<PAGE>
As filed with the Securities and Exchange Commission on September 29, 1998.
Registration No. 333-_______
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
-----------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
GALAGEN INC.
(Exact name of the 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
Arden Hills, Minnesota 55126
(651) 481-2105
(Address and telephone number of the Registrant's
principal executive offices)
Robert A. Hoerr
President and Chief Executive Officer
GalaGen Inc.
4001 Lexington Avenue North
Arden Hills, Minnesota 55126
(651) 481-2105
(Name, address and telephone number of agent for service)
-----------------------------
copy to:
Kris Sharpe
Faegre & Benson LLP
2200 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
-----------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
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, check the following
box and list the Securities Act registration statement number of 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 box. / /
<PAGE>
CALCULATION OF REGISTRATION FEE(1)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(2) PRICE(2) FEE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value $1.688 470,938 $794,943 $234.51
Shares
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</TABLE>
(1) Pursuant to Rule 429, the Prospectus contained herein also relates to
270,938 shares of Common Stock registered on Form S-3, Registration
No. 333-41151. Registration fees of $184.73 relate to such shares and were
previously paid with such registration statement.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
-----------------------------
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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
Pursuant to Rule 429, the Prospectus contained herein also relates
to shares of Common Stock registered on Form S-3, Registration No. 333-41151.
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
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 SEPTEMBER 29, 1998
741,876 SHARES
GALAGEN INC.
COMMON STOCK
This Prospectus relates to shares of Common Stock of GalaGen Inc.
(the "Company") that may be sold by the Selling Stockholders. See "Selling
Stockholders." The shares may be obtained by the Selling Stockholders
through the conversion of the Company's 6% Convertible Debentures due May 18,
1999 (the "Debentures") or the exercise of related Stock Purchase Warrants
(the "Warrants"), which Debentures and Warrants were purchased pursuant to
the 6% Convertible Debenture Purchase Agreement dated November 18, 1997 (the
"Purchase Agreement"). The Company will not receive any of the proceeds from
the sale of shares by the Selling Stockholders.
The Company's Common Stock is traded on the Nasdaq National Market
under the symbol "GGEN." On September 23, 1998, the last sale price for the
Common Stock, as reported on the Nasdaq National Market, was $1.75 per share.
See "Price Range of Common Stock and Dividend Policy."
The distribution of the shares of Common Stock offered hereby by the
Selling Stockholders may be effected from time to time (but no later than
December 31, 1999) in one or more transactions on the Nasdaq National Market or
otherwise, in negotiated transactions, through the writing of options on shares
(whether the options are listed on an options exchange or otherwise), or a
combination of such methods of sale, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. Such shares may also be sold pursuant to Rule 144 adopted under the
Securities Act of 1933, as amended (the "Securities Act"), at such times as such
sales are permitted pursuant to such Rule. The Selling Stockholders may effect
such transactions by selling shares to or through broker-dealers, and these
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Stockholders and/or purchasers of
shares for whom they may act as agent (which compensation may be in excess of
customary commissions). See "Plan of Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE 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 to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus in connection with the offer made by this Prospectus, and, if given
or made, such information or representations must not be relied upon as having
been authorized. This Prospectus does not constitute an offer or solicitation
by anyone in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation. The delivery of this Prospectus at any time shall not
under any circumstances create an implication that there has been no change in
the affairs of the Company since the date hereof.
THE DATE OF THIS PROSPECTUS IS ___________, 1998
<PAGE>
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, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the Public
Reference Room maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661, and 7 World Trade Center,
New York, New York 10048. Information may be obtained on the operation of the
Public Reference Room by calling the Commission at 1-800-SEC-0330. Copies of
such material may be obtained at prescribed rates from the public reference
facilities of the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549. The Commission maintains a Web site that contains reports, proxy
statements and other information filed by the Company at: http://www.sec.gov.
