<PAGE>
As filed with the Securities and Exchange Commission on August 6, 1997
Registration No. 333-_____
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------------------------------
PROGENITOR, INC.
(Exact name of Registrant as Specified in Its Charter)
--------------------------------------------------
DELAWARE 31-1344193
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
1507 CHAMBERS ROAD
COLUMBUS, OHIO 43212
(Address of Principal Executive Offices)
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
--------------------------------------------------
Douglass B. Given, M.D., Ph.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PROGENITOR, INC.
1507 CHAMBERS ROAD
COLUMBUS, OHIO 43212
(Name and Address of Agent for Service)
(614) 488-6688
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
GAVIN B. GROVER, ESQ.
KRISTIAN E. WIGGERT, ESQ.
HEIKE E. FISCHER, ESQ.
MORRISON & FOERSTER LLP
345 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94104
(415) 677-7000
--------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share(1) Price(1) Fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par
value per share 100,000 $5.375 $537,500 $163.00
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described
herein.
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Page 1 of 11 pages.
The Index to Exhibits appears on page II-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Progenitor, Inc. (the "Registrant") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference herein:
(a) The Registrant's Prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended (the "Securities Act"), related to the
Registration Statement on Form S-1 (the "Registration Statement") as declared
effective on August 6, 1997 (No. 333-05369), which includes audited
financial statements for the Registrant's latest fiscal year.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since
the end of the fiscal year covered by the audited financial statements
described in (a) above.
(c) The description of the Registrant's Common Stock which is contained
in its Registration Statement on Form 8-A dated July 29, 1997 filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
Page 2 of 12 Pages
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 ("Section 145") of the Delaware General Corporation Law
("DGCL") provides a detailed statutory framework covering indemnification of
officers and directors against liabilities and expenses arising out of legal
proceedings brought against them by reason of their being or having been
directors or officers. Section 145 generally provides that a director or
officer of a corporation (i) shall be indemnified by the corporation for all
expenses of such legal proceedings when he is successful on the merits, (ii)
may be indemnified by the corporation for the expenses, judgments, fines and
amounts paid in settlement of such proceedings (other than a derivative
suit), even if he is not successful on the merits, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful, and
(iii) may be indemnified by the corporation for the expenses of a derivative
suit (a suit by a stockholder alleging a breach by a director or officer of a
duty owed to the corporation), even if he is not successful on the merits, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. No indemnification may be
made under clause (iii) above, however, if the director or officer is
adjudged liable for negligence or misconduct in the performance of his duties
to the corporation, unless a corporation determines that, despite such
adjudication, but in view of all the circumstances, he is entitled to
indemnification. The indemnification described in clauses (ii) and (iii)
above may be made only upon a determination that indemnification is proper
because the applicable standard of conduct has been met. Such a
determination may be made by a majority of a quorum of disinterested
directors, independent legal counsel, the stockholders or a court of
competent jurisdiction. The Registrant's Certificate of Incorporation
provides that the Registrant shall indemnify to the fullest extent permitted
by Section 145, as it now exists or as amended, all persons whom it may
indemnify pursuant thereto.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
Certificate of Incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the DGCL, or (iv) for any transaction from which the director derived an
improper personal benefit. The Registrant's Certificate of Incorporation
provides for the elimination of personal liability of a director for breach
of fiduciary duty, as permitted by Section 102(b)(7) of the DGCL.
Section 7 of the Form of Underwriting Agreement, attached as Exhibit 1.1
to the Registration Statement on Form S-1, contains certain provisions
relating to indemnification.
The Registrant intends to obtain liability insurance insuring the
Registrant's officers and directors against liabilities that they may incur in
such capacities.
II-2
Page 3 of 12 Pages
<PAGE>
The Registrant has entered into agreements to indemnify its directors and
executive officers, in addition to indemnification provided for in the
Registrant's charter documents. These agreements, among other things,
provide for the indemnification of the Registrant's directors and executive
officers for certain expenses (including attorneys' fees), judgments, fines
and settlement amounts incurred by any such person in any action or
proceeding, including any action by or in the right of the Registrant,
arising out of such person's services as a director or executive officer of
the Registrant, any subsidiary of the Registrant or any other company or
enterprise to which such person provides services at the request of the
Registrant to the fullest extent permitted by applicable law. The Registrant
believes that these provisions and agreements will assist it in attracting
and retaining qualified persons to serve as directors and executive officers.
The Investors' Agreements described in the Registration Statement on Form
S-1 provide for cross-indemnification of stockholders of the Registrant whose
shares with registration rights are included in a registration under the
Securities Act, and of the Registrant, its officers and directors for certain
liabilities arising in connection with such registration.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-3
Page 4 of 12 Pages
<PAGE>
ITEM 8. EXHIBITS.
4.1 Form of Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 (Commission File
No. 333-05369) which became effective on August 6, 1997 (the
"Registration Statement on Form S-1")).
