As filed with the Securities and Exchange Commission on April 9, 1999
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------------------
Repligen Corporation
(Exact name of Registrant as specified in its charter)
-----------------------------
<TABLE>
<CAPTION>
Delaware 2836 04-2729386
<S> <C> <C>
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
117 Fourth Avenue
Needham, MA 02494
(781) 449-9560
(Address,
including zip code, and telephone
number, including area code, of
Registrant's principal executive
offices)
----------------------------------------
Walter C. Herlihy
President and Chief Executive Officer
Repligen Corporation
117 Fourth Avenue
Needham, MA 02494
(781) 449-9560
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------------------------
Copies of all communications, including all communications sent to the agent
for service, should be sent to:
LAWRENCE S. WITTENBERG, ESQ.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable 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 plans, 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. [ ]
<TABLE>
<CAPTION>
-------------------------------
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered Registered Share (1) Price (1) Registration Fee (2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 262,500 $3.21875 $844,922 $235.00
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 457(c) under the Securities Act of 1933, the registration
fee has been calculated based upon the average of the high and low prices
per share of the common stock of Repligen Corporation on the Nasdaq
National Market on April 5, 1999.
-------------------
Repligen hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until Repligen 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 Section 8(a), may determine.
================================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED April 9, 1999
REPLIGEN CORPORATION
262,500 Shares
Common Stock
This Prospectus relates to the sale of up to 262,500 shares of common stock
of Repligen by a stockholder of Repligen described in this Prospectus (the
"Selling Stockholder"). The Selling Stockholder may sell the shares of common
stock of Repligen at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Selling
Stockholder may effect these transactions by selling the shares of common stock
of Repligen to or through broker-dealers, who may receive compensation in the
form of discounts or commissions from the Selling Stockholder or from the
purchasers of the shares of common stock of Repligen for whom the broker-dealers
may act as an agent or to whom they may sell as principal, or both.
Repligen will not receive any of the proceeds from the resale of the shares
of common stock being sold hereunder by such Selling Stockholder. Repligen has
agreed to bear all of the expenses in connection with the registration and
resale of the shares of common stock of Repligen being sold hereunder (other
than brokerage commissions and similar charges, the legal fees and expenses of
counsel to the Selling Stockholder and any stock transfer taxes or expenses
incurred with such sales).
Repligen's common stock is traded on the Nasdaq National Market under the
symbol "RGEN." The last reported sales price of the common stock on the Nasdaq
National Market on April 5, 1999 was $3.1875 per share. Repligen's executive
offices are located at 117 Fourth Avenue, Needham, Massachusetts 02494, and
Repligen's telephone number is (781) 449-9560.
---------------------------
Investing in the Common Stock involves risks.
See "Risk Factors" beginning on page 2.
---------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is April __, 1999.
<PAGE>
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information different from that
contained in this prospectus. The Selling Stockholder is offering to sell, and
seeking offers to buy, shares of common stock only in jurisdictions where offers
and sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time of
delivery of this prospectus or of any sale of the common stock. In this
prospectus, references to the "Company," "Repligen," "we," "us" and "our" refer
to Repligen Corporation and its subsidiaries.
------------------------
TABLE OF CONTENTS
Page
----
Risk Factors.......................................................... 2
The Company........................................................... 4
Use of Proceeds....................................................... 5
Selling Stockholder................................................... 6
Plan of Distribution.................................................. 7
Legal Matters......................................................... 8
Experts............................................................... 8
Where You Can Find More Information................................... 8
------------------------
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<PAGE>
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing our company. Additional risks and uncertainties that we are
unaware of or that we currently deem immaterial also may become important
factors that affect our company.
If any of the following risks occur, our business, financial condition or
results of operations could be materially harmed. In that case the trading price
of our common stock could decline, and you may lose all or part of your
investment.
This prospectus also contains forward looking statements that involve risks
and uncertainties. Our actual results could differ materially from those
anticipated in these forward looking statements as a result of certain factors,
including the risks faced by us described below and elsewhere in this
prospectus.
