<PAGE>
As filed with the Securities and Exchange Commission on August 22, 1996.
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENSIA, INC.
--------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 33-0176647
--------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9360 Towne Centre Drive
San Diego, California 92121
--------------------- ------------------
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1990 STOCK PLAN OF GENSIA, INC.
----------------------------------------------------
(Full title of the plan)
Copy to:
DAVID F. HALE THOMAS E. SPARKS, JR.
Chairman, President and Chief Executive Officer Pillsbury Madison & Sutro LLP
Gensia, Inc. P.O. Box 7880
9360 Towne Centre Dr. San Francisco, CA 94120
San Diego, California 92121 (415) 983-1000
(619) 546-8300
--------------
(Name, address and telephone
number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
To Be To Be Price per Offering Registration
Registered Registered (1) Share (2) Price (2) Fee
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 400,000 shares $5.125 $2,050,000 $707
$.01 par value,
including related
Series I
Participating
Preferred Stock
Purchase Rights
- --------------------------------------------------------------------------------
</TABLE>
(1) Calculated pursuant to General Instruction E to Form S-8.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, upon the average of the high and low prices as
reported on the Nasdaq National Market on August 19, 1996.
---------------
The Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
- --------------------------------------------------------------------------------
Page 1 of 17 Pages
Exhibit Index Appears on Page 5.
<PAGE>
INFORMATION REQUIRED PURSUANT TO
--------------------------------
GENERAL INSTRUCTION E TO FORM S-8
---------------------------------
GENERAL INSTRUCTION E INFORMATION
This Registration Statement is being filed for the purpose of increasing
the number of securities of the same class as other securities for which a
Registration Statement of the Registrant on Form S-8 relating to the same
employee benefit plan is effective.
Registrant's Form S-8 Registration Statements filed with the Securities
and Exchange Commission on August 22, 1990, April 15, 1991, February 7, 1992,
May 22, 1992, June 18, 1993, June 29, 1994 and July 28, 1995, File Nos. 33-
36488, 33-39972, 33-45597, 33-47202, 33-64698, 33-80882 and 33-95152,
respectively, are hereby incorporated by reference.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(1) Registrant's Annual Report on Form 10-K (File No. 0-18549), for the
fiscal year ended December 31, 1995, which contains, among other things, the
consolidated financial statements of Registrant and certain supplementary data
for the fiscal year ended December 31, 1995, together with the report thereon
of Ernst & Young LLP, independent auditors.
(2) Registrant's Quarterly Report on Form 10-Q (File No. 0-18549) for
the quarters ended March 31, 1996 and June 30, 1996.
(3) The description of Registrant's common stock contained in
Registrant's Registration Statement on Form 8-A. (File No. 0-18549).
(4) The description of the Preferred Stock Purchase Rights for Series I
Participating Preferred Stock, par value $.01 per share of the Company
contained in its Registration Statement on Form 8-A. (File No. 0-18549).
In addition, all documents subsequently filed by Registrant pursuant to
Section 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, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
-2-
<PAGE>
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 San Diego, State of California, on
August 20, 1996.
GENSIA, INC.
By /s/ David F. Hale
-------------------------------
David F. Hale
Chairman of the Board,
President and CEO
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Daniel D. Burgess or David F. Hale, 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 exhibits thereto and other documents in connection therewith, with the
Securities and Exchange 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, 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 and agents, or his substitute or
substitutes, may 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 date indicated:
Signature Title Date
- ----------- ----- ----
/s/ David F. Hale Chairman of the Board of August 20, 1996
- ------------------- Directors, President and
David F. Hale Chief Executive Officer
(Principal Executive
Officer)
-3-
<PAGE>
Signature Title Date
- ----------- ----- ----
- -------------------- Vice Chairman of August __, 1996
James C. Blair the Board of Directors
/s/ Paul K. Laikind Vice President, Cor- August 20, 1996
- --------------------- porate Development
Paul K. Laikind and Director
/s/ Daniel D. Burgess Chief Financial Officer August 20, 1996
- ----------------------- and Treasurer (Principal
Daniel D. Burgess Financial Officer and
Principal Accounting Officer)
Director August __, 1996
- -----------------------
Jerry C. Benjamin
/s/ Herbert J. Conrad Director August 20, 1996
- -----------------------
Herbert J. Conrad
/s/ Steven C. Mendell Director August 20, 1996
- -----------------------
Steven C. Mendell
/s/ Daniel O. Pegg Director August 20, 1996
- --------------------
Daniel O. Pegg
/s/ Alan R. Timms Director August 20, 1996
- -------------------
Alan R. Timms
/s/ Monroe E. Trout Director August 20, 1996
- ---------------------
Monroe E. Trout
Director August __, 1996
- -----------------------
L. John Wilkerson
-4-
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Sequentially
Number Exhibit Numbered Page
------ ------- -------------
5.1 Opinion regarding legality of 6
securities to be offered.