This Prospectus constitutes a part of a registration statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") filed by the Company with the Commission under the
Securities Act. This Prospectus omits certain of the information contained in
the Registration Statement, and reference is hereby made to the Registration
Statement for further information with respect to the Company, and the Common
Stock offered hereby. Any statements contained herein concerning the provisions
of any document are not necessarily complete, and, in each instance, reference
is made to the copy of the document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 0-27976) pursuant to the Exchange Act are incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1997 (which incorporates by reference certain portions of the
Company's 1997 Annual Report to Stockholders, including financial
statements and accompanying information, and certain portions of the
Company's definitive proxy statement for the Company's 1997 Annual Meeting
of Stockholders);
(ii) the Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31 and June 30, 1998;
(iii) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on
March 13, 1996;
(iv) all other documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of an offering of the
shares of Common Stock offered hereby by the Selling Stockholders.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 that also is or is deemed to be
incorporated herein or in an accompanying Prospectus Supplement by reference)
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed to constitute a part hereof or an accompanying
Prospectus Supplement except as so modified or superseded.
The Company will provide without charge to each person, including any
beneficial holder, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any or all of the
documents which are incorporated herein by reference (other than exhibits to
such documents unless those exhibits are specifically incorporated therein by
reference). Requests should be directed to GalaGen Inc., 4001 Lexington Avenue
North, Arden Hills, Minnesota 55126, Attn: Secretary, telephone (651) 481-2169.
2
<PAGE>
THE COMPANY
GalaGen Inc. is a nutritional products company that is utilizing its
proprietary immune boosting technology and patented manufacturing processes to
commercialize health-promoting foods and beverages. The Company continues to
expand applications for its Proventra-TM- Brand Natural Immune Components
technology and develop a portfolio of Proventra based products that target the
needs of consumers and the healthcare market. The Company currently has Basics
Plus in test markets in conjunction with its marketing and manufacturing
partner, Lifeway Foods, Inc., and has several other projects under way in
various stages of development.
The Company is a Delaware corporation formed in 1992. Its executive
offices are located at 4001 Lexington Avenue North, Arden Hills, Minnesota
55126, and its telephone number is (651) 481-2105.
RECENT DEVELOPMENTS
On September 2, 1998 the Company announced that it had entered into
an Asset Purchase Agreement (the "Agreement") with Nutrition Medical, Inc.
("NMED") to acquire NMED's developed line of critical care enteral nutrition
products and formulas. The products were recently introduced and are being
sold to the hospital and home healthcare industries.
The acquisition is subject to NMED stockholder approval that is
expected in November 1998. According to the terms of the Agreement, GalaGen
will purchase substantially all of NMED's critical care enteral nutrition
products and formulas, all related inventory and certain other assets
including the existing customer base. The aggregate purchase price is
$800,000, comprised of $175,000 in cash and shares of the Company's Common
Stock for the balance. The Company also announced that it had entered into a
marketing agreement with NMED that provided the Company with the rights to
commence selling the purchased products as of September 1, 1998. The interim
marketing agreement will terminate upon closing of the transactions
contemplated by the Asset Purchase Agreement.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Company's Common Stock has traded on the Nasdaq National Market
under the symbol GGEN since the Company's initial public offering in March 1996.
The following table sets forth, for the periods indicated, the reported high and
low sale prices of the Common Stock on the Nasdaq National Market for the
periods indicated, as reported by the Nasdaq National Market.
<TABLE>
<CAPTION>
HIGH LOW
---- ---
<S> <C> <C>
1996:
First Quarter (from March 27, 1996). . . . . . . . $10.750 $10.000
Second Quarter . . . . . . . . . . . . . . . . . . 10.375 7.125
Third Quarter. . . . . . . . . . . . . . . . . . . 7.500 3.813
Fourth Quarter . . . . . . . . . . . . . . . . . . 6.125 4.000
1997:
First Quarter. . . . . . . . . . . . . . . . . . . $4.625 $1.750
Second Quarter . . . . . . . . . . . . . . . . . . 3.250 2.000
Third Quarter. . . . . . . . . . . . . . . . . . . 2.750 2.000
Fourth Quarter . . . . . . . . . . . . . . . . . . 2.375 1.500
1998
First Quarter. . . . . . . . . . . . . . . . . . . $2.250 $0.844
Second Quarter . . . . . . . . . . . . . . . . . . 3.313 1.563
Third Quarter (through September 18, 1998). . . . 4.000 1.750
</TABLE>
The Company has never declared or paid any cash dividends on its
Common Stock. The Company currently does not anticipate paying any cash
dividends in the foreseeable future.