We need to obtain future capital
We need additional long-term financing to develop our drug discovery
programs and our bioprocessing products business. We also need additional
long-term financing to support future operations and capital expenditures. We
may raise this additional capital by selling debt or equity securities, by
entering into strategic relationships or through other arrangements. We may be
unable to raise any additional amounts on reasonable terms when they are needed.
Our operating results may fluctuate significantly
Our quarterly and annual operating revenues and expenses may fluctuate due
to a number of factors including:
o the timing and size of increased research and development expenses;
o the timing and size of increased sales and marketing expenses;
o the timing and size of product orders;
o the introduction of new products; or
o the capital resources of our customers.
Our current and planned expense levels are related to our future revenue
expectations. Our revenue and profits may vary significantly from period to
period and may not be predictive of future results. As a result, there can be no
assurance that we will achieve or maintain profitability or that our revenue
growth can be sustained in the future.
We must compete for skilled personnel
Our success depends largely upon the continued service of our management
and scientific staff and our ability to attract, retain and motivate highly
skilled scientific, management and marketing personnel. We face significant
competition for such personnel from other companies, research and academic
institutions, government and other organizations.
-2-
<PAGE>
We face intense competition
The market for drug discovery and bioprocessing products is intensely
competitive, rapidly evolving and subject to rapid technological change. Many of
our competitors have substantially greater financial, manufacturing, marketing,
research and development resources than we have. New developments by these
competitors may make our products and technologies obsolete or non-competitive.
Our success depends on our ability to protect our intellectual property rights
Proprietary rights relating to our products will be protected from
unauthorized use by third parties only to the extent that they are covered by
valid and enforceable patents or are maintained as trade secrets, and to the
extent that we diligently enforce our rights against infringement of our patent
rights and against misappropriation of our trade secrets and proprietary
information. The biotechnology and pharmaceutical industries place considerable
importance on obtaining patent and trade secret protection for new technologies,
products and processes, and our success will depend, in part, on our ability to:
o obtain patent protection for our products and manufacturing processes;
o preserve our trade secrets; and
o operate without infringing the proprietary rights of third parties.
Some of the technology that may be used in our products may not be covered
by any patent or patent application. In instances where our products are not
covered by valid and enforceable patents, there can be no assurance that third
parties will not be able to market similar or related products, nor can there be
any assurance that patent or other proprietary rights held by us with respect to
these products will afford commercially significant protection. In addition,
there can be no assurance that confidentiality arrangements to which we are a
party will be effective in protecting our confidential information or trade
secrets.
There can be no assurance that any patent applications relating to our
products will be filed in the future or that any currently pending applications
will issue on a timely basis, if ever. Since patent applications in the United
States are maintained in secrecy until patents issue and since publication of
discoveries in the scientific or patent literature often lag behind actual
discoveries, we cannot be certain that we were the first to make the inventions
covered by each of our pending patent applications or that we were the first to
file patent applications for such inventions. Even if patents are issued, the
degree of protection afforded by such patents will depend upon the:
o scope;
o validity and enforceability of the claims obtained in such patents; and
o our willingness and financial ability to enforce and/or defend them.
The patent position of biotechnology and pharmaceutical firms is often
highly uncertain and usually involves complex legal and factual questions.
Moreover, no consistent policy has emerged in the United States and in many
other countries regarding the breadth of claims
-3-
<PAGE>
allowed in biotechnology patents. We could incur substantial costs in defending
suits brought against us by others or in suits in which we may assert our
patents against others. If the outcome of any such litigation is adverse to us,
our business, financial condition and results of operations could be adversely
affected. If our competitors prepare and file patent applications in the United
States that claim technology also claimed by us, we may be required to
participate in interference proceedings declared by the U.S. Patent and
Trademark Office to determine priority of invention, which would result in
substantial cost to us. Patents which may be granted to us in certain foreign
countries may be subject to opposition proceedings brought by third parties. We
may incur substantial costs defending such proceedings. There can be no
assurance that we would prevail in any such proceedings or that such proceedings
would not result in a material adverse effect on our business, financial
condition or results of operations. In addition, patents blocking our
manufacture, use or sale of our products could be issued to third parties in the
United States or foreign countries. The issuance of blocking patents or an
adverse outcome in an interference or opposition proceeding, could subject us to
significant liabilities to third parties and require us to license disputed
rights from third parties or cease using the technology. There can be no
assurance that such license would be available on commercially acceptable terms,
if at all.
