As filed with the Securities and Exchange Commission on August 11, 1997
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
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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.
1997 Incentive 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)
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Amount maximum Proposed maximum Amount of
securities to to be offering price aggregate offering registration
be registered registered per share (1) price (1) fee
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Common Stock, 1,250,000
$.01 par value shares $2.35 $2,937,500 $891
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(1) Estimated solely for the purpose of determining the registration fee
pursuant to the provisions of Rule 457(h)(i) under the Securities Act of
1933, as amended, based on the average of the high and low sale prices per
share of the Registrant's Common Stock as quoted on the Nasdaq National
Market on August 6, 1997.
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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 latest Annual Report on Form 10-K which contains, either
directly or by incorporation by reference, audited financial
statements for the Company's latest fiscal year for which such
statements have been filed.
2. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (1) above.
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.
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<PAGE>
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 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 provides 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
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)
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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)
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 18,250 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)
5.1 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 5.1 to this Registration Statement.
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<PAGE>
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in the Signature page to the
Registration Statement).
99.1 GalaGen Inc. 1997 Incentive 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 herein by reference to Appendix A to the Company's 1997
Definitive Proxy Statement on Schedule 14A (File No. 0-27976).
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;
(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, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the 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.
(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, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to
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<PAGE>
the securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 August 6, 1997.
GALAGEN INC.
By /s/ Robert A. Hoerr
-------------------------------------
Robert A. Hoerr
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 August 6, 1997.
Signature Title
- --------- -----
/s/ Robert A. Hoerr President and Chief Executive Officer
- ------------------- (Principal Executive Officer)
Robert A. Hoerr
/s/ Gregg A. Waldon Vice President, Chief Financial Officer,
- ------------------- Secretary and Treasurer
Gregg A. Waldon (Principal Financial and Accounting Officer)
/s/ R. David Spreng Director
- -------------------
R. David Spreng
/s/ Arthur D. Collins, Jr. Director
- --------------------------
Arthur D. Collins, Jr.
/s/ Ronald O. Ostby Director
- -------------------
Ronald O. Ostby
/s/ Winston R. Wallin Director
- ---------------------
Winston R. Wallin
<PAGE>
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 Incorporated by
to Piper Jaffray Inc., dated January 26, 1993.(1)......................... Reference
4.3 Warrant to purchase 20,312 shares of Common Stock of the Company issued Incorporated by
to Gus Chafoulias, dated October 12, 1993.(1)............................. Reference
4.4 Warrant to purchase 20,312 shares of Common Stock of the Company issued Incorporated by
to John Pappajohn, dated October 12, 1993.(1)............................. Reference
4.5 Warrant to purchase 9,479 shares of Common Stock of the Company issued to Incorporated by
Cato Holding 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 Promissory Incorporated by
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 March 29, Incorporated by
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, dated March 29, Incorporated by
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, dated March 29, Incorporated by
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, dated March 29, Incorporated by
1995.(1).................................................................. Reference
4.11 Warrant to purchase 18,250 shares of Common Stock of the Company issued
to IAI Investment Funds VI, Inc. (IAI Emerging Growth Fund), dated Incorporated by
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), dated January 30, Incorporated by
1996.(1).................................................................. Reference
4.13 Warrant to purchase 25,000 shares of Common Stock of the Company issued Incorporated by
to John Pappajohn, dated February 2, 1996.(1)............................. Reference
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
4.14 Warrant to purchase 25,000 shares of Common Stock of the Company issued Incorporated by
to Edgewater Private Equity Fund, L.P., dated February 2, 1996.(1)........ Reference
4.15 Warrant to purchase 10,000 shares of Common Stock of the Company issued Incorporated by
to Joseph Giamenco, dated February 2, 1996.(1)............................ Reference
4.16 Warrant to purchase 25,000 shares of Common Stock of the Company issued Incorporated by
to Gus A. Chafoulias, dated February 2, 1996.(1).......................... Reference
4.17 Warrant to purchase 25,000 shares of Common Stock of the Company issued Incorporated by
to JIBS Equities, dated February 2, 1996.(1).............................. Reference
4.18 Warrant to purchase 25,000 shares of Common Stock of the Company issued Incorporated by
to Land O'Lakes, Inc., dated February 2, 1996.(1)......................... Reference
5.1 Opinion of Faegre & Benson LLP as to the legality of the shares being Electronic
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
24.1 Power of Attorney (included in the Signature page to the Registration Electronic
Statement). ....................................................................Transmission
Incorporated by
99.1 GalaGen Inc. 1997 Incentive 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 herein by reference to Appendix A to the Company's 1997
Definitive Proxy Statement on Schedule 14A (File No. 0-27976).
Exhibit 5.1
August 7, 1997
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 1,250,000 shares of Common Stock, par value $.01 per share
(the "Shares"), of GalaGen Inc., a Delaware corporation (the "Company"),
pursuant to the GalaGen Inc. 1997 Incentive 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,
FAEGRE & BENSON LLP
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. 1997 Incentive Plan of our report dated
January 31, 1997 with respect to the financial statements and schedules of
GalaGen Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
August 11, 1997
