As filed with the Securities and Exchange Commission on August 4, 2006
Registration No. 333-
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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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GERON CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware 75-2287752
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
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230 Constitution Drive
Menlo Park, California 94025
(Addresses of Principal Executive Offices including Zip Codes)
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2002 EQUITY INCENTIVE PLAN
2006 DIRECTORS' STOCK OPTION PLAN
(Full Title of the Plans)
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Thomas B. Okarma Copy to:
President and Chief Executive Officer Alan C. Mendelson, Esq.
Geron Corporation Latham & Watkins LLP
230 Constitution Drive 140 Scott Drive
Menlo Park, California 94025 Menlo Park, California 94025
(650) 473-7700 (650) 328-4600
(Name and Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Amount Maximum Aggregate
to be Offering Price Offering Amount of
Title of Securities to be Registered Registered (1)(2) Per Share (3) Price(3) Registration Fee
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Common Stock, $0.001 par value per share,
issuable under the 2002 Equity Incentive
Plan (4)............................... 2,000,000 $6.11 $12,220,000 $1,548.27
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Common Stock, $0.001 par value per share,
issuable under the 2006 Directors' Stock
Option Plan (4) ....................... 2,500,000 $6.11 $15,275,000 $1,935.34
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Total.................................. 4,500,000 $6.11 $27,495,000 $3,483.62
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(1) The 2002 Equity Incentive Plan (the "2002 Plan") authorizes the issuance of
11,579,603 shares of common stock, par value $0.001 per share (the "Common
Stock"), of Geron Corporation (the "Company"), of which 2,000,000 shares
are being registered hereunder. The 2006 Directors' Stock Option Plan (the
"2006 Directors Plan") authorizes the issuance of 2,500,000 shares of Geron
Corporation common stock, par value $0.001 per share.
(2) This registration statement shall also cover any additional shares of
Common Stock which become issuable under the Plan by reason of any stock
dividend, stock split, recapitalization or any other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the outstanding shares of the Company's Common Stock.
(3) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) and (c) under the Securities Act of 1933, as
amended (the "Securities Act of 1933"), and is based on the average ($6.11)
of the high ($6.35) and low ($5.87) sales price of the Common Stock, as
reported on the Nasdaq National Market on August 1, 2006.
(4) Each share of Common Stock being registered hereunder, if issued prior to
the termination by the Company of its Rights Agreement dated as of July 20,
2001, will include one preferred share purchase right. Prior to the
occurrence of certain events, the preferred share purchase rights will not
be exercisable or evidenced separately from the Common Stock.
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Proposed sale to take place as soon after the effective date of the registration
statement as options granted under the Plan are exercised.
Total Pages 8
Exhibit Index on Page 6
REGISTRATION OF ADDITIONAL SECURITIES
On July 3, 2002, Geron Corporation, a Delaware corporation ("Geron" or
the "Company") filed a Registration Statement on Form S-8, Registration No.
333-91916 (the "First Registration Statement"), with the Securities and Exchange
Commission (the "Commission") relating to an aggregate of 7,000,000 shares of
the Company's common stock, par value $0.001 per share (the "Common Stock"), to
be offered and sold under the 2002 Equity Incentive Plan (the "Plan"). On
October 7, 2004, the Company filed a Registration Statement on Form S-8,
Registration No. 333-119601 (the "Second Registration Statement"), with the
Commission relating to an additional 579,603 shares of Common Stock issuable
under the Plan. On August 5, 2005, the Company filed a Registration on Statement
on Form S-8, Registration No. 333-127255 (the "Third Registration Statement"),
with the Commission relating to an additional 2,000,000 shares of Common Stock
issuable under the Plan. Pursuant to Instruction E of Form S-8, the contents of
the First Registration Statement, Second Registration Statement and Third
Registration Statement are incorporated by reference in this registration
statement on Form S-8 (the "Registration Statement"). The Company is hereby
registering an additional 2,000,000 shares of Common Stock issuable under the
Plan, none of which has been issued as of the date of this Registration
Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of the Form S-8 is not being filed
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information of Documents by Reference
The following documents filed with the Commission by Geron are
incorporated as of their respective dates in this registration statement by
reference:
o Geron's Annual Report on Form 10-K/A for the year ended December 31,
2005, filed with the Commission on April 14, 2006;
o Geron's Current Report on Form 8-K dated as of January 10, 2006, filed
with the Commission on January 11, 2006;
o Geron's Quarterly Report on Form 10-Q for the quarter ended March 31,
2006, filed with the Commission on April 28, 2006;
o Geron's Quarterly Report on Form 10-Q for the three and six months
ended June 30, 2006, filed with the Commission on July 31, 2006;
o the description of Geron preferred share purchase rights, contained in
Geron's Current Report on Form 8-K dated as of July 20, 2001, filed
with the Commission on July 23, 2001, and any amendment or report
filed with the Commission for purposes of updating the description.
