<PAGE>
As filed with the Securities and Exchange Commission on July 15, 1999.
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
SICOR INC. (formerly named Gensia Sicor 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.)
19 Hughes
Irvine, California 92618
------------------ -------------------
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED SICOR INC. 1997 LONG-TERM INCENTIVE PLAN
-------------------------------------------------------------
(Full title of the plan)
Copy to:
WESLEY N. FACH THOMAS E. SPARKS, JR.
Vice President, Senior Legal Pillsbury Madison & Sutro LLP
Counsel and Secretary P.O. Box 7880
SICOR Inc. San Francisco, CA 94120
19 Hughes (415) 983-1000
-----------------------
Irvine, California 92618
(949) 455-4700
------------------------
(Name, address and telephone
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------
Title of Securities To Be Amount To Be Proposed Proposed Maximum Amount of
Registered Registered (1) Maximum Offering Aggregate Offering Registration Fee
Price per Share (2) Price (2)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 1,600,000 shares $4.266 $6,825,040 $1,897.37
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 July 12, 1999.
_________________
The Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act of 1933.
- --------------------------------------------------------------------------------
Page 1 of 7 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 April 4, 1997 (File No. 333-24597), October 27, 1997
(File No. 333-38815) and August 28, 1998 (File No. 333-62461) are hereby
incorporated by reference.
Incorporation of Certain Documents by Reference.
-----------------------------------------------
The following documents filed by Registrant with the Securities and Exchange
Commission are incorporated by reference in this Registration Statement:
(1) Annual Report on Form 10-K (File No. 0-18549), for the fiscal year
ended December 31, 1998;
(2) Registrant's Quarterly Report on Form 10-Q, for the quarter ended
March 31, 1999;
(3) The description of Registrant's Common Stock contained in Registrant's
Registration Statement on Form 8-A; and
(4) The description of the Preferred Stock Purchase Rights for Series I
Participating Preferred Stock, par value $.01 per share of the Registrant
contained in its Registration Statement on Form 8-A.
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 Irvine, State of California, on June 16, 1999.
SICOR INC.
By /s/ Carlo Salvi
-------------------------------------
Carlo Salvi
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Carlo Salvi, John W. Sayward or Wesley N. Fach,
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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Carlo Salvi President, Chief Executive Officer June 16, 1999
- --------------------------
Carlo Salvi and Director (Principal Executive
Officer)
/s/ John W. Sayward Director and Executive Vice June 16, 1999
- --------------------------
John W. Sayward President, Finance, Chief Financial
Officer and Treasurer (Principal
Financial Officer and Principal
Accounting Officer)
_________________________ Chairman of the Board of _____________
Donald E. Panoz Directors
/s/ Frank C. Becker Director June 16, 1999
- --------------------------
Frank C. Becker
</TABLE>
-3-
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Michael D. Cannon Director June 16, 1999
- --------------------------
Michael D. Cannon
__________________________ Director _____________
GianPaolo Colla
__________________________ Director _____________
Herbert J. Conrad
/s/ Carlos A. Ferrer Director June 16, 1999
- --------------------------
Carlos A. Ferrer
__________________________ Director _____________
Carlo Ruggeri
</TABLE>
-4-
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit
Number Exhibit
- ------ ----------------------------------------------------------------
5.1 Opinion of Pillsbury Madison & Sutro LLP regarding legality of
securities to be offered.
10.1 Amended and Restated SICOR Inc. 1997 Long-Term Incentive Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.3 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
24.1 Power of Attorney (see page 3).
-5-
<PAGE>
Exhibit 5.1
July 15, 1999
SICOR Inc.
19 Hughes
Irvine, California 92618
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
SICOR Inc. (formerly Gensia Sicor Inc.), a Delaware corporation (the "Company"),
with the Securities and Exchange Commission under the Securities Act of 1933,
relating to 1,600,000 shares of the Company's Common Stock issuable pursuant to
the Company's Amended and Restated 1997 Long-Term Incentive Plan (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,
E-01885 /s/ Pillsbury Madison & Sutro LLP
PILLSBURY MADISON & SUTRO LLP
-6-
<PAGE>
EXHIBIT 10.1
GENSIA SICOR INC.
1997 LONG-TERM INCENTIVE PLAN
1. Introduction and Purpose of the Plan. The Plan was adopted by the
Board on November 12, 1996, and approved by the Company's stockholders February
26, 1997. The Plan is effective as of February 26, 1997. The Plan replaces the
Amended and Restated 1990 Stock Plan of Gensia, Inc. (the "1990 Stock Plan").