4.2 Registrant's Amended and Restated Bylaws (incorporated by reference
to Exhibit 3.2 to the Registration Statement on Form S-1).
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.3 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (See page II-5).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(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;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in the Registration Statement.
II-4
Page 5 of 12 Pages
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) 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 herein, 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, 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.
(c) 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 provisions contained in the
Certificate of Incorporation and Bylaws of the Registrant, the DGCL, or
otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
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 hereunder, 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.
II-5
Page 6 of 12 Pages
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Progenitor, Inc. certifies that it has reasonable grounds to believe that it
meets all 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 Columbus, State of Ohio, on August 6, 1997.
PROGENITOR, INC.
By: /s/ Douglas B. Given
----------------------------------
Douglas B. Given
President, Chief Executive Officer
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, severally and not jointly, Mark N.K.
Bagnall, with full power to act alone, his true and lawful attorneys-in-fact,
with the power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact full power and authority to do and perform each and every
act and thing requisite and necessary to be done as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact 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:
Signature Title Date
--------- ----- ----
/s/ Douglass B. Given President, Chief Executive August 6, 1997
---------------------- Officer and Director
Douglass B. Given, M.D., Ph.D. (PRINCIPAL EXECUTIVE OFFICER)
/s/ Mark N.K. Bagnall Vice President, Finance and August 6, 1997
--------------------- Chief Financial Officer
Mark N.K. Bagnall (PRINCIPAL FINANCIAL AND
ACCOUNTING OFFICER)
II-6
Page 7 of 12 Pages
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Robert P. Axline Director August 6, 1997
--------------------
Robert P. Axline
/s/ Glenn L. Cooper Director August 6, 1997
--------------------
Glenn L. Cooper, M.D.
/s/ Alexander M. Haig, Jr. Director August 6, 1997
--------------------------
Alexander M. Haig, Jr.
/s/ Morris Laster Director August 6, 1997
-----------------
Morris Laster, M.D.
/s/ Jerry P. Peppers Director August 6, 1997
--------------------
Jerry P. Peppers
/s/ David B. Sharrock Director August 6, 1997
---------------------
David B. Sharrock
II-7
Page 8 of 12 Pages
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------- ----------- ----------
<S> <C> <C>
4.1 Form of Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.1 to
the Registrants' Registration Statement on Form S-1
(Commission File No. 333-05369) which became effective on
August 6, 1997 (the "Registration Statement on Form S-1")).
4.2 Registrant's Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.2 to the Registration Statement on
Form S-1).
5.1 Opinion of Morrison & Foerster LLP. 10
23.1 Consent of Morrison & Foerster LLP (contained in
Exhibit 5.1). 10
23.2 Consent of Coopers & Lybrand L.L.P., Independent
Accountants. 11
23.3 Consent of Ernst & Young LLP, Independent Auditors. 12
24.1 Power of Attorney (See pages II-6 and II-7). 7-8
</TABLE>
II-8
Page 9 of 12 Pages
<PAGE>
Exhibit 5.1
MORRISON & FOERSTER LLP
San Francisco, California
August 6, 1997
Progenitor, Inc.
1507 Chambers Road
Columbus, Ohio 43212
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on August 6, 1997, and to be filed with the Securities and
Exchange Commission (the "SEC") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 100,000 shares of your
common stock, $.001 par value (the "Common Stock") which will be issuable
under the 1996 Employee Stock Purchase Plan (the "Plan").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plan and the authorization of the issuance of the shares of Common Stock
under the Plan (the "Plan Shares") and such documents as we have deemed
necessary to render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when
issued and outstanding pursuant to the terms of the Plan, will be validly
issued, fully paid and nonassessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Morrison & Foerster LLP
Page 10 of 12 Pages
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of Progenitor, Inc. (the "Company") on Form S-8 of our report, which includes
an explanatory paragraph regarding the Company's ability to continue as a
going concern, dated March 10, 1997, on our audits of the financial
statements of the Company (a Development Stage Company), as of September 30,
1996 and 1995 and for the years ended September 30, 1996, 1995 and 1994 and
the period from inception (May 8, 1992) to September 30, 1996, which report
is included in the Company's Registration Statement on Form S-1 (File No.
333-05369) and incorporated by reference in this registration statement on
Form S-8.
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
August 5, 1997
Page 11 of 12
<PAGE>
Exhibit 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Progenitor, Inc. pertaining to the 1996 Employee Stock
Purchase Plan of Progenitor, Inc. of our report dated February 14, 1997 with
respect to the financial statements of Mercator Genetics, Inc. (a development
stage company) included in the Registration Statement (Form S-1 No.
333-05369) and related Prospectus of Progenitor, Inc.
ERNST & YOUNG LLP
Palo Alto, California
August 5, 1997
Page 12 of 12 Pages
