<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 18, 2000
REGISTRATION NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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>
<S> <C> <C>
DELAWARE 2836 04-2729386
(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
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING AGGREGATE OFFERING
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) PRICE(1)
<S> <C> <C> <C>
Common Stock, $0.01 par value per share (2)... 14,500 $6.50 $94,250
Common Stock, $0.01 par value per share (upon
exercise of a warrant) (2)... 2,900 $6.50 $18,850
<CAPTION>
AMOUNT OF
REGISTRATION
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED FEE(2)
<S> <C>
Common Stock, $0.01 par value per share (2)... $25
Common Stock, $0.01 par value per share (upon
exercise of a warrant) (2)... $5
</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 13, 2000.
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. / /
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>
This information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell securities, and it is not soliciting offers to buy these securities in
any state where the offer or sale is not permitted.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 18, 2000
REPLIGEN CORPORATION
17,400 SHARES
COMMON STOCK
------------------
The selling stockholders listed on page 5 are offering for sale up to 14,500
shares of our common stock and one of the selling stockholders is offering up to
2,900 shares of our common stock upon the exercise of a warrant held by it.
Repligen's common stock is traded on the Nasdaq National Market under the
symbol "RGEN." The last reported sale price of our common stock on the Nasdaq
National Market on April 13, 2000 was $6.50 per share.
INVESTING IN THE COMMON STOCK INVOLVES RISKS.
SEE "RISK FACTORS" BEGINNING ON PAGE 3.
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 , 2000.
<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 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.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Repligen.................................................... 2
Risk Factors................................................ 3
Legal Proceedings........................................... 4
Use of Proceeds............................................. 5
Selling Stockholders........................................ 5
Plan of Distribution........................................ 7
Legal Matters............................................... 8
Experts..................................................... 8
Where You Can Find More Information......................... 8
</TABLE>
------------------------
<PAGE>
REPLIGEN
We develop new drugs for autism, organ transplantation and cancer. To expand
our drug development program, on March 9, 1999, we acquired the exclusive rights
to patent applications for the use of secretin in the treatment of autism.
Autism is a developmental disorder characterized by poor communicative and
social skills, repetitive and restricted behaviors and in some patients,
gastrointestinal problems and irregular sleep patterns. Secretin is a hormone
produced in the small intestine which regulates the function of the pancreas as
part of the process of digestion. A form of secretin derived from pigs is
approved by the FDA for use in diagnosing problems with pancreatic function.
Recent anecdotal reports indicate that secretin may have beneficial effects in
autism, including improvements in sleep, digestive function, communicative and
social behavior. Following media reports of the potential benefits of secretin,
more than 2,000 autistic children have been treated with the pig-derived
hormone. We intend to manufacture a human, synthetic form of secretin and
evaluate it in FDA approved clinical trials in order to confirm the benefits of
secretin in treating autism and to determine the optimal dosing schedule. There
are currently no drugs approved by the FDA for the treatment of autism.
In October 1999, we obtained a license for the commercialization rights to
two diagnostic secretin products from ChiRhoClin Inc., a private company. These
products have been evaluated in clinical trials for the diagnosis of pancreatic
dysfunction and gastrinoma. A New Drug Application was filed with the FDA in
May 1999 seeking approval to market synthetic porcine secretin for these
applications. ChiRhoClin has also conducted clinical studies for these
diagnostic indications with a human form of secretin. Under terms of the
agreement, we made an upfront payment upon execution of the agreement and, if
the FDA approves the New Drug Applications, the agreement obligates us to pay
ChiRhoClin future milestones and royalties.
We are also developing a product named "CTLA4-Ig," which has been shown to
suppress unwanted immune responses in animal models of organ transplants and
autoimmune diseases, such as lupus or multiple sclerosis, in which the immune
system mistakenly attacks the body. Our product candidate is a derivative of a
natural protein whose role is to turn-off an immune response. In animal models
of organ transplantation and autoimmune diseases, CTLA4-Ig has been shown to
block the rejection of a transplanted organ or the effects of the autoimmune
disease. Initial clinical testing of CTLA4-Ig has been carried out in patients
receiving a bone marrow transplant, 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 bone marrow transplants, a
significant number of patients experience a severe and potentially
life-threatening complication known as Graft Versus Host Disease, in which the
newly transplanted immune system attacks the host (i.e., the patient). In
June 1999, results from a Phase 1 clinical trial reported that treatment of bone
marrow from a family member with Repligen's CTLA4-Ig prevented Graft Versus Host
Disease in eight of eleven transplant patients. In September 1999, we signed a
Clinical Trial Agreement with the National Cancer Institute to further evaluate
CTLA4-Ig in a Phase 2 trial in bone marrow transplantation for leukemia.
Repligen has filed patent applications related to compositions of matter and
methods of use of CTLA4-Ig including bone marrow transplantation. Certain
patents have been issued to Bristol-Myers Squibb Corporation relating to the use
and manufacture of CTLA4-Ig. We believe that one of our licensees is the
co-inventor of one or more of these patents and that the patents issued to
Bristol-Myers Squibb do not extend to our use of CTLA4-Ig in bone marrow
transplantation. For more information on our patent litigation, please see
"Legal Proceedings".
We also develop, manufacture and market products for the production of
therapeutic antibodies. We currently market a line of products for the
purification of antibodies based on a naturally occurring protein, Protein A,
which can specifically bind to antibodies. We own composition of matter patents
for recombinant Protein A in the United States and in Europe. In December 1998,
we entered into a ten
2
<PAGE>
year agreement to supply recombinant Protein A to Amersham Pharmacia Biotech, a
leading supplier to the biopharmaceutical market.
Our executive offices are located at 117 Fourth Avenue, Needham,
Massachusetts 02494, and our telephone number is (781) 449-9560.
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW BEFORE MAKING AN
INVESTMENT DECISION. ADDITIONAL RISKS AND UNCERTAINTIES THAT WE ARE UNAWARE OF
OR THAT WE CURRENTLY DEEM IMMATERIAL ALSO MAY BECOME IMPORTANT FACTORS THAT
AFFECT REPLIGEN.
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.
