Form S-3

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-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E/0e/FMXUmcgwUWjAyXamJIPd0L4rgmj4x8HC3Xz4ijXGVVVYBr4p8XJssQSlJFG OlBqyzHl519CUYhclnXGwg== 0001193125-05-195024.txt : 20050930 0001193125-05-195024.hdr.sgml : 20050930 20050930163119 ACCESSION NUMBER: 0001193125-05-195024 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20050930 DATE AS OF CHANGE: 20050930 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OSCIENT PHARMACEUTICALS CORP CENTRAL INDEX KEY: 0000356830 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 042297484 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-128735 FILM NUMBER: 051114563 BUSINESS ADDRESS: STREET 1: 1000 WINTER STREET STREET 2: SUITE 2200 CITY: WALTHAM STATE: MA ZIP: 02451 BUSINESS PHONE: 7813982300 MAIL ADDRESS: STREET 1: 1000 WINTER STREET STREET 2: SUITE 2200 CITY: WALTHAM STATE: MA ZIP: 02451 FORMER COMPANY: FORMER CONFORMED NAME: GENOME THERAPEUTICS CORP DATE OF NAME CHANGE: 19941215 FORMER COMPANY: FORMER CONFORMED NAME: COLLABORATIVE RESEARCH INC DATE OF NAME CHANGE: 19920703 S-3 1 ds3.htm FORM S-3 Form S-3

As filed with the Securities and Exchange Commission on September 30, 2005

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

OSCIENT PHARMACEUTICALS CORPORATION

(Exact name of registrant as specified in its charter)

Massachusetts

04-2297484

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification Number)

1000 Winter Street, Suite 2200

Waltham, Massachusetts 02451

(781) 398-2300

(Address, including zip code, and telephone number, including area code of principal executive offices)

Stephen Cohen

Senior Vice President and Chief Financial Officer

Oscient Pharmaceuticals Corporation

1000 Winter Street, Suite 2200

Waltham, Massachusetts 02451

(781) 398-2300

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Please send copies of all communications to:

Patrick O’Brien

Ropes & Gray LLP

One International Place

Boston, Massachusetts 02110

(617) 951-7000

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, as amended (the “Securities Act”), other than securities offered only in connection with dividend or interest reinvestment, 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, 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, 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. ¨

CALCULATION OF REGISTRATION FEE

Title of each Class of

Securities to be Registered(1)

Proposed Maximum

Aggregate Amount of Offering

Price(2)

Registration fee(3)

Common Stock, $0.10 par value per share

$100,000,000

$11,770.00

(1)	There are being registered hereunder such indeterminate number of shares of common stock as shall have an aggregate initial offering price not to exceed $100,000,000.

(2)	The proposed maximum per share and aggregate offering prices will be determined from time to time by the registrant in connection with the issuance by the registrant of the common stock registered hereunder.

(3)	Estimated solely for purposes of determining the registration fee pursuant to Rule 457(o) under the Securities Act.

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 SEC, acting pursuant to said Section 8(a), shall determine.

PROSPECTUS

The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

Subject to Completion, dated September 30, 2005


OSCIENT PHARMACEUTICALS CORPORATION


		$100,000,000
		COMMON STOCK

We may from time to time issue up to an aggregate of $100,000,000 of common stock in one or more issuances. This prospectus describes the general manner in which our common stock may be offered using this prospectus. We will specify in the accompanying prospectus supplement the terms of the offering in which our common stock will be offered and sold. We may sell our common stock to or through underwriters or dealers and also to other purchasers or through agents. We will set forth the names of any underwriters, dealers or agents in the accompanying prospectus supplement.

This prospectus may not be used to sell common stock unless accompanied by a prospectus supplement. Before you make your investment decision, we urge you to read this prospectus and the prospectus supplement carefully.

Our common stock is listed on the Nasdaq National Market under the symbol “OSCI.” On September 29, 2005, the last sale price of our common stock was $2.15 per share.

INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE “ RISK FACTORS” ON PAGE 1.

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

This prospectus may not be used to consummate sales of common stock unless it is accompanied by a prospectus supplement.

The date of this prospectus is , 2005.

TABLE OF CONTENTS


About This Prospectus		1

Risk Factors		1

Oscient Pharmaceuticals Corporation		1

Special Note Regarding Forward-Looking Statements		1

Use of Proceeds		2

Description of Capital Stock		2

Plan of Distribution		3

Legal Matters		5

Experts		5

Where You Can Find More Information		5

Incoroporation of Documents by Reference		5

No dealer, salesperson or other person has been authorized to give any information or to make any representations other than those contained or incorporated by reference in this prospectus or any accompanying prospectus supplement in connection with the offer made by this prospectus or any accompanying prospectus supplement and, if given or made, such information or representations must not be relied upon as having been authorized by Oscient Pharmaceuticals Corporation. Neither the delivery of this prospectus or any accompanying prospectus supplement nor any sale made hereunder and thereunder shall under any circumstances create an implication that there has been no change in the affairs of Oscient Pharmaceuticals Corporation since the date hereof. This prospectus or any accompanying prospectus supplement does not constitute an offer or solicitation by anyone in any state in which such offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.

ABOUT THIS PROSPECTUS

This prospectus is part of a registration statement that we filed with the SEC utilizing a “shelf” registration process. Under this shelf process, we may sell, from time to time, common stock in one or more offerings up to a total dollar amount of $100,000,000. We have provided to you in this prospectus a general description of our common stock. Each time we sell common stock, we will provide a prospectus supplement that will contain specific information about the terms of that offering. If there is any inconsistency between the information in this prospectus and the accompanying prospectus supplement, you should rely on the information in the prospectus supplement. We may also add, update or change in the prospectus supplement any of the information contained in this prospectus. This prospectus, together with applicable prospectus supplements, includes all material information relating to such offering.

RISK FACTORS

Investing in our common stock is risky. Please see the risk factors described under the heading “Risk Factors” in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in our Quarterly Report on Form 10-Q for the quarter ending June 30, 2005, which is incorporated by reference in this prospectus, and in other filings that we may make with the Securities and Exchange Commission, or SEC, from to time. Before making an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this prospectus. The risks and uncertainties we have described are not the only ones facing our company. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations.

OSCIENT PHARMACEUTICALS CORPORATION

We are a commercial-stage biopharmaceutical company committed to the clinical development and commercialization of new therapeutics to serve unmet medical needs. We currently promote two products in the U.S. pharmaceutical market. Our lead product is the fluoroquinolone antibiotic FACTIVE^® (gemifloxacin mesylate) tablets, indicated for the treatment of community-acquired pneumonia of mild to moderate severity (CAP) and acute bacterial exacerbations of chronic bronchitis (AECB). We license the rights to gemifloxacin, the active ingredient in FACTIVE tablets, from LG Life Sciences of the Republic of Korea. FACTIVE was launched in the U.S. market in September 2004. We also co-promote Auxilium Pharmaceuticals, Inc.’s marketed product, TESTIM^®, a topical 1% testosterone gel indicated for the treatment of male hypogonadism. We began promoting this product to primary care physicians in the U.S. market in May 2005. We are seeking to expand the commercial opportunities for FACTIVE through expansion of its indications and plan to file an sNDA with the FDA for the treatment of acute bacterial sinusitis (ABS) and a 5-day course of treatment of CAP by the end of 2005. Additionally, we are developing a novel antibiotic candidate, Ramoplanin, for the treatment of Clostridium difficile-associated diarrhea (CDAD). Ramoplanin has completed Phase II clinical development and we have submitted the clinical protocol for a Phase III program for the indication to the FDA.

We are incorporated as a Massachusetts corporation. The address for our executive offices is 1000 Winter Street, Suite 2200, Waltham, Massachusetts 02451 and our telephone number is (781) 398-2300. Our website is www.oscient.com. The information found on our website and on websites linked from it are not incorporated into or a part of this prospectus. On April 13, 2004, following our annual meeting of stockholders, we amended our articles of organization to change our name from Genome Therapeutics Corp. to Oscient Pharmaceuticals Corporation.