10.1 Amended and Restated 1990 Stock Plan
of the Registrant. 7
23.1 Consent of Ernst & Young LLP,
Independent Auditors. 17
23.2 Consent of Pillsbury Madison &
Sutro (included in Exhibit 5.1).
24.1 Power of Attorney (see page 3).
-5-
<PAGE>
Exhibit 5.1
-----------
August 20, 1996
Gensia, Inc.
9360 Towne Centre Drive
San Diego, California 92121
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed
by Gensia, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission under the Securities Act of 1933, relating to 400,000
shares of the Company's Common Stock issuable pursuant to the Amended and
Restated 1990 Stock Plan of Gensia, Inc. (the "Plan"), it is our opinion that
such shares of the Common Stock of the Company, when issued and sold in
accordance with the Plan, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Securities
and Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Pillsbury Madison & Sutro LLP
<PAGE>
EXHIBIT 10.1
------------
GENSIA, INC.
------------
AMENDED AND RESTATED
--------------------
1990 STOCK PLAN
---------------
SECTION 1. ESTABLISHMENT AND PURPOSE.
- --------- -------------------------
The Plan was established in 1990 to offer selected employees,
directors, advisors and consultants an opportunity to acquire a proprietary
interest in the success of the Company, or to increase such interest, by
purchasing Shares of the Company's Common Stock. The Plan was most recently
amended and restated by the Board of Directors effective May 17, 1996. The Plan
provides both for the direct award or sale of Shares and for the grant of
Options to purchase Shares. Options granted under the Plan may include
Nonstatutory Options as well as ISOs intended to qualify under section 422 of
the Code. The Plan is intended to comply in all respects with Rule 16b-3 (or its
successor) under the Exchange Act.
SECTION 2. DEFINITIONS.
- --------- -----------
(a) "Board of Directors" shall mean the Board of Directors of the
------------------
Company, as constituted from time to time.
(b) "Code" shall mean the Internal Revenue Code of 1986, as
amended. ----
(c) "Committee" shall mean a committee of the Board of Directors,
---------
as described in Section 3(a).
(d) "Company" shall mean Gensia, Inc., a Delaware corporation.
-------
(e) "Employee" shall mean (i) any individual who is a common-law
--------
employee of the Company or of a Subsidiary, (ii) a member of the Board of
Directors, including (without limitation) an Outside Director, or an affiliate
of a member of the Board of Directors, (iii) a member of the board of directors
of a Subsidiary and (iv) an independent contractor who performs services for the
Company or a Subsidiary. Service as a member of the Board of Directors, a
member of the board of directors of a Subsidiary or as an independent contractor
shall be considered employment for all purposes of the Plan, except as provided
in Sections 4(a) and 4(b).
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934,
------------
as amended.
(g) "Exercise Price" shall mean the amount for which one Share may
--------------
be purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement.
(h) "Fair Market Value" shall mean the market price of Stock,
-----------------
determined by the Committee as follows:
(i) If Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing price
reported for such date by the applicable composite-transactions report;
(ii) If Stock was traded over-the-counter on the date in question
and was traded on the Nasdaq system or the Nasdaq National Market, then the
Fair Market Value shall be equal to the last-transaction price quoted for
such date by the Nasdaq system or the Nasdaq National Market;
(iii) If Stock was traded over-the-counter on the date in question
but was not traded on the Nasdaq system or the Nasdaq National Market, then
the Fair Market Value shall be equal to the
A-1
<PAGE>
mean between the last reported representative bid and asked prices quoted for
such date by the principal automated inter-dealer quotation system on which
Stock is quoted or, if the stock is not quoted on any such system, by the
"Pink Sheets" published by the National Quotation Bureau, Inc.; and
(iv) If none of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Committee in good faith on such
basis as it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee shall be
conclusive and binding on all persons.