IF WE DO NOT OBTAIN ADDITIONAL CAPITAL, WE WILL BE UNABLE TO DEVELOP OR DISCOVER
NEW DRUGS.
We need additional long-term financing to develop our drug development
programs through the clinical trial process as required by the FDA and our
bioprocessing products business. We also need additional long-term financing to
support future operations and capital expenditures, including capital for
additional personnel and facilities. If we spend more money than currently
expected for our drug development programs and our bioprocessing products
business, we will need to raise 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 due to the volatile nature of the biotechnology
marketplace. If we are unable to raise this additional capital, we may have to
delay or postpone critical clinical studies or abandon other development
programs.
IF WE ARE UNABLE TO CONTINUE TO HIRE AND RETAIN SKILLED TECHNICAL AND SCIENTIFIC
PERSONNEL, THEN WE WILL HAVE TROUBLE DEVELOPING PRODUCTS.
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. Potential employees with an
expertise in the field of biochemistry, regulatory affairs and/or clinical
development of new drug and biopharmaceutical manufacturing are not generally
available in the market and are difficult to attract and retain. We also face
significant competition for such personnel from other companies, research and
academic institutions, government and other organizations who have superior
funding and resources to be able to attract such personnel. The loss of key
personnel or our inability to hire and retain personnel who have technical and
scientific backgrounds could materially adversely affect our product development
efforts and our business.
WE COMPETE WITH LARGER, BETTER FINANCED AND MORE MATURE PHARMACEUTICAL AND
BIOTECHNOLOGY COMPANIES WHO ARE CAPABLE OF DEVELOPING NEW APPROACHES THAT COULD
MAKE OUR PRODUCTS AND TECHNOLOGY OBSOLETE.
The market for therapeutic and bioprocessing products is intensely
competitive, rapidly evolving and subject to rapid technological change.
Pharmaceutical and mature biotechnology companies have substantially greater
financial, manufacturing, marketing, research and development resources than we
3
<PAGE>
have. New approaches to the treatment of our targeted diseases by these
competitors may make our products and technologies obsolete or noncompetitive.
IF WE ARE UNABLE TO OBTAIN AND MAINTAIN PATENTS FOR OUR PRODUCTS, WE WILL NOT BE
ABLE TO SUCCEED COMMERCIALLY.
We must obtain patent and trade secret protection for our products and
processes in order to protect them from unauthorized use and to produce a
financial return consistent with the significant time and expense required to
bring our products to market. Our success will depend, in part, on our ability
to:
- obtain patent protection for our products and manufacturing processes;
- preserve our trade secrets; and
- operate without infringing the proprietary rights of third parties.
We can not be sure 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:
- scope of the patent claims;
- validity and enforceability of the claims obtained in such patents; and
- 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 scientific questions.
Moreover, no consistent policy has emerged in the United States and in many
other countries regarding the breadth of claims allowed in biotechnology
patents. Patents which may be granted to us in certain foreign countries may be
subject to opposition proceedings brought by third parties or result in suits by
us which may be costly and result in adverse consequences for us.
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 costs to us.
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 on
unfavorable terms, if at all, or cease using the technology.
LEGAL PROCEEDINGS
As referenced in our quarterly report on Form 10-Q for the period ending
June 30, 1999 on July 17, 1998, we filed a complaint against Bristol-Myers
Squibb Corporation ("BMS") at the United States District Court for the District
of Massachusetts in Boston, Massachusetts seeking correction of inventorship of
certain United States patents which claim compositions and methods of use for
CTLA4 as well as unspecified monetary damages. A correction of inventorship
would result in the University of Michigan being designated as a co-assignee on
any corrected BMS patent. We would then have rights
4
<PAGE>
to such technology pursuant to a 1992 License Agreement with the University of
Michigan, a 1995 Asset Acquisition Agreement with Genetics Institute, and other
related agreements. On July 13, 1999, the court dismissed the complaint without
prejudice citing a lack of legal standing of Repligen to bring such a complaint.
We believe that the court's finding on standing was in error. The court did not
rule on the validity of our inventorship claim. We continue to believe that the
University of Michigan is a rightful co-assignee of the aforesaid BMS patents
and we intend to continue to pursue the correction of inventorship. Our failure
to obtain shared ownership rights in the patents may restrict our ability to
commercialize CTLA4-Ig.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of our common stock by
the selling stockholders. See "Selling Stockholders" and "Plan of Distribution".
The principal purpose of this offering is to effect an orderly disposition of
the shares of our common stock being offered and sold from time to time by the
selling stockholders.
SELLING STOCKHOLDERS
Unless otherwise noted below in the table, each person has sole voting and
investment power over the shares shown as beneficially owned except to the
extent authority is shared by spouses under applicable law and except as set
forth in the footnotes to the table. Beneficial ownership is determined in
accordance with the rules of the Securities and Exchange Commission. The
following are deemed to be beneficially owned and outstanding for purposes of
calculating the number of shares and the percentage beneficially owned by that
person or entity:
- shares of common stock issuable by Repligen to that person upon the
exercise of options or warrants which may be exercised within 60 days
after April 14, 2000.
However, these shares are not deemed to be beneficially owned and outstanding
for purposes of computing the percentage beneficially owned by any other person
or entity.
For purposes of calculating the percentage beneficially owned, the number of
shares deemed outstanding after the offering includes:
- 25,978,899 shares of common stock outstanding as of March 24, 2000; and
- the number of presently exercisable options and presently exercisable
warrants held by that person.
The table below lists the following:
- the number of shares of our common stock beneficially owned by the selling
stockholders as of March 24, 2000 and before this offering;
- the maximum number of shares of our common stock that the selling
stockholders may offer and sell pursuant to this prospectus;
- the number of shares owned by the selling stockholders after completion of
the offering (assuming that the selling stockholders sell all of the
shares offered pursuant to this prospectus); and
5
<PAGE>
- the percentage (if one percent or more) of the class owned by the selling
stockholder after completion of the offering.
