<PAGE> 1
As filed with the Securities and Exchange Commission
on January 10, 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)
CHARLESTOWN NAVY YARD
BUILDING 96, 13TH STREET
CHARLESTOWN, MASSACHUSETTS 02129
(Address of Principal Executive Offices) (Zip Code)
1994 DIRECTORS' STOCK OPTION PLAN
(Full title of the Plan)
THOMAS H. FRASER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DIACRIN, INC.
CHARLESTOWN NAVY YARD
BUILDING 96, 13TH STREET
CHARLESTOWN, MASSACHUSETTS 02129
(Name and address 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>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
---------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common 30,000 $11.13(1) $333,900(1) $101.18
Stock, shares
$0.01 par
value per share
- --------------------------------------------------------------------------------
<FN>
(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 January 3, 1997, in accordance with Rules 457(c) and 457(h) of
the Securities Act of 1933, as amended.
================================================================================
</TABLE>
<PAGE> 3
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 1994 Directors' 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 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
--------------------------------------
Steven D. Singer, a partner of Hale and Dorr LLP, is
Secretary of the Registrant.
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 Eleventh 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.
Notwithstanding the foregoing, to the extent that a director or officer
has been successful, on the merits or otherwise, such
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person shall be indemnified against all expenses (including attorney's
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.
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 Eleventh 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 Seventh 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.
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Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
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 with or
furnished to the Commission 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
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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.
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 10th day of January, 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 January 10, 1997
------------------------ Executive Officer
Thomas H. Fraser and Director
(Principal
Executive
Officer)
/s/ Mark J. Fitzpatrick Vice President of January 10, 1997
------------------------ Finance and
Mark J. Fitzpatrick Administration
and Chief
Financial Officer
(Principal Financial
and Accounting Officer)
* Director January 10, 1997
------------------------
Zola P. Horovitz
* Director January 10, 1997
------------------------
John W. Littlechild
Director January , 1997
------------------------
Stelios Papadopoulos
Director January , 1997
------------------------
Henri Termeer
*By: /s/ Mark J. Fitzpatrick
---------------------------
Mark J. Fitzpatrick
Attorney-in-fact
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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
24.1 Power of Attorney (included on the signature
page of this Registration Statement)
24.2 Power of Attorney of Zola P. Horovitz
24.3 Power of Attorney of John W. Littlechild
-----------------------
(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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[HALE AND DORR LETTERHEAD]
EXHIBIT 5
January 10, 1997
Diacrin, Inc.
Charlestown Navy Yard
Building 96, 13th Street
Charlestown, MA 02129
Re: 1994 Directors' 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 30,000 shares of
Common Stock, $.01 par value per share (the "Shares"), of Diacrin,
Inc., a Delaware corporation (the "Company"), issuable under the
Company's 1994 Directors' 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.
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
<PAGE> 2
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
<PAGE> 1
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 17, 1996 (except with
respect to the matters discussed in Note 10, as to which the date is
March 7, 1996) included in Diacrin, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1995 and to all references to our firm
included in this Registration Statement.
Arthur Andersen LLP
Boston Massachusetts
January 8, 1997
<PAGE> 1
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned director of
Diacrin, Inc., a Delaware corporation (the "Corporation"), which is to file
with the Securities and Exchange Commission (the "Commission") under the
provisions of the Securities Act of 1933, as amended, one or more Registration
Statements on Form S-8, or other appropriate form, for the registration of (i)
up to 800,000 shares of Common Stock issuable under the Corporation's 1990
Stock Plan, (ii) up to 30,000 shares of Common Stock issuable under the
Corporation's 1994 Directors' Stock Option Plan, and (iii) up to 400,000 shares
of Common Stock issuable upon the exercise of stock options granted by the
Corporation other than pursuant to the 1990 Stock Plan or the 1994 Directors'
Stock Option Plan, hereby constitute and appoint Thomas H. Fraser, Mark J.
Fitzpatrick, Steven D. Singer and Jonathan Wolfman, and each of them, my true
and lawful attorneys-in-fact and agents, with full power to them and each of
them singly, to act for me and in my name, place and stead, in any and all
capacities, to sign, or cause to be signed electronically, any and all of said
Registration Statements and any and all amendments to the aforementioned
Registration Statements and to file said Registration Statements and amendments
thereto so signed with all exhibits thereto, and any and all other documents in
connection therewith, with the Commission, hereby granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them may lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of the
31st day of December, 1996.
/s/ Zola P. Horovitz
--------------------
Zola P. Horovitz
<PAGE> 1
Exhibit 24.3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that I, the undersigned director of
Diacrin, Inc., a Delaware corporation (the "Corporation"), which is to file
with the Securities and Exchange Commission (the "Commission") under the
provisions of the Securities Act of 1933, as amended, one or more Registration
Statements on Form S-8, or other appropriate form, for the registration of (i)
up to 800,000 shares of Common Stock issuable under the Corporation's 1990
Stock Plan, (ii) up to 30,000 shares of Common Stock issuable under the
Corporation's 1994 Directors' Stock Option Plan, and (iii) up to 400,000 shares
of Common Stock issuable upon the exercise of stock options granted by the
Corporation other than pursuant to the 1990 Stock Plan or the 1994 Directors'
Stock Option Plan, hereby constitute and appoint Thomas H. Fraser, Mark J.
Fitzpatrick, Steven D. Singer and Jonathan Wolfman, and each of them, my true
and lawful attorneys-in-fact and agents, with full power to them and each of
them singly, to act for me and in my name, place and stead, in any and all
capacities, to sign, or cause to be signed electronically, any and all of said
Registration Statements and any and all amendments to the aforementioned
Registration Statements and to file said Registration Statements and amendments
thereto so signed with all exhibits thereto, and any and all other documents in
connection therewith, with the Commission, hereby granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as I might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them may lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of the
31st day of December, 1996.
/s/ John W. Littlechild
-----------------------
John W. Littlechild