(i) "ISO" shall mean an employee incentive stock option described
---
in section 422(b) of the Code.
(j) "Nonstatutory Option" shall mean an employee stock option not
-------------------
described in sections 422(b) or 423(b) of the Code.
(k) "Offeree" shall mean an individual to whom the Committee has
-------
offered the right to acquire Shares under the Plan (other than upon exercise of
an Option).
(l) "Option" shall mean an ISO or Nonstatutory Option granted under
------
the Plan and entitling the holder to purchase Shares.
(m) "Optionee" shall mean an individual who holds an Option.
--------
(n) "Outside Director" shall mean a member of the Board of
----------------
Directors who is not a common-law employee of the Company or of a Subsidiary.
(o) "Plan" shall mean this Amended and Restated 1990 Stock Plan of
----
Gensia, Inc.
(p) "Purchase Price" shall mean the consideration for which one
--------------
Share may be acquired under the Plan (other than upon exercise of an Option), as
specified by the Committee.
(q) "Service" shall mean service as an Employee.
-------
(r) "Share" shall mean one share of Stock, as adjusted in
-----
accordance with Section 9 (if applicable).
(s) "Stock" shall mean the Common Stock of the Company.
-----
(t) "Stock Option Agreement" shall mean the agreement between the
----------------------
Company and an Optionee which contains the terms, conditions and restrictions
pertaining to his or her Option.
(u) "Stock Purchase Agreement" shall mean the agreement between the
------------------------
Company and an Offeree who acquires Shares under the Plan which contains the
terms, conditions and restrictions pertaining to the acquisition of such Shares.
(v) "Subsidiary" shall mean any corporation, if the Company and/or
----------
one or more other Subsidiaries own not less than 50 percent of the total
combined voting power of all classes of outstanding stock of such corporation. A
corporation that attains the status of a Subsidiary on a date after the adoption
of the Plan shall be considered a Subsidiary commencing as of such date.
(w) "Total and Permanent Disability" shall mean that the Optionee
------------------------------
is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
A-2
<PAGE>
be expected to result in death or which has lasted, or can be expected to last,
for a continuous period of not less than one year.
SECTION 3. ADMINISTRATION.
- --------- --------------
(a) Committee Composition. The Plan shall be administered by the
---------------------
Committee. The Committee shall consist exclusively of two or more directors of
the Company, who shall be appointed by the Board of Directors. In addition, the
composition of the Committee shall satisfy:
(i) Such requirements as the Securities and Exchange Commission may
establish for administrators acting under plans intended to qualify for
exemption under Rule 16b-3 (or its successor) under the Exchange Act; and
(ii) Such requirements as the Internal Revenue Service may establish
for outside directors acting under plans intended to qualify for exemption
under section 162(m)(4)(C) of the Code.
The Board of Directors may also appoint one or more separate committees of the
Board of Directors, each consisting of one or more directors of the Company who
need not satisfy the foregoing requirements. Such committees may administer the
Plan with respect to Employees who are not subject to section 16 of the Exchange
Act or section 162(m) of the Code, may grant Shares or Options under the Plan to
such Employees and may determine all terms of such grants.
(b) Committee Responsibilities. Subject to the provisions of the
--------------------------
Plan, the Committee shall have full authority and discretion to take the
following actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to the Plan;
(iii) To authorize any person to execute, on behalf of the Company,
any instrument required to carry out the purposes of the Plan;
(iv) To determine when Shares are to be awarded or offered for
sale and when Options are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each
Offeree or to be made subject to each Option;
(vii) To prescribe the terms and conditions of each award or sale
of Shares, including (without limitation) the Purchase Price, and to specify
the provisions of the Stock Purchase Agreement relating to such award or
sale;
(viii) To prescribe the terms and conditions of each Option,
including (without limitation) the Exercise Price, to determine whether such
Option is to be classified as an ISO or as a Nonstatutory Option, and to
specify the provisions of the Stock Option Agreement relating to such Option;
(ix) To amend any outstanding Stock Purchase Agreement or Stock
Option Agreement, subject to applicable legal restrictions and to the consent
of the Offeree or Optionee who entered into such agreement;
A-3
<PAGE>
(x) To prescribe the consideration for the grant of each Option
or other right under the Plan and to determine the sufficiency of such
consideration; and
(xi) To take any other actions deemed necessary or advisable for
the administration of the Plan.