<TABLE>
<CAPTION>
SHARES
BENEFICIALLY
SHARES SHARES OWNED AFTER
BENEFICIALLY OFFERED OFFERING (1)
OWNED PRIOR TO PURSUANT TO -------------------
SELLING STOCKHOLDER OFFERING THIS PROSPECTUS NUMBER PERCENT
- ------------------- -------------- --------------- -------- --------
<S> <C> <C> <C> <C>
John E. Abdo TTEE U/A 3/15/76
FBO John E. Abdo (2)........................... 8,700 8,700 0 *
Thomas I & Ceceile R. Brown JWTROS............... 1,450 1,450 0 *
Jules A. Clarkson................................ 1,450 1,450 0 *
Charles Dorsey................................... 1,450 1,450 0 *
Mark W. Kehaya................................... 1,450 1,450 0 *
Michael & Grace Pryomski......................... 2,900 2,900 0 *
</TABLE>
- ------------------------
* Represents less than 1% of the outstanding shares.
(1) Assumes that the selling stockholders will sell all of the shares registered
hereunder. The stockholders may sell all or part of their shares pursuant to
this prospectus.
(2) Includes 2,900 shares subject to a currently exercisable warrant.
None of the selling stockholders have any material relationship with us.
In connection with the initial capitalization of Repligen Clinical Partners,
L.P. in February 1992, Repligen issued to certain purchasers and the sales agent
related thereto and the agent's affiliates, units in Repligen Clinical Partners.
Each unit consisted of a Class A limited partnership interest in Repligen
Clinical Partners and a warrant (collectively, the "Original Warrants") to
purchase 2,900 shares of our common stock.
In March 1994, we offered to the holders of Original Warrants the
opportunity to exchange their Original Warrants for newly issued warrants (the
"Exchange Warrants"). Each holder of an Original Warrant was free to accept or
reject the exchange offer. Many warrantholders holding warrants to purchase
shares of our common stock accepted the exchange offer. Some warrantholders
were, however, ineligible to participate in this exchange offer due to their
failure to make payments on promissory notes which were originally issued by
certain of the warrantholders in favor of Repligen Clinical Partners to pay for
the units. Some warrantholders who were eligible to participate in the exchange
offer rejected the exchange offer and thus continued to hold Original Warrants.
In connection with the March 1994 exchange of Original Warrants for Exchange
Warrants, we reduced the exercise price under the Exchange Warrants to $9.00
(from $22.73) per share, subject to increase to $14.00 per share on the date
90 days after we notified the warrantholders holding the Exchange Warrants that
the closing price of our common stock equaled or exceeded $18.00 per share for
20 out of 30 consecutive trading days. We also extended the exercise period
under the Exchange Warrants to March 31, 2000. The holders of Exchange Warrants
also accepted a reduction in certain royalty rates that each warrantholder would
have received as a limited partner of Repligen Clinical Partners, such royalties
arising out of any sales of the drug (rPF4) being developed by Repligen Clinical
Partners. Acceptance of the Exchange Warrants also resulted in pro rata
reductions in certain other royalties which were payable to such warrantholders
as limited partners of Repligen Clinical Partners. The holders of Original
Warrants to purchase 239,250 shares of our common stock either rejected or
failed to accept the modification of the Exchange Warrants that would have
resulted in a further reduction in the exercise price of the warrants which they
held.
6
<PAGE>
In March 1995, we offered the warrantholders an opportunity to modify the
Original Warrants and the Exchange Warrants that remained outstanding to reduce
the respective exercise prices. With respect to each holder of an outstanding
Original Warrant or Exchange Warrant who was required to make and did make the
fourth installment payment to Repligen Clinical Partners pursuant to the
Promissory Notes, such holders (along with the other warrantholders who did not
have outstanding promissory notes) were free to accept or reject the proposed
modifications. The holders of Original Warrants who accepted such modification
received a warrant exercisable at $9.00 per share with an expiration date of
March 31, 2000 (these warrants are referred to as the "Modified Limited Partner
Warrants"). Each selling stockholder acquired their shares of our common stock
in a private placement transaction and upon the exercise of Modified Limited
Partner Warrants.
In April 2000, we issued a warrant exercisable for 2,900 shares of our
common stock at $9.00 per share and expiring on July 6, 2000 to John E. Abdo as
trustee for the benefit of himself U/A 3/15/76 (the "Abdo Trust") to settle a
dispute with Mr. Abdo and the Abdo Trust involving the issuance of a Modified
Limited Partner Warrant to the Abdo Trust.
We are filing this registration statement to register for public sale the
shares of common stock acquired upon exercise of the Modified Limited Partner
Warrants and the shares of our common stock which may be acquired upon the
exercise of the warrant held by the Abdo Trust.
PLAN OF DISTRIBUTION
The shares of our common stock covered by this prospectus may be sold by the
selling stockholders from time to time for their own account We will pay the
expenses incurred in connection with the registration of the shares of our
common stock, except that the selling stockholders will pay or assume brokerage
commissions and similar charges, the legal fees and expenses of counsel for the
selling stockholders and any stock transfer taxes or other expenses incurred in
connection with the sale of the shares of our common stock. We will not receive
any of the proceeds from the resale of the shares of common stock by the selling
stockholders.
The distribution of the shares of our common stock by the selling
stockholders is not subject to any underwriting agreement. The shares of our
common stock offered by the selling stockholders 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 our common stock, 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. Any broker-dealers that
participate with selling stockholders in the distribution of shares of our
common stock may be deemed to be underwriters and any commissions received by
them and any profit on the resale of shares of our common stock 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 stockholders are not restricted as to the price or prices
at which they may sell their shares of our common stock, sales of such shares of
our common stock at less than the market prices may depress the market price of
the our common stock.
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 our common stock offered hereby will be passed
upon for us by Testa, Hurwitz & Thibeault, LLP, Boston, Massachusetts.
7
<PAGE>
EXPERTS
The financial statements incorporated by reference in this prospectus and
elsewhere in the registration statement to the extent and for the periods
indicated in their reports 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 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, 1999;
2. Repligen's proxy statement, filed on July 29, 1999, for the 1999 annual
meeting of shareholders;
3. Quarterly reports on Form 10-Q for the quarters ended December 31, 1999,
September 30, 1999 and June 30, 1999;
4. Current reports on Form 8-K filed March 21, 2000, October 6, 1999,
April 24, 1999, as amended by Form 8-K/A filed June 15, 1999 and current
report on Form 8-K filed May 17, 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.