3
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information regarding
beneficial ownership of the Company's Common Stock as of September 18, 1998 and
as adjusted to reflect the sale of shares offered by this Prospectus by each
Selling Stockholder. As used herein, "Selling Stockholders" includes donees and
pledgees selling shares received from a named Selling Stockholder after the date
of this Prospectus (percentages are based on 8,308,619 shares outstanding on
September 18, 1998).
<TABLE>
<CAPTION>
SHARES OWNED SHARES OWNED
PRIOR TO OFFERING (1) AFTER OFFERING (2)
--------------------- -------------------
PERCENT OF SHARES PERCENT OF
NAME NUMBER OUTSTANDING OFFERED NUMBER OUTSTANDING
- -------------------------- ------- ----------- ------- ------ -----------
<S> <C> <C> <C> <C> <C>
CPR (USA) Inc. 417,043 4.78 417,043 0 -
Libertyview Plus Fund 66,439 * 66,439 0 -
Libertyview Fund, LLC 16,809 * 16,809 0 -
</TABLE>
___________________
* Less than 1%.
(1) Assumes full conversion of the Debentures held by such Selling
Stockholders at a share price equal to 82-1/2% of the lowest sale price
of the Company's Common Stock on the Nasdaq National Market during the
three trading days ended September 18, 1998. Also assumes full exercise
of the Warrants held by such Selling Stockholders.
(2) Assumes sale of all shares of the Selling Stockholders offered hereby.
PLAN OF DISTRIBUTION
The distribution of the shares of Common Stock offered hereby by the
Selling Stockholders may be effected from time to time (but no later than
December 31, 1999) in one or more transactions on the Nasdaq National Market or
otherwise, in the over-the-counter market, in negotiated transactions, through
the writing of options on shares (whether the options are listed on an options
exchange or otherwise), or a combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. Such shares may also be sold pursuant to
Rule 144 adopted under the Securities Act at such times as such sales are
permitted pursuant to such Rule. The Selling Stockholders may effect such
transactions by selling shares to or through broker-dealers, and these
broker-dealers may receive compensation in the form of underwriting discounts,
concessions or commissions from the Selling Stockholders and/or purchasers of
shares for whom they may act as agent (which compensation may be in excess of
customary commissions). The Selling Stockholders and broker-dealers that
participate with the Selling Stockholders in the distribution of shares may be
deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and any profit on the
resale of shares may be deemed to be underwriting compensation.
LEGAL OPINIONS
The validity of the shares of Common Stock offered hereby will be
passed upon for the Company by Faegre & Benson LLP, 2200 Norwest Center,
Minneapolis, Minnesota 55402.
EXPERTS
The financial statements of GalaGen Inc. appearing in GalaGen Inc.'s
Annual Report on Form 10-K for the year ended December 31, 1997, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
thereon included therein and incorporated herein by reference. Such financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
4
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Expenses in connection with the issuance and distribution of the
shares of Common Stock being registered hereunder other than underwriting
commissions and expenses, are estimated below.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee . . . . . . . . . . . . $ 235
Nasdaq listing fee . . . . . . . . . . . . . 0
Legal services and expenses. . . . . . . . . 5,000
Accounting services and expenses . . . . . . 1,000
Printing fees. . . . . . . . . . . . . . . . 500
Miscellaneous. . . . . . . . . . . . . . . . 765
--------
Total . . . . . . . . . . . . . . . . . $ 7,500
--------
--------
</TABLE>
Except for the SEC registration fee and the Nasdaq listing fee, all of
the foregoing expenses have been estimated. The Selling Stockholders will bear
fees and disbursements of their own legal counsel and transfer taxes. The
Company will bear all other expenses.
ITEM 15. 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 Restated 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.
The Company's Restated Certificate of Incorporation and Restated Bylaws provide
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.
