<PAGE>
As filed with the Securities and Exchange Commission on February 5, 1999.
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 is charter)
Delaware 41-1719104
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
1275 Red Fox Road
Arden Hills, Minnesota 55112
(651) 634-4230
(Address and telephone number of the Registrant's
principal executive offices)
Robert A. Hoerr
Chairman of the Board of Directors and Chief Executive Officer
GalaGen Inc.
1275 Red Fox Road
Arden Hills, Minnesota 55112
(651) 634-4230
(Name, address and telephone number of agent for service)
---------------------------------------
copy to:
Kris Sharpe
Faegre & Benson LLP
200 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 only the 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
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED SHARE (1) PRICE (1) FEE
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 318,800 $2.39 $761,932 $212
Shares
- --------------------------------------------------------------------------------------------------------------
</TABLE>
(1) 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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
Subject to completion. Dated February 5, 1999.
PROSPECTUS
318,800 SHARES
GALAGEN INC.
COMMON STOCK
----------------------
GalaGen Inc.
1275 Red Fox Road
Arden Hills, Minnesota 55112
(651) 634-4230
----------------------
This Prospectus relates to shares of our Common Stock that may be sold
by a certain stockholder. We will not receive any of the proceeds from the sale
of those shares.
Our Common Stock is traded on the Nasdaq National Market under the
symbol "GGEN." On February 4, 1999, the last sale price for the Common Stock,
as reported on the Nasdaq National Market, was $2.00 per share.
CERTAIN "RISK FACTORS" YOU SHOULD CONSIDER BEFORE BUYING SHARES OF THE
COMMON STOCK ARE INCLUDED IN THE DOCUMENTS INCORPORATED BY REFERENCE INTO THIS
PROSPECTUS. SEE PAGE 2.
------------------------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
------------------------
THE DATE OF THIS PROSPECTUS IS FEBRUARY __, 1999
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This
preliminary prospectus is not an offer to sell nor does it seek an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (the "SEC"). Our SEC
filings are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the
SEC at its Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. You can also obtain copies of the documents at prescribed rates by
writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of its Public Reference Room. Our SEC filings are
also available at the office of the National Association of Securities Dealers,
Inc. For more information on obtaining copies of our public filings at the
National Association of Securities Dealers, Inc., you should write to National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
We "incorporate by reference" into this prospectus the information we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus and information that we file subsequently
with the SEC will automatically update this prospectus. We incorporate by
reference the documents listed below and any filings we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as
amended, after the initial filing of the registration statement that contains
this prospectus and prior to the time that we sell all the securities offered by
this prospectus:
- Annual Report on Form 10-K for the year ended December 31, 1997
(including information specifically incorporated by reference into our
Form 10-K from our 1997 Annual Report to Shareholders and our
definitive Notice and Proxy Statement for our 1998 Annual Meeting of
Shareholders);
- Quarterly Reports on Form 10-Q for the quarters ended March 31, June
30 and September 30, 1998;
- Current Report on Form 8-K dated December 23, 1998;
- Current Report on Form 8-K dated February 5, 1999; and
- the description of our Common Stock contained in the registration
statement on Form 8-A filed on March 13, 1996 and any amendment or
reports filed to update that description after the date of this
prospectus.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing)
at no cost, by writing to or telephoning us at the following address:
Mr. Gregg A. Waldon
Secretary
GalaGen Inc.
1275 Red Fox Road
Arden Hills, Minnesota 55112
(651) 634-4230
You should rely only on the information incorporated by reference or
presented in this prospectus or the applicable prospectus supplement. We have
not authorized anyone else to provide you with different information. We may
only use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering these securities in states where the offer is
permitted. You should not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date other than the dates
on the front of those documents.
RISK FACTORS
Certain "Risk Factors" you should consider before buying shares of the
Common Stock are included in the documents incorporated by reference into this
Prospectus.
2
<PAGE>
THE COMPANY
We are a nutritional products company whose mission is to become the
leading presence in foods, beverages and dietary supplements that help enhance
the immune system. To accomplish this mission, we are focusing our efforts on
channels that demand immune-enhancing benefits in certain segments of the
consumer foods and beverages market and in certain segments of the clinical
nutrition products markets. A critical factor for our success is our
immune-enhancing ingredient that is derived from colostrum, the highly
nutritious first milk from a dairy cow, which has been branded Proventra-TM-
Brand Natural Immune Components ("Proventra"). The primary immune-enhancing
components of Proventra are antibodies, which are proteins that enhance the
body's immune system to protect against harmful pathogens. Secondary
immune-enhancing components providing further disease resistance are proteins,
such as lactoferrin, as well as growth factors and multiple vitamins and
minerals.
We are a Delaware corporation formed in 1992. Our executive offices
are located at 1275 Red Fox Road, Arden Hills, Minnesota 55112, and our
telephone number is (651) 634-4230.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
Our Common Stock is listed on the Nasdaq National Market under the
symbol GGEN. The following table shows, for the calendar periods indicated, the
reported high and low sale prices of the Common Stock on the Nasdaq National
Market, as reported by the Nasdaq National Market.