We face risks related to the Year 2000
Many existing computer systems and software products do not properly
recognize dates after December 31, 1999. This "Year 2000" problem could result
in miscalculations, data corruption, system failures or disruptions of
operations. We are subject to potential Year 2000 problems affecting our
computers' systems, our internal systems and the systems of our vendors, any of
which could have a material adverse affect on our business operating results and
financial conditions.
Changing purchasing patterns of customers impacted by Year 2000 issues my
result in reduced resources available for operations. In addition, there can be
no assurance that Year 2000 errors or defects will not be discovered in our
internal software systems and, if such errors or defects are discovered, there
can be no assurance that the costs of making such systems Year 2000 compliant
will not be material.
Year 2000 errors or defects in the internal systems maintained by our
vendors could require us to incur significant unanticipated expenses to remedy
any problems or replace affected vendors.
THE COMPANY
Repligen, which was incorporated in 1981, develops new drugs for
neurological disease, organ transplantation cancer. In March 1999, pursuant to a
Patent Purchase Agreement dated as of March 9, 1999 by and among Repligen, the
Selling Stockholder and Victoria A. Beck (the "Patent Purchase Agreement"), the
Company acquired exclusive rights to certain patent applications for the use of
secretin in the treatment of autism, a chronic developmental disorder that
affects communication skills, behavior, sleep and the ability to learn. A
porcine form of secretin is approved for use in assessing digestive functions.
Recent anecdotal reports indicate
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<PAGE>
that secretin may have activity in autism and more than 1,000 autistic children
have been treated "off label" with secretin. The Company intends to manufacture
a human, synthetic form of secretin and evaluate it in controlled clinical
trials in autism. There are currently no drugs approved by the FDA for autism.
Repligen is also developing CTLA4-Ig which has been shown to selectively
block unwanted immune responses in animal models of organ transplantation and
autoimmune diseases. Initial clinical testing of CTLA4-Ig has been carried out
in patients receiving a bone marrow transplant ("BMT"), which is a potential
cure for several diseases of the immune system, including leukemia, myeloma,
lymphoma and sickle cell anemia. Despite the clinical success of BMTs, a
significant number of patients experience a severe and potentially
life-threatening complication - Graft versus Host Disease ("GVHD") in which the
newly transplanted immune system attacks the host. In December 1998,
investigators from the Dana-Farber Cancer Institute in Boston reported that ex
vivo treatment of bone marrow from a genetically "mismatched" family member with
CTLA4-Ig substantially reduced GVHD in twelve transplant patients. The Company
intends to further evaluate CTLA4-Ig in "matched" and "unmatched" bone marrow
transplants. In July 1998, Repligen filed a complaint to correct the
inventorship of certain United States patents concerning CTLA4-Ig which have
been issued to Bristol-Myers Squibb Corporation. The Company has filed its own
patents related to compositions of matter and methods of use of CTLA4-Ig.
In preclinical studies, the Company is evaluating low molecular weight
compounds which block angiogenesis (new blood vessel growth) by inhibiting the
action of a key growth factor, VEGF. Inhibitors of angiogenesis may arrest the
growth of solid tumors and stop the progression of ocular diseases such as
macular degeneration. This program is based on the Company's patented, high
throughput screening assays and proprietary libraries of compounds designed to
mimic natural cell surface ligands. The Company's angiogenesis program is
supported, in part, by a grant from the National Cancer Institute. Repligen
develops, manufactures and markets products for the production of therapeutic
antibodies by affinity chromatography. The Company currently markets a line of
products for the purification of antibodies based on a recombinant form of
Protein A, a naturally occurring affinity ligand for antibodies. In December
1998, the Company entered into a ten year agreement to supply recombinant
Protein A to Amersham Pharmacia Biotech, a leading supplier to the
biopharmaceutical market.
