<PAGE> 1
As filed with the Securities and Exchange Commission on December 16, 1997
Registration No. 333-33321
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DYNAGEN, INC.
(Exact name of Registrant as specified in its charter)
-----------------------------
<TABLE>
<S> <C> <C>
DELAWARE 2830 04-3029787
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
99 Erie Street
Cambridge, Massachusetts 02139
(617) 491-2527
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
DR. INDU A. MUNI, President
DynaGen, Inc.
Riverside Technology Center
840 Memorial Drive, 4th Floor
Cambridge, Massachusetts 02139
(617) 491-2527
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
JOHN M. HESSION, ESQ.
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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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./ /
In accordance with Rule 416 under the Securities Act, this Registration
Statement also covers such indeterminate number of additional shares of the
Registrant's Common Stock, $.01 par value, as may become issuable upon
conversion of the Registrant's Series A Preferred Stock, $.01 par value per
share (the "Series A Stock"), or the Registrant's Series B Preferred Stock, $.01
par value per share (the "Series B Stock"), to prevent dilution resulting from
stock splits, stock dividends or similar transactions or by reason of changes in
conversion price of the Series A Stock or Series B Stock in accordance with the
terms thereof.
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PART I
Part I of this Registration Statement has been intentionally omitted
because this Post-Effective Amendment No. 1 does not effect any changes to the
Prospectus.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an estimate of the expenses expected to
be incurred in connection with the issuance and distribution of the securities
being registered, other than underwriting compensation:
<TABLE>
<S> <C>
Registration Fee -- Securities and Exchange Commission..... $ 3,702
Nasdaq SmallCap Market additional listing fee.............. 7,500
Boston Stock Exchange additional listing fee............... 5,000
Blue Sky Fees and Expenses................................. 1,000
Accounting Fees and Expenses............................... 2,000
Legal Fees and Expenses.................................... 30,000
Transfer Agent Fees and Expenses........................... 1,000
Miscellaneous.............................................. 4,798
-----
TOTAL............................................. $ 55,000
======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a THE COMPANY IS A DELAWARE CORPORATION. SECTION 145 OF THE
DELAWARE GENERAL CORPORATION LAW, AS AMENDED, PROVIDES IN REGARD TO
INDEMNIFICATION OF DIRECTORS AND OFFICERS AS FOLLOWS:
"(a) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
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(b) A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of
a corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in subsections (a) and (b)
of this section. Such determination shall be made (1) by the board of directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (included attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any
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bylaw, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under this section.
(h) For purposes of this section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents so that any person who was a director, officer, employee or agent of
such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under this section with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person."
(b) ARTICLE 9 OF THE COMPANY'S CERTIFICATE OF INCORPORATION
CONTAINS THE FOLLOWING PROVISION RELATING TO THE INDEMNIFICATION OF DIRECTORS
AND OFFICERS:
"To the maximum extent permitted by Section 102(b)(7) of the General
Corporation Law of Delaware, a director of this Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing
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violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit."
(c) ARTICLE VII OF THE COMPANY'S BY-LAWS CONTAINS THE FOLLOWING
PROVISIONS RELATING TO INDEMNIFICATION OF OFFICERS AND DIRECTORS:
"Reference is made to Section 145 and any other relevant provisions of
the General Corporation Law of the State of Delaware. Particular reference is
made to the class of persons, hereinafter called "Indemnitees," who may be
indemnified by a Delaware corporation pursuant to the provisions of such Section
145, namely, any person or the heirs, executors, or administrators of such
person, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative, by reason of the fact that such
person is or was a director, officer, employee, or agent of such corporation or
is or was serving at the request of such corporation as a director, officer,
employee, or agent of such corporation or is or was serving at the request of
such corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise. The
Corporation shall, and is hereby obligated to, indemnify the Indemnitees, and
each of them in each and every situation where the Corporation is obligated to
make such indemnification pursuant to the aforesaid statutory provisions. The
Corporation shall indemnify the Indemnitees, and each of them, in each and every
situation where, under the aforesaid statutory provisions, the Corporation is
not obligated, but is nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making such indemnification
with respect to any situation covered under this sentence, (i) the Corporation
shall promptly make or cause to be made, by any of the methods referred to in
Subsection (d) of such Section 145, a determination as to whether each
Indemnitee acted in good faith and in a manner he reasonably believed to be in,
or not opposed to, the best interests of the Corporation, and, in the case of
any criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful, and (ii) that no such indemnification shall be made unless
it is determined that such Indemnitee acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, in the case of any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful."
ITEM 16. EXHIBITS.
The following exhibits, required by Item 601 of Regulation S-K, are
filed as a part of this Registration Statement. Exhibit numbers, where
applicable, in the left column correspond to those of Item 601 of Regulation
S-K.
Exhibit No. Item and Reference
4a -- Specimen Common Stock Certificate (filed as Exhibit 4a to the
Company's Registration Statement on Form S-18, No. 33-31836-B and
incorporated by reference).