All decisions, interpretations and other actions of the Committee shall be final
and binding on all Offerees, all Optionees, and all persons deriving their
rights from an Offeree or Optionee. No member of the Committee shall be liable
for any action that he or she has taken or has failed to take in good faith with
respect to the Plan, any Option, or any right to acquire Shares under the Plan.
SECTION 4. ELIGIBILITY.
- --------- -----------
(a) General Rule. Only Employees shall be eligible for designation
------------
as Optionees or Offerees by the Committee. In addition, only individuals who are
employed as common-law employees by the Company or a Subsidiary shall be
eligible for the grant of ISOs.
(b) Outside Directors. Any other provision of the Plan
-----------------
notwithstanding, the participation of Outside Directors in the Plan shall be
subject to the following restrictions:
(i) Exclusive Provision. Outside Directors shall receive no grants
-------------------
other than the Options described in this Subsection (b).
(ii) One-Time Grant to Existing Outside Directors. Each Outside
--------------------------------------------
Director who is a member of the Board of Directors on May 17, 1996, shall on
such date receive a one-time grant of a Nonstatutory Option covering a number
of Shares equal to (A) 20,000 minus (B) the number of Shares covered by the
one-time grant of a Nonstatutory Option received by such Outside Director
upon becoming a member of the Board of Directors. An Option granted under
this Paragraph (ii) shall become exercisable in full on the date when the
Company's stockholders approve the amendments of the Plan adopted by the
Board of Directors on May 17, 1996. This Paragraph (ii) shall be void if the
Company's stockholders fail to approve such amendments.
(iii) Initial Grant to New Outside Directors. Each Outside Director
--------------------------------------
who first becomes a member of the Board of Directors after May 17, 1996,
shall receive a one-time grant of a Nonstatutory Option covering 20,000
Shares (subject to adjustment under Section 9). Such Option shall be granted
on the date when such Outside Director first joins the Board of Directors and
shall become exercisable ratably over a four-year period commencing on the
date of grant. If the Company's stockholders fail to approve the amendments
of the Plan adopted by the Board of Directors on May 17, 1996, grants under
this Paragraph (iii) shall continue to cover 15,000 Shares.
(iv) Annual Grants. Each Outside Director shall receive an annual
-------------
grant of a Nonstatutory Option covering 5,000 Shares (subject to adjustment
under Section 9); provided however, that such grant shall not be made in any
calendar year in which the same individual receives an Option under Paragraph
(iii) above. Subject to the preceding sentence, such Nonstatutory Option
shall be granted each year as of the day next following the conclusion of the
annual meeting of the Company's stockholders to each Outside Director who
then serves on the Board of Directors. An Option granted under this
Paragraph (iv) shall become exercisable in full on the earlier of (A) the
commencement of the next annual meeting of the Company's stockholders or (B)
the first anniversary of the date of grant. If the Company's stockholders
fail to approve the amendments of the Plan adopted by the Board of Directors
on May 17, 1996, grants under this Paragraph (iv) shall continue to cover
3,000 Shares.
(v) Exercise Price. The Exercise Price under all Options granted
--------------
under this Subsection (b) shall be equal to 85 percent of the Fair Market Value
of a Share on the date of grant, payable in cash.
A-4
<PAGE>
(vi) Term. All Options granted under this Subsection (b) shall
----
terminate on the 10th anniversary of the date of grant, subject to earlier
expiration in the event that the Outside Director's Service terminates. No
additional Options granted under this Subsection (b) shall become exercisable
after the Outside Director's Service has terminated for any reason.
(c) Ten-Percent Stockholders. An Employee who owns more than 10
------------------------
percent of the total combined voting power of all classes of outstanding stock
of the Company or any of its Subsidiaries shall not be eligible for the grant of
an ISO unless (i) the Exercise Price is at least 110 percent of the Fair Market
Value of a Share on the date of grant and (ii) such ISO by its terms is not
exercisable after the expiration of five years from the date of grant.
