<PAGE> 1
As filed with the Securities and Exchange Commission on April 26, 1994
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENETICS INSTITUTE, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 04-2718435
- ------------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
87 CAMBRIDGEPARK DRIVE, CAMBRIDGE, MASSACHUSETTS 02140 (617)876-1170
- --------------------------------------------------------------------------------
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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PAUL P. BROUNTAS, ESQ.
Hale and Dorr
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to public: From time
to time after the effective date of this Registration Statement.
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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]
<PAGE> 2
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
________________________________________________________________________
Proposed Proposed
Title of Maximum Maximum
Each Class of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered(1) Share (1) Price (1) Fee
________________________________________________________________________
<S> <C> <C> <C> <C>
Depositary Shares,
each representing
one share of
Common Stock,
$.01 par value,
subject to a call
option and
evidenced by a
depositary
receipt 1,254,550 $41.00 $51,436,550.00 $17,736.75
________________________________________________________________________
Common Stock,
$.01 par value (2) N/A N/A (3)
________________________________________________________________________
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933, based upon
the closing sale price of the Common Stock as reported on the Nasdaq
National Market on April 22, 1994.
(2) Such number of shares of Common Stock as are represented by the
Depositary Shares registered hereby.
(3) Because the Common Stock is issued for no consideration, no
registration fee is required with respect thereto.
============================================================================
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED APRIL 26, 1994
PROSPECTUS
GENETICS INSTITUTE, INC.
1,254,550 DEPOSITARY SHARES
---------------
The 1,254,550 Depositary Shares of Genetics Institute, Inc.,
a Delaware corporation (the "Company"), offered hereby represent
shares that may be issued upon exercise of outstanding warrants
issued pursuant to a Warrant Agreement dated as of May 23, 1991
(the "Warrants"). Upon exercise of a Warrant, the holder thereof
is entitled to receive (i) six-tenths (0.6) of one Depositary
Share, each Depositary Share evidencing one share of Common Stock
of the Company subject to a Call Option held by a subsidiary of
American Home Products Corporation, and (ii) $20.00 in cash,
without interest.
____________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE. ____________________________________
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE
HEREBY TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS
OTHER THAN AS CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. THIS PROSPECTUS IS NOT AN
OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, BY ANY PERSON
IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO
MAKE SUCH AN OFFER OF SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALES MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THE INFORMATION
CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE
HEREOF.
____________________________________
The date of this Prospectus is ______________, 1994.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information
filed by the Company with the Commission pursuant to the
informational requirements of the Exchange Act may be inspected
and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the Commission's regional offices located at 7 World Trade
Center, Suite 1300, New York, New York 10048, and at Northwest
Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such materials also may be
obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates.
The Company has filed with the Commission in Washington, D.C.
a registration statement (herein, together with all amendments and
exhibits, referred to as the "Registration Statement") under the
Securities Act of 1933 with respect to the securities offered
hereby. This Prospectus does not contain all the information
included in the Registration Statement, certain items of which are
omitted in accordance with the rules and regulations of the
Commission. For further information pertaining to the Company and
the Depositary Shares offered hereby, reference is made to such
Registration Statement and the exhibits thereto.
The Company will provide without charge to each person to
whom this Prospectus is delivered on the written or oral request
of such person, a copy of any documents incorporated herein by
reference, excluding exhibits. Requests should be made to
Genetics Institute, Inc., 87 CambridgePark Drive, Cambridge,
Massachusetts 02140 (617) 876-1170; Attention: Director of
Corporate Communications.
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<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended November 30, 1993;
(b) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-A
dated May 2, 1986; and
(c) The description of the Company's Depositary Shares
contained in the Company's Registration Statement on
Form 8-A dated December 9, 1991.
All reports and other documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all
securities covered by this Prospectus have been sold or which
deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of the filing of such reports and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this
Prospectus.
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<PAGE> 6
THE COMPANY
The Company is principally engaged in the discovery,
development and commercialization of protein-based therapeutic
products, using recombinant DNA and other technologies, for the
treatment of a wide range of diseases and conditions, including
anemia, hemophilia, cancer, tissue damage, infectious disease,
cardiovascular disease and autoimmune diseases.
USE OF PROCEEDS
The Company intends to use any net proceeds from the exercise
of the Warrants for working capital and other corporate purposes
LEGALITY OF COMMON STOCK
The legality of the shares of Common Stock offered hereby is
being passed upon for the Company by Hale and Dorr, Boston,
Massachusetts.
