As filed with the Securities and Exchange Commission on August 30, 1996.
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ENDOGEN, INC.
(Exact name of registrant as specified in its charter)
---------------
30 Commerce Way
Woburn, Massachusetts 01801
Massachusetts (617) 937-0890 04-2789249
(State or other (Address, including zip code, (I.R.S. Employer
jurisdiction of and telephone number, Identification No.)
incorporation or including area code, of
organization) Registrant's principal executive offices)
Owen A. Dempsey
President and Chief Executive Officer
Endogen, Inc.
30 Commerce Way
Woburn, Massachusetts 01801
(617) 937-0890
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
Copy to:
William J. Schnoor, Jr., Esq.
Testa, Hurwitz & Thibeault, LLP
125 High Street
High Street Tower
Boston, Massachusetts 02110
(617) 248-7000
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement has become effective.
---------------
<PAGE>
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 of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, 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 under the Securities Act of 1933, please check the following box. [ ]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Shares Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share (1) Offering Price (1) Registration Fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 432,608 $4.4375 $1,919,698 $662.00
par value per share
- -------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based on the average of the bid and asked prices of
the Common Stock as reported on the Nasdaq SmallCap Market on August 26,
1996.
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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
In accordance with Rule 416 under the Securities Act, this Registration
Statement also covers such indeterminate number of additional shares of the
Registrant's Common Stock, $.01 par value per share, as may become issuable upon
conversion of the Registrant's Convertible Subordinated Note dated March 4, 1996
and due March 1, 2001 (the "Note") to prevent dilution resulting from stock
splits, stock dividends or similar transactions or by reason of changes in the
conversion price of the Note in accordance with the terms thereof.
================================================================================
<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 August 30, 1996
ENDOGEN, INC.
432,608 Shares of
Common Stock
$.01 Par Value Per Share
---------------
This Prospectus relates to the resale of up to 432,608 shares (the
"Shares") of Common Stock, $.01 par value per share (the "Common Stock"), of
Endogen, Inc. (the "Company") issuable upon conversion of the Company's
Convertible Subordinated Note due March 1, 2001 (the "Note"), as amended, issued
to T Cell Diagnostics, Inc. ("TCD" or the "Selling Stockholder" and together
with any transferees, successors or assigns of TCD, collectively, the "Selling
Stockholders") on March 4, 1996 and shares of Common Stock issuable, at the
option of the Company, in respect of additional payments which may be due to TCD
under the Asset Purchase Agreement between the Company, TCD and T Cell Sciences,
Inc. ("TCS") dated as of March 4, 1996 (the "Purchase Agreement"). See "Selling
Stockholders." The Shares may be offered from time to time in transactions on
the Nasdaq SmallCap Market, in negotiated transactions or a combination of such
methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. As of the date of this Prospectus, none of the
Shares underlying the Note have been converted. The Selling Stockholders and
certain persons who purchase shares from them, including broker-dealers acting
as principals who may resell the Shares, may be deemed "underwriters," as that
term is defined in the Securities Act of 1933, as amended (the "Securities
Act"). See "Plan of Distribution."
The Company will not receive any of the proceeds from the resale of the
Shares. The Company has agreed to bear all expenses (other than underwriting
discounts and selling commissions, if any, and fees and expenses of counsel or
other advisors to the Selling Stockholders) in connection with the registration
and sale of the Shares being registered hereby. The Company has agreed to
indemnify the Selling Stockholders against certain liabilities, including
liabilities under the Securities Act, as an underwriter or otherwise.
The Company's Common Stock is quoted on the Nasdaq SmallCap Market under
the symbol "ENDG" and on the Boston Stock Exchange under the symbol "EDG." On
August 26, 1996, the closing bid price for the Common Stock as reported by
Nasdaq SmallCap Market was $4.25 per share.
---------------
The Common Stock offered hereby involves a high degree of risk. See
"Risk Factors" beginning on page 6.
---------------
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.
---------------
The date of this Prospectus is September __, 1996.