8
<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) 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:
<TABLE>
<S> <C>
Registration Fee--Securities and Exchange Commission........ $ 30.00
Blue Sky Fees and Expenses.................................. $ 1,000.00
Accounting Fees and Expenses................................ $ 1,000.00
Legal Fees and Expenses..................................... $ 5,000.00
Transfer Agent Fees and Expenses............................ $ 1,000.00
Miscellaneous............................................... $ 1,970.00
----------
TOTAL................................................... $10,000.00
==========
</TABLE>
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.
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.
<TABLE>
<CAPTION>
EXHIBIT NO. ITEM AND REFERENCE
- ----------- ------------------------------------------------------------
<C> <S>
4.1 --Form of Modified Limited Partner Warrant (filed as Exhibit
4.3 to Repligen Corporation's Form 10-K dated March 31,
1998 and incorporated herein by reference)
4.2 --Common Stock Purchase Warrant dated April 14, 2000 issued
to John E. Abdo TTEE U/A 3/15/76 FBO John E. Abdo
5 --Legal Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 --Consent of Arthur Andersen LLP
23.2 --Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5)
24 --Power of Attorney (included on signature pages)
</TABLE>
II-1
<PAGE>
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) 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 15 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-2
<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 18, 2000.
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.
NAME CAPACITY DATE
- ------------------------------ --------------------------- -------------------
President and Chief
Executive Officer, Chief
/s/ WALTER C. HERLIHY Financial Officer and
- ------------------------------ Director (principal April 18, 2000
Walter C. Herlihy executive, financial and
accounting officer)
/s/ ALEXANDER RICH Co-Chairman of the Board of
- ------------------------------ Directors , M.D. April 18, 2000
Alexander Rich
/s/ PAUL SCHIMMEL Co-Chairman of the Board of
- ------------------------------ Directors, Ph.D. April 18, 2000
Paul Schimmel
/s/ ROBERT J. HENNESSEY Director
- ------------------------------ April 18, 2000
Robert J. Hennessey
/s/ G. WILLIAM MILLER Director
- ------------------------------ April 18, 2000
G. William Miller
II-3
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. ITEM AND REFERENCE
- ----------- ------------------------------------------------------------
<C> <S>
4.1 --Form of Modified Limited Partner Warrant (filed as Exhibit
4.3 to Repligen Corporation's Form 10-K dated March 31,
1998 and incorporated herein by reference)
4.2 --Common Stock Purchase Warrant dated April 14, 2000 issued
to John E. Abdo TTEE U/A 3/15/76 FBO John E. Abdo
5 --Legal Opinion of Testa, Hurwitz & Thibeault, LLP
23.1 --Consent of Arthur Andersen LLP
23.2 --Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5)
24 --Power of Attorney (included on signature pages)
</TABLE>
<PAGE>
Exhibit 4.2
REPLIGEN CORPORATION
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
Name and address of
Registered Holder: John E. Abdo TTEE U/A DTD 3/15/76
FBO John E. Abdo
1350 NE 56th
Ft. Lauderdale, FL 33334
No. 2,900 Shares
----------------------
IN CONSIDERATION OF the Release entered into by and among Repligen
Corporation, a Delaware corporation (the "Company"), John E. Abdo and John E.
Abdo TTEE U/A DTD 3/15/76 FBO John E. Abdo (the "Initial Holder") dated as of
the date hereof and for value received, the Company hereby grants the rights
herein specified and certifies that the Initial Holder or any registered
assignee of the Initial Holder (each of the Initial Holder and any such
registered assignee being hereinafter referred to as the "Holder") is entitled,
subject to the conditions and upon the terms of this Warrant, to purchase from
the Company, at any time or from time to time during the Exercise Period (as
defined in Section 1 hereof), 2,900 shares of Common Stock (as defined in
Section 1 hereof). The number of shares of Common Stock to be received upon the
exercise of this Warrant and the Exercise Price are subject to adjustment from
time to time as hereinafter set forth.
1. CERTAIN DEFINITIONS. Terms defined in the preceding paragraph and
elsewhere in this Warrant have the respective meanings provided for therein. The
following additional terms, as used herein, have the following respective
meanings:
"Act" means the Securities Act of 1933, as amended.
"Closing Price" means the closing price per share of the Common Stock
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or traded on any such exchange,
on the Nasdaq National Market, or if not listed or traded on any such exchange
or system, the average of the bid and asked price per share on Nasdaq National
Market or, if such quotations are not available, the fair market value as
reasonably determined by the Board of Directors of the Company or any committee
of such Board.
"Common Stock" means the fully paid and nonassessable shares of common
stock of the Company, par value $.01 per share, together with any other equity
securities that may be issued by the Company in addition thereto or in
substitution therefor, as provided herein.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
<PAGE>
"Exercise Period" means the period beginning on April 14, 2000 and
ending on July 6, 2000.
"Exercise Price" means $9.00 per share subject to change or adjustment
pursuant to Section 8 hereof.
"Nasdaq" means the National Association of Securities Dealers Automated
Quotation System.
"National Market" means the National Market of Nasdaq.
"Reorganization Event" means (i) any capital reorganization or
leveraged recapitalization of the Company or reclassification of the Common
Stock (other than a subdivision, combination or reclassification of the
outstanding Common Stock for which adjustment is provided in Section 8(a) hereof
and other than a change in the par value of the Common Stock or an increase in
the authorized capital stock of the Company not involving the issuance of any
shares thereof), (ii) any consolidation of the Company with, or merger of the
Company with or into, another person (including any individual, partnership,
joint venture, corporation, trust or group thereof) (other than a consolidation
or merger with a subsidiary of the Company in which the Company is the
continuing corporation for which adjustment is provided in Section 8(a) hereof)
or any sale, lease, transfer or conveyance of all or substantially all of the
property and assets of the Company or (iii) the announcement or commencement by
any "person" or "group" (within the meaning of Section 13(d) and Section 14(d)
of the Exchange Act) of a bona fide tender offer or exchange offer in accordance
with the rules and regulations of the Exchange Act to purchase, or the
acquisition of securities in the Company, such that after such acquisition or
proposed purchase, the acquiror "beneficially owns" or would "beneficially own"
(as defined in Rule 13d-3 under the Exchange Act), securities in the Company
representing 30% or more of the combined voting power of the Company's then
outstanding securities having power to vote in the election of directors.