(d) Attribution Rules. For purposes of Subsection (c) above, in
-----------------
determining stock ownership, an Employee shall be deemed to own the stock owned,
directly or indirectly, by or for such Employee's brothers, sisters, spouse,
ancestors and lineal descendants. Stock owned, directly or indirectly, by or
for a corporation, partnership, estate or trust shall be deemed to be owned
proportionately by or for its stockholders, partners or beneficiaries. Stock
with respect to which such Employee holds an option shall not be counted.
(e) Outstanding Stock. For purposes of Subsection (c) above,
-----------------
"outstanding stock" shall include all stock actually issued and outstanding
immediately after the grant. "Outstanding stock" shall not include shares
authorized for issuance under outstanding options held by the Employee or by any
other person.
SECTION 5. STOCK SUBJECT TO PLAN.
- --------- ---------------------
(a) Basic Limitation. Shares offered under the Plan shall be
----------------
authorized but unissued Shares or treasury Shares. The aggregate number of
Shares which may be issued under the Plan (upon exercise of Options or other
rights to acquire Shares) shall not exceed 6,383,334 Shares, subject to
adjustment pursuant to Section 9. The number of Shares which are subject to
Options or other rights outstanding at any time under the Plan shall not exceed
the number of Shares which then remain available for issuance under the Plan.
The Company, during the term of the Plan, shall at all times reserve and keep
available sufficient Shares to satisfy the requirements of the Plan.
(b) Additional Shares. In the event that any outstanding Option or
-----------------
other right for any reason expires or is cancelled or otherwise terminated, the
Shares allocable to the unexercised portion of such Option or other right shall
again be available for the purposes of the Plan. In the event that Shares
issued under the Plan are reacquired by the Company pursuant to a forfeiture
provision, a right of repurchase or a right of first offer, such Shares shall
again be available for the purposes of the Plan.
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES.
- --------- ---------------------------------------
(a) Stock Purchase Agreement. Each award or sale of Shares under
------------------------
the Plan (other than upon exercise of an Option) shall be evidenced by a Stock
Purchase Agreement between the Offeree and the Company. Such award or sale shall
be subject to all applicable terms and conditions of the Plan and may be subject
to any other terms and conditions which are not inconsistent with the Plan and
which the Committee deems appropriate for inclusion in a Stock Purchase
Agreement. The provisions of the various Stock Purchase Agreements entered into
under the Plan need not be identical.
(b) Duration of Offers and Nontransferability of Rights. Any right
---------------------------------------------------
to acquire Shares under the Plan (other than an Option) shall automatically
expire if not exercised by the Offeree within 30 days after the grant of such
right was communicated to the Offeree by the Committee. Such right shall not be
transferable and shall be exercisable only by the Offeree to whom such right was
granted.
(c) Purchase Price. The Purchase Price of Shares to be offered
--------------
under the Plan shall not be less than 85 percent of the Fair Market Value of
such Shares. Subject to the preceding sentence, the Purchase Price
A-5
<PAGE>
shall be determined by the Committee at its sole discretion. The Purchase Price
shall be payable in a form described in Section 8.
(d) Withholding Taxes. As a condition to the award, sale or vesting
-----------------
of Shares, the Offeree shall make such arrangements as the Committee may require
for the satisfaction of any federal, state, local or foreign withholding tax
obligations that arise in connection with such Shares.
(e) Restrictions on Transfer of Shares. Any Shares awarded or sold
----------------------------------
under the Plan shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first offer and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Purchase Agreement and shall apply in addition to any general restrictions
that may apply to all holders of Shares.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS.
- --------- -------------------------------
(a) Stock Option Agreement. Each grant of an Option under the Plan
----------------------
shall be evidenced by a Stock Option Agreement between the Optionee and the
Company. Such Option shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions which are not
inconsistent with the Plan and which the Committee deems appropriate for
inclusion in a Stock Option Agreement. The provisions of the various Stock
Option Agreements entered into under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify the
----------------
number of Shares that are subject to the Option and shall provide for the
adjustment of such number in accordance with Section 9. Options granted to any
Optionee in a single calendar year shall in no event cover more than 200,000
Shares, subject to adjustment in accordance with Section 9. The Stock Option
Agreement shall also specify whether the Option is an ISO or a Nonstatutory
Option.