<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 filed by the Company with the Commission
pursuant to the informational requirements of the Exchange Act may be inspected
and copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the following regional offices of the Commission: Seven World Trade Center,
13th Floor, New York, New York 10048 and Citicorp Center, 500 West Madison
Avenue, Suite 1400, Chicago, Illinois 60611-2511. Copies of such material can
also be obtained from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The Common Stock
of the Company is traded on the Nasdaq SmallCap Market, and such reports, proxy
statements and other information may also be inspected at the offices of The
Nasdaq Stock Market, Inc., Reports Section, 1735 K Street, N.W., Washington,
D.C. 20006. The Common Stock of the Company is listed on the Boston Stock
Exchange and such material is also available for inspection at the offices of
the Boston Stock Exchange, One Boston Place, Boston, Massachusetts 02109.
The Commission also maintains a Web site that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the Commission. The address of such site is
http: //www.sec.gov.
The Company has filed with the Commission a Registration Statement on
Form S-3 (including all amendments thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act") with respect to
the Common Stock offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information regarding the Company and the Shares offered hereby,
reference is hereby made to the Registration Statement and to the exhibits and
schedules filed therewith. Statements contained in this Prospectus regarding the
contents of any agreement or other document filed as an exhibit to the
Registration Statement are not necessarily complete, and in each instance
reference is made to the copy of such agreement filed as an exhibit to the
Registration Statement, each such statement being qualified in all respects by
such reference. The Registration Statement, including the exhibits and schedules
thereto, may be inspected at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and copies of all
or any part thereof may be obtained from such office upon payment of the
prescribed fees.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 0-21354) are incorporated by reference herein, except as superseded or
modified herein:
1. Annual Report on Form 10-K for the fiscal year ended May 31, 1996;
2. The "Description of Securities" contained in the Company's
Registration Statements on Form 8-A filed on March 11, 1993 and on
Form 8-A filed on April 8, 1994; and
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<PAGE>
3. Current Report on Form 8-K dated March 4, 1996, filed on March 19,
1996, as amended by Current Report on Form 8-K/A filed on May 20,
1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering made hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing
such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein 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 which 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 Prospectus. The
Company will provide without charge to each person to whom this Prospectus is
delivered, upon the written or oral request of any such person, a copy of any
document incorporated herein by reference (other than exhibits unless such
exhibits are specifically incorporated by reference in to such documents).
Requests for such copies should be directed to Mr. Daniel Burns, Financial
Controller, at the principal executive offices of the Company: 30 Commerce Way,
Woburn, Massachusetts 01801, telephone (617) 937-0890. Unless the context
otherwise requires, references in this Prospectus to the "Company" or "Endogen"
refers to Endogen, Inc.
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<PAGE>
PROSPECTUS SUMMARY
The following summary information is qualified in its entirety by the
more detailed information appearing elsewhere in this Prospectus or incorporated
herein by reference and the financial statements which are incorporated herein
by reference.
The Company
Endogen, Inc. ("Endogen") was incorporated on June 1, 1983 and commenced
commercial operations in November 1985. In March 1993, Endogen became a publicly
traded company upon the consummation of the merger of Diagnostics Holding Corp.
("Diagnostics") with and into Endogen, with Endogen being the surviving
corporation. The shareholders of Diagnostics consisted of all of the former
minority shareholders of Leeco Diagnostics, Inc., a company formerly traded on
the NASD OTC Bulletin Board(SM).
Endogen is a supplier of specialty reagents and immuno-assay test kits
to customers involved in biomedical research, the biotechnology industry and
pharmaceutical drug discovery. Endogen uses monoclonal antibody and recombinant
DNA technology to develop and manufacture products in the field of cytokines and
related immune system factors, the chemical messengers which convey signals
within the immune system.
Endogen offers three major product lines. The first is in vitro
immuno-assay test kits, used for the measurement of human cytokines and related
cell surface proteins in biological samples. The second is in vitro immuno-assay
test kits, used for the measurement of mouse and other species cytokines, an
important and growing area of biomedical research. The third is specialty
reagents, including monoclonal antibodies and recombinant proteins, which are
used by the biomedical research community in the course of basic and applied
research projects. Endogen's product lines provide researchers with tools for
investigating the basic cellular mechanisms underlying the human immune system
and its response to infection, AIDS, cancer and other diseases. Endogen's
products are developed through technology in-licensing agreements with leading
medical institutions and pharmaceutical companies, followed by in-house product
development, validation, manufacturing and quality control.
