<PAGE>
As filed with the Securities and Exchange Commission on June 7, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
GALAGEN INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 41-1719104
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4001 LEXINGTON AVENUE NORTH 55126
ARDEN HILLS, MINNESOTA (Zip Code)
(Address of principal executive offices)
GALAGEN INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Robert A. Hoerr, M.D., Ph. D.
President and Chief Executive Officer
GalaGen Inc.
4001 Lexington Avenue North
Arden Hills, Minnesota 55126
(Name and address of agent for service)
(612) 481-2105
(Telephone number, including area code, of agent for service)
______________________
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to be offering price offering registration
to be registered registered per share (1) price (1) fee
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Common Stock, 270,833
$.01 par value shares $8.44 $2,285,831 $789
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(1) Estimated solely for the purpose of the registration fee pursuant to
Rule 457(h) based on the average of the high and low sales prices per share
of the Registrant's Common Stock on May 31, 1996, as reported on
the Nasdaq National Market.
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<PAGE>
GALAGEN INC.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of GalaGen Inc. (the "Company") filed with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (File No. 0-27976), are,
as of their respective dates, incorporated in this Registration Statement by
reference and made a part hereof:
(1) The Company's prospectus dated March 27, 1996 and filed on March
28, 1996, pursuant to Rule 424(b) of the Securities Act of 1933,
as amended (the "Securities Act") (Registration No. 333-1032),
which contains audited financial statements for the Company's
fiscal years ended December 31, 1994 and 1995, and for each of
the three years in the period ended December 31, 1995.
(2) The Company's Form 10-Q for the quarter ended March 31, 1996,
filed pursuant to Section 13(a) of the Exchange Act.
(3) The description of the Company's Common Stock which is contained
in the Registration Statement on Form 8-A (Registration
No. 0-27976) filed on March 13, 1996 (and declared effective on
March 25, 1996) under the Exchange Act and all amendments and
reports filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all of the shares of Common Stock
offered have been sold or which deregisters all shares of the Common Stock then
remaining unsold shall be deemed to be incorporated by reference in and a part
of this Registration Statement from the date of filing of such 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 Registration Statement to the extent that a statement
contained herein or incorporated herein by reference or in any other
subsequently filed document that 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 Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may indemnify any person who was or
is a party or is threatened to be made a party to an action (other than an
action by or in the right of the corporation) by reason of his or her services
as a director or officer of the corporation, or his or her service, at the
corporation's request, as a
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director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees) that are actually and reasonably
incurred by him or her ("Expenses"), and judgments, fines and amounts paid in
settlement that are actually and reasonably incurred by him or her, in
connection with the defense or settlement of such action, provided that he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the corporation's best interests, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was unlawful. Although Delaware law permits a corporation to
indemnify any person referred to above against Expenses in connection with the
defense or settlement of an action by or in the right of the corporation,
provided that he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation's best interests, if such
person has been judged liable to the corporation, indemnification is only
permitted to the extent that the Court of Chancery (or the court in which the
action was brought) determines that, despite the adjudication of liability, such
person is entitled to indemnity for such Expenses as the court deems proper.
The General Corporation Law of the State of Delaware also provides for mandatory
indemnification of any director, officer, employee or agent against Expenses to
the extent such person has been successful in any proceeding covered by the
statute. In addition, the General Corporation Law of the State of Delaware
provides for the general authorization of advancement of a director's or
officer's litigation Expenses in lieu of requiring the authorization of such
advancement by the board of directors in specific cases, and that
indemnification and advancement of Expenses provided by the statute shall not be
deemed exclusive of any other rights to which those seeking indemnification of
Expenses may be entitled under any bylaw, agreement or otherwise.
The Company's Certificate of Incorporation and Bylaws currently
provide that the Company will indemnify directors, officers, employees and
agents in accordance with, and to the fullest extent permitted by, the
provisions of the Delaware General Corporation Law, as it may be amended from
time to time. The Certificate of Incorporation of the Company eliminates the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except under certain
circumstances involving certain wrongful acts such as breach of a director's
duty of loyalty, acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, for any unlawful acts
under Section 174 of the General Corporation Law of the State of Delaware, or
for any transaction from which a director derives an improper personal benefit.
Article V of the Bylaws of the Company for the broad indemnification of the
directors and officers of the Company and for advancement of litigation expenses
to the fullest extent required or permitted by current Delaware law.