USE OF PROCEEDS
Repligen will not receive any of the proceeds from the sale of the shares
of its common stock by the Selling Stockholder hereunder. See "Selling
Stockholder" and "Plan of Distribution". The principal purpose of this offering
is to effect an orderly disposition of the shares of common stock of Repligen
being offered and sold from time to time by the Selling Stockholder.
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<PAGE>
SELLING STOCKHOLDER
The following table sets forth the name of the Selling Stockholder, the
number of shares of common stock of Repligen beneficially owned by the Selling
Stockholder before this offering and the maximum number of shares of common
stock of Repligen that the Selling Stockholder may offer and sell pursuant to
this Prospectus. The Selling Stockholder may offer shares of common stock of
Repligen from time to time. Since the Selling Stockholder may sell all, some or
none of its shares of common stock of Repligen, no estimate can be made of the
aggregate number or percentage of shares of common stock of Repligen that the
Selling Stockholder will own upon completion of the offering to which this
Prospectus relates.
Number of Shares
Beneficially Owned Percentage of
Before Offering and Shares Owned
Offered Pursuant to Before
Selling Stockholder this Prospectus Offering
------------------- --------------- --------
Autism Research Institute 262,500 1.4%
The Selling Stockholder acquired its shares of common stock of Repligen in
connection with the purchase by Repligen of intellectual property rights held by
the Selling Stockholder pursuant to a Patent Purchase Agreement, the terms of
which are more fully described on the Current Report of Repligen filed on Form
8-K on March 24, 1999 and incorporated by reference herein. See "Where You Can
Find More Information". Except as set forth in the Patent Purchase Agreement,
the Selling Stockholder has not had any material relationship with Repligen.
Pursuant to the Patent Purchase Agreement, the Selling Stockholder has
represented to Repligen that the Selling Stockholder acquired the shares of
common stock of Repligen as principal for its own account for investment
purposes only and not with a view to, or for sale in connection with, any sale,
assignment, transfer or other distribution of the shares of common stock of
Repligen in contravention of the Securities Act of 1933 (the "Securities Act")
or any other applicable securities legislation. In recognition of the fact,
however, that the Selling Stockholder may want to be able to sell the shares of
common stock of Repligen when the Selling Stockholder considers it appropriate,
the Company agreed, pursuant to the Patent Purchase Agreement, to file this
Registration Statement (of which this Prospectus is a part) with the Securities
and Exchange Commission (the "SEC") to effect the registration of the resale of
the shares of common stock of Repligen under the Securities Act. Pursuant to the
Patent Purchase Agreement, the Company further agreed to use reasonable efforts
to keep the Registration Statement effective until the earliest of (a) March 9,
2000, and (b) such time as all of the shares of common stock of Repligen offered
pursuant to this Registration Statement have been sold by the Selling
Stockholder; provided that in the event that, prior to such time, Repligen fails
to remain current or comply with its filing obligations with the SEC under the
Securities Exchange Act of 1934 or Rule 144 of the Securities
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<PAGE>
Act, the Company has agreed to use commercially reasonable efforts to maintain
the effectiveness of this Registration Statement until March 9, 2001.
PLAN OF DISTRIBUTION
The shares of common stock of Repligen covered by this Prospectus may be
sold by the Selling Stockholder from time to time for its own account. The
Selling Stockholder acquired all of its shares of common stock of Repligen
pursuant to the Patent Purchase Agreement. Pursuant thereto, Repligen is
responsible for the expenses incurred in connection with the registration of the
shares of common stock of Repligen, except that the Selling Stockholder will pay
or assume brokerage commissions and similar charges, the legal fees and expenses
of counsel for the Selling Stockholder and any stock transfer taxes or other
expenses incurred in connection with the sale of the shares of common stock of
Repligen. Repligen will not receive any of the proceeds from this offering.