<TABLE>
<CAPTION>
HIGH LOW
------------ -----------
<S> <C> <C>
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 .............................. 4.000 1.625
Fourth Quarter ............................. 3.000 1.375
1999:
First Quarter (through January 29, 1999) ... $2.625 $1.906
</TABLE>
As of January 29, 1999 there were approximately 1,400 holders of
record of our Common Stock.
We have never declared or paid any cash dividends on our Common Stock.
We currently do not anticipate paying any cash dividends in the foreseeable
future.
3
<PAGE>
SELLING STOCKHOLDER
The following table identifies the selling stockholder (the "Selling
Stockholder") and the number of outstanding shares of our common stock
beneficially owned by it as of January 29, 1999. The maximum number of shares
proposed to be sold by the Selling Stockholder pursuant to this Registration
Statement and the number of shares it will own after such sales is also shown
below. The Selling Stockholder obtained the shares offered hereby pursuant to
that certain Asset Purchase Agreement dated as of September 1, 1998, as amended
on October 28, 1998 and December 23, 1998 (collectively, the "Purchase
Agreement") by and between Nutrition Medical, Inc. (currently known as NM
Holdings, Inc.) and the Company. The percentages are based on 8,948,446 shares
outstanding on January 29, 1999.
<TABLE>
<CAPTION>
SHARES OWNED SHARES OWNED
PRIOR TO OFFERING AFTER OFFERING (1)
-------------------------- ---------------------------
PERCENT OF SHARES PERCENT OF
NAME NUMBER OUTSTANDING OFFERED NUMBER OUTSTANDING
- ------------------------ -------- --------------- ----------- ---------- ----------------
<S> <C> <C> <C> <C> <C>
NM Holdings, Inc. 318,800 3.6 318,800 0 --
</TABLE>
- ---------------------------
(1) Assumes sale of all shares of the Selling Stockholder offered hereby.
PLAN OF DISTRIBUTION
The Selling Stockholder may effect the distribution of the shares from
time to time (but no later than March 31, 2001) 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.
The Selling Stockholder may sell the shares at market prices prevailing
at the time of sale, at prices related to those prevailing market prices or at
negotiated prices. The Selling Stockholder also may sell the shares 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 Stockholder may effect transactions by selling shares directly to
purchasers or to or through broker-dealers, which may act as agents or
principals. Such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Stockholder or to the
purchasers of the shares for whom such broker-dealers may act as agents or to
whom they sell as principal, or both (which compensation as to a particular
broker-dealer may be in excess of customary commissions). The Selling
Stockholder and broker-dealers that participate with the Selling Stockholder 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. We have informed the Selling Stockholder that the
anti-manipulative provisions of Regulation M promulgated under the Securities
Exchange Act of 1934 (as amended) may apply to the Selling Stockholder's sales
of shares in the market.
Upon notification to us by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
Prospectus will be filed, if required, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of the Selling Stockholder and of the
participating broker-dealers, (ii) the number of shares involved, (iii) the
price at which such shares were sold, (iv) the commissions paid or discounts or
concessions allowed to such broker-dealers, where applicable, (v) that such
broker-dealers did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus and (vi) other facts
material to the transaction.
4
<PAGE>
The Selling Stockholder agreed pursuant to the Purchase Agreement to
limit its sales of the shares offered hereby as follows:
(a) immediately upon effectiveness of the registration statement
to which this Prospectus relates, the Selling Stockholder may sell or transfer
up to 10% of the shares offered hereby;
(b) during each month of December 1998 through May 1999 the
Selling Stockholder may sell or transfer up to an additional 5% of the shares
offered hereby per month; and
(c) during each month of June 1999 through November 1999 the
Selling Stockholder may sell or transfer up to an additional 10% of the shares
offered hereby per month.
The foregoing percentages are intended to be cumulative, such that any
shares not sold within such limitations at the time or within the period
permitted shall continue to be available for sale at any time during the
remainder of the one-year period following December 23, 1998. After December
23, 1999 the Purchase Agreement imposes no limitation on the Selling
Stockholder's ability to sell the shares offered hereby.
LEGAL OPINIONS
Faegre & Benson LLP, 2200 Norwest Center, Minneapolis, Minnesota
55402, will pass upon the validity of the shares of Common Stock offered hereby
for the Company.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our financial
statements appearing in our Annual Report on Form 10-K for the year ended
December 31, 1997, as set forth in their report thereon included therein and
incorporated herein by reference. Those financial statements are incorporated
herein by reference in reliance upon their report given upon their authority as
experts in accounting and auditing.
5
<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>
<S> <C>
SEC registration fee .......................... $ 212
Nasdaq listing fee ............................ 6,376
Legal services and expenses ................... 65,000
Accounting services and expenses .............. 1,000
Printing fees ................................. 500
Miscellaneous ................................. 412
----------------
Total $73,500
----------------
----------------
</TABLE>
Except for the SEC registration fee and the Nasdaq listing fee,
all of the foregoing expenses have been estimated. The Selling Stockholder will
bear fees and disbursements of their own legal counsel and transfer taxes,
provided, however, that the Company will pay up to $1,250 of the expenses for
legal counsel to the Selling Stockholder in connection with the registration of
this offering. 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.
