As filed with the Securities and Exchange Commission
on July 15, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DIACRIN, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3016912
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Building 96, 13th Street
Charlestown Navy Yard
Charlestown, Massaachusetts 02129
(Address and zip code of Principal Executive Offices)
1997 STOCK OPTION PLAN
(Full title of the Plan)
Thomas H. Fraser, Ph.D.
President and Chief Executive Officer
Diacrin, Inc.
Building 96, 13th Street
Charlestown Navy Yard
Charlestown, Massachusetts 02129
(Name, address and of agent for service)
(617) 242-9100
(Telephone number, including area code, of agent for service)
with a copy to
Steven D. Singer, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
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<TABLE>
======================================================================================================
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Registered Offering Price Aggregate Offering Registration Fee
Per Share Price
- ------------------- ------------- ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, 1,200,000 shares $10.88 (1) $13,056,000 (1) $3,957
$0.01 par value
per share
</TABLE>
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee and
based upon the average of the high and low trading prices of the
Registrant's Common Stock, as reported on the Nasdaq National Market on
July 16, 1997, in accordance with Rules 457(c) and 457(h) of the
Securities Act of 1933, as amended.
================================================================================
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to participants in the 1997 Stock Option Plan of
Diacrin, Inc., a Delaware corporation (the "Registrant"), pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The following documents, which are filed with the Securities
and Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Sections 13(a) or Section 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act that contains audited
financial statements for the Registrant's latest fiscal year for which
such statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the prospectus referred to in (1) above.
(3) The description of the Common Stock of the Registrant,
$0.01 par value per share (the "Common Stock"), contained in the
Registrant's Registration Statement on Form 10 filed under the Exchange
Act, including any amendment or report filed for the purpose of
updating such information.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post- effective amendment which indicates that all shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents.
Item 4. Description of Securities
-------------------------
Not applicable.
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Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the General Corporation Law of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which such
person is or is threatened to be made a party by reason of such position, if
such person shall have acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation, and, in any
criminal proceeding, if such person had no reasonable cause to believe such
conduct was unlawful; provided that, in the case of actions brought by or in the
right of the corporation, no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating court determines
that such indemnification is proper under the circumstances.
Article Eleven of the Registrant's Certificate of
Incorporation provides that a director or officer of the Registrant (a) shall be
indemnified by the Registrant against all expenses (including attorney's fees),
judgments, fines and amounts paid in settlement reasonably incurred in
connection with any litigation or other legal proceeding (other than an action
by or in the right of the Registrant) brought against such director or officer
by virtue of a position as a director or officer of the Registrant if such
director or officer acted in good faith and in a manner reasonably believed by
such director to be in or not opposed to the best interests of the Registrant,
and, with respect to any criminal action or proceeding, such director had no
reasonable cause to believe such conduct was unlawful and (b) shall be
indemnified by the Registrant against expenses (including attorneys' fees) and
amounts paid in settlement reasonably incurred in connection with any action by
or in the right of the Registrant by virtue of a position as a director or
officer of the Registrant if such officer or director acted in good faith and in
a manner reasonably believed to be in or not opposed to the best interests of
the Registrant, except that no indemnification shall be made with respect to any
such matter as to which such director or officer shall have been adjudged to be
liable to the Registrant, unless and only to the extent that a court determines
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper. Nothwithstanding the foregoing, to the
extent that a director or officer has been successful, on the merits or
otherwise, such person shall be indemnified against all expenses (including
attorneys' fees) reasonably incurred in connection therewith. Expenses incurred
in defending a civil or criminal action, suit or proceeding shall be advanced by
the Registrant to a director or officer, at such person's request, upon receipt
of an undertaking by the director or officer to repay such amount if it is
ultimately determined that such person is not entitled to indemnification.
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Indemnification is required to be made unless the Registrant
determines that the applicable standard of conduct required for indemnification
has not been met. In the event of a determination by the Registrant that the
director or officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition a court to make an independent determination as to whether
such person is entitled to indemnification. As a condition precedent to the
right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article Eleven of the Registrant's Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General Corporation
Law is amended to expand the indemnification permitted to directors or officers,
the Registrant shall indemnify those persons to the fullest extent permitted by
such law as so amended.