"Warrant" means this Warrant and any Warrant or Warrants which may be
issued pursuant to Section 5 hereof in substitution or exchange for or upon
transfer of this Warrant, any Warrant which may be issued pursuant to Section 2
hereof upon partial exercise of this Warrant and any Warrant which may be issued
pursuant to Section 6 hereof upon the loss, theft, destruction or mutilation of
this Warrant.
"Warrant Register" means the register maintained at the principal
office of the Company, or at the office of its agent, in which the name of the
Holder of this Warrant shall be registered.
"Warrant Shares" means the shares of Common Stock, as adjusted from
time to time, deliverable upon exercise of this Warrant.
2. EXERCISE OF WARRANT. This Warrant may be exercised, in whole or in
part, at any time or from time to time during the Exercise Period, by
presentation and surrender hereof to the Company at its principal office at the
address set forth on the signature page hereof (or at such other address of the
Company or any agent appointed by the Company to act hereunder as the
2
<PAGE>
Company or such agent may hereafter designate in writing to the Holder), with
the purchase form annexed hereto (the "Purchase Form") duly executed and
accompanied by cash or a certified or official bank check drawn to the order of
"REPLIGEN CORPORATION" (or its successor in interest, if any) in the amount of
the Exercise Price, multiplied by the number of Warrant Shares specified in such
Purchase Form. If this Warrant should be exercised in part only, the Company or
its agent shall, upon surrender of this Warrant, execute and deliver a Warrant
evidencing the right of the Holder thereof to purchase the balance of the
Warrant Shares purchasable hereunder. Upon receipt by the Company during the
Exercise Period of this Warrant and such Purchase Form in proper form for
exercise, together with proper payment of the Exercise Price at its principal
office, or by its agent at its office, the Holder shall be deemed to be the
holder of record of the number of Warrant Shares specified in such Purchase
Form; PROVIDED, HOWEVER, that if the date of such receipt by the Company or its
agent is a date on which the stock transfer books of the Company are closed,
such person shall be deemed to have become the record holder of such shares on
the next business day on which the stock transfer books of the Company are open.
The Company shall pay any and all documentary, stamp or similar issue or
transfer taxes payable in respect of the issue or delivery of such Warrant
Shares. Any Warrant issued upon partial exercise of this Warrant pursuant to
this Section 2 shall be dated the date of this Warrant.
3. RESERVATION OF SHARES. The Company agrees that at all times it will
keep reserved solely for issuance and delivery pursuant to the Warrants the
number of shares of its Common Stock that are or would be issuable from time to
time upon exercise of this Warrant. All such shares shall be duly authorized
and, when issued upon such exercise, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free of all preemptive rights.
Before taking any action that would cause an adjustment pursuant to Section 8
hereof reducing the Exercise Price below the then par value (if any) of the
Warrant Shares issuable upon exercise of this Warrant, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and nonassessable
Warrant Shares at the Exercise Price as so adjusted.
4. WARRANT SHARE REGISTRATION RIGHTS.
(a) The Company will use commercially reasonable efforts to (i)
prepare and file with the Securities and Exchange Commission (the "SEC") under
the Act a registration statement with respect to the Warrant Shares issuable
upon exercise of this Warrant, (ii) cause such registration statement to become
effective under the Act within 45 days from the date hereof and remain effective
under the Act during the Exercise Period while any of such Warrants are
outstanding and (iii) register or qualify such Warrant Shares under the
securities or Blue Sky laws of each jurisdiction within the United States in
which such registration or qualification is necessary in connection with the
issuance and delivery of such Warrant Shares to the Holders of the Warrants.
(b) In connection with the registration and qualification referred to
in subsection (a) of this Section 4, the Company covenants and agrees:
(i) to use reasonable commercial efforts, to prepare and
file with the SEC such amendments and supplements to such registration
statement and the prospectus used
3
<PAGE>
in connection therewith as may be necessary to keep such registration
statement effective throughout the Exercise Period;
(ii) to use reasonable commercial efforts, to take such
action as may be necessary or desirable to maintain the registration
and qualification of the Warrant Shares under the securities or Blue
Sky laws of the jurisdictions referred to in subsection (a) of this
Section 4; and
(iii) to pay all expenses incurred by the Company in complying
with subsection (a) of this Section 4 and this subsection (b),
including (A) all registration and filing fees, (B) all printing
expenses, (C) all fees and disbursements of its counsel and independent
public accountants and (D) all Blue Sky fees and expenses (including
fees and disbursements of counsel).
5. EXCHANGE, TRANSFER OR ASSIGNMENT OF WARRANT.
(a) If the Holder has received an opinion of counsel satisfactory to
the Company that this Warrant may be freely sold or transferred without
registration under the Act, this Warrant may be, at the option of the Holder,
and upon presentation and surrender hereof to the Company or at the office of
its stock transfer agent, (i) exchanged for other Warrants of different
denominations, entitling the Holder or Holders thereof to purchase in the
aggregate the same number of Warrant Shares at the Exercise Price or (ii) if
delivered together with a written notice specifying the denominations in which
new Warrants are to be issued and signed by the Holder hereof, divided or
combined with other Warrants that carry the same rights.
(b) If the Holder has received an opinion of counsel satisfactory to
the Company that this Warrant may be freely sold or transferred without
registration under the Act, this Warrant may be assigned, at the option of
Holder, upon surrender of this Warrant to the Company or at the office of its
stock transfer agent, with the Warrant Assignment Form annexed hereto duly
executed and accompanied by funds sufficient to pay any transfer tax. The
Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees named in such instrument of assignment and, if the
Holder's entire Interest is not being transferred or assigned, in the name of
the Holder, and this Warrant shall promptly be canceled.
(c) Any transfer or exchange of this Warrant shall be without charge
to the Holder and any new Warrant or Warrants issued pursuant to this Section 5
shall be dated the date hereof.