Endogen's products are sold via catalog and direct selling throughout
the United States and are distributed in approximately 40 other countries
worldwide. Approximately 49% of Endogen's fiscal 1996 sales were exported, and
approximately 33% and 32% of sales were exported in Endogen's fiscal 1995 and
1994, respectively. Endogen has sold its products to almost 1,000 organizations
and institutions including pharmaceutical and biotechnology firms, hospitals,
universities and biomedical research labs worldwide.
The Company's executive office is located at 30 Commerce Way, Woburn,
Massachusetts 01801, and its telephone number is (617) 937-0890.
Risk Factors
The Common Stock offered hereby involves a high degree of risk. See
"Risk Factors."
-4-
<PAGE>
The Offering
SECURITIES OFFERED 432,608 shares of the Company's Common Stock, $.01 par
value per share.
OFFERING PRICE All or part of the Shares offered hereby may be
sold from time to time in amounts and on terms to be
determined by the Selling Stockholders at the time of
sale.
USE OF PROCEEDS The Company will receive no part of the
proceeds from the sale of any of the Shares by the
Selling Stockholders.
SELLING STOCKHOLDERS The Shares being offered hereby are being
offered for the account of the Selling Stockholders
specified under the caption "Selling Stockholders."
STOCK MARKET SYMBOLS: Nasdaq SmallCap Market Boston Stock Exchange
Common Stock ENDG EDG
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<PAGE>
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully in evaluating the Company and its
business before acquiring the Shares offered hereby. This Prospectus contains
forward-looking statements which involve risks and uncertainties. The Company's
actual results could differ materially from those anticipated in these
forward-looking statements as a result of certain factors, including those set
forth in the following risk factors and in the Company's filings with the
Commission.
Capital Requirements.
In the future Endogen may need to raise substantial additional funds
through equity or debt financings, research and development financings,
collaborative relationships or otherwise. Endogen may seek to raise funds
whenever conditions are favorable, even if it does not have an immediate need
for additional capital at that time. There can be no assurance that any such
additional funding will be available to Endogen or, if available, that it will
be on reasonable terms. Any such additional funding may result in significant
dilution to existing shareholders. If adequate funds are not available, Endogen
may be required to significantly curtail its operations or obtain funds through
arrangements with collaborative partners that may require Endogen to relinquish
certain material rights to its products.
Risks Related to Growth through Acquisition.
The Company's strategy is to continue its internal growth and to pursue
additional acquisitions of, or relationships with, other companies as strategic
opportunities arise in the biomedical industry and related industries. As a
result, the Company is subject to certain growth-related risks, including the
risk that it will be unable to retain personnel or acquire other resources
necessary to adequately accommodate such growth. There can be no assurance that
any suitable opportunities for future strategic acquisitions or relationships
will arise or, if they do arise, that the transactions contemplated thereby
could be completed. There can be no assurance that the Company will be able to
integrate effectively into the Company the businesses that the Company has
acquired or those that it may acquire in the future. In addition, such
transactions are subject to various risks generally associated with the
acquisition of businesses, including the financial impact of expenses associated
with the integration of businesses and the diversion of management resources.
There can be no assurance that any recent or future acquisition or other
strategic relationship will not have an adverse impact on the Company's business
or results of operations. If suitable opportunities arise in the future, the
Company anticipates that it would finance such transactions, as well as its
internal growth, through working capital or, in certain instances, through
additional debt or equity financing. There can be no assurance, however, that
such debt or equity financing would be available to the Company on acceptable
terms when, and if, suitable strategic opportunities arise.
Uncertainty of Future Profitability.
To sustain future profitability Endogen must, among other things, continue
to market its current research products and successfully introduce new products
to the market. There can be no assurance that Endogen will be able to continue
manufacturing its current products, successfully develop new products or that
such products, if developed, will be in demand by customers. Endogen expects to
incur substantial expenses over the next several years as its product lines and
operations expand. There can be no assurance that Endogen will be able to
sustain profitability.
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<PAGE>
Dependence on Technology Licensing.