All documents filed by Geron 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 have been sold or which
deregisters all securities then remaining unsold are incorporated by reference
in this registration statement and are a part hereof from the date of filing
such documents. Any statement contained in a document incorporated or deemed to
be 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 such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this registration
statement.
2
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The consolidated financial statements of Geron Corporation incorporated
by reference in Geron's Annual Report (Form 10-K/A) for the year ended December
31, 2005 (including schedules appearing therein), and Geron's management's
assessment of the effectiveness of internal control over financial reporting as
of December 31, 2005 incorporated by reference therein, have been audited by
Ernst & Young LLP, independent registered public accounting firm, as set forth
in their reports thereon, incorporated by reference therein, and incorporated
herein by reference. Such consolidated financial statements and management's
assessment are incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and auditing.
Item 6. Indemnification of Directors and Officers
The Company is incorporated under the laws of the State of Delaware.
Reference is made to Section 102(b)(7) of the Delaware General Corporation Law,
or DGCL, which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(1) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) pursuant to Section
174 of the DGCL, which provides for liability of directors for unlawful payments
of dividends of unlawful stock purchase or redemptions, or (4) for any
transaction from which a director derived an improper personal benefit.
Reference is also made to Section 145 of the DGCL, which provides that
a corporation may indemnify any person, including an officer or director, who
is, or is threatened to be made, party to any threatened, pending or completed
legal action, suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of such corporation, by
reason of the fact that such person was an officer, director, employee or agent
of such corporation or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided such officer,
director, employee or agent acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the corporation's best interest and, for
criminal proceedings, had no reasonable cause to believe that his conduct was
unlawful. A Delaware corporation may indemnify any officer or director in an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses that
such officer or director actually and reasonably incurred.
The Company's certificate of incorporation provides for indemnification
of the officers and directors to the full extent permitted by applicable law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
A list of exhibits filed with this registration statement is set forth
in the Exhibit Index on page 7 and is incorporated herein by reference.
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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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this 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 SEC 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; and
(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 this
registration statement;
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 with or furnished to the Commission 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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to 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 existing provisions,
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 of 1933 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 of 1933
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 the City of Menlo Park, State of California, on August 4, 2006.
GERON CORPORATION
By: /s/ David L. Greenwood
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David L. Greenwood
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Thomas B. Okarma and David L. Greenwood, and each
of them, his true and lawful attorneys-in-fact and agents, each with full power
of substitution and resubstitution, 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
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in order to effectuate the same as fully, to
all intents and purposes, as he might or could do in person, hereby ratifying
and confirming all that each of said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute 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 indicated as of August 4, 2006.
Signature Title Date
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/s/ Thomas B. Okarma President, Chief Executive Officer and August 4, 2006
------------------------------------ Director (Principal Executive Officer)
Thomas B. Okarma
/s/ David L. Greenwood Executive Vice President and Chief Financial August 4, 2006
------------------------------------ Officer (Principal Financial and Accounting
David L. Greenwood Officer)
/s/ Alexander E. Barkas Director August 4, 2006
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Alexander E. Barkas
/s/ Edward V. Fritzky Director August 4, 2006
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Edward V. Fritzky
/s/ Charles J. Homcy Director August 4, 2006
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Charles J. Homcy
/s/ Thomas D. Kiley Director August 4, 2006
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Thomas D. Kiley
/s/ John P. Walker Director August 4, 2006
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John P. Walker
/s/ Patrick J. Zenner Director August 4, 2006
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Patrick J. Zenner
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EXHIBIT INDEX
EXHIBIT PAGE
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4.1+ 2002 Equity Incentive Plan N/A
4.2++ Rights Agreement dated as of July 20, 2001, between Geron N/A
Corporation and U.S. Stock Transfer Corporation, as Rights Agent
4.3** 2006 Directors' Stock Option Plan N/A
5.1 Opinion of Latham & Watkins LLP 8
23.1 Consent of Ernst & Young LLP, Independent Registered Public
Accounting Firm. 9
24.1 Powers of Attorney (included on the signature page to this
Registration Statement) 6
(+) Incorporated by reference to Exhibit 10.5 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2003 filed on February 27,
2004.
(++) Incorporated by reference to Exhibit 4.1 to the Company's Current Report on
Form 8-K filed on July 23, 2001.
(**) Incorporated by reference to Appendix 2 to the Company's Definitive Proxy
Statement for the 2006 Annual Meeting filed on April 3, 2006.
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