FACTIVE is a trademark of LG Life Sciences, Ltd. TESTIM is a trademark of Auxilium Pharmaceuticals, Inc. Other trademarks and trade names appearing in this prospectus are the property of their holders.

SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

Certain statements and information contained in this prospectus and the documents incorporated by reference herein related to our intent to focus in the near term on the commercial and clinical development of FACTIVE and the sale of TESTIM, the timing of the filing of an sNDA for FACTIVE for the treatment of ABS and a 5-day course of treatment of CAP, as well as other statements related to the progress and timing of product development, present or future licensing, collaborative or financing arrangements or that otherwise relate to future periods, are forward-looking statements as defined by the Private Securities Litigation Reform Act of 1995. These statements represent, among other things, the expectations, beliefs, plans and objectives of management and/or assumptions underlying or judgments concerning the future financial performance and other matters discussed in this document. The words “may,” “will,” “should,” “plan,” “believe,” “estimate,” “intend,” “anticipate,” “project,” and “expect” and similar

expressions are intended to identify forward-looking statements. All forward-looking statements involve certain risks, estimates and assumptions, and we can give no assurance that these expectations will be achieved. You are cautioned that these forward-looking statements involve uncertainty and actual results may differ materially from those discussed as a result of various factors described in the Section of this prospectus entitled “Risk Factors.” We encourage you to read those descriptions carefully. We caution investors not to place significant reliance on the forward-looking statements contained in this report. These statements, like all statements in this report, speak only as of the date of this report (unless another date is indicated) and we undertake no obligation to update or revise the statements.

USE OF PROCEEDS

Except as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the common stock covered by this prospectus for general corporate purposes, which may include expanding of our commercial and marketing efforts, increasing working capital, funding capital and clinical developments, acquiring new products or technologies, and making other investments. Additional information on the use of net proceeds from the sale of common stock covered by this prospectus may be set forth in the prospectus supplement relating to the specific offering.

DESCRIPTION OF CAPITAL STOCK

Our authorized capital stock consists of 175,000,000 shares of common stock, par value $.10 per share, including 625,000 shares of common stock designated as series B restricted common stock.

The following descriptions are summaries of the material terms of our articles of organization and bylaws. Reference is made to the more detailed provisions of, and the descriptions are qualified in their entirety by reference to, our articles of organization and bylaws, copies of which are filed with the SEC.

Common Stock

As of September 29, 2005, we had 76,937,691 shares of our common stock outstanding. There are no shares of series B restricted common stock issued and outstanding.

Oscient Pharmaceuticals Common Stock

Voting. The holders of our common stock are entitled to one vote per share on all matters to be voted upon by the shareholders. Holders of our common stock are not authorized by our articles of organization to cumulate votes for the election of directors. Directors are elected by a plurality of the votes entitled to vote and present in person or represented by proxy at the meeting.

Dividends. We have never paid cash dividends on our common stock and do not expect to pay dividends in the foreseeable future. Any decision to pay cash dividends in the future will be at the discretion of our board of directors and will depend upon our financial condition, operating results, capital requirements and such other factors as our board of directors deem relevant. Holders of common stock would share ratably in any dividends that may be declared by our board of directors.

Liquidation, Dissolution and Winding-up. In the event of our liquidation, dissolution or winding up, the holders of common stock are to receive for each share of our common stock held by them, prior to the holders of series B restricted common stock, the greater of (a) $5.00 and (b) the amount equal to 10 times the amount available to holders of Series B restricted common stock. If the assets available for distribution are insufficient to permit the full payment, then the entire amount available for distribution to the holders of common stock will be distributed pro rata among them.

Preemptive Rights, Conversion and Redemption. There are no preemptive or other subscription rights, conversion rights, or redemption or sinking fund provisions with respect to shares of our common stock.

Oscient Pharmaceuticals Series B Restricted Common Stock

Our articles of organization, as amended, provide that the holders of our series B restricted common stock are not entitled to vote, except as otherwise required by law or receive dividends. No shares of our series B restricted common stock are outstanding and we have no current intention to issue any shares of series B restricted common stock.

No Limits on Written Consents

Our articles of organization provide that any action required or permitted to be taken by our stockholders may be effected without a meeting on unanimous written consent of the stockholders.

Limits on Special Meetings

Our bylaws provide that special meetings of stockholders may be called at the request of the board of directors or our president.

Transfer Agent and Registrar

The transfer agent and registrar for our common stock is EquiServe Trust Company N.A.

Nasdaq Listing

Our common stock is listed on Nasdaq under the symbol “OSCI.”

PLAN OF DISTRIBUTION

We may sell the common stock being offered hereby in one or more of the following ways from time to time:

•

through dealers or agents to the public or to investors;

•

to underwriters for resale to the public or to investors;

•

directly to investors or to a single investor; or

•

through a combination of such methods.

In addition, we may issue the common stock as a dividend or distribution or in a subscription rights offering or in other transactions to our existing security holders. In some cases, we or dealers acting with us or on our behalf may also purchase shares of common stock and re-offer them to the public by one or more of the methods described above. We, or underwriters, agents or dealers acting with us or on our behalf may offer shares of common stock to the public in at-the-market offerings. This prospectus may be used in connection with any offering of our common stock through any of these methods or other methods described in the applicable prospectus supplement.

We may determine the price or other terms of the common stock offered under this prospectus by use of an electronic auction. We will describe how any auction will determine the price or other terms, how potential investors may participate in the auction and the nature of the underwriter’s obligations in the related supplement to this prospectus.

We will set forth in a prospectus supplement the terms of the offering of the shares of common stock, including:

•

the name or names of any agents, dealers or underwriters;

•

the purchase price of the shares of common stock being offered and the proceeds we will receive from the sale;

•

any over-allotment options under which underwriters may purchase additional common stock from us;

•

any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation; and

•

any discounts or concessions allowed or reallowed or paid to dealers.

Underwriters

Underwriters, dealers and agents that participate in the distribution of the shares of common stock may be deemed to be underwriters as defined in the Securities Act and any discounts or commissions they receive from us and any profit on their resale of the shares of common stock may be treated as underwriting discounts and commissions under the Securities Act. We will identify in the applicable prospectus supplement any underwriters, dealers or agents and will describe their compensation. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment. However, no prospectus supplement shall fundamentally change the terms that are set forth in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness. We may have agreements with the underwriters, dealers and agents to indemnify them against specified civil liabilities, including liabilities under the Securities Act. Underwriters, dealers and agents may engage in transactions with or perform services for us or our subsidiaries in the ordinary course of their businesses.

If underwriters are used in the sale, they will acquire the shares of common stock for their own account and may resell the shares of common stock from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The obligations of the underwriters to purchase shares of common stock will be subject to the conditions set forth in the applicable underwriting agreement. We may offer shares of common stock to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions, the underwriters will be obligated to purchase all of the shares of common stock offered by the prospectus supplement. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We will describe in the prospectus supplement, naming the underwriter, the nature of any such relationship.

We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase common stock from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.

If we offer common stock in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the shares of common stock they commit to purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription rights offering for us.

Trading Markets and Listing of Securities

Our common stock is listed on the Nasdaq National Market. We cannot give any assurance as to the liquidity of the trading market for our common stock.

Stabilization Activities

Certain persons that participate in the distribution of the shares of common stock may engage in transactions that stabilize, maintain or otherwise affect the price of the common stock, including over-allotment, stabilizing and short-covering transactions in the common stock, and the imposition of penalty bids, in connection with an offering. Over-allotment involves sales in excess of the offering size, which creates a short position. Stabilizing transactions involve bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. Syndicate short covering transactions involve purchases of securities in the open market after the distribution has been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to reclaim selling concessions from dealers when the securities originally sold by the dealers are purchased in covering transactions to cover syndicate short positions. These transactions may cause the price of the common stock sold in an offering to be higher than it would otherwise be. These transactions, if commenced, may be discontinued by the underwriters at any time.