The Company maintains a policy of directors and officers liability
insurance that reimburses the Company for expenses that it may incur in
conjunction with the foregoing indemnity provisions and that may provide direct
indemnification to officers and directors where the Company is unable to do so.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit Description
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4.1 Specimen Common Stock Certificate.(1)
4.2 Warrant to purchase 13,541 shares of Common Stock of the
Company issued to Piper Jaffray Inc., dated January 26,
1993.(1)
4.3 Warrant to purchase 20,312 shares of Common Stock of the
Company issued to Gus Chafoulias, dated October 12, 1993.(1)
4.4 Warrant to purchase 20,312 shares of Common Stock of the
Company issued to John Pappajohn, dated October 12, 1993.(1)
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4.5 Warrant to purchase 9,479 shares of Common Stock of the
Company issued to Cato Holding Company, dated June 21,
1994.(1)
4.6 Form of Common Stock Warrant to purchase shares of Common
Stock of the Company, issued in connection with the sale of
Convertible Promissory Notes.(1)
4.7 Warrant to purchase 17,144 shares of Series F-1 Convertible
Preferred Stock of the Company issued to Chiron Corporation,
dated March 29, 1995.(1)
4.8 Warrant to purchase 42,856 shares of Series F-2 Convertible
Preferred Stock of the Company issued to Chiron Corporation,
dated March 29, 1995.(1)
4.9 Warrant to purchase 60,000 shares of Series F-3 Convertible
Preferred Stock of the Company issued to Chiron Corporation,
dated March 29, 1995.(1)
4.10 Warrant to purchase 80,000 shares of Series F-3 Convertible
Preferred Stock of the Company issued to Chiron Corporation,
dated March 29, 1995.(1)
4.11 Warrant to purchase 18,750 shares of Common Stock of the
Company issued to IAI Investment Funds VI, Inc. (IAI
Emerging Growth Fund), dated January 30, 1996.(1)
4.12 Warrant to purchase 6,250 shares of Common Stock of the
Company issued to IAI Investment Funds IV, Inc. (IAI
Regional Fund), dated January 30, 1996.(1)
4.13 Warrant to purchase 25,000 shares of Common Stock of the
Company issued to John Pappajohn, dated February 2, 1996.(1)
4.14 Warrant to purchase 25,000 shares of Common Stock of the
Company issued to Edgewater Private Equity Fund, L.P., dated
February 2, 1996.(1)
4.15 Warrant to purchase 10,000 shares of Common Stock of the
Company issued to Joseph Giamenco, dated February 2,
1996.(1)
4.16 Warrant to purchase 25,000 shares of Common Stock of the
Company issued to Gus A. Chafoulias, dated February 2,
1996.(1)
4.17 Warrant to purchase 25,000 shares of Common Stock of the
Company issued to JIBS Equities, dated February 2, 1996.(1)
4.18 Warrant to purchase 25,000 shares of Common Stock of the
Company issued to Land O'Lakes, Inc., dated February 2,
1996.(1)
5 Opinion of Faegre & Benson LLP as to the legality of the
shares being registered.
23.1 Consent of Faegre & Benson LLP is contained in its opinion
filed as Exhibit 5 to this Registration Statement.
23.2 Consent of Ernst & Young LLP.
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24 Power of Attorney (included in the Signature page to the
Registration Statement).
99 GalaGen Inc. Employee Stock Purchase Plan.(2)
____________________
(1) Incorporated herein by reference to the same numbered Exhibit to the
Company's Registration Statement on Form S-1 (Registration No. 333-1032).
(2) Incorporated by reference to Exhibit 10.9 to the Company's Registration
Statement on Form S-1 (File No. 333-1032).
ITEM 9. UNDERTAKINGS.
A. The Company 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, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The 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 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
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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C. 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 foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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
defense 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Arden Hills, State of Minnesota, on May 9, 1996.
GALAGEN INC.
By /s/ ROBERT A. HOERR, M.D.
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Robert A. Hoerr, M.D.
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Robert A. Hoerr, M.D. and Gregg A. Waldon, or either of them, such person's true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution for such person and in such persons' name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-8 of
GalaGen Inc. and any or all amendments (including post-effective amendments) to
the Registration Statement, and to file the same, with all exhibits hereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their 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 has been signed by the following persons in the
capacities indicated on May 9, 1996.
Signature Title
- --------- -----
/s/ ROBERT A. HOERR, M.D.
- --------------------------------- President and Chief Executive Officer
Robert A. Hoerr, M.D. (Principal Executive Officer)
/s/ GREGG A. WALDON
- --------------------------------- Vice President, Chief Financial Officer,
Gregg A. Waldon Secretary and Treasurer
(Principal Financial and Accounting Officer)
/s/ R. DAVID SPRENG
- --------------------------------- Director
R. David Spreng
/s/ ARTHUR J. BENVENUTO
- --------------------------------- Director
Arthur J. Benvenuto
/s/ ARTHUR D. COLLINS, JR.
- --------------------------------- Director
Arthur D. Collins, Jr.
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/s/ STANLEY FALKOW, Ph.D.
- --------------------------------- Director
Stanley Falkow, Ph.D.