The distribution of the shares of common stock of Repligen by the Selling
Stockholder is not subject to any underwriting agreement. In connection with and
pursuant to the Patent Purchase Agreement, the Company has agreed to attempt to
find a buyer by June 7, 1999 for at least 100,000 of the shares of common stock
of Repligen held by the Selling Stockholder at a price per share equal to or
greater than $1.59. Repligen is not and will not receive any commissions or
remuneration of any kind in connection with the sale of the shares of common
stock of Repligen being offered and sold by the Selling Stockholder hereunder.
Pursuant to the Patent Purchase Agreement, Repligen has further agreed that, if
the Selling Stockholder has not been able to sell at least 100,000 shares of
common stock of Repligen at a price of at least $1.59 per share, the Selling
Stockholder shall be entitled to cause Repligen to purchase the number of shares
of common stock of Repligen equal to the difference between 100,000 and the
number of shares of common stock of Repligen which the Selling Stockholder has
been able to sell at a price per share equal to at least $1.59. The Selling
Stockholder's right to cause Repligen to repurchase the Selling Stockholder's
shares of common stock of Repligen terminates forever on June 17, 1999.
In addition to the Selling Stockholder's right to cause Repligen to
repurchase the Selling Stockholder's shares of common stock of Repligen pursuant
to the Patent Purchase Agreement, as described in the paragraph immediately
above, the shares of common stock of Repligen offered by the Selling Stockholder
may be sold from time to time in transactions on the Nasdaq National Market, in
negotiated transactions, through the writing of options on the shares of common
stock of Repligen, or a combination of such methods of sale, at fixed prices
that may be changed, at market prices prevailing at the time of sale, at prices
relating to such prevailing market prices or at negotiated prices. In addition,
the Selling Stockholder may sell its shares of common stock of Repligen covered
by this Prospectus through customary brokerage channels, either through
broker-dealers acting as agents or brokers, or through broker-dealers acting as
principals, who may then resell the shares of common stock of Repligen, or at
private sale or otherwise, at market prices prevailing at the time of sale, at
prices related to such prevailing market prices or at negotiated prices. The
Selling Stockholder may effect such transactions by selling shares of common
stock of Repligen to or through broker-dealers, and such broker-dealers may
receive compensation in the
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<PAGE>
form of discounts, concessions, commissions, or fees from the Selling
Stockholder and/or purchasers of the shares of common stock of Repligen for whom
such broker-dealers may act as agent or to whom they sell as principal, or both
(which compensation to a particular broker-dealer might be in excess of
customary commissions). Any broker-dealers that participate with the Selling
Stockholder in the distribution of shares of common stock of Repligen may be
deemed to be underwriters and any commissions received by them and any profit on
the resale of shares of common stock of Repligen placed by them might be deemed
to be underwriting discounts and commissions within the meaning of the
Securities Act, in connection with such sales.
Any shares covered by the Prospectus that qualify for sale pursuant to Rule
144 under the Securities Act may be sold under Rule 144 rather than pursuant to
this Prospectus.
Since the Selling Stockholder is not restricted as to the price or prices
at which it may sell its shares of common stock of Repligen, sales of such
shares of common stock of Repligen at less than the market prices may depress
the market price of the common stock of Repligen.
EquiServe, 150 Royall Street, Canton, MA 02021, is the transfer agent for
the shares of common stock of Repligen.
LEGAL MATTERS
The validity of the shares of common stock of Repligen offered hereby will
be passed upon by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts.
EXPERTS
The financial statements incorporated by reference in this Prospectus have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Repligen files annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file with
the SEC at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on operation of the public reference room. Our SEC filings are also
available to the public from the SEC's Website at "http://www.sec.gov." Our
Website is located at "http://www.repligen.com." Information contained on our
Website is not part of this Prospectus.