6. LOST, MUTILATED OR MISSING WARRANT. Upon receipt by the Company or its
agent of evidence satisfactory to it of the loss, theft or destruction of this
Warrant, and of satisfactory indemnification, and upon surrender and
cancellation of this Warrant if mutilated, the Company or its agent shall
execute and deliver a Warrant of like tenor and date in exchange for this
Warrant.
7. RIGHTS OF THE HOLDER. The Holder shall not, by virtue hereof, be
entitled to any rights of a shareholder in the Company, either at law or in
equity, and the rights of the Holder are limited to those expressed in this
Warrant.
4
<PAGE>
8. ANTI-DILUTION. (a) If the Company shall fix or have fixed a record date
at any time after the date hereof and before the expiration of the Exercise
Period for:
(i) STOCK DIVIDENDS, SUBDIVISIONS, COMBINATIONS,
RECLASSIFICATIONS, ETC. (A) The declaration of a dividend or
distribution on the Common Stock (or other securities deliverable
hereunder) payable in shares of capital stock (whether shares of Common
Stock or of capital stock of any other class), (ii) the subdivision of
shares of the Common Stock into a greater number of shares, (iii) the
combination of the Common Stock into a smaller number of shares or (iv)
the issuance of any shares of its capital stock by reclassification of
the Common Stock in connection with a consolidation or merger with a
subsidiary of the Company in which the Company is the continuing
corporation, then, in any such event, the Holder shall be entitled to
receive the aggregate number and kind of shares which, if the Warrant
had been exercised immediately prior to such record date, he would have
been entitled to receive by virtue of such dividend, distribution,
subdivision, combination or reclassification, and the Exercise Price
shall be appropriately adjusted. Such adjustment shall be made
successively whenever any event listed above shall occur.
(ii) ISSUANCE AT LESS THAN CURRENT MARKET PRICE. The issuance
of Common Stock (or other securities deliverable hereunder), rights,
options (excluding options issued in connection with an employee stock
option or similar plan) or warrants to all holders of Common Stock (or
such other securities deliverable hereunder) entitling them to
subscribe for or purchase Common Stock (or such other securities) at a
price per share or having a conversion price per share less than the
Closing Price on such record date (excluding rights or warrants that
are not immediately exercisable and for which provision is made for the
Holder to receive comparable rights or warrants), then the number of
Warrant Shares to be received hereunder after such record date shall be
determined by multiplying the number of shares receivable hereunder
immediately prior to such record date by a fraction, the denominator of
which shall be the number of shares of Common Stock (or such other
securities deliverable hereunder) outstanding on such record date plus
the number of shares of Common Stock (or such other securities) that
the aggregate offering price of the total number of shares so offered
for subscription or purchase would purchase at such Closing Price, and
the numerator of which shall be the number of shares of Common Stock
(or such other securities) outstanding on such record date plus the
number of additional shares of Common Stock (or such other securities)
offered for subscription or purchase, and the Exercise Price shall be
appropriately adjusted. Shares of Common Stock owned by or held for the
account of the Company or any subsidiary of the Company on such record
date shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall become effective immediately after
such record date. Such adjustment shall be made successively whenever
any such event shall occur. If such rights or warrants are not so
issued, the number of Warrant Shares receivable hereunder shall again
be adjusted to be the number that would have been in effect had such
record date not been fixed. On the expiration of such rights or
warrants the number of Warrant Shares receivable hereunder shall be
adjusted to be the number that would have obtained had the adjustment
made upon the issuance of such rights or warrants been made upon the
basis of the issuance of only the number of shares of Common Stock (or
such other securities deliverable hereunder) actually issued upon the
exercise of such rights or warrants. In any case in which this
5
<PAGE>
subsection (ii) shall require that an adjustment in the number of
shares receivable hereunder or the Exercise Price be made effective as
of a record date for a specified event, the Company may elect to defer
until the occurrence of such event issuing to the Holder of any Warrant
exercised after such record date the number of Warrant Shares, if any,
issuable upon such exercise over and above the number of Warrant
Shares, if any, issuable upon such exercise on the basis of the
Exercise Price in effect prior to such adjustment; PROVIDED, HOWEVER,
that the Company shall deliver to such Holder a due bill or other
appropriate instrument evidencing such Holder's right to receive such
additional Warrant Shares upon the occurrence of the event requiring
such adjustments.
(iii) DISTRIBUTION OF SUBSCRIPTION RIGHTS, WARRANTS,
EVIDENCES OF INDEBTEDNESS OR ASSETS. The making of a distribution to
all holders of Common Stock (or other securities deliverable
hereunder) (including any such distribution to be made in connection
with a consolidation or merger in which the Company is to be the
continuing corporation) of (A) any shares of capital stock of the
Company (other than Common Stock), (B) subscription rights or
warrants (excluding those for which adjustment is provided in
subsection 8(a)(ii) above and excluding those that are not
immediately exercisable and for which provision is made for the
Holder to receive comparable subscription rights or warrants) or (C)
evidences of its indebtedness or assets (excluding (x) dividends
paid in or distributions of the Company's capital stock for which
the number of Warrant Shares receivable hereunder shall have been
adjusted pursuant to paragraph 8(a)(i) and (y) cash dividends or
distributions payable out of earnings or surplus not in excess of
10% of the average Closing Price for the thirty trading days prior
to the fifth day before the date of declaration) any of the
foregoing being hereinafter in this paragraph (iii) called the
"Securities"), then in each such case (unless the Company elects to
reserve shares or other units of such Securities for distribution to
each Holder upon exercise of the Warrant so that, in addition to the
shares of the Common Stock (or other securities deliverable
hereunder) to which each Holder is entitled, each Holder will
receive upon such exercise the amount and kind of such Securities
which such Holder would have received if the Company had,
immediately prior to the record date for the distribution of the
Securities, exercised the Warrant) the number of Warrant Shares
receivable hereunder after such record date shall be determined by
multiplying the number of Warrant Shares receivable hereunder
immediately prior to such record date by a fraction, the denominator
of which shall be the Closing Price on the trading day immediately
prior to the date the Common Stock (or such other securities
deliverable hereunder) trades without the right to receive such
Securities, less the fair market value (as determined in the
reasonable judgment of the Board of Directors of the Company and
described in a statement mailed by certified mail to the Holder) of
the portion of the assets or evidences of indebtedness so to be
distributed to a holder of one share of the Common Stock or of such
subscription rights or warrants applicable to one share of the
Common Stock, and the numerator of which shall be the Closing Price
of the Common Stock on such trading date; and the Exercise Price
shall be appropriately adjusted. Such adjustment shall become
effective immediately after such record date and shall be made
successively whenever such a record date is fixed. If such
distribution is not so made, the number of Warrant Shares receivable
hereunder shall again be adjusted to be the number that was in
effect immediately prior to such record date. In any case in which
this paragraph (iii) shall require that an adjustment in the number
of Warrant Shares
6
<PAGE>
receivable hereunder or the Exercise Price be made effective as of a
record date for a specified event, the Company may elect to defer until
the occurrence of such event issuing to the Holder of any Warrant
exercised after such record date the number of Warrant Shares, if any,
issuable upon such exercise over and above the number of Warrant Shares,
if any, issuable upon such exercise on the basis of the Exercise Price in
effect prior to such adjustment; PROVIDED, HOWEVER, that the Company
shall deliver to such Holder a due bill or other appropriate instrument
evidencing such Holder's right to receive such additional Warrant Shares
upon the occurrence of the event requiring such adjustments.