(c) Exercise Price. Each Stock Option Agreement shall specify the
--------------
Exercise Price. The Exercise Price of an ISO shall not be less than 100 percent
of the Fair Market Value of a Share on the date of grant, except as otherwise
provided in Section 4(c). The Exercise Price of a Nonstatutory Option shall not
be less than 85 percent of the Fair Market Value of a Share on the date of
grant. Subject to the preceding two sentences, the Exercise Price under any
Option shall be determined by the Committee at its sole discretion. The
Exercise Price shall be payable in a form described in Section 8.
(d) Withholding Taxes. As a condition to the exercise of an Option,
-----------------
the Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state, local or foreign withholding tax obligations
that arise in connection with such exercise. The Optionee shall also make such
arrangements as the Committee may require for the satisfaction of any federal,
state, local or foreign withholding tax obligations that may arise in connection
with the disposition of Shares acquired by exercising an Option.
(e) Exercisability and Term. Each Stock Option Agreement shall
-----------------------
specify the date when all or any installment of the Option is to become
exercisable. The vesting of any Option shall be determined by the Committee at
its sole discretion. A Stock Option Agreement may provide for accelerated
exercisability in the event of the Optionee's death, Total and Permanent
Disability or retirement or other events. The Stock Option Agreement shall also
specify the term of the Option. The term shall not exceed 10 years from the date
of grant, except as otherwise provided in Section 4(c). Subject to the preceding
sentence, the Committee at its sole discretion shall determine when an Option is
to expire.
(f) Nontransferability. During an Optionee's lifetime, such
------------------
Optionee's Option(s) shall be exercisable only by him or her and shall not be
transferable. In the event of an Optionee's death, such Optionee's Option(s)
shall not be transferable other than by will, beneficiary designation or by the
laws of descent and distribution.
A-6
<PAGE>
(g) Termination of Service (Except by Death). If an Optionee's
----------------------------------------
Service terminates for any reason other than the Optionee's death, then such
Optionee's Option(s) shall expire on the earliest of the following occasions:
(i) The expiration date determined pursuant to Subsection (e)
above;
(ii) The date 90 days after the termination of the Optionee's
Service for any reason other than Total and Permanent Disability; or
(iii) The date six months after the termination of the Optionee's
Service by reason of Tot al and Permanent Disability.
The Optionee may exercise all or part of his or her Option(s) at any time before
the expiration of such Option(s) under the preceding sentence, but only to the
extent that such Option(s) had become exercisable before the Optionee's Service
terminated or became exercisable as a result of the termination. The balance of
such Option(s) shall lapse when the Optionee's Service terminates. In the event
that the Optionee dies after the termination of the Optionee's Service but
before the expiration of the Optionee's Option(s), all or part of such Option(s)
may be exercised (prior to expiration) by the executors or administrators of the
Optionee's estate or by any person who has acquired such Option(s) directly from
the Optionee by beneficiary designation, bequest or inheritance, but only to the
extent that such Option(s) had become exercisable before the Optionee's Service
terminated or became exercisable as a result of the termination.
(h) Leaves of Absence. For purposes of Subsection (g) above,
-----------------
Service shall be deemed to continue while the Optionee is on military leave,
sick leave or other bona fide leave of absence (as determined by the Committee).
The foregoing notwithstanding, in the case of an ISO granted under the Plan,
Service shall not be deemed to continue beyond the first 90 days of such leave,
unless the Optionee's reemployment rights are guaranteed by statute or by
contract.
(i) Death of Optionee. If an Optionee dies while he or she is in
-----------------
Service, then such Optionee's Option(s) shall expire on the earlier of the
following dates:
(i) The expiration date determined pursuant to Subsection (e)
above; or
(ii) The date six months after the Optionee's death.
All or part of the Optionee's Option(s) may be exercised at any time before the
expiration of such Option(s) under the preceding sentence by the executors or
administrators of the Optionee's estate or by any person who has acquired such
Option(s) directly from the Optionee by beneficiary designation, bequest or
inheritance, but only to the extent that such Option(s) had become exercisable
before the Optionee's death or became exercisable as a result of the Optionee's
death. The balance of such Option(s) shall lapse when the Optionee dies.