Endogen is highly dependent on technology and product licensing
arrangements as a principal source for the basic components used in the
development and manufacture of its products. Endogen expects to continue to need
licenses to proprietary cell lines, patents or other proprietary rights of third
parties. No assurance can be given that any licenses required under any such
patents or proprietary rights would be made available on terms acceptable to
Endogen, if at all. In addition, certain of Endogen's technology and product
licenses have been obtained under non-exclusive terms. No assurances can be
given that such technologies or products will not be licensed or commercialized
by competitors and marketed to the same customers.
Competition and Risk of Technological Obsolescence.
Competitors of Endogen in the United States and abroad are numerous and
include, among others, biotechnology companies, diagnostics manufacturers and
catalog supply companies. Endogen's success depends upon developing and
maintaining a competitive position in the development of products and
technologies in its area of focus. Competition from other research products and
diagnostics companies is intense and expected to increase as new products enter
the market and new technologies become available. Endogen's competitors may also
succeed in developing technologies and products that are more effective than any
which have been or are being developed by Endogen or that render Endogen's
technologies or products obsolete or noncompetitive. Endogen's competitors may
also succeed in obtaining patent protection or other intellectual property
rights that would block Endogen's ability to develop new products. Finally, many
of these competitors have substantially greater research and development
capabilities, manufacturing, regulatory and marketing experience and financial
and managerial resources than Endogen.
Government Regulation.
Endogen's research and development programs, as well as its manufacturing
and marketing operations, are subject to extensive regulation by numerous
governmental authorities in the United States and other countries. Certain of
Endogen's products are subject to governmental approval for continued commercial
sale. The manufacturing and marketing of additional products in the future for
diagnostic use would be subject to the rigorous testing and approval processes
of the FDA and corresponding foreign regulatory authorities.
Dependence on Proprietary Technology.
Endogen's success will depend, in part, on its ability to preserve its
trade secrets and operate without infringing the proprietary rights of third
parties. Endogen could encounter delays in product market introductions while it
attempts to design around such patents or other rights, or be unable to develop,
manufacture or sell such products.
Endogen also seeks to protect its proprietary technology, including
technology which may not be patented or patentable, in part by confidentiality
agreements and, if applicable, inventors' rights agreements with its
collaborators, advisors, employees and consultants. There can be no assurance
that these agreements will not be breached, that Endogen will have adequate
remedies for any breach, or that Endogen's trade secrets will not otherwise be
disclosed to, or discovered by, competitors.
Commercial Sales and Marketing Requirements.
Endogen currently sells its research products directly to end-users in the
United States and through distributors abroad. While Endogen has expanded its
marketing and sales force, there can be no assurance that
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<PAGE>
Endogen will be able to further expand its sales and distribution capabilities
for the research market without undue delays or expenditures or that it will be
successful in maintaining market acceptance for its products.
Dependence Upon Key Personnel.
Endogen is highly dependent on the members of its management and scientific
staff, the loss of whom could have a material adverse effect on Endogen. Endogen
also depends on scientific advisors, who may have commitments that limit their
availability to Endogen. In addition, Endogen believes that its future success
will depend in large part upon its ability to attract and retain highly skilled
scientific, managerial and marketing personnel. Endogen faces significant
competition for such personnel from other companies, research and academic
institutions, government entities and other organizations. There can be no
assurance that Endogen will be successful in hiring or retaining the personnel
it requires for continued growth. The failure to hire and retain such personnel
could materially and adversely affect Endogen's prospects.
International Operations.
The percentage of revenues from international sales were 49%, 33% and 32%
in fiscal years 1996, 1995 and 1994, respectively. Endogen believes that
international sales will continue to represent a significant portion of its
business. Endogen's international business and financial performance may be
adversely affected by such matters as fluctuations in exchange rates, tariff
regulations and difficulties in obtaining export licenses. In addition,
Endogen's business may be adversely affected by lower sales levels that
typically occur during the summer months in Europe and other parts of the world.
USE OF PROCEEDS
The Company will receive no part of the proceeds from the sale of any of
the Shares by any of the Selling Stockholders. In the event and to the extent
that TCD elects to convert the Note, the Company will have no obligation to
repay the Note.