EXPERTS
The Consolidated Financial Statements and schedules of the
Company as of November 30, 1993 and for the year then ended,
appearing in the Company's Annual Report on Form 10-K for the
fiscal year ended November 30, 1993 and incorporated by reference
in this Registration Statement, have been audited by Arthur
Andersen & Co., independent public accountants, as stated in the
report appearing therein and are included in reliance upon such
report given upon the authority of such firm as experts in
accounting and auditing.
The Consolidated Financial Statements and schedules of the
Company as of November 30, 1992 and for the two years in the
period then ended, appearing in the Company's Annual Report on
Form 10-K for the fiscal year ended November 30, 1993 and
incorporated by reference in this Registration Statement, have
been audited by Coopers & Lybrand, independent public accountants,
as stated in the report appearing therein and are included in
reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
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<PAGE> 7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
<TABLE>
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<CAPTION>
Expense
-------
<S> <C>
SEC Registration Fee...................... $17,736.75
Legal (including Blue Sky) and Accounting 5,000.00
Fees and Expenses......................... 2,500.00*
Miscellaneous............................. 2,000.00
----------
Total................................. $27,236.75
==========
<FN>
____________
*Estimated
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article TENTH of the Company's Restated Certificate of
Incorporation provides that no director of the Company shall be
liable for any breach of fiduciary duty, except to the extent that
the Delaware General Corporation Law prohibits the elimination of
limitation of liability of directors for breach of fiduciary duty.
Article ELEVENTH of the Company's Restated Certificate of
Incorporation provides that a director or officer of the Company
(a) shall be indemnified by the Company against all costs,
charges, expenses, (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in
connection with any litigation or other legal proceeding (other
than an action by or in the right of Genetics Institute) brought
against such person by virtue of such person's position as a
director or officer of the Company if such person acted in good
faith and in a manner such person reasonably believed to be in, or
not opposed to, the best interests of the Company, and, with
respect to any criminal action or proceeding, has no reasonable
cause to believe such person's conduct was unlawful and (b) shall
be indemnified by the Company against all costs, charges and
expenses (including attorneys' fees) actually and reasonably
incurred in connection with any action by or in the right of the
Company brought against such person by virtue or such person's
position as a director or officer of the Company if such person
acted in good faith and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the
Company, except that no indemnification shall be made with respect
to any such matters as to which such person shall have been
adjudged to be liable to the Company, unless a court determines
that, despite such adjudication, in view of all of the
circumstances, such person is entitled to indemnification of such
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<PAGE> 8
expenses. Notwithstanding the foregoing, to the extent that a
director or officer has been successful, on the merits or
otherwise, including without limitation, the dismissal of an
action without prejudice or the settlement of an action without
admission of liability, such person is required to be indemnified
by the Company against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred in connection
therewith. Expenses shall be advanced to a director or officer at
such person's request, provided that such person undertakes to
repay the amount advanced if it is ultimately determined that such
person is not entitled to indemnification or such expenses.
Indemnification is required to be made unless a majority of a
quorum of the disinterested directors of the Board of Directors,
or if no such quorum is met, independent legal counsel determines
that the applicable standard of conduct required for
indemnification has not been met. In the event of a determination
by a majority of a quorum of the disinterested directors of the
Board of Directors or, if no such quorum is met, independent legal
counsel that the director or officer did not meet the applicable
standard of conduct required for indemnification, or if the
Company fails to make a determination within 60 days after such
payment is claimed by such person, such person is permitted to
petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director
or officer must give the Company notice of the action for which
indemnity is sought and the Company has the right to participate
in such action or assume the defense thereof.
Article ELEVENTH of the Company's Restated Certificate of
Incorporation further provides that the indemnification set forth
therein is not exclusive, and provides that in the event that the
Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Company
must indemnify those persons to the fullest extent permitted by
such laws as so amended.
Substantially similar indemnification provisions are
contained in the By-laws of the Company.
<TABLE>
ITEM 16. EXHIBITS.
<S> <C> <C>
4.1 - Depositary Agreement among AHP, Holdings, the
Company and the Depositary. (1)
5.1 - Opinion of Hale and Dorr.
23.1 - Consent of Arthur Andersen & Co.
23.2 - Consent of Coopers & Lybrand.
</TABLE>
II-2
<PAGE> 9
<TABLE>
<S> <C> <C>
23.3 - Consent of Hale and Dorr (included in Exhibit 5.1).
24.1 - Power of Attorney for each person executing the
Registration Statement on behalf of Genetics
Institute, Inc. is contained in Page II-6 of this
Registration Statement.
<FN>
______________________
(1) Filed as an exhibit to the Company's Annual Report on
Form 10-K for the year ended November 30, 1991 and
incorporated herein by reference.
</TABLE>
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, as amended
(the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraph (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, 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.
