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As filed with the Securities and Exchange Commission on July 10, 1997
REGISTRATION NO. 33 -
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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PROTEON, INC.
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2531856
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
NINE TECHNOLOGY DRIVE
WESTBOROUGH, MASSACHUSETTS 01581
(508) 898-2800
(Address of Principal Executive Offices)
PROTEON, INC. 1991 RESTATED STOCK OPTION PLAN
PROTEON, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
DANIEL J. CAPONE, JR., PRESIDENT
PROTEON, INC.
NINE TECHNOLOGY DRIVE
WESTBOROUGH, MASSACHUSETTS 01581
(508) 898-2800
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Proposed Proposed
Title of maximum maximum
securities to be Amount to be offering price aggregate Amount of
registered registered(1) per share(2) offering price(2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 800,000 $1.78 $1,424,000 $431.47
par value
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</TABLE>
(1) The number of shares of common stock, par value $.01 per share ("Common
Stock"), stated above consists of the aggregate number of additional shares
not previously registered which may be sold upon the exercise of options
which have been granted and/or may hereafter be granted under the Proteon,
Inc. 1991 Restated Stock Option Plan (the "1991 Option Plan") and which may
be sold pursuant to the Proteon, Inc. Employee Stock Purchase Plan (the
"Purchase Plan"). The 1991 Option Plan and the Purchase Plan are
collectively referred to as the "Plans". The maximum number of shares which
may be sold under the Plans is subject to adjustment in accordance with
certain anti-dilution and other provisions of said Plans. Accordingly,
pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement covers, in addition to the
number of shares stated above, an indeterminate number of shares which may
be subject to grant or otherwise issuable after the operation of any such
anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act as follows: Since no additional options have been granted
under the Plans, the fee is calculated on the basis of the average of the
high and low sale prices per share of the Common Stock on The Nasdaq Stock
Market ("Nasdaq") as of a date (July 7, 1997) within 5 business days prior
to filing this Registration Statement.
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EXPLANATORY NOTE
This Registration Statement relates to the registration of 500,000
additional shares of Common Stock authorized for issuance under the 1991 Option
Plan and 300,000 additional shares of Common Stock for issuance under the
Purchase Plan. In accordance with the instructional Note to Part I of Form S-8
as promulgated by the Securities and Exchange Commission, the information
specified by Part I of Form S-8 has been omitted from this Registration
Statement on Form S-8 for offers of Common Stock pursuant to the Plans.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997.
(c) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A (File No. 0-19175), filed under the
Securities Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such reports
and documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Incorporated herein by reference from Registration Statement on Form S-1,
No. 33-40073.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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(4.1) Article 4 of Restated Articles of Organization, as Amended (Filed
as Exhibit 4.1 to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1991, and incorporated herein
by reference).
(4.2) By-Laws, as amended and restated (Filed as Exhibit 3.3 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1992, and incorporated herein by reference).
(4.3) Form of Common Stock Certificate (Filed as Exhibit 4.2 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 29, 1996, and incorporated herein by reference).
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as
to the legality of shares being registered.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5).
(23.2) Consent of Coopers & Lybrand L.L.P.
(24) Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement).
(99.1) Proteon, Inc. 1991 Restated Stock Option Plan (filed as Exhibit
10.6 to the Registration Statement on Form S-1, Registration No.
33-40073, as amended, and incorporated herein by reference).
(99.2) Proteon, Inc. Employee Stock Purchase Plan, as amended (filed as
Exhibit 28.1 to the Registration Statement on Form S-8,
Registration No. 33-41702, and incorporated herein by reference).
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
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(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,
represents a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) (Section 230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
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expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Westborough, MA, on July 7, 1997.
PROTEON, INC.
By: /S/ Steven T. Shedd
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Steven T. Shedd
Chief Financial Officer
Each person whose signature appears below constitutes and appoints Steven
T. Shedd his true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him and in his name, place and stead,
and in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 of
Proteon, Inc. and to file the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in or
about the premises, as full to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-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.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
By: /s/ Daniel J. Capone, Jr. Director, President, Chief Executive Officer July 7, 1997
- ------------------------------ (principal executive officer)
Daniel J. Capone, Jr.
By: /s/ Steven T. Shedd Chief Financial Officer July 7, 1997
- ------------------------------ (principal financial officer)
Steven T. Shedd
By: /s/ David Clark Director July 7, 1997
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David Clark
</TABLE>
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<TABLE>
<S> <C> <C>
By: /s/ Robert M. Glorioso Director July 7, 1997
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Robert M. Glorioso
By: Director (Chairman) July _, 1997
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Howard C. Salwen
</TABLE>
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PROTEON, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
Exhibit
Number Description
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4.1 Article 4 of Restated Articles of Organization, as Amended (Filed as
Exhibit 4.1 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1991, and incorporated herein by
reference).
4.2 By-Laws, as amended and restated (Filed as Exhibit 3.3 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1992, and incorporated herein by reference).
4.3 Form of Common Stock Certificate (Filed as Exhibit 4.2 to the
Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 29, 1996, and incorporated herein by reference).
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to
the legality of shares being registered.
23.1 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.(included in opinion of counsel filed as Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement).
99.1 Proteon, Inc. 1991 Restated Stock Option Plan (filed as Exhibit 10.6
to the Registration Statement on Form S-1, Registration No. 33-40073,
as amended, and incorporated herein by reference).
99.2 Proteon, Inc. Employee Stock Purchase Plan, as amended (filed as
Exhibit 28.1 to the Registration Statement on Form S-8, Registration
No. 33-41702, and incorporated herein by reference).
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EXHIBIT 5
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Telephone: 617/542-6000
Telephone: 202/434-7300 Fax: 617/542-2241
Fax: 202/434-7400 www.mintz.com
July 10, 1997
Proteon, Inc.
Nine Technology Drive
Westborough, Massachusetts 01581
Gentlemen:
We have acted as counsel to Proteon, Inc., a Massachusetts corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement"), pursuant to which the Company is registering the
issuance under the Securities Act of 1933, as amended, of a total of 800,000
shares (the "Shares") of its common stock, $.01 par value per share (the "Common
Stock"). This opinion is being rendered in connection with the filing of the
Registration Statement. All capitalized terms used herein and not otherwise
defined shall have the respective meanings given to them in the Registration
Statement.
In connection with this opinion, we have examined the Company's Restated
Articles of Organization, as amended, and Restated By-Laws, as amended, both as
currently in effect; such other records of the corporate proceedings of the
Company and certificates of the Company's officers as we have deemed relevant;
and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified or photostatic copies and the authenticity of the
originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the Shares have
been duly and validly authorized by the Company and (ii) the Shares, when sold,
will have been duly and validly issued, fully paid and non-assessable shares of
the Common Stock, free of preemptive rights.
Our opinion is limited to Massachusetts law, and we express no opinion with
respect to the laws of any other jurisdiction. No opinion is expressed herein
with respect to the qualification of the Shares under the securities or blue sky
laws of any state or any foreign jurisdiction.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
July 10, 1997
Page 2
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
-----------------------------------
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Proteon, Inc. on Form S-8 of our report dated February 11, 1997,
on our audits of the consolidated financial statements and financial statement
schedule of Proteon, Inc. as of December 31, 1996 and 1995, and for each of the
three years in the period ended December 31, 1996, which reports have been
incorporated by reference or included in the Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
-------------------------------
Coopers & Lybrand L.L.P.
Boston, Massachusetts
July 10, 1997