Passive Market Making

Certain persons may also engage in passive market making transactions as permitted by Rule 103 of Regulation M. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In

general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.

LEGAL MATTERS

Ropes & Gray, LLP, Boston, Massachusetts, will provide us with an opinion as to the legal matters in connection with the shares of common stock we are offering.

EXPERTS

Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements included in our Annual Report on Form 10-K for the year ended December 31, 2004, and management's assessment of the effectiveness of our internal control over financial reporting as of December 31, 2004, as set forth in their reports, which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements and management's assessment are incorporated by reference in reliance on Ernst & Young LLP's reports, given on their authority as experts in accounting and auditing.

WHERE YOU CAN FIND MORE INFORMATION

We are a public company and file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy any document we file at the SEC’s Public Reference Room at 100F Street, N.E., Washington, D.C. 20549. You can request copies of these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the public reference room. Our SEC filings are also available to the public at the SEC’s web site at “http://www.sec.gov.” In addition, our common stock is listed for trading on the Nasdaq National Market. You can read and copy reports and other information concerning us at the offices of the National Association of Securities Dealers, Inc. located at 1735 K Street, Washington, D.C. 20006. You may also access our filings with the Securities and Exchange Commission and obtain other information about us through the website maintained by Oscient, which is “http://www.oscient.com.” The information contained in that website is not incorporated by reference into this prospectus.

This prospectus is only part of a Registration Statement on Form S-3 that we have filed with the SEC under the Securities Act and therefore omits certain information contained in the Registration Statement. We have also filed exhibits and schedules with the Registration Statement that are excluded from this prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other document. You may:

•

inspect a copy of the Registration Statement, including the exhibits and schedules, without charge at the public reference room, or

•

obtain a copy from the SEC upon payment of the fees prescribed by the SEC.

INCORPORATION OF DOCUMENTS BY REFERENCE

This prospectus incorporates by reference information from documents which are not presented in or delivered with this prospectus. You should rely only on the information contained in the prospectus and in the documents that we have incorporated by reference herein. We have not authorized anyone to provide you with information that is different.

The SEC allows us to “incorporate by reference” information from other documents that we file with them, which means that we can disclose important information by referring to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. Any statement contained in a document, all or a portion of which is incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained or 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. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the time that all common stock covered by this

prospectus have been sold; provided, however, that we are not incorporating any information furnished under either Item 2.02 or Item 7.01 of any current report on Form 8-K:


Oscient Pharmaceuticals SEC Filings (File No. 0-10824)		Period
Quarterly Reports on Form 10-Q		Fiscal Quarter Ended March 31, 2005, as filed on May 10, 2005, and Fiscal Quarter Ended June 30, 2005, as filed on August 9, 2005

The portions of our Proxy Statement on Schedule 14A for our 2005 Annual Meeting of Shareholders that are deemed “filed” with the SEC		As filed on April 20, 2005

Annual report on Form 10-K and 10-K/A		Year ended December 31, 2004, as filed on March 16, 2005, as amended on May 4, 2005

Current reports on Form 8-K and Form 8-K/A		As filed on January 6, 2005; January 7, 2005; January 10, 2005; February 8, 2005; March 22, 2005; March 29, 2005; April 6, 2005; April 13, 2005; May 3, 2005; June 6, 2005; June 7, 2005; July 20, 2005; August 3, 2005 and September 19, 2005

The description of our common stock contained in our registration statement on Form 10/A, including any amendment or reports filed for the purpose of updating such description		As filed on January 9, 1996

Documents incorporated by reference are available without charge, excluding all exhibits unless an exhibit has been specifically incorporated by reference into this prospectus, by requesting them in writing or by telephone at:

Oscient Pharmaceuticals Corporation

1000 Winter Street, Suite 2200

Waltham, Massachusetts 02451

Attention: Christopher Taylor, Vice President of Investor Relations

(781) 398-2300

The information contained on our website does not constitute a part of this prospectus.

PART II. INFORMATION NOT REQUIRED IN PROSPECTUS

Item 14. Other Expenses of Issuance and Distribution

The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, if any, payable by the registrant in connection with the offering of the common stock being registered. All the amounts shown are estimates, except for the SEC registration fee.


SEC registration fee	$	11,770.00
Accounting fees and expenses	$	30,000.00
Legal fees and expenses	$	200,000.00
Printing and engraving expenses	$	30,000.00
Transfer agent’s and depository’s fees	$	10,000.00
TOTAL EXPENSES	$	281,770.00

Item 15. Indemnification of Directors and Officers.

Section 2.02(b)(4) of the Massachusetts Business Corporation Act (the “MBCA”) provides that a corporation may, in its articles of organization, eliminate or limit a director’s personal liability to the corporation and its shareholders for monetary damages for breaches of fiduciary duty, except in circumstances involving (1) a breach of the director’s duty of loyalty to the corporation or its shareholders, (2) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) improper distributions, and (4) transactions from which the director derived an improper personal benefit. Our Restated Articles of Organization, as amended to date, provide that our directors shall not be liable to the company or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that the exculpation from liabilities is not permitted under the Massachusetts Business Corporation Act as in effect at the time such liability is determined.

Section 8.51 of the MBCA permits the a corporation to indemnify a director if the individual (1) acted in good faith, (2) reasonably believed that his or her conduct was (a) in the best interests of the corporation or (b) at least not opposed to the best interest of the corporation, and (3) in the case of a criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. Section 8.51 also permits the Registrant to indemnify a director for conduct for which such individual is or would be exculpated under the charter provision referred to above, whether or not the director satisfied a particular standard of conduct. Section 8.56 of the MBCA permits a corporation to indemnify an officer (i) under those circumstances in which the corporation would be allowed to indemnify a director and (ii) to such further extent as the corporation chooses provided that the liability does not arise out of acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law. This broader permissible indemnification for officers also is available for a director who is an officer if the individual becomes party to a proceeding on the basis of an act or omission solely as an officer. Section 8.55 of the MBCA mandates that the determination that an award of indemnification is appropriate in a particular circumstance be made by (A) a majority vote of all disinterested directors or a majority of a committee of disinterested directors (in each case, if there are at least two disinterested directors), (B) special legal counsel, or (C) the shareholders.

Prior to the final disposition of a proceeding involving a director or officer, Sections 8.53 and 8.56 of the MBCA allow a corporation to pay for or reimburse reasonable expenses. As a condition, the director or officer must deliver a written undertaking to repay the funds if the individual is determined not to have met the relevant standard of conduct, which determination is made in the same manner as the determination of whether an individual is entitled to indemnification. This undertaking may be accepted without security and without regard to the individual’s financial ability to make repayment. Another condition to advancement of expenses is that the individual submit a written affirmation of his or her good faith that he or she has met the standard of conduct necessary for indemnification (or that the matter involved conduct for which liability has been eliminated pursuant to the charter exculpation provision referred to above).

The MBCA allows a corporation to obligate itself (1) to indemnify a director or officer and (2) to provide advancement of expenses to such an individual. Such a commitment may be made in the corporation’s charter or bylaws or in a resolution adopted, or a contract approved, by the board of directors or the shareholders. Our By-Laws provide that we shall indemnify our directors and officers to the full extent legally permissible, except that no indemnification may be

II-1

provided for any director or officer with respect to any matter as to which such director or officer shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the corporation. In addition, we hold a Directors and Officer Liability and Corporate Indemnification Policy.

Sections 8.52 and 8.56(c) of the MBCA mandate indemnification for reasonable expenses, regardless of whether an individual has met a particular standard of conduct, in connection with proceedings in which a director or officer is wholly successful, on the merits or otherwise. Furthermore, Section 8.54 of the MBCA provides that a court may direct a corporation to indemnify a director or officer if the court determines that (1) the director or officer is entitled to mandatory indemnification under the MBCA, (2) the director or officer is entitled to indemnification pursuant to a provision in the corporation’s charter or bylaws or in a contract or a board or shareholder resolution, or (3) it is fair and reasonable to indemnify the director or officer, regardless of whether he or she met the relevant standard of conduct.