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
------
<S> <C>
3.1 Restated Certificate of Incorporation of the Company. (1)
3.2 Restated Bylaws of the Company. (2)
4.1 Specimen Common Stock Certificate. (3)
4.2 Warrant to purchase 13,541 shares of Common Stock of the Company
issued to Piper Jaffray Inc., dated January 26, 1993. (3)
4.3 Warrant to purchase 20,312 shares of Common Stock of the Company
issued to Gus A. Chafoulias, dated October 12, 1993. (3)
4.4 Warrant to purchase 20,312 shares of Common Stock of the Company
issued to John Pappajohn, dated October 12, 1993. (3)
4.5 Warrant to purchase 9,479 shares of Common Stock of the Company
issued to Cato Holding Company, dated June 21, 1994. (3)
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. (3)
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. (3)
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. (3)
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. (3)
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. (3)
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. (3)
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. (3)
4.13 Warrant to purchase 25,000 shares of Common Stock of the Company
issued to John Pappajohn, dated February 2, 1996. (3)
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. (3)
4.15 Warrant to purchase 10,000 shares of Common Stock of the Company
issued to Joseph Giamenco, dated February 2, 1996. (3)
4.16 Warrant to purchase 25,000 shares of Common Stock of the Company
issued to Gus A Chafoulias, dated February 2, 1996. (3)
4.17 Warrant to purchase 25,000 shares of Common Stock of the Company
issued to JIBS Equities, dated February 2, 1996. (3)
4.18 Warrant to purchase 25,000 shares of Common Stock of the Company
issued to Land O'Lakes, Inc., dated February 2, 1996. (3)
4.19 6% Convertible Debenture Purchase Agreement dated November 18, 1997
among the Company and the Purchasers named therein. (4)
4.20 Registration Rights Agreement dated November 18, 1997 among the
Company and the Holders named therein. (5)
4.21 6% Convertible Debenture due May 18, 1999 issued to CPR (USA) Inc.
dated November 18, 1997. (6)
4.22 6% Convertible Debenture due May 18, 1999 issued to Libertyview
Plus Fund dated November 18, 1997. (7)
4.23 6% Convertible Debenture due May 18, 1999 issued to Libertyview
Fund, LLC dated November 18, 1997. (8)
4.24 Stock Purchase Warrant issued to CPR (USA) Inc. dated November 18,
1997. (9)
4.25 Stock Purchase Warrant issued to Libertyview Plus Fund dated
November 18, 1997. (10)
4.26 Stock Purchase Warrant issued to Libertyview Fund, LLC dated
November 18, 1997. (11)
4.27 Warrant issued to CLARCO Holdings dated as of December 1, 1997.(12)
II-2
<PAGE>
4.28 Warrant issued to CLARCO Holdings dated as of December 1, 1997. (13)
4.29 Warrant issued to CLARCO Holdings dated as of December 1, 1997. (14)
4.30 Warrant issued to Henry J. Cardello dated as of April 13, 1998. (15)
4.31 Warrant issued to Henry J. Cardello dated as of April 30, 1998. (15)
4.32 Warrant issued to Henry J. Cardello dated as of June 19, 1998. (15)
5 Opinion of Faegre & Benson LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Faegre & Benson LLP (included in Exhibit 5).
24 Powers of Attorney of directors and officers of the Company.
</TABLE>
___________________
(1) Incorporated herein by reference to Exhibit No. 3.2 to the
Company's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1996 (File No. 0-27976).
(2) Incorporated by reference to Exhibit 3.4 of the Company's
Registration Statement on Form S-1 (Registration No.
333-1032)
(3) Incorporated herein by reference to the same numbered
Exhibit to the Company's Registration Statement on Form S-1
(Registration No. 333-1032).
(4) Incorporated herein by reference to Exhibit No. 4.4 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(5) Incorporated herein by reference to Exhibit No. 4.5 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(6) Incorporated herein by reference to Exhibit No. 4.6 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(7) Incorporated herein by reference to Exhibit No. 4.7 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(8) Incorporated herein by reference to Exhibit No. 4.8 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(9) Incorporated herein by reference to Exhibit No. 4.9 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(10) Incorporated herein by reference to Exhibit No. 4.10 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(11) Incorporated herein by reference to Exhibit No. 4.11 to the
Company's Registration Statement on Form S-3 (Registration
No. 333-41151).