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<PAGE>
SELLING STOCKHOLDERS
The following table sets forth certain information with respect to the
Shares held by each Selling Stockholder. The Shares may be offered from time to
time by any of the Selling Stockholders. See "Plan of Distribution."
- --------------------------------------------------------------------------------
Shares Beneficially
Owned Prior to
Offering(1) Number of Number of Shares
------------------- Shares Beneficially Owned
Name Number Percent(2) Offered After Offering (3)
- ---- ------ ---------- ---------- -----------------
T Cell
Diagnostics, Inc. 432,608 12.78% 432,608 0
- --------------------------------------------------------------------------------
* Less than 1%
(1) Assumes that TCD will receive all of the Shares registered hereby upon
conversion of the Note held by TCD.
(2) The number of shares of Common Stock deemed outstanding includes (i)
2,952,477 shares of Common Stock outstanding as of August 23, 1996 and (ii)
with respect to TCD 432,608 shares issuable upon conversion of the Note.
(3) Assumes that TCD will sell all of the Shares registered hereunder. TCD may
sell all or any part of its Shares pursuant to this Prospectus.
Other than as described below, to the best of the Company's knowledge,
none of the Selling Stockholders had any material relationship with the Company
or any of its affiliates within the three year period ending on the date of this
Prospectus.
On March 4, 1996, the Company entered into the Purchase Agreement with
TCD and TCS pursuant to which the Company purchased on such date (i)
substantially all of the operating assets of TCD, a wholly-owned subsidiary of
TCS, in exchange for the Note payable to the order of TCD and additional
payments, if any, not determinable at the time of such acquisition which will be
based on the increase in net sales over a period of two years following the
acquisition of certain of the products acquired from TCD from the sales levels
attained by TCD prior to the acquisition, and (ii) certain facility improvements
and equipment of TCS used in the operation of TCD in exchange for $528,341 (plus
interest of $889.85) cash paid to Fleet Credit Corp. on behalf of TCS and a
Promissory Note for $452,153.32 payable to the order of TCS (the "Equipment
Note"). The assets acquired by the Company included all operating assets of TCD
relating to its research product lines and diagnostic products other than its
TRAx diagnostic product line. TCS retained ownership of TCD's TRAx diagnostic
product line and all related technology, however, the Company and TCS have
agreed to enter into a manufacturing agreement whereby the Company will
manufacture the TRAx diagnostic products for TCS on a contract basis. The
purchase price and terms of the acquisition were determined in arms-length
negotiations between the parties. The acquisition was accounted for as a
purchase.
Prior to their acquisition by the Company, the assets acquired by the
Company were used by TCS and TCD in the operation of TCS' business as a
developer of technologically innovative biomedical research and diagnostic
products. The Company intends to continue to conduct TCD's business with respect
to such assets in substantially the same manner as it was conducted prior to the
Company's acquisition.
Pursuant to the terms of the Purchase Agreement, the principal amount
due under the Note was increased from $1,900,000 to $2,002,978 to reflect
certain post-closing adjustments to the purchase price. As amended, the Note
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<PAGE>
is convertible into 432,608 shares of the Company's Common Stock, $.01 par value
per share. Pursuant to a registration rights agreement between the Company and
TCD, the Company is registering for resale 432,608 shares of Common Stock that
may be resold by TCD upon conversion of the Note, as amended, pursuant to the
registration statement of which this Prospectus is a part. This transaction is
more fully described in the Company's Current Report on Form 8-K dated March 4,
1996, as amended, which is incorporated herein by reference.
PLAN OF DISTRIBUTION
The Company will not receive any of the proceeds from this offering. The
Shares offered hereby may be sold from time to time by or for the account of any
of the Selling Stockholders or by their pledgees, donees, distributees or
transferees or other successors in interest to the Selling Stockholders. The
Shares may be sold hereunder directly to purchasers by the Selling Stockholders
in negotiated transactions; by or through brokers or dealers in ordinary
brokerage transactions or transactions in which the broker solicits purchasers;
block trades in which the broker or dealer will attempt to sell the Shares as
agent but may position and resell a portion of the block as principal;
transactions in which a broker or dealer purchases as principal for resale for
its own account; or through underwriters or agents. The Shares may be sold at a
fixed offering price, which may be changed, at the prevailing market price at
the time of sale, at prices related to such prevailing market price or at
negotiated prices. Any brokers, dealers, underwriters or agents may arrange for
others to participate in any such transaction and may receive compensation in
the form of discounts, commissions or concessions from the Selling Stockholders
and/or the purchasers of the Shares. Each Selling Stockholder will be
responsible for payment of any and all commissions to brokers.