Sections 8.30 and 8.42 of the MBCA provide that if an officer or director discharges his duties in good faith and with the care that a person in a like position would reasonably exercise under similar circumstances and in a manner the officer or director reasonably believes to be in the best interests of the corporation, he or she will not be liable for such actions.

Item 16. Exhibits


Exhibit Number		*Description of* *Document*
1.1		Form of underwriting agreement⁽¹⁾

3.1		Restated Articles of Organization⁽²⁾

3.2		Amendment dated January 5, 1982 to Restated Articles of Organization⁽³⁾

3.3		Amendment dated January 24, 1983 to Restated Articles of Organization⁽⁴⁾

3.4		Amendment dated January 17, 1984 to Restated Articles of Organization⁽⁵⁾

3.5		Amendment dated October 20, 1987 to the By-laws⁽⁶⁾

3.6		Amendment dated December 9, 1987 to Restated Articles of Organization⁽⁷⁾

3.7		Amendment dated October 16, 1989 to the By-law⁽⁸⁾

3.8		Amendment dated January 24, 1994 to Articles Restated Articles of Organization⁽⁹⁾

3.9		Amendment dated August 31, 1994 to Restated Articles of Organization⁽⁹⁾

3.10		Amendment dated March 15, 2001 to Restated Articles of Organization⁽¹⁰⁾

3.11		Amendments dated February 2, 2004 and April 13, 2004 to Restated Articles of Organization

3.12		By-Laws, as amended⁽¹¹⁾

5.1		Opinion of Ropes & Gray LLP

23.1		Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm

23.2		Consent of Ropes & Gray LLP (included in Exhibit 5.1)

24.1		Power of Attorney (included on signature page)

⁽¹⁾	To be filed by amendment or by a Current Report of the registrant on Form 8-K and incorporated herein by reference.

⁽²⁾	Filed as exhibits to the Company’s Registration Statement on Form S-1 (No. 2-75230) and incorporated herein by reference.

⁽³⁾	Filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended February 27, 1982 and incorporated herein by reference.

⁽⁴⁾	Filed as exhibits to the Company’s Quarterly Report on Form 10-Q for the quarter ended February 26, 1983 and incorporated herein by reference.

⁽⁵⁾	Filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended February 25, 1984 and incorporated herein by reference.

⁽⁶⁾	Filed as an exhibit to the Company’s Annual Report on Form 10-K for the year ended August 31, 1987 and incorporated herein by reference.

⁽⁷⁾	Filed as an exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended November 28, 1987 and incorporated herein by reference.

⁽⁸⁾	Filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended August 31, 1989 and incorporated herein by reference.

II-2

⁽⁹⁾	Filed as exhibits of the Company’s Annual Report on Form 10-K for the fiscal year ended August 31, 1994 and incorporated herein by reference.

⁽¹⁰⁾	Filed as an exhibit to the Company’s 10-Q for the quarter ended February 24, 2001 and incorporated herein by reference.

⁽¹¹⁾	Filed as an exhibit to the Company’s 10-Q for the quarter ended September 29, 2001 and incorporated herein by reference.

Item 17. Undertakings

Item 512(a) of Regulation S-K

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 any 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; 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 with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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.

Item 512(b) of Regulation S-K

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 15(d) of the Exchange Act of 1934 (and, where applicable, 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

Item 512(h) of Regulation S-K

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 provisions described in Item 15, 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

II-3

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

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, 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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Waltham, The Commonwealth of Massachusetts, on September 30, 2005.


OSCIENT PHARMACEUTICALS CORPORATION

		/s/ Steven M. Rauscher
Name:		Steven M. Rauscher
Title:		Director , President and
		Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

The registrant and each person whose signature appears below constitutes and appoints Steven M. Rauscher and Dominick Colangelo, and each of them singly, his, her or its true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him, her or it and in his, her or its name, place and stead, in any and all capacities, to sign and file (i) any and all amendments (including post-effective amendments) to this Registration Statement, with all exhibits thereto, and other documents in connection therewith, and (ii) a registration statement, and any and all amendments thereto, relating to the offering covered hereby filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he, she, or it might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.


Signature	Title	Date

/s/ Steven M. Rauscher Steven M. Rauscher	Director, President and Chief Executive Officer (Principal Executive Officer)	September 30, 2005

/s/ Stephen Cohen Stephen Cohen	Senior Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)	September 30, 2005

/s/ David K. Stone	Director and Chairman of the Board	September 30, 2005
David K. Stone

/s/ Luke Evnin	Director	September 30, 2005
Luke Evnin

/s/ Robert J. Hennessey	Director	September 30, 2005
Robert J. Hennessey

II-5


/s/ Gary Patou	Director	September 30, 2005
Gary Patou

/s/ Norbert G. Riedel	Director	September 30, 2005
Norbert G. Riedel

/s/ John E. Voris	Director	September 30, 2005
John E. Voris

/s/ David B. Singer	Director	September 30, 2005
David B. Singer

/s/ Pamela Kirby	Director	September 30, 2005
Pamela Kirby

II-6

EXHIBIT INDEX


Exhibit Number		*Description of* *Document*
3.11		Amendments dated February 2, 2004 and April 13, 2004 to Restated Articles of Organization

5.1		Opinion of Ropes & Gray LLP

23.1		Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm

23.2		Consent of Ropes & Gray LLP (included in Exhibit 5.1)

24.1		Power of Attorney (included on signature page)

EX-3.11 2 dex311.htm AMENDMENTS TO RESTATED ARTICLES OF ORGANIZATION Amendments to Restated Articles of Organization

Exhibit 3.11

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

Articles of Amendment

(General Laws Chapter 156B, Section 72)

We, Steven M. Rauscher, President

and Patrick O’Brien, Clerk

of Genome Therapeutics Corp.

(Exact name of corporation)

located at 100 Beaver Street, Waltham, MA 02453

(Street address of corporation in Massachusetts)

certify that these Articles of Amendment affecting articles numbered:

(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)

of the Articles of Organization were duly adopted at a meeting held on April 13 , 2004, by vote of:

56,231,749 shares of Common Stock of 73,925,570 shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

being at least a majority of each type, class or series outstanding and entitled to vote thereon:

To change the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following:

The total presently authorized is:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:

Preferred		Preferred:

Change the total authorized to:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:

Preferred		Preferred:

ARTICLE I has been amended in its entirety to read as follows:

“ARTICLE I

The exact name of the corporation is: Oscient Pharmaceuticals Corporation”

The foregoing amendment(s) will become effective when these Articles of Amendment are filed in accordance with General Laws, Chapter 156B, Section 6 unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date.

Later effective date: .

SIGNED UNDER THE PENALTIES OF PERJURY, this 13th day of April, 2004.

/s/ Stephen M. Rauscher, President

/s/ Patrick O’Brien, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $100 having been paid, said articles are deemed to have been filed with me this 13 day of April 2004.

Effective date:

/s/ William Francis Galvin

WILLIAM FRANCIS GALVIN

Secretary of the Commonwealth

TO BE FILLED IN BY CORPORATION

Contact information:

Nicholas T. Antoun, c/o Ropes & Gray

One International Place

Boston, MA 02110

Telephone: (617) 951-7000

Email: nantoun@ropesgray.com

A copy of this filing will be available on-line at www.state.ma.us/sec/cor once the document is filed.

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

Articles of Amendment

(General Laws Chapter 156B, Section 72)

We, Steven M. Rauscher, President

and Stephen Cohen, Assistant Clerk,

of Genome Therapeutics Corp.