(12) Incorporated herein by reference to Exhibit No. 4.12 to
Amendment No. 1 to the Company's Registration Statement on
Form S-3 (Registration No. 333-41151).
(13) Incorporated herein by reference to Exhibit No. 4.13 to
Amendment No. 1 to the Company's Registration Statement on
Form S-3 (Registration No. 333-41151).
(14) Incorporated herein by reference to Exhibit No. 4.14 to
Amendment No. 1 to the Company's Registration Statement on
Form S-3 (Registration No. 333-41151).
(15) Incorporated herein by reference to the same numbered
Exhibit to the Company's Quarterly Report on Form 10-Q for
the quarterly period ending June 30, 1998 (File No. 0-27976).
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, (ii) to reflect in the prospectus any facts
or events arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the information
set forth in the 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 (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
II-3
<PAGE>
Section 13 or 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 such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and 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 herein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned 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 Arden Hills, State of Minnesota, on
September 28, 1998.
GALAGEN, INC.
(Registrant)
By /s/ ROBERT A. HOERR
------------------------------------------
Robert A. Hoerr, M.D., Ph.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on September 28, 1998 by the following
persons in the capacities indicated:
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 (Principal Financial
Gregg A. Waldon and Accounting Officer)
STANLEY FALKOW, PH.D. )
ROBERT A. HOERR, M.D., PH.D. )
RONALD O. OSTBY ) A majority of the Board of Directors*
R. DAVID SPRENG )
_____________________________
* Gregg A. Waldon, by signing his name hereto, does hereby sign this document
on behalf off each of the above-named officers or directors pursuant to
powers of attorney duly executed by such persons.
/s/ GREGG A. WALDON
---------------------------------------
Gregg A. Waldon
ATTORNEY-IN-FACT
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
- ------- ----------- ----
<S> <C> <C>
3.1 Restated Certificate of Incorporation of the Company. (1) INCORPORATED BY REFERENCE
3.2 Restated Bylaws of the Company. (2) INCORPORATED BY REFERENCE
4.1 Specimen Common Stock Certificate. (3) INCORPORATED BY REFERENCE
4.2 Warrant to purchase 13,541 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to Piper Jaffray Inc., dated January 26, 1993. (3)
4.3 Warrant to purchase 20,312 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to Gus A. Chafoulias, dated October 12, 1993. (3)
4.4 Warrant to purchase 20,312 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to John Pappajohn, dated October 12, 1993. (3)
4.5 Warrant to purchase 9,479 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to Cato Holding Company, dated June 21, 1994. (3)
4.6 Form of Common Stock Warrant to purchase shares of Common Stock of the INCORPORATED BY REFERENCE
Company, issued in connection with the sale of Convertible Promissory
Notes. (3)
4.7 Warrant to purchase 17,144 shares of Series F-1 Convertible Preferred INCORPORATED BY REFERENCE
Stock of the Company issued to Chiron Corporation, dated March 29, 1995.(3)
4.8 Warrant to purchase 42,856 shares of Series F-2 Convertible Preferred INCORPORATED BY REFERENCE
Stock of the Company issued to Chiron Corporation, dated March 29, 1995.(3)
4.9 Warrant to purchase 60,000 shares of Series F-3 Convertible Preferred INCORPORATED BY REFERENCE
Stock of the Company issued to Chiron Corporation, dated March 29, 1995.(3)
4.10 Warrant to purchase 80,000 shares of Series F-3 Convertible Preferred INCORPORATED BY REFERENCE
Stock of the Company issued to Chiron Corporation, dated March 29, 1995.(3)
4.11 Warrant to purchase 18,250 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to IAI Investment Funds VI, Inc. (IAI Emerging Growth Fund), dated
January 30, 1996. (3)
4.12 Warrant to purchase 6,250 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to IAI Investment Funds IV, Inc. (IAI Regional Fund), dated January 30,