The aggregate proceeds to any Selling Stockholder from the sale of the
Shares offered by the Selling Stockholder hereby will be the purchase price of
such Shares less any broker's commissions.
In order to comply with the securities laws of certain states, if
applicable, the Shares will be sold in such jurisdiction only through registered
or licensed brokers or dealers. In addition, in certain states the Shares may
not be sold unless they have been registered or qualified for sale in the
applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
Any Selling Stockholder and any broker-dealer, agent or underwriter that
participates with the Selling Stockholder in the distribution of the Shares may
be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any commissions received by such broker-dealers, agents or
underwriters and any profit on the resale of the Shares purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the Shares offered hereby may not
simultaneously engage in market making activities with respect to the Shares for
a period of two business days prior to the commencement of such distribution. In
addition, and without limiting the foregoing, each Selling Stockholder will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including, without limitation, Rules 10b-2, 10b-5, 10b-6
and 10b-7, which provisions may limit the timing of purchases and sales of the
Shares by the Selling Stockholder.
There is no assurance that any Selling Stockholder will sell any or all
of the Shares described herein and may transfer, devise or gift such securities
by other means not described herein.
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<PAGE>
The Company will use its best efforts to cause the registration statement to
which this Prospectus relates to become effective as promptly as is practicable
and to keep the Registration Statement effective until the earlier to occur of
(i) thirty-six months after the date on which the Commission declares the
Registration Statement effective and (ii) such earlier time as all Shares have
been disposed of in a manner permitting resale without further registration
thereof under the Securities Act. Expenses of preparing and filing the
registration statement and all post-effective amendments will be borne by the
Company.
LEGAL MATTERS
Certain legal matters with respect to the Shares offered hereby will be
passed upon for the Company by Testa, Hurwitz & Thibeault, LLP, Boston,
Massachusetts.
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the Annual Report on Form 10-K of Endogen, Inc. for the year ended May 31,
1996 have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of the research products and operations of T
Cell Diagnostics, Inc. for each of the three years in the period ended December
31, 1995, incorporated by reference in this Prospectus, have been incorporated
herein in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
DISCLOSURE OF COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
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>
==========================================
No person has been authorized to give any
information or to make any representation
other than those contained in this
Prospectus in connection with the offering
made hereby, and if given or made, such
information or representation must not be
relied upon as having been authorized by 432,608 Shares
the Company or by any other person.
Neither the delivery of this Prospectus
nor any sale made hereunder shall, under
any circumstances, create any implication ENDOGEN, INC.
that information herein is correct as of
any time subsequent to the date hereof.
This Prospectus does not constitute an
offer to sell or a solicitation of any Common Stock
person in any jurisdiction in which such
offer or solicitation may not be lawfully
made.
--------------------
TABLE OF CONTENTS
------------------
PROSPECTUS
------------------
Page
Available Information .................. 2
Documents Incorporated by Reference .... 2
Prospectus Summary...................... 4
Risk Factors............................ 6
Use of Proceeds......................... 8
Selling Stockholders.................... 9
Plan of Distribution ................... 10
Legal Matters .......................... 11
Experts................................. 11
Disclosure of Commission Position on
Indemnification for Securities Act
Liabilities ............................ 11
September __, 1996
=============================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses incurred by the Company in connection with the issuance and
distribution of the securities being registered are estimated as follows:
Amount*
Securities and Exchange Commission registration fee......... $ 662.00
Nasdaq SmallCap Market listing fee ......................... $ 1,000.00
Boston Stock Exchange listing fee .......................... $ 250.00
Legal fees and expenses .................................... $ *
Accounting fees and expenses................................ $ *
Miscellaneous............................................... $ *
-------------
Total........................... $ *
-------------
None of the above expenses will be paid by the Selling Stockholders.