Article Seven of the Registrant's Certificate of Incorporation
provides that, except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Registrant shall be personally liable to
the Registrant or its stockholders for monetary damages for any breach of
fiduciary duty as a director.
The Registrant has purchased a general liability insurance
policy which covers certain liabilities of directors and officers of the
Registrant arising out of claims based on acts or omissions in their capacity as
directors or officers.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
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Item 9. Undertakings
------------
1. The Registrant hereby undertakes:
(a) 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (i) and (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 Exchange Act that are incorporated by reference
in the Registration Statement.
(b) That, for the purpose of determining any liability under
the Securities Act, 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.
(c) 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.
2. The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
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3. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, this 15th day
of July, 1997.
Diacrin, Inc.
By: /s/ Thomas H. Fraser
--------------------------
Thomas H. Fraser
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Diacrin, Inc., hereby
severally constitute and appoint Thomas H. Fraser, Mark J. Fitzpatrick, Steven
D. Singer and Jonathan Wolfman, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names, in the capacities indicated below, the Registration Statement on
Form S-8 filed herewith, and any and all subsequent amendments to said
Registration Statement, and generally to do all such things in our names and on
our behalf and in our capacities as officers and directors to enable Diacrin,
Inc., to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and any and all amendments thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Thomas H. Fraser President, Chief Executive July 15, 1997
- -------------------------- Officer and Director
Thomas H. Fraser (Principal Executive Officer)
/s/ Mark J. Fitzpatrick Vice President of Finance July 15, 1997
- -------------------------- and Administration and
Mark J. Fitzpatrick Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Zola P. Horovitz Director July 15, 1997
- --------------------------
Zola P. Horovitz
/s/ John W. Littlechild Director July 15, 1997
- --------------------------
John W. Littlechild
/s/ Stelios Papadopoulos Director July 15, 1997
- --------------------------
Stelios Papadopoulos
/s/ Henri A. Termeer Director July 15, 1997
- --------------------------
Henri A. Termeer
/s/ Christopher T. Walsh Director July 15, 1997
- ------------------------------
Christopher T. Walsh
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Exhibit Index
Exhibit
Number Description
4.1 (1) Amended and Restated Certificate of Incorporation,
as amended to date
4.2 (2) Amended and Restated By-laws, as amended to date
4.3 (2) Specimen Certificate of Common Stock,
$0.01 par value, of the Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP
(included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on the signature
page of this Registration Statement)
- ------------------------
(1) Incorporated herein by reference to the Registrant's Annual Report on
Form 10-K (File No. 0-20139) for the year ended December 13, 1995.
(2) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-2 (File No. 33-80773).
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Exhibit 5
[Hale and Dorr letterhead]
July 15, 1997
Diacrin, Inc.
Building 96, 13th Street
Charlestown Navy Yard
Charlestown, MA 02129
Re: 1997 Stock Option Plan --
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act") relating to 1,200,000 shares of Common Stock, $.01 par value
per share (the "Shares"), of Diacrin, Inc., a Delaware corporation (the
"Company"), issuable under the Company's 1997 Stock Option Plan (the "Plan").
We have examined the Amended and Restated Certificate of Incorporation
and Amended and Restated By-Laws of the Company, each as amended to date, the
Registration Statement and originals, or copies certified to our satisfaction,
of all pertinent records of the meetings of the directors and stockholders of
the Company and such other documents relating to the Company as we have deemed
material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Shares to register and qualify the Shares for sale under all
applicable state securities or "blue sky" laws. We express no opinion herein as
the laws of any state or jurisdiction other than the state laws of the
Commonwealth of Massachusetts, the Delaware General Corporation Law statute and
the federal laws of the United States of America.
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Based upon and subject to the foregoing, we are of the opinion that the
Shares covered by the Registration Statement have been duly authorized for
issuance under the Plan and that the Shares, when issued against payment
therefor in accordance with the terms of the Plan and at a price per share in
excess of the par value per share for such Shares, will be validly issued, fully
paid and nonassessable.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein. In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matter.
Very truly yours,
/s/ Hale and Dorr LLP
----------------------
HALE AND DORR LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of Diacrin, Inc., on Form S-8 of our
report dated January 16, 1997 included in Diacrin, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1996 and to all references to our firm
included in this Registration Statement.
/s/ Arthur Andersen LLP
------------------------
Arthur Andersen LLP
Boston, Massachusetts
July 16, 1997
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