The SEC allows Repligen to "incorporate by reference" the information we
file with them, 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 that we file later
with the SEC will automatically update and
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<PAGE>
supersede this information. Repligen incorporates by reference the documents
listed below and any future filings we will make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act (File No. 000-14656):
1. Annual Report on Form 10-K for the year ended March 31, 1998;
2. Repligen's Proxy Statement, filed on July 20, 1998, for the 1998
Annual Meeting of Shareholders;
3. Quarterly Reports on Form 10-Q for the quarters ended June 30,
1998, September 30, 1998 and December 31, 1998;
4. Repligen's Current Report on Form 8-K filed March 24, 1999; and
5. The "Description of Registrant's Securities to be Registered"
contained in Repligen's Registration Statement filed on Form 8-A,
dated May 28, 1986.
You may request a copy of these filings, at no cost, by writing or
telephoning our Chief Financial Officer at the following address:
Repligen Corporation
117 Fourth Avenue
Needham, MA 02494
(781) 449-9560
This Prospectus is part of a registration statement we filed with the SEC.
You should rely only on the information or representations provided in this
prospectus. We have authorized no one to provide you with different information.
We are not making an offer of these securities in any state where the offer is
not permitted. You should not assume that the information in this Prospectus is
accurate as of any date other than the date on the front of the document.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth an estimate (other than with respect to the
Registration Fee and the Nasdaq National Market additional listing fee expense)
of the expenses expected to be incurred in connection with the issuance and
distribution of the securities being registered, other than underwriting
discounts and commissions:
Registration Fee -- Securities and Exchange Commission..................$ 235
Nasdaq National Market additional listing fee...........................$ 5,250
Blue Sky Fees and Expenses..............................................$ 1,000
Accounting Fees and Expenses............................................$ 1,000
Legal Fees and Expenses.................................................$ 10,000
Miscellaneous...........................................................$ 5,000
--------
TOTAL...........................................................$ 22,485
========
Repligen will bear all expenses shown above.
Item 15. Indemnification of Directors and Officers.
The Delaware General Corporation Law, Article Seventh of Repligen's
Restated Certificate of Incorporation, as amended, and Article V of Repligen's
By-laws provide for indemnification of Repligen's directors and officers for
liabilities and expenses that they may incur in such capacities. In general,
directors and officers are indemnified with respect to actions taken in good
faith in a manner reasonably believed to be in, or not opposed to, the best
interests of Repligen, and with respect to any criminal action or proceeding,
actions that the indemnitee had no reasonable cause to believe were unlawful.
Repligen maintains directors and officers liability insurance for the
benefit of its directors and certain of its officers.
II-1
<PAGE>
Item 16 Exhibits.
The following exhibits, required by Item 601 of Regulation S-K, are filed
as a part of this Registration Statement. Exhibit numbers, where applicable, in
the left column correspond to those of Item 601 of Regulation S-K.
Exhibit No. Item and Reference
- ----------- ------------------
2.1 -- * Patent Purchase Agreement by and among Repligen Corporation,
Victoria A. Beck and Autism Research Institute, dated as of
March 9, 1999 (with certain confidential information deleted).
(Incorporated by reference to Exhibit 2.1 of the Company's
Current Report on Form 8-K filed March 24, 1999)
2.2 -- * Common Stock Purchase Warrant issued by Repligen Corporation,
dated as of March 9, 1999 (with certain confidential
information deleted). (Incorporated by reference to Exhibit 2.2
of the Company's Current Report on Form 8-K filed March 24,
1999)
2.3 -- Collateral Assignment of Patents by and among Repligen
Corporation, Victoria A. Beck and Autism Research Institute,
dated as of March 9, 1999. (Incorporated by reference to
Exhibit 2.3 of the Company's Current Report on Form 8-K filed
March 24, 1999)
5 -- Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith)
23.1 -- Consent of Arthur Andersen (filed herewith)
23.2 -- Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5)
24 -- Power of Attorney (contained on Signature Page)
* Confidential treatment has been requested for portions of this exhibit and is
pending clearance with the Securities and Exchange Commission.
Item 17. Undertakings.
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-2
<PAGE>
(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 and 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 20 percent 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.
(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.
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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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 provisions described in Item 14 above, 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
Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<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 on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized in the Town of Needham, Commonwealth of Massachusetts on April
9, 1999.
