stock.
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 4.
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 2 , 1999
<PAGE>
TABLE OF CONTENTS
BUSINESS................................................................... 3
RISK FACTORS............................................................... 4
USE OF PROCEEDS............................................................ 9
SELLING STOCKHOLDERS....................................................... 9
PLAN OF DISTRIBUTION....................................................... 10
LEGAL MATTERS.............................................................. 10
EXPERTS.................................................................... 10
WHERE CAN YOU FIND MORE INFORMATION........................................ 11
INCORPORATION OF DOCUMENTS BY REFERENCE.................................... 11
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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.
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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 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.
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<PAGE>
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
All net proceeds from the sale by selling stockholders of common stock offered
in this prospectus will go to the selling stockholders. Accordingly, we will not
receive any proceeds from the selling stockholders' sale of the common stock
offered hereby.
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SELLING STOCKHOLDERS
The selling stockholders are offering hereby Shares which have been or may
hereafter be acquired by them upon the exercise of options granted under the
Plan. The names of additional selling stockholders and the number of shares
offered hereby by them may be added to this prospectus from time to time by an
addendum or supplement to this prospectus. Other persons who acquire shares from
the selling stockholders may also be identified as selling stockholders by means
of an addendum or supplement to this prospectus.
The following table sets forth certain information with respect to the selling
stockholders as of January 31, 1999.
<TABLE>
<CAPTION>
Number of Shares to be
Shares Number of Beneficially
Beneficially Shares to Owned After
Name Owned be Offered Offering
Number Percent
<S> <C> <C> <C> <C>
James L. Vincent(1) 635,499(2) 634,300 1,199(3) *
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<FN>
*Less than 1% of the outstanding common stock
(1) Mr. Vincent is the Chairman of the Board of Directors and the Chief
Executive Officer of the Company.
(2) Includes (i) 6,800 shares of common stock acquired by the selling
stockholder through the exercise of options granted under the Plan, (ii) 627,500
Shares of common stock which the selling stockholder has the right to acquire
through the exercise of options granted under the Plan, all of which are
currently exercisable and (iii) an estimated 1,199 shares of common stock
representing the selling stockholder's beneficial interest in a Biogen 401(k)
plan.
(3) Assumes all shares registered pursuant hereto will be sold, although there
can be no assurance that the selling stockholder will offer for sale or sell any
or all of the common stock offered by him pursuant to this prospectus. Also
assumes that no other shares are acquired or transferred by the selling
stockholder.
</FN>
</TABLE>
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PLAN OF DISTRIBUTION
Biogen is registering the shares on behalf of the selling stockholders.
"Selling stockholders", as used in this prospectus, includes donees,
pledgees and distributees selling shares received from a named selling
stockholder after the date of this prospectus. The selling stockholders may
offer their shares at various times in one or more of the following
transactions, or in other kinds of transactions:
- transactions on the Nasdaq National Stock Market;
- in private transactions other than through the Nasdaq
National Stock Market;
- in connection with short sales of the Biogen shares;
- by pledge to secure debts and other obligations;
- in connection with the writing of non-traded and
exchange-traded call options, in hedge transactions and in
settlement of other transactions in standardized or
over-the-counter options; or
- in a combination of any of the above transactions.
The selling stockholders may sell their shares at market prices
prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices.
The selling stockholders may use broker-dealers to sell their shares. If
this happens, broker-dealers will either receive discounts or commissions
from the selling stockholders, or they will receive commissions from
purchasers of shares for whom they acted as agents.
Selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act,
provided they meet the criteria and conform to the requirements of that
Rule.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock offered has been
passed upon for the Company by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C. 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 fiscal 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.
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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-8 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 Securities Exchange Act of 1934.
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
Securities Exchange Act of 1934, including any amendment
or report filed for the purpose of updating such
description.
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We will provide any person to whom a copy of this Prospectus is delivered,
including beneficial owners of our common stock, 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
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) Definitive Proxy Statement filed on April 29, 1998;
(c) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998.
(d) The Company's Reports on Form 8-K filed March 16, 1998, April
8, 1998, May 7, 1998 and December 23, 1998.
(e) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-B filed under the Securities Exchange Act of
1934, including any amendment or report filed for the purpose of updating such
description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such reports
and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock offered has
been passed upon for the Company by Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. 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.
Item 6. Indemnification of Directors and Officers.
Incorporated herein by reference from Registration Statement on Form
S-3, No. 33-43721.
II-1
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. 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) (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 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5.1).
(23.2) Consent of PricewaterhouseCoopers LLP.
(24) Power of Attorney (included on signature page of 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, represents a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or 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
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<PAGE>
(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
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 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 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.
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<PAGE>
Signature Title Date
s/ James L. Vincent Chairman of the Board and February 1 , 1999
James L. Vincent 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
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<PAGE>
BIOGEN, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
Exhibit
Number Description
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 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to
the legality of the shares being registered.
23.1 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page of this Registration
Statement).
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Consent of Independent Accountant
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 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 1
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Telephone: 617/542-6000
Telephone: 202/434-730 Fax: 617/542-2241
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 post-effective amendment to
Registration Statements on Form S-8 (the "Registration Statements"), pursuant to
which the Company is filing a resale prospectus with respect to shares
previously registered under the Securities Act of 1933, as amended. The Shares
are to be sold by certain shareholders of the Company. The Company has not
engaged any underwriters in connection with the proposed filing of the
Registration Statements. This opinion is being rendered in connection with the
filing of the post-effective amendment to the Registration Statements.
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
Statements 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 are, or
when issued and paid for in accordance with the terms of the Biogen, Inc. 1985
Non-Qualified Stock Option 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 Statements, 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 Statements.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