- -------------------
* To be completed by amendment.
Item 15. Indemnification of Directors and Officers.
Section 67 of the Massachusetts Business Corporation Law ("Section 67")
provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by (i) the articles of organization, (ii) a
by-law adopted by the stockholders, or (iii) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
In all instances, the extent to which a corporation provides indemnification to
its directors and officers under Section 67 is optional. The Company's By-laws
provide that each director and officer shall be indemnified by the Company
against liabilities and expenses in connection with any legal proceeding to
which such officer or director may become a party by reason of being or having
been an officer or director unless otherwise prohibited by law.
The Company's Restated Articles of Organization eliminate the personal
liability of the Company's directors for monetary damages for breach of their
fiduciary duty as directors to the Company and its stockholders, notwithstanding
any provision of law imposing such liability. The Company's Restated Articles of
Organization, however, do not eliminate liability of the Company's directors for
(i) breach of the director's duty of loyalty to the Company or its stockholders;
(ii) for acts or omissions not in good faith or involving intentional misconduct
or a knowing violation of law; (iii) for actions leading to improper personal
benefit to the director; or (iv)under Section 61 or 62 of the Massachusetts
Business Corporation Law.
II-1
<PAGE>
Item 16. Exhibits.
Exhibit
No. Description of Exhibit
2.1 Asset Purchase Agreement dated as of March 4, 1996 by and between
Endogen, Inc., T Cell Diagnostics, Inc. and T Cell Sciences, Inc.**
4.1 Restated Articles of Organization of Endogen, Inc.*
4.2 By-laws of Endogen, Inc., as amended.*
4.3 Specimen Common Stock Certificate *
4.4 Registration Rights Agreement dated as of March 4, 1996 by and among
Endogen and T Cell Diagnostics, Inc.**
4.5 Convertible Subordinated Note of Endogen issued to T Cell Diagnostics,
Inc., dated March 4, 1996. **
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.***
23.1 Consent of Price Waterhouse LLP.***
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (contained in Exhibit 5.1).
23.3 Consent of Price Waterhouse LLP relating to the financial statements of
the research products and operations of T Cell Diagnostics, Inc.***
24.1 Power of Attorney (included on page II-5 of the Registration
Statement).
- ------------
* Previously filed as an exhibit to the Company's Registration Statement on
Form S-4 No. 33-54430 and incorporated herein by reference.
** Previously filed with the Securities and Exchange Commission and
incorporated herein by reference.
*** Filed herewith.
Item 17. Undertakings.
(a) 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; notwithstanding the
foregoing, any increase or decrease in 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 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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 information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each 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 post-effective amendment any of
the securities being registered which remain unsold at the termination
of the offering.
II-2
<PAGE>
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) 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 Securities Act of 1933 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 Securities Act of
1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
(d) Unless the registrant and the Selling Stockholders otherwise
agree, the undersigned registrant hereby undertakes to keep
the registration statement effective until the earlier to
occur of (i) thirty-six months after the date on which the
Commission declares the registration statement effective and
(ii) such earlier time as all Shares have been disposed of in
a manner permitting resale without further registration
thereof under the Securities Act of 1933.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended
(the "Securities Act") the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on Form S-3, and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Woburn, Commonwealth of
Massachusetts, on the 30th day of August, 1996.
ENDOGEN, INC.