1996. (3)
4.13 Warrant to purchase 25,000 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to John Pappajohn, dated February 2, 1996. (3)
4.14 Warrant to purchase 25,000 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to Edgewater Private Equity Fund, L.P., dated February 2, 1996. (3)
4.15 Warrant to purchase 10,000 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to Joseph Giamenco, dated February 2, 1996. (3)
4.16 Warrant to purchase 25,000 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to Gus A Chafoulias, dated February 2, 1996. (3)
4.17 Warrant to purchase 25,000 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to JIBS Equities, dated February 2, 1996. (3)
4.18 Warrant to purchase 25,000 shares of Common Stock of the Company issued INCORPORATED BY REFERENCE
to Land O'Lakes, Inc., dated February 2, 1996. (3)
4.19 6% Convertible Debenture Purchase Agreement dated November 18, 1997 INCORPORATED BY REFERENCE
among the Company and the Purchasers named therein. (4)
4.20 Registration Rights Agreement dated November 18, 1997 among the Company INCORPORATED BY REFERENCE
and the Holders named therein. (5)
4.21 6% Convertible Debenture due May 18, 1999 issued to CPR (USA) Inc. dated INCORPORATED BY REFERENCE
November 18, 1997. (6)
4.22 6% Convertible Debenture due May 18, 1999 issued to Libertyview Plus INCORPORATED BY REFERENCE
Fund dated November 18, 1997. (7)
<PAGE>
4.23 6% Convertible Debenture due May 18, 1999 issued to Libertyview Fund, INCORPORATED BY REFERENCE
LLC dated November 18, 1997. (8)
4.24 Stock Purchase Warrant issued to CPR (USA) Inc. dated November 18, 1997.(9) INCORPORATED BY REFERENCE
4.25 Stock Purchase Warrant issued to Libertyview Plus Fund dated November INCORPORATED BY REFERENCE
18, 1997. (10)
4.26 Stock Purchase Warrant issued to Libertyview Fund, LLC dated November INCORPORATED BY REFERENCE
18, 1997. (11)
4.27 Warrant issued to CLARCO Holdings dated as of December 1, 1997. (12) INCORPORATED BY REFERENCE
4.28 Warrant issued to CLARCO Holdings dated as of December 1, 1997. (13) INCORPORATED BY REFERENCE
4.29 Warrant issued to CLARCO Holdings dated as of December 1, 1997. (14) INCORPORATED BY REFERENCE
4.30 Warrant issued to Henry J. Cardello dated as of April 13, 1998. (15) INCORPORATED BY REFERENCE
4.31 Warrant issued to Henry J. Cardello dated as of April 30, 1998. (15) INCORPORATED BY REFERENCE
4.32 Warrant issued to Henry J. Cardello dated as of June 19, 1998. (15) INCORPORATED BY REFERENCE
5 Opinion of Faegre & Benson LLP. FILED ELECTRONICALLY
23.1 Consent of Ernst & Young LLP. FILED ELECTRONICALLY
23.2 Consent of Faegre & Benson LLP (included in Exhibit 5). FILED ELECTRONICALLY
24 Powers of Attorney of directors and officers of the Company. FILED ELECTRONICALLY
</TABLE>
___________________
(1) Incorporated herein by reference to Exhibit No. 3.2 to the Company's
Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1996 (File No. 0-27976).
(2) Incorporated by reference to Exhibit 3.4 of the Company's
Registration Statement on Form S-1 (Registration No. 333-1032)
(3) Incorporated herein by reference to the same numbered Exhibit to the
Company's Registration Statement on Form S-1 (Registration No.
333-1032).
(4) Incorporated herein by reference to Exhibit No. 4.4 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(5) Incorporated herein by reference to Exhibit No. 4.5 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(6) Incorporated herein by reference to Exhibit No. 4.6 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(7) Incorporated herein by reference to Exhibit No. 4.7 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(8) Incorporated herein by reference to Exhibit No. 4.8 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(9) Incorporated herein by reference to Exhibit No. 4.9 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(10) Incorporated herein by reference to Exhibit No. 4.10 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(11) Incorporated herein by reference to Exhibit No. 4.11 to the Company's
Registration Statement on Form S-3 (Registration No. 333-41151).