(b) REORGANIZATION EVENT.
(i) In case of any Reorganization Event the Company shall,
as a condition precedent to the consummation of the transaction
constituting, or announced as, such Reorganization Event, cause effective
provisions to be made so that the Holder shall have the right immediately
thereafter, by exercising this Warrant, to receive the aggregate amount and
kind of shares of stock and other securities and property that were
receivable upon such Reorganization Event by a holder of the number of
shares' of Common Stock that would have been received immediately prior to
such Reorganization Event upon exercise of this Warrant. Any such provision
shall include provision for adjustments in respect of such shares of stock
and other securities and property that shall be as nearly equivalent as may
be practicable to the adjustments provided for in Section 8(a). The
foregoing provisions of this Section 8(b) shall similarly apply to
successive Reorganization Events.
(ii) The Company shall, at least twenty days before earliest
of (1) the date on which a Reorganization Event occurs or (2) the date on
which the Company shall agree to effect a Reorganization Event (PROVIDED
that if approval of the shareholders of the Company is required in
connection with such Reorganization Event then on the date of such approval
and PROVIDED FURTHER that if such Reorganization Event was beyond the
control of the Company, and the Company did not have knowledge twenty days
before the date of such Reorganization Event, as soon as practicable
thereafter), cause to be mailed to the Holder a notice describing in
reasonable detail such Reorganization Event and informing the Holder of his
or her rights pursuant to Section 8(b)(i) above.
(c) FRACTIONAL SHARES. No fractional shares of Common Stock (or other
securities deliverable hereunder) or scrip shall be issued to any Holder in
connection with the exercise of this Warrant. Instead of any fractional share of
Common Stock (or other securities deliverable hereunder) that would otherwise be
issuable to such Holder, the Company shall pay to such Holder a cash adjustment
in respect of such fractional interest in an amount equal to such fractional
interest multiplied by the then current Closing Price per share of Common Stock
(or other securities deliverable hereunder).
(d) CARRYOVER. Notwithstanding any other provision of this Section 8,
no adjustment shall be made to the number of shares of Common Stock (or other
securities deliverable hereunder) to be delivered to each Holder (or to the
Exercise Price) if such adjustment would represent less than one percent of the
number of shares to be so delivered, but any such
7
<PAGE>
adjustment shall be carried forward and shall be made at the time and together
with the next subsequent adjustment which, together with any adjustments so
carried forward, shall amount to one percent or more of the number of shares to
be so delivered.
(e) NOTICES OF CERTAIN EVENTS. If at any time after the date hereof
and before the expiration of the Exercise Period:
(i) the Company authorizes the issuance to all holders of
its Common Stock of (A) rights or warrants to subscribe for or purchase
shares of its Common Stock or (B) any other subscription rights or warrants;
or
(ii) the Company authorizes the distribution to all holders
of its Common Stock of evidences of its indebtedness or assets (other than
cash dividends or distributions excluded from the operation of paragraph
8(a)(iii); or
(iii) there shall be any capital reorganization of the Company
or reclassification of the Common Stock (other than a change in par value of
the Common Stock or an increase in the authorized capital stock of the
Company not involving the issuance of any shares thereof) or any
consolidation or merger to which the Company is a party (other than a
consolidation or merger with a subsidiary in which the Company is the
continuing corporation and that does not result in any reclassification or
change in the Common Stock outstanding) or a conveyance or transfer of all
or substantially all of the properties and assets of the Company;
(iv) there shall be any voluntary or involuntary dissolution,
liquidation or winding-up of the Company; or
(v) there shall be any other event that would result in an
adjustment pursuant to this Section 8 in the Exercise Price or the number of
Warrant Shares that may be purchased upon the exercise hereof;
the Company will cause to be mailed to the Holder, at least twenty days (or ten
days in any case specified in clauses (i) or (ii) above) before the applicable
record or effective date hereinafter specified, a notice stating (A) the date as
of which the holders of Common Stock of record entitled to receive any such
rights, warrants or distributions is to be determined, or (B) the date on which
any such reorganization, reclassification, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding-up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record will be entitled to exchange their shares of Common Stock for
securities or other property, if any, deliverable upon such reorganization,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding-up.
(f) FAILURE TO GIVE NOTICE. The failure to give the notice required by
Section 8(e) hereof or any defect therein shall not affect the legality or
validity of any distribution right, warrant, consolidation, merger, conveyance,
transfer, dissolution, liquidation or winding-up or the vote upon any such
action.
8
<PAGE>
9. OFFICERS' CERTIFICATE. Whenever the number of Warrant Shares that may
be purchased on exercise of this Warrant or the Exercise Price is adjusted as
required by the provisions of Section 8 hereof, the Company will forthwith file
in the custody of its Secretary or an Assistant Secretary at its principal
office and at the office of its agent an officers' certificate showing the
adjusted number of Warrant Shares that may be purchased at the Exercise Price on
exercise of this Warrant and the adjusted Exercise Price determined as herein
provided, setting forth in reasonable detail the facts requiring such adjustment
and the manner of computing such adjustment. Each such officers' certificate
shall be signed by the President, Chief Financial Officer or Treasurer of the
Company and by the Secretary or an Assistant Secretary of the Company. Each such
officers' certificate shall be made available at all reasonable times for
inspection by the Holder. The Company shall, forthwith after each such
adjustment, cause such certificate to be mailed to the Holder.