By: /s/ Owen A. Dempsey
--------------------
Owen A. Dempsey
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Endogen, Inc., hereby
severally constitute and appoint Owen A. Dempsey and Wallace G. Dempsey, and
each of them singly, our true and lawful attorneys, with full power to them and
each of them singly, to sign for us in our names in the capacities indicated
below, all pre-effective and post-effective amendments to this Registration
Statement, and generally to do all things in our names and on our behalf in such
capacities to enable Endogen, Inc. to comply with the provisions of the
Securities Act and all requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ Owen A. Dempsey President, Chief Executive August 27, 1996
- --------------------------
Owen A. Dempsey Officer (Principal Executive
Officer, Principal Financial
Officer and Principal Accounting
Officer) and Director
/s/ Wallace G. Dempsey Director August 27, 1996
- -------------------------
Wallace G. Dempsey
/s/ Irwin J. Gruverman Director August 27, 1996
- -------------------------
Irwin J. Gruverman
/s/ Hayden H. Harris Director August 27, 1996
- -------------------------
Hayden H. Harris
/s/ Wolfgang Woloszczuk Director August 27, 1996
- -------------------------
Wolfgang Woloszczuk
II-5
<PAGE>
EXHIBIT LIST
Exhibit No. Description of Exhibit
2.1 Asset Purchase Agreement dated as of March 4, 1996 by and between Endogen,
Inc., T Cell Diagnostics, Inc. and T Cell Sciences, Inc.**
4.1 Restated Articles of Organization of Endogen, Inc.*
4.2 By-laws of Endogen, Inc., as amended.*
4.3 Specimen Common Stock Certificate *
4.4 Registration Rights Agreement dated as of March 4, 1996 by and among
Endogen and T Cell Diagnostics, Inc.**
4.5 Convertible Subordinated Note of Endogen issued to T Cell Diagnostics,
Inc., dated March 4, 1996. **
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.***
23.1 Consent of Price Waterhouse LLP.***
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (contained in Exhibit 5.1).
23.3 Consent of Price Waterhouse LLP relating to the financial statements of
the research products and operations of T Cell Diagnostics, Inc.***
24.1 Power of Attorney (included on page II-5 of the Registration Statement).
- ------------
* Previously filed as an exhibit to the Company's Registration Statement on
Form S-4 No. 33-54430 and incorporated herein by reference.
** Previously filed with the Securities and Exchange Commission and
incorporated herein by reference.
*** Filed herewith.
Exhibit 5.1
TESTA, HURWITZ & THIBEAULT, LLP
ATTORNEYS AT LAW
HIGH STREET TOWER, 125 HIGH STREET
OFFICE (617) 248-7000 BOSTON, MASSACHUSETTS 02110 FAX (617) 248-7100
August 30, 1996
Endogen, Inc.
30 Commerce Way
Woburn, MA 01801
RE: Form S-3 Registration Statement
Ladies and Gentlemen:
We are counsel to Endogen, Inc., a Massachusetts corporation (the
"Company"), and have represented the Company in connection with the preparation
and filing of the Company's Form S-3 Registration Statement (the "Registration
Statement"), covering the sale to the public of up to 432,608 shares of the
Company's Common Stock, $.01 par value per share, being sold by certain
stockholders of the Company (the "Shares"). Terms not otherwise defined herein
shall have the meaning assigned to them in the Registration Statement.
We have reviewed the corporate proceedings taken by the Board of
Directors of the Company with respect to the authorization and issuance of the
Shares. We have also examined and relied upon originals or copies, certified or
otherwise authenticated to our satisfaction, of all corporate records,
documents, agreements or other instruments of the Company and have made all
investigations of law and have discussed with the Company's officers all
questions of fact that we have deemed necessary or appropriate.
Based upon and subject to the foregoing, we are of the opinion that when
the Shares to be sold by the Selling Stockholders pursuant to the Prospectus
have been issued and paid for in accordance with the terms described in the
Prospectus, such shares of Common Stock will have been validly issued and will
be fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm in the Prospectus
contained in the Registration Statement under the caption "Legal Matters."
Very truly yours,
/s/ Testa, Hurwitz & Thibeault, LLP
TESTA, HURWITZ & THIBEAULT, LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
August 2, 1996, except as to Note 16, which is as of August 28, 1996, appearing
on page F-2 of Endogen, Inc.'s Annual Report on Form 10-K for the year ended May
31, 1996. We also consent to the reference to us under the heading "Experts" in
such Prospectus.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Boston, Massachusetts
August 28, 1996
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report on
the financial statements of the research products and operations of T Cell
Diagnostics, Inc. dated May 17, 1996 which report appears on page 10 of Endogen,
Inc.'s Form 8-K/A dated March 4, 1996. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
/s/Price Waterhouse LLP
PRICE WATERHOUSE LLP
Boston, Massachusetts
August 28, 1996
400MMS3515/1.250754-2