(12) Incorporated herein by reference to Exhibit No. 4.12 to Amendment
No. 1 to the Company's Registration Statement on Form S-3
(Registration No. 333-41151).
(13) Incorporated herein by reference to Exhibit No. 4.13 to Amendment
No. 1 to the Company's Registration Statement on Form S-3
(Registration No. 333-41151).
(14) Incorporated herein by reference to Exhibit No. 4.14 to Amendment
No. 1 to the Company's Registration Statement on Form S-3
(Registration No. 333-41151).
(15) Incorporated herein by reference to the same numbered Exhibit to the
Company's Quarterly Report on Form 10-Q for the quarterly period
ending June 30, 1998 (File No. 0-27976).
<PAGE>
EXHIBIT 5
FAEGRE & BENSON LLP
2200 NORWEST CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MINNESOTA 55402-3901
612/336-3000
FACSIMILE 612/336-3026
September 25, 1998
GalaGen Inc.
4001 Lexington Avenue North
Arden Hills, Minnesota 55126
Ladies and Gentlemen:
In connection with the proposed registration under the
Securities Act of 1933, as amended, of 470,938 shares of Common Stock, par value
$.01 per share, of GalaGen Inc., a Delaware corporation (the "Company"),
proposed to be sold by certain Selling Stockholders of the Company, we have
examined such corporate records and other documents, including the Registration
Statement on Form S-3, dated the date hereof, relating to such shares (the
"Registration Statement"), and have reviewed such matters of law as we have
deemed necessary for this opinion, and we advise you that in our opinion:
1. The Company is a corporation duly organized and existing
under the laws of the State of Delaware.
2. The shares of Common Stock proposed to be sold by the
Selling Stockholders named in the Registration Statement, when sold as
contemplated in the Registration Statement, will be legally and validly
issued and fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm wherever appearing
therein.
Very truly yours,
/s/ Faegre & Benson LLP
FAEGRE & BENSON LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of GalaGen Inc. for the
registration of 470,938 shares of its common stock and to the incorporation
by reference therein of our report dated February 13, 1998, with respect to the
financial statements of GalaGen Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1997, filed with the Securities and Exchange
Commission.
ERNST & YOUNG, LLP
Minneapolis, Minnesota
September 25, 1998
<PAGE>
EXHIBIT 24
GALAGEN INC.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of GALAGEN INC. (the
"Corporation"), a Delaware corporation, does hereby make, constitute and appoint
ROBERT A. HOERR, M.D., PH.D. and GREGG A. WALDON, and each or either of them,
the undersigned's true and lawful attorneys-in-fact, with power of substitution,
for the undersigned and in the undersigned's name, place and stead, to sign and
affix the undersigned's name as such director and/or officer of said Corporation
to a Registration Statement or Registration Statements, under the Securities Act
of 1933, as amended, on Form S-3 or other applicable form, and all amendments
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration of shares of
Common Stock of the Corporation issued pursuant to the conversion or exercise of
certain debentures and warrants issued pursuant to the 6% Convertible Debenture
Purchase Agreement dated November 18, 1997 and to file the same, with all
exhibits thereto and other supporting documents, with said Commission, granting
unto said attorneys-in-fact, and each of them, full power and authority to do
and perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF the undersigned has hereunto set the undersigned's hand
this 28th day of September, 1998.
/s/ Robert A. Hoerr
----------------------------------------
Robert A. Hoerr, M.D., Ph.D.
<PAGE>
GALAGEN INC.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of GALAGEN INC. (the
"Corporation"), a Delaware corporation, does hereby make, constitute and appoint
ROBERT A. HOERR, M.D., PH.D. and GREGG A. WALDON, and each or either of them,
the undersigned's true and lawful attorneys-in-fact, with power of substitution,
for the undersigned and in the undersigned's name, place and stead, to sign and
affix the undersigned's name as such director and/or officer of said Corporation
to a Registration Statement or Registration Statements, under the Securities Act
of 1933, as amended, on Form S-3 or other applicable form, and all amendments
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration of shares of
Common Stock of the Corporation issued pursuant to the conversion or exercise of
certain debentures and warrants issued pursuant to the 6% Convertible Debenture
Purchase Agreement dated November 18, 1997 and to file the same, with all
exhibits thereto and other supporting documents, with said Commission, granting
unto said attorneys-in-fact, and each of them, full power and authority to do
and perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF the undersigned has hereunto set the undersigned's hand
this 28th day of September, 1998.