/s/ RONALD O. OSTBY
- --------------------------------- Director
Ronald O. Ostby
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Method
Exhibit Description of Filing
- ------- ----------- ---------
<S> <C> <C>
Incorporated by
4.1 Specimen Common Stock Certificate.(1).......... Reference
4.2 Warrant to purchase 13,541 shares of Common
Stock of the Company issued to Piper Jaffray Incorporated by
Inc., dated January 26, 1993.(1)............... Reference
4.3 Warrant to purchase 20,312 shares of Common
Stock of the Company issued to Gus Chafoulias, Incorporated by
dated October 12, 1993.(1)..................... Reference
4.4 Warrant to purchase 20,312 shares of Common
Stock of the Company issued to John Pappajohn, Incorporated by
dated October 12, 1993.(1)..................... Reference
4.5 Warrant to purchase 9,479 shares of Common
Stock of the Company issued to Cato Holding Incorporated by
Company, dated June 21, 1994.(1)............... Reference
4.6 Form of Common Stock Warrant to purchase shares
of Common Stock of the Company, issued in
connection with the sale of Convertible Incorporated by
Promissory Notes.(1)........................... Reference
4.7 Warrant to purchase 17,144 shares of Series
F-1 Convertible Preferred Stock of the Company
issued to Chiron Corporation, dated Incorporated by
March 29, 1995.(1)............................. Reference
4.8 Warrant to purchase 42,856 shares of Series
F-2 Convertible Preferred Stock of the Company
issued to Chiron Corporation, Incorporated by
dated March 29, 1995.(1)....................... Reference
4.9 Warrant to purchase 60,000 shares of Series F-3
Convertible Preferred Stock of the Company
issued to Chiron Corporation, Incorporated by
dated March 29, 1995.(1)....................... Reference
4.10 Warrant to purchase 80,000 shares of Series F-3
Convertible Preferred Stock of the Company
issued to Chiron Corporation, Incorporated by
dated March 29, 1995.(1)....................... Reference
4.11 Warrant to purchase 18,750 shares of Common
Stock of the Company issued to IAI Investment
Funds VI, Inc. (IAI Emerging Growth Fund), Incorporated by
dated January 30, 1996.(1)..................... Reference
4.12 Warrant to purchase 6,250 shares of Common
Stock of the Company issued to IAI Investment
Funds IV, Inc. (IAI Regional Fund), Incorporated by
dated January 30, 1996.(1)..................... Reference
4.13 Warrant to purchase 25,000 shares of Common
Stock of the Company issued to John Pappajohn, Incorporated by
dated February 2, 1996.(1)..................... Reference
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4.14 Warrant to purchase 25,000 shares of Common
Stock of the Company issued to Edgewater
Private Equity Fund, L.P., Incorporated by
dated February 2, 1996.(1)..................... Reference
4.15 Warrant to purchase 10,000 shares of Common
Stock of the Company issued to Joseph Giamenco, Incorporated by
dated February 2, 1996.(1)..................... Reference
4.16 Warrant to purchase 25,000 shares of Common
Stock of the Company issued to Incorporated by
Gus A. Chafoulias, dated February 2, 1996.(1).. Reference
4.17 Warrant to purchase 25,000 shares of Common
Stock of the Company issued to JIBS Equities, Incorporated by
dated February 2, 1996.(1)..................... Reference
4.18 Warrant to purchase 25,000 shares of Common
Stock of the Company issued to Land O'Lakes, Incorporated by
Inc., dated February 2, 1996.(1)............... Reference
5 Opinion of Faegre & Benson LLP as to the Electronic
legality of the shares being registered........ Transmission
23.1 Consent of Faegre & Benson LLP is contained
in its opinion filed as Exhibit 5 to this
Registration Statement.
Electronic
23.2 Consent of Ernst & Young LLP................... Transmission
24 Power of Attorney (included in the Signature Electronic
page to the Registration Statement)............ Transmission
Incorporated by
99 GalaGen Inc. Employee Stock Purchase Plan.(2).. Reference
</TABLE>
___________________________
(1) Incorporated herein by reference to the same numbered Exhibit to the
Company's Registration Statement on Form S-1 (Registration No. 333-1032).
(2) Incorporated by reference to Exhibit 10.9 to the Company's Registration
Statement on Form S-1 (File No. 333-1032).
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EXHIBIT 5
June 6, 1996
GalaGen Inc.
4001 Lexington Avenue North
Arden Hills, Minnesota 55126
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), relating
to the offering of up to 270,833 shares of Common Stock, par value $.01 per
share (the "Shares"), of GalaGen Inc., a Delaware corporation (the
"Company"), pursuant to the Employee Stock Purchase Plan, we have examined
such corporate records and other documents, including the Registration
Statement, and have reviewed such matters of law as we have deemed relevant
hereto, and, based upon such examination and review, it is our opinion that
all necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of the Shares and that, when issued and sold
as contemplated in the Registration Statement, the Shares will be legally and
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Faegre & Benson LLP
FAEGRE & BENSON LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the GalaGen Inc. Employee Stock Purchase
Plan of our report dated January 23, 1996 with respect to the financial
statements of GalaGen Inc. included in the Company's Registration Statement on
Form S-1 (No. 333-1032).
Ernst & Young LLP
Minneapolis, Minnesota
June 5, 1996