Under Section 15.5 of the Purchase Agreement filed as Exhibit 4.2
hereto, the Selling Stockholder agrees to indemnify, under certain conditions,
the Company, its directors, certain of its officers and persons who control the
Company within the meaning of the Securities Act of 1933, as amended, against
certain liabilities.
<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 Asset Purchase Agreement by and between the Company and Nutrition
Medical, Inc. dated as of September 1, 1998. (4)
4.3 Amendment to Asset Purchase Agreement by and between the Company and
Nutrition Medical, Inc. dated as of October 28, 1998. (5)
4.4 Second Amendment to Asset Purchase Agreement by and between the
Company and Nutrition Medical, Inc. dated as of December 23, 1998. (6)
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 (included
with signatures to this Registration Statement).
</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 No. 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. 10.26 to the
Company's Quarterly Report on Form 10-Q for the quarterly period
ending September 30, 1998 (File No. 0-27976).
(5) Incorporated herein by reference to Exhibit No. 2.2 to the
Company's Current Report on Form 8-K dated December 23, 1998
(File No. 0-27976).
(6) Incorporated herein by reference to Exhibit No. 2.3 to the
Company's Current Report on Form 8-K dated December 23, 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 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
II-2
<PAGE>
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-3
<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 February 3, 1999.
GALAGEN, INC.
(Registrant)
By /s/ Robert A. Hoerr, M.D., Ph.D.
-------------------------------------
Robert A. Hoerr, M.D., Ph.D.
CHAIRMAN OF THE BOARD OF DIRECTORS
AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Each of the undersigned hereby appoints Robert A. Hoerr, M.D., Ph.D. and
Gregg A. Waldon, and each of them (with full power to act alone), as attorneys
and agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Securities
and Exchange Commission under the Securities Act of 1933 any and all amendments
and exhibits to this Registration Statement and any and all applications,
instruments and other documents to be filed with the Securities and Exchange
Commission pertaining to the registration of the securities covered hereby, with
full power and authority to do and perform any and all acts and things
whatsoever requisite and necessary or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons,
representing a majority of the Board of Directors, in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
- ------------------------------------- ------------------------------------- -----------------------
<S> <C> <C>
/s/ Robert A. Hoerr, MD., PhD.
- -------------------------------------
Robert A. Hoerr, M.D., Ph.D. Chairman of the Board of Directors February 3, 1999
and Chief Executive Officer
(Principal Executive Officer and
Director)
/s/ Gregg A. Waldon
- -------------------------------------
Gregg A. Waldon Vice President, Chief Financial February 3, 1999
Officer, Treasurer and Secretary
(Principal Financial Officer and
Principal Accounting Officer)
/s/ Henry J. Cardello
- -------------------------------------
Henry J. Cardello Director February 3, 1999
/s/ Ronald O. Ostby
- -------------------------------------
Ronald O. Ostby Director February 3, 1999
/s/ R. David Spreng
- -------------------------------------
R. David Spreng Director February 3, 1999
- -------------------------------------
Winston R. Wallin Director
</TABLE>
II-4
<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 Asset Purchase Agreement by and between the Incorporated Company and INCORPORATED BY REFERENCE
Nutrition Medical, Inc. dated as by Reference of September 1, 1998. (4)
4.3 Amendment to Asset Purchase Agreement by and between the Company and INCORPORATED BY REFERENCE
Nutrition Medical, Inc. dated as of October 28, 1998. (5)
4.4 Second Amendment to Asset Purchase Agreement by and between the Company and INCORPORATED BY REFERENCE
Nutrition Medical, Inc. dated as of December 23, 1998. (6)
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 (included with
signatures to this Registration Statement).
</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 No. 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. 10.26 to the
Company's Quarterly Report on Form 10-Q for the quarterly
period ending September 30, 1998 (File No. 0-27976).
(5) Incorporated herein by reference to Exhibit No. 2.2 to the
Company's Current Report on Form 8-K dated December 23, 1998
(File No. 0-27976).
(6) Incorporated herein by reference to Exhibit No. 2.3 to the
Company's Current Report on Form 8-K dated December 23, 1998
(File No. 0-27976).
1
<PAGE>
EXHIBIT 5
FAEGRE & BENSON LLP
2200 NORWEST CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MINNESOTA 55402-3901
612/336-3000
FACSIMILE 612/336-3026
February 4, 1999
GalaGen Inc.
1275 Red Fox Road
Arden Hills, Minnesota 55112
Ladies and Gentlemen:
In connection with the proposed registration under the Securities Act
of 1933, as amended, of 318,800 shares of Common Stock, par value $.01 per
share, of GalaGen Inc., a Delaware corporation (the "Company"), proposed to be
sold by a certain Selling Stockholder 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 the shares of Common
Stock proposed to be sold by the Selling Stockholder named in the Registration
Statement are 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 318,800 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.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
February 2, 1999