/s/ GREGG A. WALDON
----------------------------------------
Gregg A. Waldon
<PAGE>
GALAGEN INC.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of GALAGEN INC. (the
"Corporation"), a Delaware corporation, does hereby make, constitute and appoint
ROBERT A. HOERR, M.D., PH.D. and GREGG A. WALDON, and each or either of them,
the undersigned's true and lawful attorneys-in-fact, with power of substitution,
for the undersigned and in the undersigned's name, place and stead, to sign and
affix the undersigned's name as such director and/or officer of said Corporation
to a Registration Statement or Registration Statements, under the Securities Act
of 1933, as amended, on Form S-3 or other applicable form, and all amendments
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration of shares of
Common Stock of the Corporation issued pursuant to the conversion or exercise of
certain debentures and warrants issued pursuant to the 6% Convertible Debenture
Purchase Agreement dated November 18, 1997 and to file the same, with all
exhibits thereto and other supporting documents, with said Commission, granting
unto said attorneys-in-fact, and each of them, full power and authority to do
and perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF the undersigned has hereunto set the undersigned's hand
this 22nd day of September, 1998.
/s/ Stanley Falkow
----------------------------------------
Stanley Falkow, Ph.D.
<PAGE>
GALAGEN INC.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of GALAGEN INC. (the
"Corporation"), a Delaware corporation, does hereby make, constitute and appoint
ROBERT A. HOERR, M.D., PH.D. and GREGG A. WALDON, and each or either of them,
the undersigned's true and lawful attorneys-in-fact, with power of substitution,
for the undersigned and in the undersigned's name, place and stead, to sign and
affix the undersigned's name as such director and/or officer of said Corporation
to a Registration Statement or Registration Statements, under the Securities Act
of 1933, as amended, on Form S-3 or other applicable form, and all amendments
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration of shares of
Common Stock of the Corporation issued pursuant to the conversion or exercise of
certain debentures and warrants issued pursuant to the 6% Convertible Debenture
Purchase Agreement dated November 18, 1997 and to file the same, with all
exhibits thereto and other supporting documents, with said Commission, granting
unto said attorneys-in-fact, and each of them, full power and authority to do
and perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF the undersigned has hereunto set the undersigned's hand
this 28th day of September, 1998.
/s/ Ronald O. Ostby
----------------------------------------
Ronald O. Ostby
<PAGE>
GALAGEN INC.
Power of Attorney
of Director and Officer
The undersigned director and/or officer of GALAGEN INC. (the
"Corporation"), a Delaware corporation, does hereby make, constitute and appoint
ROBERT A. HOERR, M.D., PH.D. and GREGG A. WALDON, and each or either of them,
the undersigned's true and lawful attorneys-in-fact, with power of substitution,
for the undersigned and in the undersigned's name, place and stead, to sign and
affix the undersigned's name as such director and/or officer of said Corporation
to a Registration Statement or Registration Statements, under the Securities Act
of 1933, as amended, on Form S-3 or other applicable form, and all amendments
thereto, to be filed by said Corporation with the Securities and Exchange
Commission, Washington, D.C., in connection with the registration of shares of
Common Stock of the Corporation issued pursuant to the conversion or exercise of
certain debentures and warrants issued pursuant to the 6% Convertible Debenture
Purchase Agreement dated November 18, 1997 and to file the same, with all
exhibits thereto and other supporting documents, with said Commission, granting
unto said attorneys-in-fact, and each of them, full power and authority to do
and perform any and all acts necessary or incidental to the performance and
execution of the powers herein expressly granted.
IN WITNESS WHEREOF the undersigned has hereunto set the undersigned's hand
this 24th day of September, 1998.
/s/ R. David Spreng
----------------------------------------
R. David Spreng