II-3
<PAGE> 10
(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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered
therein and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 11
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and
controlling persons of the Company pursuant to the indemnification
provisions described herein, or otherwise, the Company 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 and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of
the Company in the successful defenses of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Company 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
and will be governed by the final adjudication of such issue.
II-5
<PAGE> 12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Boston, Commonwealth of Massachusetts, on the 25th day of April,
1994.
GENETICS INSTITUTE, INC.
By: /s/ Gabriel Schmergel
--------------------------------------
Gabriel Schmergel
President and Chief Executive Officer
We, the undersigned officers and directors of Genetics
Institute, Inc., hereby severally constitute and appoint Gabriel
Schmergel, Garen G. Bohlin and Lawrence V. Stein, and each of them
singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-3
filed herewith and any and all pre-effective and post-effective
amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers
and directors to enable Genetics Institute, Inc. to comply with
the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by
our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Witness our hands and common seal as of the date set forth
below.
Pursuant to the requirement of the Securities Act of 1933,
this Registration Statement has been signed below by the following
persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gabriel Schmergel President, Chief )
------------------------ Executive Officer and )
Gabriel Schmergel Director (Principal )
Executive Office) )
)
)
/s/ Garen G. Bohlin Executive Vice President )
------------------------ (Principal Financial and )
Garen G. Bohlin Accounting Officer) )
</TABLE>
II-6
<PAGE> 13
<TABLE>
<S> <C>
Chairman of the Board and )
------------------------ Director )
Benno C. Schmidt )
)
)
/s/ James G. Andress Director )
------------------------ )
James G. Andress )
)
/s/ Anthony B. Evnin Director ) April 25, 1994
------------------------ )
Anthony B. Evnin )
)
/s/ Fred Hassan Director )
------------------------ )
Fred Hassan )
)
/s/ Thomas P. Maniatis Director )
------------------------ )
Thomas P. Maniatis )
)
/s/ Robert I. Levy Director )
------------------------ )
Robert I. Levy )
</TABLE>
II-7
<PAGE> 1
EXHIBIT 5.1
-----------
HALE AND DORR
COUNSELLORS AT LAW
60 State Street, Boston, Massachusetts 02109
617-526-6000 - Fax 617-526-5000
April 25, 1994
Genetics Institute, Inc.
87 CambridgePark Drive
Cambridge, MA 02140
Gentlemen and Ladies:
We have assisted in the preparation of a Registration
Statement on Form S-3 (the "Registration Statement"), filed with
the Securities and Exchange Commission under the Securities Act of
1933, as amended, relating to the registration of 1,254,550
Depositary Shares, each representing one share of Common Stock,
$.01 par value per share, subject to a call option and evidenced
by a depositary receipt (the "Depositary Shares"), of Genetics
Institute, Inc. a Delaware corporation (the "Company") to be
issued upon the exercise of warrants to acquire Depositary Shares
(the "Warrants"), held by certain warrantholders of the Company.
We have examined the Restated Certificate of Incorporation of
the Company, the By-laws of the Company and all amendments thereto
and have examined and relied on originals, or copies certified to
our satisfaction, of such records of meetings, written actions in
lieu of meetings, or resolutions adopted at meetings, of the
directors of the Company, and such other documents and instruments
as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below.
In our examination of the foregoing documents, we have
assumed (i) the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, (ii) the conformity to
original documents of all documents submitted to us as certified
or photostatic copies and (iii) the authenticity of the originals
of the latter documents.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly and validly authorized and
issued and are fully paid and nonassessable.
<PAGE> 2
Genetics Institute, Inc.
April 25, 1994
Page 2
We hereby consent to the use of our name in the Registration
Statement and in the related Prospectus under the caption
"Legality of Common Stock" and to the filing of this opinion with
the Securities and Exchange Commission in connection with the
Registration Statement.
Very truly yours,
HALE AND DORR
<PAGE> 1
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 December 22, 1993 included in Genetics Institute, Inc.'s Form 10-K
for the year ended November 30, 1993 and to all references to our Firm
included in this registration statement.
Arthur Andersen & Co.
Boston, Massachusetts
April 22, 1994
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Genetics Institute, Inc. and subsidiaries on Form S-3 of
our reports dated December 29, 1992, on our audits of the consolidated
financial statements and financial statement schedules of Genetics
Institute, Inc. and subsidiaries as of November 30, 1992, and for the
years ended November 30, 1992 and 1991, which reports are included in
Genetic Institute's Inc. and subsidiaries Annual Report on Form 10-K.
We also consent to the reference to our firm under the caption
"Experts".
COOPERS & LYBRAND
Boston, Massachusetts
April 22, 1994