(Exact name of corporation)

located at 100 Beaver Street, Waltham, MA 02453

(Street address of corporation in Massachusetts)

certify that these Articles of Amendment affecting articles numbered:

(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)

of the Articles of Organization were duly adopted at a meeting held on February 2, 2004, by vote of:

28,157,783 shares of Common Stock of 31,477,889 shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

being at least a majority of each type, class or series outstanding and entitled to vote thereon:

To change the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following:

The total presently authorized is:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:	50,000,000*	$0.10

Preferred		Preferred:

Change the total authorized to:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:	175,000,000*	$0.10

Preferred		Preferred:

*	Includes 625,000 shares of Series B restricted stock, par value $0.10 per share

Later effective date: .

SIGNED UNDER THE PENALTIES OF PERJURY, this 2nd day of February, 2004.

/s/ Stephen M. Rauscher, President

/s/ Stephen Cohen, Assistant Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $125,000 having been paid, said articles are deemed to have been filed with me this 3rd day of February 2004.

Effective date:

/s/ William Francis Galvin

WILLIAM FRANCIS GALVIN

Secretary of the Commonwealth

TO BE FILLED IN BY CORPORATION

Contact information:

Stephen Cohen, Genome Therapeutics Corp.

100 Beaver Street

Waltham, MA 02453

Telephone: 781-398-2311

Email: scohen@genomecorp.com

A copy of this filing will be available on-line at www.state.ma.us/sec/cor once the document is filed.

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

William Francis Galvin

Secretary of the Commonwealth

One Ashburton Place, Boston, Massachusetts 02108-1512

Articles of Amendment

(General Laws Chapter 156B, Section 72)

We, Steven Cohen, Vice President

and David C. Chapin, Clerk

of Genome Therapeutics Corp.

(Exact name of corporation)

located at 100 Beaver Street, Waltham, MA 02453

(Street address of corporation in Massachusetts)

certify that these Articles of Amendment affecting articles numbered:

(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)

of the Articles of Organization were duly adopted at a meeting held on February 27, 2001, by vote of:

18,171,161 shares of Common Stock of 22,288,658 shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

being at least a majority of each type, class or series outstanding and entitled to vote thereon:

To change the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following:

The total presently authorized is:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:	35,000,000	$.10

Preferred		Preferred:

Change the total authorized to:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:	50,000,000	$.10

Preferred		Preferred:

Later effective date: .

SIGNED UNDER THE PENALTIES OF PERJURY, this 14th day of March, 2001.

/s/ Stephen Cohen, Vice President

/s/ David C. Chapin, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $15,000.00 having been paid, said articles are deemed to have been filed with me this 15th day of March 2001.

Effective date:

/s/ William Francis Galvin

WILLIAM FRANCIS GALVIN

Secretary of the Commonwealth

TO BE FILLED IN BY CORPORATION

Contact information:

Nicholas T. Antoun, c/o Ropes & Gray

One International Place

Boston, MA 02110

Telephone: (617) 951-7000

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE

MICHAEL J. CONNOLLY, Secretary

ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108

ARTICLES OF AMENDMENT

(General Laws Chapter 156B, Section 72)

We, Robert J. Hennessey, President

and David C. Chapin, Clerk

of Collaborative Research, Inc.

(Exact name of corporation)

located at 100 Beaver Street, Waltham, MA 02453

(Massachusetts Address of Corporation)

certify that these Articles of Amendment affecting articles numbered:

(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)

of the Articles of Organization were duly adopted at a meeting held on August 31, 1994, by vote of:

7,342,933 shares of Common Stock of 11,771,446 shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

being at least a majority of each type, class or series outstanding and entitled to vote thereon:

To change the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following:

The total presently authorized is:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:

Preferred		Preferred:

Change the total authorized to:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:

Preferred		Preferred:

That Article 1 of the Articles of Organization be amended by deletion thereof in its entirety and by insertion in place thereof of the following:

“GENOME THERAPEUTICS CORP.”

The foregoing amendment will become effective when these articles of amendment are filed in accordance with General Laws, Chapter 156B, Section 6 unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date.

Later effective date: September 6, 1994.

SIGNED UNDER THE PENALTIES OF PERJURY, this 31st day of August, 1994.

/s/ Robert J. Hennessey, President

/s/ David C. Chapin, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $100 having been paid, said articles are deemed to have been filed with me this 1st day of September 1994.

/s/ Michael J. Connolly

MICHAEL J. CONNOLLY

Secretary of State

TO BE FILLED IN BY CORPORATION

PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT


TO:		David C. Chapin
		Ropes & Gray
		One International Place, Boston, MA 02110-2624
		Telephone: (617) 951-7371

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE

MICHAEL J. CONNOLLY, Secretary

ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108

ARTICLES OF AMENDMENT

(General Laws Chapter 156B, Section 72)

We, Robert J. Hennessey, President

and David C. Chapin, Clerk

of Collaborative Research, Inc.

(Exact name of corporation)

located at 100 Beaver Street, Waltham, MA 02453

(Massachusetts Address of Corporation)

certify that these Articles of Amendment affecting articles numbered:

(Number those articles 1, 2, 3, 4, 5 and/or 6 being amended)

of the Articles of Organization were duly adopted at a meeting held on January 24, 1994, by vote of:

8,4243,455 shares of Common Stock of 10,693,166 shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

shares of of shares outstanding,

(type, class & series, if any)

being at least a majority of each type, class or series outstanding and entitled to vote thereon:

To change the number of shares and the par value (if any) of any type, class or series of stock which the corporation is authorized to issue, fill in the following:

The total presently authorized is:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:	*17,500,000	$.10

Preferred		Preferred:

*	625,000 shs. Series B Restricted Common

16,875,000 shs, Common Stock

Change the total authorized to:


WITHOUT PAR VALUE STOCKS		WITH PAR VALUE STOCKS
TYPE	NUMBER OF SHARES	TYPE	NUMBER OF SHARES	PAR VALUE
Common:		Common:	*35,000,000	$.10

Preferred		Preferred:

*	625,000 shs. Series B Restricted Common Stock

34,375,000 shs. Common Stock

Later effective date: .

SIGNED UNDER THE PENALTIES OF PERJURY, this 24th day of January, 1994.

/s/ Robert J. Hennessey, President

/s/ David C. Chapin, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $17,500 having been paid, said articles are deemed to have been filed with me this 1st day of February 1994.

/s/ Michael J. Connolly

MICHAEL J. CONNOLLY

Secretary of State

TO BE FILLED IN BY CORPORATION

PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT


TO:		David C. Chapin
		Ropes & Gray
		One International Place, Boston, MA 02110-2624
		Telephone: (617) 951-7371

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE

MICHAEL J. CONNOLLY, Secretary

One Ashburton Place, Boston, Massachusetts 02108

ARTICLES OF AMENDMENT

(General Laws Chapter 156B, Section 72)

This certificate must be submitted to the Secretary of the Commonwealth within sixty days after the date of the vote of stockholders adopting the amendment. The fee for filing this certificate is prescribed by General Laws, Chapter 156B, Section 114. Make check payable to the Commonwealth of Massachusetts.

We, Thomas O. Osterling, President

and Truman S. Casner, Clerk

of Collaborative Research, Inc.

(Name of corporation)

located at Two Oak Park, Bedford, Massachusetts 01730

do hereby certify that the following amendment to the articles of organization of the corporation was duly adopted at a meeting held on December 9, 1987, by vote of:

9,337,253 shares of Common out of 10,652,328 shares outstanding, and

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

being at least two-thirds of each class outstanding and entitled to vote thereon:

To add a new Article 6(k) as follows:

(SEE CONTINUATION SHEET 2A)

To change the number of shares and the par value, if any, of each class of stock within the corporation fill in the following:

The total presently authorized is:


KIND OF STOCK	NO PAR VALUE NUMBER OF SHARES	WITH PAR VALUE NUMBER OF SHARES	PAR VALUE
COMMON


PREFERRED

Change the total to:

“(k). A director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability; provided, however, that this Article 6(k) shall not eliminate the liability of a director to the extent that such liability is provided by applicable law (i) for any breach of the director’s duty of loyalty to the corporation or its shareholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 61 or 62 (or successor provisions) of the Business Corporation Law of The Commonwealth of Massachusetts, or (iv) for any transaction from which the director derived an improper personal benefit. The foregoing provisions of this Article 6(k) shall not eliminate the liability of a director for any act or omission occurring prior to the date on which this Article 6(k) becomes effective. No amendment to or repeal of this Article 6(k) shall apply to or have any effect on the liability or alleged liability of any director of the corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.”