(j) No Rights as a Stockholder. An Optionee, or a transferee of an
--------------------------
Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustments shall be made, except as provided
in Section 9.
(k) Modification, Extension and Renewal of Options. Within the
----------------------------------------------
limitations of the Plan, the Committee may modify, extend or renew outstanding
Options or may accept the cancellation of outstanding Options (to the extent not
previously exercised) in return for the grant of new Options at the same or a
different price. The foregoing notwithstanding, no modification of an Option
shall, without the consent of the Optionee, impair such Optionee's rights or
increase his or her obligations under such Option.
(l) Restrictions on Transfer of Shares. Any Shares issued upon
----------------------------------
exercise of an Option shall be subject to such special forfeiture conditions,
rights of repurchase, rights of first offer and other transfer
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<PAGE>
restrictions as the Committee may determine. Such restrictions shall be set
forth in the applicable Stock Option Agreement and shall apply in addition to
any general restrictions that may apply to all holders of Shares.
SECTION 8. PAYMENT FOR SHARES.
- --------- ------------------
(a) General Rule. The entire Purchase Price or Exercise Price of
------------
Shares issued under the Plan shall be payable in lawful money of the United
States of America at the time when such Shares are purchased, except as follows:
(i) In the case of Shares sold under the terms of a Stock Purchase
Agreement subject to the Plan, payment shall be made only pursuant to the
express provisions of such Stock Purchase Agreement. However, the Committee
(at its sole discretion) may specify in the Stock Purchase Agreement that
payment may be made in one or both of the forms described in Subsections (e)
and (f) below.
(ii) In the case of an ISO granted under the Plan, payment shall be
made only pursuant to the express provisions of the applicable Stock Option
Agreement. However, the Committee (at its sole discretion) may specify in the
Stock Option Agreement that payment may be made pursuant to Subsections (b),
(c), (d) or (f) below.
(iii) In the case of a Nonstatutory Option granted under the Plan,
the Committee (at its sole discretion) may accept payment pursuant to
Subsections (b), (c), (d) or (f) below.
(b) Surrender of Stock. To the extent that this Subsection (b) is
------------------
applicable, payment may be made all or in part with Shares which have already
been owned by the Optionee or his or her representative for more than 12 months
and which are surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the new Shares are
purchased under the Plan.
(c) Exercise/Sale. To the extent that this Subsection (c) is
-------------
applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to a securities broker approved by the
Company to sell Shares and to deliver all or part of the sales proceeds to the
Company in payment of all or part of the Exercise Price and any withholding
taxes.
(d) Exercise/Pledge. To the extent that this Subsection (d) is
---------------
applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to pledge Shares to a securities broker or
lender approved by the Company, as security for a loan, and to deliver all or
part of the loan proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
(e) Services Rendered. To the extent that this Subsection (e) is
-----------------
applicable, Shares may be awarded under the Plan in consideration of services
rendered to the Company or a Subsidiary prior to the award. If Shares are
awarded without the payment of a Purchase Price in cash, the Committee shall
make a determination (at the time of the award) of the value of the services
rendered by the Offeree and the sufficiency of the consideration to meet the
requirements of Section 6(c).
(f) Promissory Note. To the extent that this Subsection (f) is
---------------
applicable, a portion of the Purchase Price or Exercise Price, as the case may
be, of Shares issued under the Plan may be payable by a full-recourse promissory
note, provided that (i) the par value of such Shares must be paid in lawful
money of the United States of America at the time when such Shares are
purchased, (ii) the Shares are security for payment of the principal amount of
the promissory note and interest thereon and (iii) the interest rate payable
under the terms of the promissory note shall be no less than the minimum rate
(if any) required to avoid the imputation of additional interest under the Code.
Subject to the foregoing, the Committee (at its sole discretion) shall specify
the term, interest rate, amortization requirements (if any) and other provisions
of such note.
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<PAGE>
SECTION 9. ADJUSTMENT OF SHARES.