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4b -- Certificate of Designations, Preferences and Rights of Series A
Preferred Stock of the Company (filed as Exhibit 4.13 to the
Company's Current Report on Form 8-K dated June 18, 1997 and
incorporated by reference).
4c -- Form of Securities Purchase Agreement among the Company and the
purchasers of Series A Preferred Stock (filed as Exhibit 4a to
the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1997 and incorporated by reference).
4d -- Registration Rights Agreement dated June 16, 1997 among the
Company and certain purchasers of Series A Preferred Stock (filed
as Exhibit 4.15 to the Company's Current Report on Form 8-K dated
June 18, 1997 and incorporated by reference).
4e -- Form of Common Stock Purchase Warrant issued by the Company to
the purchasers of Series A Preferred Stock (filed as Exhibit 4.16
to the Company's Current Report on Form 8-K dated June 18, 1997
and incorporated by reference).
4f -- Certificate of Designations, Preferences and Rights of Series B
Preferred Stock of the Company (filed as Exhibit 4.17 to the
Company's Current Report on Form 8-K dated June 18, 1997 and
incorporated by reference).
4g -- Securities Purchase Agreement dated June 17, 1997 between the
Company and Julius Baer Securities Inc. as agent for certain
non-U.S. persons (filed as Exhibit 4.18 to the Company's Current
Report on Form 8-K dated June 18, 1997 and incorporated by
reference).
4h -- Registration Rights Agreement dated June 17, 1997 between the
Company and Julius Baer Securities Inc. as agent for certain
non-U.S. persons (filed as Exhibit 4.19 to the Company's Current
Report on Form 8-K dated June 18, 1997 and incorporated by
reference).
4i -- Bridge Financing Purchase Agreement dated June 16, 1997 between
the Company and Coutts & Co. AG (filed as Exhibit 4.12 to the
Company's Current Report on Form 8-K dated June 18, 1997 and
incorporated by reference).
4j -- Master Registration Rights Agreement dated August 6, 1997 among
the Company and certain purchasers of Series A Preferred Stock
(filed as Exhibit 4b to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended September 30, 1997 and
incorporated by reference).
5 -- Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith).
23a -- Consent of Wolf & Company, P.C. dated November 25, 1997
(previously filed on November 26, 1997).
23b -- Consent of Grant Thornton LLP dated November 25, 1997 (previously
filed on November 26, 1997).
23c -- Consent of Feldman Radin & Co., P.C. dated November 25, 1997
(previously filed on November 26, 1997).
23d -- Consent of Testa, Hurwitz & Thibeault, LLP (see Exhibit 5).
24 -- Power of Attorney empowering Dhananjay G. Wadekar and Indu A.
Muni and each of them to execute this Registration Statement
(previously filed).
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the
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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.
(4) 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.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration statement
in reliance upon Rule 430A, and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h), under the Securities Act
shall be deemed to be part of this registration statement as of the time it was
declared effective.
(d) The undersigned registrant hereby undertakes that for the purpose
of determining any liability under the Securities Act of 1933, each
post-effective amendment that contains a form of prospectus 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.
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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
Post-Effective Amendment No. 1 to Registration Statement on Form S-3 to be
signed on its behalf by the undersigned, thereunto duly authorized in the City
of Cambridge, Commonwealth of Massachusetts on December 12, 1997.
DYNAGEN, INC.
By: /s/ DHANANJAY G. WADEKAR
------------------------
Dhananjay G. Wadekar
Chairman of the Board and
Executive Vice President
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Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Registration Statement on Form S-3 has been
signed below by the following persons on behalf of the Registrant and in the
capacities and on the dates indicated.
<TABLE>
Name Capacity Date
<S> <C> <C>
/s/ Dhananjay G. Wadekar Chairman of the Board, Executive December 12, 1997
- ------------------------ Vice President and Director
Dhananjay G. Wadekar
* President, Chief Executive Officer, December 12, 1997
- ------------------------ Treasurer, (Principal Executive,
Dr. Indu A. Muni Financial and Accounting Officer)
and Director
* Senior Vice President -- December 12, 1997
- ------------------------ Technology and Director
Dr. F. Howard Schneider
* Director December 12, 1997
- ------------------------
Steven Georgiev
Director
- ------------------------
Dr. Michael Sorell
</TABLE>
* By: /s/ Dhananjay G. Wadekar
------------------------
Dhananjay G. Wadekar
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
4a Specimen Common Stock Certificate (filed as Exhibit 4a to the
Company's Registration Statement on Form S-18, No. 33-31836-B and
incorporated by reference).
4b Certificate of Designations, Preferences and Rights of Series A
Preferred Stock of the Company (filed as Exhibit 4.13 to the
Company's Current Report on Form 8-K dated June 18, 1997 and
incorporated by reference).
4c Form of Securities Purchase Agreement among the Company and
the purchasers of Series A Preferred Stock (filed as Exhibit 4a
to the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 1997 and incorporated by reference).
