<PAGE> 1
As filed with the Securities and Exchange Commission on February 20, 1998
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PROGENITOR, INC.
(Exact name of Registrant as Specified in Its Charter)
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<TABLE>
<S> <C>
DELAWARE 31-1344193
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
</TABLE>
4040 CAMPBELL AVENUE
MENLO PARK, CA 94025
(Address of Principal Executive Offices)
1996 STOCK INCENTIVE PLAN
(Full Title of the Plan)
----------------------------------------------
DOUGLASS B. GIVEN, M.D., PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PROGENITOR, INC.
4040 CAMPBELL AVENUE
MENLO PARK, CA 94025
(Name and Address of Agent for Service)
(650) 617-0880
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
GAVIN B. GROVER, ESQ.
KRISTIAN E. WIGGERT, ESQ.
MORRISON & FOERSTER LLP
425 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105
(415) 268-7000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of to be Offering Price Aggregate Registration
Securities Registered Per Share(1) Offering Fee
to be Registered Price(1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 2,850,000 $5.50 $15,675,000 $4,625
per share
================================================================================
</TABLE>
(1)Estimated solely for the purpose of calculating the registration fee.
================================================================================
The Index to Exhibits appears on page II-8.
<PAGE> 2
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 Annual Report on Form 10-K for the fiscal year ended
September 30, 1997, which includes audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
(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 30, 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.
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<PAGE> 3
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 Registrant's Registration Statement on Form S-1 (No. 333-05369), as declared
effective on August 6, 1997 (the "Registration Statement on Form S-1"), contains
certain provisions relating to indemnification.
The Registrant has obtained liability insurance insuring the Registrant's
officers and directors against liabilities that they may incur in such
capacities.
II-2
<PAGE> 4
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.
Certain warrants to purchase the Registrant's Common Stock, and a Stock
Purchase Agreement with Amgen Inc., each of which is 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> 5
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).
4.3 Specimen Stock Certificate of the Registrant (incorporated by
reference to Exhibit 4.1 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.
24.1 Power of Attorney (See pages II-6 and II-7).
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.
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) 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;
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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.
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<PAGE> 7
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 Menlo Park, State of California, on February 20,
1998.
PROGENITOR, INC.
By: /s/ DOUGLASS B. GIVEN
-------------------------------
Douglass 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, Douglass B.
Given and 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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
President, Chief Executive February 20, 1998
/s/ DOUGLASS B. GIVEN Officer and Director
- ------------------------------ (Principal Executive Officer)
Douglass B. Given, M.D., Ph.D.
/s/ MARK N.K. BAGNALL Vice President, Finance and February 20, 1998
- ------------------------------ Chief Financial Officer
Mark N.K. Bagnall (Principal Financial and
Accounting Officer)
</TABLE>
II-6
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<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT P. AXLINE Director February 20, 1998
- ------------------------------
Robert P. Axline
/s/ GLENN L. COOPER Director February 20, 1998
- ------------------------------
Glenn L. Cooper, M.D.
/s/ ALEXANDER M. HAIG, JR. Director February 20, 1998
- ------------------------------
Alexander M. Haig, Jr.
/s/ MORRIS LASTER Director February 20, 1998
- ------------------------------
Morris Laster, M.D.
/s/ JERRY P. PEPPERS Director February 20, 1998
- ------------------------------
Jerry P. Peppers
/s/ DAVID B. SHARROCK Director February 20, 1998
- ------------------------------
David B. Sharrock
/s/ ROBERT R. MOMSEN Director February 20, 1998
- ------------------------------
Robert R. Momsen
</TABLE>
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
<S> <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).
4.3 Specimen Stock Certificate of the Registrant (incorporated by
reference to Exhibit 4.1 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.
24.1 Power of Attorney (See pages II-6 and II-7).
</TABLE>
II-8
<PAGE> 1
EXHIBIT 5.1
MORRISON & FOERSTER LLP
San Francisco, California
February 20, 1998
Progenitor, Inc.
4040 Campbell Avenue
Menlo Park, CA 94025
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on February 20, 1998, 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 2,850,000 shares of your
common stock, $.001 par value (the "Common Stock") which will be issuable under
the 1996 Stock Incentive 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> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated December 4, 1997, on our audits of the consolidated
financial statements of Progenitor, Inc. (a Development Stage Company), as of
September 30, 1997 and 1996 and for the years ended September 30, 1997, 1996 and
1995 and the period from May 8, 1992 (date of inception) to September 30, 1997,
which report is included in the Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
February 19, 1998