CONTINUATION SHEET 2A

The foregoing amendment will become effective when these articles of amendment are filed in accordance with Chapter 156B, Section 6 of The General Laws unless these articles specify, in accordance with the vote adopting the amendment, a later effective date not more than thirty days after such filing, in which event the amendment will become effective on such later date.

IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 9th day of December, 1987.

/s/ Thomas O. Oesterling, President

/s/ Truman S. Casner, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $75.00 having been paid, said articles are deemed to have been filed with me this 11th day of December 1987.

/s/ Michael J. Connolly

MICHAEL J. CONNOLLY

Secretary of State

TO BE FILLED IN BY CORPORATION

PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT


TO:		David C. Chapin
		Ropes & Gray
		225 Franklin Street Boston, MA 02110
		Telephone: (617) 423-6100

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE

MICHAEL JOSEPH CONNOLLY, Secretary

ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108

ARTICLES OF AMENDMENT

General Laws Chapter 156B, Section 72

We, James A. Wimbush, President

and Truman S. Casner, Clerk

of Collaborative Research, Inc.

(Name of corporation)

located at 128 Spring Street, Lexington, MA 02173

do hereby certify that the following amendment to the articles of organization of the corporation was duly adopted at a meeting held on January 17, 1984, by vote of:

7,980,801 shares of Common out of 8,071,064 shares outstanding,

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

being at least a majority of each class outstanding and entitled to vote thereon, two-thirds of each class outstanding and entitled to vote thereon and of each class or series of stock whose rights are adversely affected thereby:

To change the number of shares and the par value, if any, of each class of stock within the corporation fill in the following:

The total presently authorized is:


KIND OF STOCK	NO PAR VALUE NUMBER OF SHARES	WITH PAR VALUE NUMBER OF SHARES	PAR VALUE
COMMON		12,500,000	.10


PREFERRED

Change the total to:


KIND OF STOCK	NO PAR VALUE NUMBER OF SHARES	WITH PAR VALUE NUMBER OF SHARES	PAR VALUE
COMMON		*17,500,000	.10


PREFERRED

*	625,000 shs. Series B Restricted Common Stock

16,875,000 shs. Common Stock.

IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 17th day of January, 1984.

/s/ James A. Wimbush, President

/s/ Truman S. Casner, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $2,500.00 having been paid, said articles are deemed to have been filed with me this 19th day of January 1984.

/s/ Michael J. Connolly

MICHAEL J. CONNOLLY

Secretary of State

TO BE FILLED IN BY CORPORATION

PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT


TO:		Truman S. Casner
		c/o Ropes & Gray
		225 Franklin Street Boston, MA 02110
		Telephone: (617) 423-6100

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

MICHAEL JOSEPH CONNOLLY

Secretary of State

ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108

ARTICLES OF AMENDMENT

General Laws Chapter 156B, Section 72

We, James A. Wimbush, President

and Truman S. Casner, Clerk

of Collaborative Research, Inc.

(Name of corporation)

located at 128 Spring Street, Lexington, MA 02173

do hereby certify that the following amendment to the articles of organization of the corporation was duly adopted at a meeting held on January 21, 1983, by vote of:

7,284,935 shares of Common out of 8,217,048 shares outstanding,

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

being at least two-thirds of each class outstanding and entitled to vote thereon:

SEE CONTINUATION SHEETS 2A – 2B

FOR INCREASE IN CAPITAL FILL IN THE FOLLOWING:


The total amount of capital stock already authorized is	{	shares preferred	}	with par value
		shares common	}	with par value

		shares preferred	}	without par value
		shares common	}	without par value

The amount of additional capital stock authorized is	{	shares preferred	}	with par value
		share common	}	with par value

		shares preferred	}	without par value
		shares common	}	without par value

PROVISIONS RELATING TO CAPITAL STOCK

A. Subject to subsequent reconstitution and conversion as provided below, 625,000 shares of the authorized common stock, $.10 par value (the “Common Stock”) of the Company are designated “Series B Restricted Stock.” The rights, privileges, preferences and restrictions of the Common Stock and the Series B Restricted Stock shall be identical in all respects except as follows:

(1) Voting Rights. On all matters submitted to a vote of the Company’s stockholders, each share of Common Stock shall entitle the holder thereof to one (1) vote, and, except as otherwise required by law, each share of Series B Restricted Stock shall entitle the holder thereof to no vote.

(2) Liquidation Preference. In the event of any liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, the holders of Common Stock shall be entitled to receive, prior to and in preference to any distribution of the Company’s assets to the holders of the Series B Restricted Stock by reason of their ownership thereof, the greater of (a) five dollars ($5.00) for each share of Common Stock then held by them, or (b) an amount for each share of Common Stock then held by them equal to ten (10) times the amount which, after such distribution, would remain available for distribution to holders of the Series B Restricted Stock for each share of Series B Restricted Stock then held by them. If, upon the occurrence of such event, the assets available for distribution among the holders of Common Stock are insufficient to permit the payment to the holders of the Common Stock of the foregoing preferential amount, then the entire amount of assets available for distribution to the holders of Common Stock shall be distributed among the holders of Common Stock in proportion to the number of shares of Common Stock then held by each of them.

(3) Dividends. No dividends may be declared or paid with respect to any shares of Series B Restricted Stock.

B. Upon the occurrence of any of the following events, each share of Series B Restricted Stock (whether issue or unissued), shall automatically be converted into or reconstituted as one (1) share of Common Stock:

CONTINUATION SHEET 2A

(1) the effectiveness prior to September 1, 1986 of (a) any merger or consolidation of the Company with another corporation in which the Company is not the surviving corporation, (b) the acquisition (by merger or otherwise) by another corporation in exchange in whole or in part for its equity securities (or the equity securities of an entity which is in control of the acquiring corporation) of shares of capital stock of the Company if, immediately after such acquisition, the acquiring corporation owns, directly or indirectly, stock possessing 50 percent or more of the total combined voting power of all classes of stock of the Company, or (c) any sale of all or substantially all of the assets of the Company; or

(2) the last day of any fiscal year ending prior to September 1, 1986 in which the Company realizes revenues, excluding interest income, of at least thirteen million dollars ($13,000,000).

C. Each conversion of shares hereunder shall be effected by the surrender at the office of the Company or any transfer agent for such shares of the certificate therefore, in such form and accompanied by such documents, if any, as the Company may require. The Company shall, as soon as practicable thereafter, issue and deliver at such office a certificate or certificates representing the number and class or series of shares into which such shares are convertible hereunder. Such conversion shall be deemed to have occurred as of the time set forth in paragraph B hereinabove.

D. In the event of any (i) stock split, reverse stock split or other subdivision or combination of the Common Stock, or (ii) stock dividend or other distribution on the Common Stock payable in Common Stock, an appropriate pro rata adjustment or adjustments shall be made in the liquidation preference set forth in paragraph A hereinabove and the conversion rates set forth in paragraph B hereinabove. No fractional shares shall be issued upon conversion of Series B Restricted Stock. In lieu of any fractional share to which a shareholder would otherwise be entitled, the Company shall pay cash equal to such fraction multiplied by the then fair market value per share of Series B Restricted Stock as determined in good faith by the Company’s Board of Directors.

CONTINUATION SHEET 2B

IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 24th day of January, 1983.

/s/ James A. Wimbush, President

/s/ Truman S. Casner, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $75.00 having been paid, said articles are deemed to have been filed with me this 27th day of January 1983.