10. LISTING ON SECURITIES EXCHANGES. The Company will list on each national
securities exchange on which any Common Stock may at any time be listed or
quoted and have authorized for quotation on the National Market (if any Common
Stock is then authorized for quotation thereon) all shares of Common Stock from
time to time issuable upon exercise of all Warrants issued in connection with
the initial sale of the limited partnership interests in the Partnership,
subject to official notice of issuance (if required), and will maintain such
listing or quotation so long as any other shares of its Common Stock are so
listed or quoted. The Company shall so list or have authorized for quotation,
and shall maintain such listing or quotation of, any other shares of capital
stock of the Company issuable upon the exercise of this Warrant if and so long
as any shares of capital stock of the same class are so listed or quoted. Any
such listing or quotation shall be at the Company's expense.
11. AVAILABILITY OF INFORMATION. The Company shall comply with all
applicable public information reporting requirements of the SEC and applicable
state securities laws (including those required to make available the benefits
of Rule 144 under the Act) to which it may from time to time be subject. The
Company will also cooperate with each Holder of any Warrants and each holder of
any Warrant Shares in supplying such information concerning the Company as may
be necessary for such Holder or holder to complete and file any information
reporting forms currently or hereafter required by the SEC as a condition to the
availability of an exemption from the Act for the sale of any Warrants or
Warrant Shares.
12. WARRANT REGISTER. The Company will register this Warrant in the Warrant
Register in the name of the record holder to whom it has been distributed or
assigned in accordance with the terms hereof. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof (notwithstanding
any notation of ownership or other writing hereon made by anyone) for the
purpose of any exercise hereof or any distribution to the Holder and for all
other purposes, and the Company shall not be affected by any notice to the
contrary.
13. SUCCESSORS. All of the provisions of this Warrant by or for the benefit
of the Company or the Holder shall bind and inure to the benefit of their
respective successors and assigns.
14. HEADINGS. The headings of sections of this Warrant have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
9
<PAGE>
15. AMENDMENTS. This Warrant may be amended by the affirmative vote of
Holders holding Warrants to purchase not less than two-thirds of the Warrant
Shares purchasable pursuant to all of the then outstanding Warrants; PROVIDED,
that, except as expressly provided herein, this Warrant may not be amended,
without the consent of the Holder, to change (i) any price at which this Warrant
may be exercised, (ii) the period during which this Warrant may be exercised,
(iii) the number or type of securities to be issued upon the exercise hereof or
(iv) the provision of this Section 15.
16. NOTICES. Unless otherwise provided in this Warrant, any notice or other
communication required or permitted to be made or given to any party hereto
pursuant to this Warrant shall be in writing and shall be deemed made or given
if delivered by hand, on the date of such delivery to such party or, if mailed,
on the fifth day after the date of mailing, if sent to such party by certified
or registered mail, postage prepaid, addressed to it (in the case of a Holder)
at its address in the Warrant Register or (in the case of the Company) at its
address set forth below, or to such other address as is designated by written
notice, similarly given to each other party hereto.
17. GOVERNING LAW. This Warrant shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be construed in
accordance with the laws of said State as applied to contracts made and to be
performed in Delaware between Delaware residents.
18. SIGNATURES. This Warrant and any Warrant issued pursuant to the terms
hereof shall be manually signed, or shall bear the facsimile signature of the
President or a Vice President of the Company which shall have the same effect as
if such Warrant were manually signed.
IN WITNESS WHEREOF, the Company has duly caused this Warrant to be
signed and attested by its duly authorized officers as of April 14, 2000.
REPLIGEN CORPORATION
By:/s/Walter C. Herlihy
-----------------------
Walter C. Herlihy
President and CEO
Address:
117 Fourth Avenue
Needham, MA 02194
Attention: Secretary
10
<PAGE>
PURCHASE FORM
The undersigned, _________________ hereby irrevocably elects to
exercise the within Warrant to purchase _____ shares of Common Stock and hereby
makes payment of $___________ in payment of the exercise price thereof.
Date: , 2000 --------------------------------------------
----------------- [Signed]
--------------------------------------------
[Street Address]
--------------------------------------------
[City and State]
11
<PAGE>
WARRANT ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned, _________________________,
("Assignor"), hereby sells, assigns and transfers unto
Name: ("Assignee")
-----------------------------------------------
(Please type or print in block letters.)
Address:
--------------------------------------------
- ----------------------------------------------------
Social Security or Taxpayer I.D. No.:
------------------------------
Assignor's right to purchase up to _____ shares of Common Stock represented by
this Warrant and does hereby irrevocably constitute and appoint the Company and
any of its officers, secretary, or assistant secretaries, as attorneys-in-fact
to transfer the same on the books of the Company, with full power of
substitution in the premises.
Date: , 2000 --------------------------------------------
----------------- [Signed]
12
<PAGE>
Exhibit 5
[Testa, Hurwitz & Thibeault, LLP Letterhead]
April 18, 2000
Repligen Corporation
117 Fourth Avenue
Needham, Massachusetts 02194
Re: S-3 REGISTRATION STATEMENT
Ladies and Gentlemen:
We are counsel to Repligen Corporation, 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 14,500
shares of the Company's common stock (the "Common Stock"), $.01 par value per
share (the "Shares"), and up to 2,900 shares of the Company's Common Stock
(the "Warrant Shares") which a selling stockholder may acquire upon the
exercise of a warrant described in the Registration Statement, all of which
may be sold by certain selling stockholders of the Company as set forth in
the Registration Statement.
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 and the Warrant 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 and the Warrant
Shares, when issued upon the exercise of the warrant in accordance with the
terms of the Registration Statement, will be 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
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
May 14, 1999 included in Repligen Corporation's form 10-K for the year ended
March 31, 1999 and to all references to our Firm included in this registration
statement.
/s/Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
April 18, 2000