- --------- --------------------
(a) General. In the event of a subdivision of the outstanding
-------
Stock, a declaration of a dividend payable in Shares, a declaration of a
dividend payable in a form other than Shares in an amount that has a material
effect on the value of Shares, a combination or consolidation of the outstanding
Stock (by reclassification or otherwise) into a lesser number of Shares, a
recapitalization, a spinoff or a similar occurrence, the Committee shall make
appropriate adjustments in one or more of (i) the number of Shares available for
future grants under Section 5, (ii) the number of Options to be awarded to
Outside Directors under Section 4(b), (iii) the limit set forth in Section 7(b),
(iv) the number of Shares covered by each outstanding Option or (v) the Exercise
Price under each outstanding Option.
(b) Reorganizations. In the event that the Company is a party to a
---------------
merger or other reorganization, outstanding Options shall be subject to the
agreement of merger or reorganization. Such agreement may provide, without
limitation, for the assumption of outstanding Options by the surviving
corporation or its parent, for their continuation by the Company (if the Company
is a surviving corporation), for payment of a cash settlement equal to the
difference between the amount to be paid for one Share under such agreement and
the Exercise Price, or for the acceleration of their exercisability followed by
the cancellation of Options not exercised, in all cases without the Optionees'
consent. Any cancellation shall not occur until after such acceleration is
effective and Optionees have been notified of such acceleration. In the case of
Options that have been outstanding for less than 12 months, a cancellation need
not be preceded by an acceleration.
(c) Reservation of Rights. Except as provided in this Section 9, an
---------------------
Optionee or Offeree shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend or
any other increase or decrease in the number of shares of stock of any class.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the Plan shall not affect in any way the right or power of the Company to
make adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
SECTION 10. SECURITIES LAWS.
- ---------- ---------------
Shares shall not be issued under the Plan unless the issuance and
delivery of such Shares complies with (or is exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated thereunder, state securities
laws and regulations, and the regulations of any stock exchange on which the
Company's securities may then be listed.
SECTION 11. NO EMPLOYMENT RIGHTS.
- ---------- --------------------
No provision of the Plan, nor any right or Option granted under the
Plan, shall be construed to give any person any right to become, to be treated
as, or to remain an Employee. The Company and its Subsidiaries reserve the
right to terminate any person's Service at any time and for any reason.
SECTION 12. DURATION AND AMENDMENTS.
- ---------- -----------------------
(a) Term of the Plan. The Plan, as set forth herein, shall become
----------------
effective May 17, 1996, the date the Board of Directors last amended and
restated the Plan. The Plan shall terminate automatically on May 16, 2006, and
may be terminated on any earlier date pursuant to Subsection (b) below.
(b) Right to Amend or Terminate the Plan. The Board of Directors
------------------------------------
may amend, suspend or terminate the Plan at any time and for any reason;
provided, however, that any amendment of the Plan which: (i) increases the
number of Shares available for issuance under the Plan (except as provided in
Section 9); (ii) materially changes the class of persons who are eligible for
the grant of ISOs; or (iii) if required by
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<PAGE>
Rule 16b-3 (or any successor) under the Exchange Act, would materially increase
the benefits accruing to participants under the Plan or would materially modify
the requirements as to eligibility for participation in the Plan, shall be
subject to the approval of the Company's stockholders. Stockholder approval
shall not be required for any other amendment of the Plan.
(c) Effect of Amendment or Termination. No Shares shall be issued
----------------------------------
or sold under the Plan after the termination thereof, except upon exercise of an
Option granted prior to such termination. The termination of the Plan, or any
amendment thereof, shall not affect any Share previously issued or any Option
previously granted under the Plan.
SECTION 13. EXECUTION.
- ---------- ---------
To record the amendment and restatement of the Plan by the Board of
Directors on May 17, 1996, the Company has caused its authorized officer to
execute the same.
GENSIA, INC.
By /s/ David F. Hale
------------------------------------------
David F. Hale
Chairman, President
and Chief Executive Officer
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<PAGE>
Exhibit 23.1
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Amended and Restated 1990 Stock Plan of Gensia,
Inc. of our report dated February 9, 1996 with respect to the consolidated
financial statements of Gensia, Inc. included in its Annual Report (10-K)
for the year ended December 31, 1995, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
San Diego, California
August 14, 1996