4d Registration Rights Agreement dated June 16, 1997 among the
Company and certain purchasers of Series A Preferred Stock
(filed as Exhibit 4.15 to the Company's Current Report on Form
8-K dated June 18, 1997 and incorporated by reference).
4e Form of Common Stock Purchase Warrant issued by the Company to
the purchasers of Series A Preferred Stock (filed as Exhibit 4.16
to the Company's Current Report on Form 8-K dated June 18, 1997
and incorporated by reference).
4f Certificate of Designations, Preferences and Rights of Series B
Preferred Stock of the Company (filed as Exhibit 4.17 to the
Company's Current Report on Form 8-K dated June 18, 1997 and
incorporated by reference).
4g Securities Purchase Agreement dated June 17, 1997 between the
Company and Julius Baer Securities Inc. as agent for certain
non-U.S. persons (filed as Exhibit 4.18 to the Company's Current
Report on Form 8-K dated June 18, 1997 and incorporated by
reference).
4h Registration Rights Agreement dated June 17, 1997 between the
Company and Julius Baer Securities Inc. as agent for certain
non-U.S. persons (filed as Exhibit 4.19 to the Company's Current
Report on Form 8-K dated June 18, 1997 and incorporated by
reference).
4i Bridge Financing Purchase Agreement dated June 16, 1997 between
the Company and Coutts & Co. AG (filed as Exhibit 4.12 to the
Company's Current Report on Form 8-K dated June 18, 1997 and
incorporated by reference).
4j Master Registration Rights Agreement dated August 6, 1997 among
the Company and certain purchasers of Series A Preferred Stock
(filed as Exhibit 4b to the Company's Quarterly Report on Form
10-Q for the fiscal quarter ended September 30, 1997 and
incorporated by reference).
<PAGE> 13
5 Legal Opinion of Testa, Hurwitz & Thibeault, LLP (filed
herewith).
23a Consent of Wolf & Company, P.C. dated November 25, 1997
(previously filed on November 26, 1997).
23b Consent of Grant Thornton LLP dated November 25, 1997 (previously
filed on November 26, 1997).
23c Consent of Feldman Radin & Co., P.C. dated November 25, 1997
(previously filed on November 26, 1997).
23d Consent of Testa, Hurwitz & Thibeault, LLP (see Exhibit 5).
24 Power of Attorney empowering Dhananjay G. Wadekar and Indu A.
Muni and each of them to execute this Registration Statement
(previously filed).
<PAGE> 1
Exhibit 5
December 1, 1997
DynaGen, Inc.
Riverside Technology Center
840 Memorial Drive, 4th Floor
Cambridge, MA 02139
RE: Form S-3 Registration Statement
Ladies and Gentlemen:
We are counsel to DynaGen, Inc., a Delaware corporation (the
"Company"), and have represented the Company in connection with the preparation
and filing of the Company's Registration Statement on Form S-3, as amended (the
"Registration Statement"), relating to the proposed resale from time to time of
up to 29,086,600 shares of the Company's Common Stock, par value $.01 per share
(the "Shares"), by the stockholders listed under the heading "Selling
Stockholders" in the Registration Statement (the "Selling Stockholders").
21,621,000 of the Shares are issuable upon conversion of 48,200 shares of the
Company's Series A Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock"), issued to certain of the Selling Stockholders; 3,545,000 of
the Shares are issuable upon conversion of 12,515 shares of the Company's Series
B Preferred Stock, par value $.01 per share (the "Series B Preferred Stock"),
issued to certain of the Selling Stockholders; 385,600 of the Shares are
issuable upon the exercise of Common Stock Purchase Warrants (the "Warrants")
issued to certain of the Selling Stockholders; 525,000 of the Shares were issued
in connection with the Company's June 1997 private placement of its Series B
Preferred Stock and its Subordinated Note due September 30, 1997 to certain of
the Selling Stockholders; and 3,010,000 of the Shares were issued to Selling
Stockholders in consideration of services rendered to the Company by such
Selling Stockholders.
We have reviewed the corporate proceedings taken by the Company with
respect to the authorization of the issuance of the Series A Preferred Stock,
the Series B Preferred Stock, the Warrants and the Shares. We have also examined
and relied upon originals or copies, certified or otherwise authenticated to our
satisfaction, of all corporate records, documents, agreements or other
instruments of the Company and the Selling Stockholders and have made all
investigations of law and have discussed with the Company's and Selling
Stockholders' representatives all questions of fact that we have deemed
necessary or appropriate.
<PAGE> 2
DynaGen, Inc.
December 1, 1997
Page 2
Based upon and subject to the foregoing, we are of the opinion that any
currently outstanding Shares are, and any Shares issuable upon future conversion
of the Series A Preferred Stock or Series B Preferred Stock or upon future
exercise of the Warrants, when issued in accordance with the terms of the Series
A Preferred Stock, the Series B Preferred Stock or the Warrants, as the case may
be, will be, validly 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,
TESTA, HURWITZ & THIBEAULT, LLP