/s/ Michael J. Connolly

MICHAEL J. CONNOLLY

Secretary of State

TO BE FILLED IN BY CORPORATION

PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT


TO:		David C. Chapin
		c/o Ropes & Gray
		225 Franklin Street Boston, MA 02110
		Telephone: (617) 423-6100

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

MICHAEL JOSEPH CONNOLLY

Secretary of State

ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108

ARTICLES OF AMENDMENT

General Laws Chapter 156B, Section 72

We, Orrie M. Friedman, President

and Gerard E. Hickman, Clerk

of Collaborative Research, Inc.

(Name of corporation)

located at 128 Spring Street, Lexington, MA 02173

do hereby certify that the following amendment to the restated articles of organization of the corporation was duly adopted at a meeting held on January 4, 1982, by vote of:

1,063,578 shares of Common out of 1,342,444 shares outstanding,

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

being at least a majority of each class outstanding and entitled to vote thereon:

FOR INCREASE IN CAPITAL FILL IN THE FOLLOWING:


The total amount of capital stock already authorized is	{	0 1,750,000	shares preferred shares common	}with par value, $.10 per share
		0 1,750,000	shares preferred shares common	}with par value, $.10 per share
		0 0	shares preferred shares common	}without par value
		0 0	shares preferred shares common	}without par value


The amount of additional capital stock authorized is	{	0 10,750,000	shares preferred share common	}with par value, $.10 per share
		0 10,750,000	shares preferred share common	}with par value, $.10 per share
		0 0	shares preferred shares common	}without par value
		0 0	shares preferred shares common	}without par value

IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this 4th day of January, 1982.

/s/ Orrie M. Friedman, President

/s/ Gerard E. Hickman, Clerk

THE COMMONWEALTH OF MASSACHUSETTS

ARTICLES OF AMENDMENT

(General Laws, Chapter 156B, Section 72)

I hereby approve the within Articles of Amendment and, the filing fee in the amount of $5,375.00 having been paid, said articles are deemed to have been filed with me this 5th day of January 1982 .

/s/ Michael J. Connolly

MICHAEL J. CONNOLLY

Secretary of State

TO BE FILLED IN BY CORPORATION

PHOTOCOPY OF ARTICLES OF AMENDMENT TO BE SENT


TO:		David C. Chapin
		c/o Ropes & Gray
		225 Franklin Street Boston, MA 02110
		Telephone: (617) 423-6100

FEDERAL IDENTIFICATION

No. 04-2297484

The Commonwealth of Massachusetts

MICHAEL JOSEPH CONNOLLY

Secretary of State

ONE ASHBURTON PLACE, BOSTON, MASSACHUSETTS 02108

RESTATED ARTICLES OF ORGANIZATION

General Laws, Chapter 156B, Section 74

We, Orrie M. Friedman, President

and Myer L. Orlov, Clerk

of Collaborative Research, Inc.

(Name of corporation)

located at 1365 Main Street, Waltham, Massachusettts do hereby certify that the following restatement of the articles of organization of the corporation was duly adopted at a meeting held on August 17, 1981, by vote of:

816,000 shares of Common out of 1,113,250 shares outstanding,

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

shares of out of shares outstanding, and

(Class of Stock)

being at least two-thirds of each class of stock outstanding and entitled to vote and of each class or series of stock adversely affected thereby:

The name by which the corporation shall be know is: Collaborative Research, Inc.

The purposes for which the corporation is formed are as follows:

(a)

To engage in chemical and biochemical research and development principally in the fields of bio-organic and chemotherapy and genetic recombination, to synthesize specialty chemicals and to undertake clinical assays, and to manufacture and sell chemical and bio-chemical products.

(b)

To carry on any manufacturing, mercantile, selling, management, service or other business, operation or activity which may be lawfully carried on by a corporation organized under the Business Corporation Law of The Commonwealth of Massachusetts, whether or not related to those referred to in the foregoing paragraph.

The total number of shares and the par value, if any, of each class of stock which the corporation is authorized to issue is as follows:


CLASS OF STOCK	WITHOUT PAR VALUE	WITH PAR VALUE
CLASS OF STOCK	NUMBER OF SHARES	NUMBER OF SHARES	PAR VALUE
Preferred	NONE	NONE	NONE
Common	NONE	1,750,000	$0.10

If more than one class is authorized, a description of each of the different classes of stock with, if any, the preferences, voting powers, qualifications, special or relative rights or privileges as to each class thereof and any series now established:

NONE

The restrictions, if any, imposed by the articles of organization upon the transfer of shares of stock of any class are as follows:

NONE

Other lawful provisions, if any, for the conduct and regulation of the business and affairs of the corporation, for its voluntary dissolution, or for limiting, defining, or regulating the powers of the corporation, or of its directors or stockholders, or of any class of stockholders:

See Continuation Sheets 6-A through 6-D attached hereto.

Article 6

Other Lawful Provisions

(a) The corporation may carry on any business, operation or activity referred to in Article 2 to the same extent as might an individual, whether as principal, agent, contractor or otherwise, and either alone or in conjunction or a joint venture or other arrangement with any corporation, association, trust, firm or individual.

(b) The corporation may carry on any business, operation or activity through a wholly or partly owned subsidiary.

(d) The directors may make, amend or repeal the bylaws in whole or in part, except with respect to any provision thereof which by law or the bylaws requires action by the stockholders.

(e) Meetings of the stockholders may be held anywhere in the United States.

(f) No stockholder shall have any right to examine any property or any books, accounts or other writings of the corporation if there is reasonable ground for belief that such examination will for any reason be adverse to the interests of the corporation, and a vote of the directors refusing permission to make such examination and setting forth that in the opinion of the directors such examination would be adverse to the interests of the corporation shall be prima facie evidence that such examination would be adverse to the interests of the corporation. Every such examination shall be subject to such reasonable regulations as the directors may establish in regard thereto.

(g) The directors may specify the manner in which the accounts of the corporation shall be kept and may determine what constitutes net earnings, profits and surplus, what amounts, if any, shall be reserved for any corporate purpose, and what amounts, if any, shall be declared as dividends. Unless the board of directors otherwise specifies, the excess of the consideration for any share of its capital stock with par value issued by it over such par value shall be paid-in surplus. The board of directors may allocate to capital stock less than all of the consideration for any share of its capital stock without par value issued by it, in which case the balance of such consideration shall be paid-in surplus. All surplus shall be available for any corporate purpose, including the payment of dividends.

6-A

(h) The purchase or other acquisition or retention by the corporation of shares of its own capital stock shall not be deemed a reduction of its capital stock. Upon any reduction of capital or capital stock, no stockholder shall have any right to demand any distribution from the corporation, except as and to the extent that the stockholders shall have provided at the time of authorizing such reduction.

(i) The directors shall have the power to fix from time to time their compensation. No person shall be disqualified from holding any office by reason of any interest. In the absence of fraud, any director, officer or stockholder of this corporation individually, or any individual having any interest in any concern which is a stockholder of this corporation, or any concern in which any of such directors, officers, stockholders or individuals has any interest, may be a party to, or may be pecuniarily or otherwise interested in, any contract, transaction or other act of this corporation, and

(1)

such contract, transaction or act shall not be in any way invalidated or otherwise affected by that fact;

(2)

no such director, officer, stockholder or individual shall be liable to account to this corporation for any profit or benefit realized through any such contract, transaction or act; and

(3)

any such director of this corporation may be counted in determining the existence of a quorum at any meeting of the directors or of any committee thereof which shall authorize any such contract, transaction or act, and may vote to authorize the same;

provided, however, that any contract, transaction or act in which any director or officer of this corporation is so interested individually or as a director, officer, trustee or member of any concern which is not a subsidiary or affiliate of this corporation, or in which any directors or officers are so interested as holders, collectively, of a majority of shares of capital stock or other beneficial interest at the time outstanding in any concern which is not a subsidiary or affiliate of this corporation, shall be duly authorized or ratified by a majority of the directors who are not so interested, to whom the nature of such interest has been disclosed and who have made any findings required by law;

6-B

the term “interest” including personal interest and interest as a director, officer, stockholder, shareholder, trustee, member or beneficiary of any concern;

the term “concern” meaning any corporation, association, trust, partnership, firm, person or other entity other than this corporation; and

the phrase “subsidiary or affiliate” meaning a concern in which a majority of the directors, trustees, partners or controlling persons is elected or appointed by the directors of this corporation, or is constituted of the directors or officers of this corporation.

