As filed with the Securities and Exchange Commission on January 15, 1999
REGISTRATION NO. 333 -
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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 incorporation or organization) Identification No.)
14 Cambridge Center
Cambridge, MA 02142
(617) 679-2000
(Address of Principal Executive Offices)
BIOGEN, INC. 1982 INCENTIVE STOCK OPTION PLAN
BIOGEN, INC. 1985 NON-QUALIFIED STOCK OPTION PLAN
(Full titles of the plans)
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)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Title of Amount to be Proposed Proposed Amount
securities registered(1) maximum maximum registration
to be offering price aggregate fee
registered per share(2) offering
price(2)
- -------------------------------------------------------------------------------
Common Stock, 2,000,000 $82.09375 $164,187,500 $45,644.13
$.01 par value
===============================================================================
<FN>
(1) The number of shares of common stock, par value $.01 per share ("Common
Stock"), stated above consists of (i) the aggregate number of additional shares
which may be sold upon the exercise of options which have been granted and/or
may hereafter be granted under the 1982 Incentive Stock Option Plan and the 1985
Non-Qualified Stock Option Plan (the "Plans"). The maximum number of shares
which may be sold upon the exercise of such options granted under the Plans are
subject to adjustment in accordance with certain anti-dilution and other
provisions of said Plans. Accordingly, pursuant to Rule 416 under the Securities
Act of 1933, as amended (the "Securities Act"), this Registration Statement
covers, in addition to the number of shares stated above, an indeterminate
number of shares which may be subject to grant or otherwise issuable after the
operation of any such anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the Securities
Act as follows: (i) in the case of shares of Common Stock which may be purchased
upon exercise of outstanding options, the fee is calculated on the basis of the
price at which the options may be exercised; and (ii) in the case of shares of
Common Stock for which options have not yet been granted and the option price of
which is therefore unknown, the fee is calculated on the basis of the average of
the high and low sale prices per share of the Common Stock on the National
Market System of the National Association of Securities Dealers Automated
Quotation System (NASDAQ) as of a date (January 11, 1999) within 5 business days
prior to filing this Registration Statement.
</FN>
</TABLE>
EXPLANATORY NOTE
This Registration Statement relates to the registration of 2,000,000
additional shares of Common Stock authorized for issuance under the Biogen, Inc.
1982 Incentive Stock Option Plan and the Biogen, Inc. 1985 Non-Qualified Stock
Option Plan. 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 Plans.
<PAGE>
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) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998 and September 30, 1998.
(c) The Company's Reports on Form 8-K filed March 16,1998, April 8,
1998, May 7, 1998 and December 23, 1998.
(d) 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 registered
under this Registration Statement has been passed upon for the Company by Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston, Massachusetts. Members
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Mintz Levin") and
certain members of their families and trusts for their benefit own an aggregate
of approximately 2,150 shares of Common Stock of the Company. A former member of
Mintz, Levin who is currently of counsel to the firm owns 500 shares of the
Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
Incorporated herein by reference from Registration Statement on
Form S-3, No. 33-43721.
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) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to
the legality of 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).
(23.2) Consent of Price Waterhouse Coopers LLP
(24) Power of Attorney to file future amendments (set forth on the signature
page of this Registration Statement.)
<PAGE>
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) (Section 230.424(b) of this chapter) 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.
(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 or Form S-8, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
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 this 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 January 14, 1999.
BIOGEN, INC.
By: /s/James L. Vincent
James L. Vincent
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below constitutes and appoints,
Timothy M. Kish and Michael J. Astrue, and each of them, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them, for him or her and in his or her name, place and
stead, and in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 of Biogen,
Inc., and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
or about the premises, as full to all intents and purposes as he or she 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 or her substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/ James L. Vincent Chairman of the Board January 14, 1999
James L. Vincent and Chief Executive
Officer (principal
executive officer)
/s/ Timothy M. Kish Vice President-Finance January 14, 1999
Timothy M. Kish and Chief Financial Officer
(financial and accounting
officer)
<PAGE>
/s/ Alexander G. Bearn Director January 14, 1999
Alexander G. Bearn
/s/ Alan Belzer Director January 14, 1999
Alan Belzer
/s/ Harold W. Buirkle Director January 14, 1999
Harold W. Buirkle
/s/ Mary L. Good Director January 14, 1999
Mary L. Good
/s/ Thomas F. Keller Director January 14, 1999
Thomas F. Keller
/s/ Roger H. Morley Director January 14, 1999
Roger H. Morley
/s/ Kenneth Murray Director January 14, 1999
Kenneth Murray
/s/ Phillip A. Sharp Director January 14, 1999
Phillip A. Sharp
/s/ Alan K. Simpson Director January 14, 1999
Alan K. Simpson
/s/ James W. Stevens Director January 14, 1999
James W. Stevens
<PAGE>
BIOGEN, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
Exhibit Sequential
Number Description Page No.
(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
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 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 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).
(23.2) Consent of Price Waterhouse Coopers LLP
(24) Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement.)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 13, 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.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
January 14, 1999
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Biogen, Inc.
January 13, 1999
Page 1
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
January 13, 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-8 (the "Registration Statement"),
pursuant to which the Company is registering under the Securities Act of
1933, as amended, a total of 2,000,000 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.
1982 Incentive Stock Option Plan and the Biogen, Inc. 1985 Non-Qualified
Stock Option Plan (the "Plans"). 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
Restated Articles of Organization and Restated By-Laws, as amended to
date; such records of the corporate proceedings of the Company as we
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 in accordance with the terms of the Plans 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.
<PAGE>
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.