Repligen Corporation
By: /s/ Walter C. Herlihy
-------------------------------
Walter C. Herlihy
President and Chief Executive
Officer
Power of Attorney
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Walter C. Herlihy with full power to act as his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities (until revoked in writing) to sign any and all amendments (including
post-effective amendments and amendments thereto) to this Registration Statement
on Form S-3 of Repligen Corporation, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary fully to all intents and purposes as he might or could do in person
thereby ratifying and confirming all that said attorney-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 on Form S-3 has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ Walter C. Herlihy President and Chief Executive April 9, 1999
- ------------------------------ Officer, Chief Financial Officer
Walter C. Herlihy and Director (principal executive,
financial and accounting officer)
II-4
<PAGE>
/s/ Alexander Rich, M.D. Co-Chairman of the April 9, 1999
- ------------------------------ Board of Directors
Alexander Rich, M.D.
/s/ Paul Schimmel, Ph.D. Co-Chairman of the April 9, 1999
- ------------------------------ Board of Directors
Paul Schimmel, Ph.D.
/s/ Robert J. Hennessey Director April 9, 1999
- ------------------------------
Robert J. Hennessey
/s/ G. William Miller Director April 9, 1999
- ------------------------------
G. William Miller
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Item and Reference
- ----------- ------------------
2.1 -- * Patent Purchase Agreement by and among Repligen
Corporation, Victoria A. Beck and Autism Research
Institute, dated as of March 9, 1999 (with certain
confidential information deleted). (Incorporated by
reference to Exhibit 2.1 of the Company's Current Report
on Form 8-K filed March 24, 1999)
2.2 -- * Common Stock Purchase Warrant issued by Repligen
Corporation, dated as of March 9, 1999 (with certain
confidential information deleted). (Incorporated by
reference to Exhibit 2.2 of the Company's Current Report
on Form 8-K filed March 24, 1999)
2.3 -- Collateral Assignment of Patents by and among Repligen
Corporation, Victoria A. Beck and Autism Research Institute,
dated as of March 9, 1999. (Incorporated by reference to
Exhibit 2.3 of the Company's Current Report on Form 8-K
filed March 24, 1999)
5 -- Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith)
23.1 -- Consent of Arthur Andersen (filed herewith)
23.2 -- Consent Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5)
24 -- Power of Attorney (contained on Signature Page)
* Confidential treatment has been requested for portions of this exhibit and is
pending clearance with the Securities and Exchange Commission.
II-6
Exhibit 5
---------
[Testa, Hurwitz & Thibeault, LLP Letterhead]
April 9, 1999
Repligen Corporation
117 Fourth Avenue
Needham, Massachusetts 02194
Re: S-3 Registration Statement
--------------------------
Ladies and Gentlemen:
We are counsel to Repligen Corporaton, a Delaware corporation (the
"Company"), and have represented the Company in connection with the preparation
and filing of the Company's Form S-3 Registration Statement (the "Registration
Statement"), covering the sale to the public of up to 262,500 shares of the
Company's Common Stock, $.01 par value per share (the "Shares"), being sold by a
stockholder of the Company.
We have reviewed the corporate proceedings taken by the Board of Directors
of the Company with respect to the authorization and issuance of the Shares. We
have also examined and relied upon originals or copies, certified or otherwise
authenticated to our satisfaction, of all corporate records, documents,
agreements or other instruments of the Company and have made all investigations
of law and have discussed with the Company's officers all questions of fact that
we have deemed necessary or appropriate.
Based upon and subject to the foregoing, we are of the opinion that the
Shares are legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm in the Prospectus
contained in the Registration Statement under the caption "Legal Matters."
Very truly yours,
/s/ TESTA, HURWITZ & THIBEAULT, LLP
TESTA, HURWITZ & THIBEAULT, LLP
[ARTHUR ANDERSEN LLP letterhead]
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to incorporation by
reference in this Registration Statement of our reports dated May 12, 1998
included in Repligen Corporation's Form 10-K for the year ended March 31, 1998
and to all references to our Firm included in or made a part of this
Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
April 6, 1999