To the extent permitted by law, the authorizing or ratifying vote of the holders of a majority of the shares of each class of the capital stock of this corporation outstanding and entitled to vote for directors at any annual meeting or a special meeting duly called for the purpose (whether such vote is passed before or after judgment rendered in a suit with respect to such contract, transaction or act) shall validate any contract, transaction or act of this corporation, or of the board of directors or any committee thereof, with regard to all stockholders of this corporation, whether or not of record at the time of such vote, and with regard to all creditors and other claimants under this corporation; provided, however, that

with respect to the authorization or ratification of contracts, transactions or acts in which any of the directors, officers or stockholders of this corporation have an interest, the nature of such contracts, transactions or acts and the interest of any director, officer or stockholder therein shall be summarized in the notice of any such annual or special meeting, or in a statement or letter accompanying such notice, and shall be fully disclosed at any such meeting;

the stockholders so voting shall have made any findings required by law;

stockholders so interested may vote at any such meeting except to the extent otherwise provided by law; and

any failure of the stockholders to authorize or ratify such contract, transaction or act shall not be deemed in any way to invalidate the same or to deprive this corporation, its directors, officers or employees of its or their right to proceed with such contract, transaction or act.

6-C

No contract, transaction or act shall be avoided by reason of any provision of this paragraph (i) which would be valid but for such provision or provisions.

(j) The corporation shall have all powers granted to corporations by the laws of The Commonwealth of Massachusetts, provided that no such power shall include any activity inconsistent with the Business Corporation Law or the general laws of said Commonwealth.

6-D

We further certify that the foregoing restated articles of organization effect no amendments to the articles of organization of the corporation as heretofore amended, except amendments to the following articles: 2, 3, 4 and 6.

Briefly describe amendments in space below:

(a)

Article 2 of the Restated Articles or Organization amends the purposes for which the corporation was formed.

(b)

Article 3 of the Restated Articles of Organization amends the statement of the authorized capital stock of the Corporation by the elimination of 1,000 shares of the Class A Preferred Stock, no par value previously authorized. Article 3 further amends the statement of the authorized capital stock of the corporation by the increase of the number of authorized shares of Common Stock, $.10 par value, form 1,500,000 to 1,750,000.

(c)

Article 4 of the Restated Articles of Organization amends the description of the preferences, voting powers, qualifications, special or relative rights or privileges of each class of stock by the elimination of all reference thereto.

(d)

Article 6 of the Restated Articles of Organization amends the additional provisions for the conduct and regulation of the business of the corporation, for its voluntary dissolution, and for limiting, defining and regulating the powers of the corporation and its directors and stockholders.

IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our names this Seventeenth day of August in the year 1981

/s/ Orrie M. Friedman President

/s/ Myer L. Orlov Clerk

THE COMMONWEALTH OF MASSACHUSETTS

RESTATED ARTICLES OF ORGANIZATION

(General Laws, Chapter 156B, Section 74)

I hereby approve the within restated articles of organization and, the filing fee in the amount of $525.00 having been paid, said articles are deemed to have been filed with me this 17th day of August 1981.

/s/ Michael J. Connolly

MICHAEL J. CONNOLLY

Secretary of State

TO BE FILLED IN BY CORPORATION

PHOTOCOPY OF ARTICLES OF ORGANIZATION TO BE SENT


TO:		David C. Chapin
		c/o Ropes & Gray
		225 Franklin Street Boston, MA 02110
		Telephone: (617) 423-6100
		Copy Mailed

EX-5.1 3 dex51.htm OPINION OF ROPES & GRAY LLP Opinion of Ropes & Gray LLP

Exhibit 5.1

ROPES & GRAY LLP

ONE INTERNATIONAL PLACE BOSTON, MA 02110-2624 617-951-7000 F 617-951-7050

BOSTON NEW YORK PALO ALTO SAN FRANCISCO WASHINGTON, DC www.ropesgray.com

September 30, 2005

Oscient Pharmaceuticals Corporation

1000 Winter Street, Suite 2200

Waltham, MA 02451

Ladies and Gentlemen:

This opinion is being furnished to you in connection with a Registration Statement on Form S-3 (the “Registration Statement”), including the prospectus that is part of the Registration Statement (the “Prospectus”), filed by Oscient Pharmaceuticals Corporation, a Massachusetts corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Prospectus provides that it will be supplemented in the future by one or more supplements to such Prospectus (each a “Prospectus Supplement”). The Prospectus, as supplemented by the various Prospectus Supplements, will provide for the issuance and sale by the Company from time to time of up to $100,000,000 aggregate offering price of shares (the “Shares”) of the Company’s common stock, $0.10 par value per share (“Common Stock”). This opinion is furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

We have examined and relied upon the information set forth in the Registration Statement and such other records, agreements, certificates and documents, and have made such other and further legal and factual inquiries, as we have deemed necessary as a basis for the opinions expressed herein. As to questions of fact not independently verified by us, we have relied upon certificates of public officials and officers of the Company.

The opinions expressed herein are limited to matters governed by the federal laws of the United States of America and the laws of the Commonwealth of Massachusetts. To the extent that any applicable document is stated to be governed by the laws of another jurisdiction, we have assumed for purposes of this opinion that the laws of such jurisdiction are identical to the state laws of the Commonwealth of Massachusetts.

Based upon the foregoing, we are of the opinion that when the issuance and the terms of the sale of the Shares have been duly authorized by the board of directors of the Company in conformity with its articles of organization, and such Shares have been issued and delivered against payment of the purchase price therefor in an amount in excess of the par value thereof, in accordance with the applicable definitive purchase, underwriting or similar agreement, and as contemplated by the Registration Statement, the Prospectus and the related Prospectus Supplement, the Shares will be validly issued, fully paid and nonassessable.

LOGO


Oscient Pharmaceuticals Corporation		- 2 -		September 30, 2005

In rendering this opinion, we have assumed that (i) the Registration Statement will have become effective under the Securities Act, a Prospectus Supplement will have been prepared and filed with the Commission describing the Shares and such Shares will have been issued and sold in accordance with the terms of such Prospectus Supplement; (ii) a definitive purchase, underwriting or similar agreement with respect to such Shares will have been duly authorized, executed and delivered by the Company and the other parties thereto; (iii) the Shares will be duly authorized by all necessary corporate action by the Company; and (iv) the Company has reserved a sufficient number of shares of its duly authorized, but unissued, Common Stock as is necessary to provide for the issuance of the Shares pursuant to the Registration Statement.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus included therein. This opinion may be used only in connection with the offer and sale of the Shares while the Registration Statement is effective.

Very truly yours,

/s/ Ropes & Gray LLP

ROPES & GRAY LLP

EX-23.1 4 dex231.htm CONSENT OF ERNST & YOUNG LLP Consent of Ernst & Young LLP

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the reference to our firm under the caption “Experts” in the Registration Statement on Form S-3 and related Prospectus of Oscient Pharmaceuticals Corporation for the registration of shares of its common stock and to the incorporation by reference therein of our reports dated March 10, 2005, with respect to the consolidated financial statements of Oscient Pharmaceuticals Corporation as of and for the year ended December 31, 2004, Oscient Pharmaceuticals Corporation’s management’s assessment of the effectiveness of internal control over financial reporting, and the effectiveness of internal control over financial reporting of Oscient Pharmaceuticals Corporation as of December 31, 2004, included in its Annual Report (Form 10-K) for the year ended December 31, 2004, filed with the Securities and Exchange Commission.

/s/ ERNST & YOUNG LLP

Boston, Massachusetts

September 26, 2005

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