The Plan was amended by the Board on June 20, 1997, April 17, 1998 and on
February 10, 1999.
The purpose of the Plan is to promote the interests of Gensia Sicor
Inc., and its shareholders by encouraging officers and Key Employees to acquire
stock or increase their proprietary interest in the Company. By thus providing
the opportunity to acquire Company stock and receive incentive payments, the
Company seeks to attract and retain such Key Employees upon whose judgment,
initiative, and leadership the success of the Company largely depends.
The Plan shall be governed by, and construed in accordance with, the
laws of the State of California.
2. Definitions. Whenever the following terms are used in this Plan, they
will have the meanings specified below unless the context clearly indicates the
contrary.
(a) "Board of Directors" or "Board" means the Board of Directors of the
Company, as constituted from time to time.
(b) "Change-in-Control" occurs in the following instances (1) a tender or
exchange for all or part of Company Common Stock (except an offer by the Company
itself); (2) Company shareholder approval of a merger in which the Company does
not survive as an independent and publicly owned corporation (except a merger
which leaves Company shareholders with substantially the same ownership in the
new corporation); (3) Company shareholder approval of a consolidation or sale,
exchange or other disposition of all, or substantially all, of the Company's
assets; (4) change in the composition of the Board over a two consecutive year
period so that individuals who were directors at the beginning of that period no
longer constitute a majority of the Board (unless the election or nomination of
each new director was approved by at least two-thirds of the directors who had
been directors at the beginning of the period and who were still in office at
the time of the election or nomination); or (5) the acquisition of sufficient
Common Shares such that a person who previously did not own at least 30% of
Company Common Shares, thereafter owns at least 30% (except an acquisition by
the Company itself, by a subsidiary of the Company or a benefit plan maintained
by the Company).
(c) "Code" means the Internal Revenue Code of 1986, as amended.
<PAGE>
(d) "Committee" means the committee appointed to administer the Plan
pursuant to Section 4.
(e) "Company" means Gensia Sicor Inc., a Delaware corporation.
(f) "Common Shares" or "Common Stock" means the common shares of Gensia
Sicor Inc., and any class of common shares into which such common shares may
hereafter be converted.
(g) "Dividend Equivalent" means the additional amount of Common Stock
issued in connection with an Option, as described in Section 14.
(h) "Eligible Person" means a Key Employee eligible to receive an
Incentive Award.
(i) "Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
(j) "Fair Market Value" means the market price of Common Shares,
determined by the Committee as follows:
(i) If the Common Shares were traded over-the-counter on the date
in question but were not traded on the Nasdaq system or the Nasdaq National
Market System, then the Fair Market Value shall be equal to the mean
between the last reported representative bid and asked prices quoted for
such date by the principal automated inter-dealer quotation system on which
the Common Shares are quoted or, if the Common Shares are not quoted on any
such system, by the "Pink Sheets" published by the National Quotation
Bureau, Inc.;
(ii) If the Common Shares were traded over-the-counter on the date
in question and were traded on the Nasdaq system or the Nasdaq National
Market System, 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 System;
(iii) If the Common Shares were traded on a stock exchange on the
date in question, then the Fair Market Value shall be equal to the closing
price reported by the applicable composite transactions report for such
date; and
(iv) If none of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Commit tee 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.
(k) "Holder" means a person, estate, trust or entity holding an Incentive
Award.
2
<PAGE>
(l) "Incentive Award" means any Nonqualified Stock Option, Incentive Stock
Option, Common Stock, Restricted Stock, Stock Appreciation Right, Dividend
Equivalent, Stock Payment or Performance Award granted under the Plan.
(m) "Incentive Stock Option" means an Option as defined under Section 422
of the Code, including an Incentive Stock Option granted pursuant to Section 8
of the Plan.
(n) "Key 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 5(b) and 6.
(o) "Nonqualified Stock Option" means an Option other than an Incentive
Stock Option granted pursuant to Section 8 of the Plan.
(p) "Option" means either a Nonqualified Stock Option or Incentive Stock
Option.
(q) "Outside Director" shall mean a member of the Board of Directors who
is not a common-law employee of the Company or a Subsidiary.
(r) "Performance Award" means an award whose value may be linked to stock
value, book value, or other specific performance criteria which may be set by
the Board of Directors, but which is paid in cash, stock, or a combination of
both.
(s) "Plan" means the 1997 Long-Term Incentive Plan, which may be amended
from time to time.
(t) "Restricted Stock" means Company stock sold or granted to an Eligible
Person, which is nontransferable and subject to substantial risk of forfeiture
until restrictions lapse.
(u) "Stock Appreciation Right" or "Right" means a right granted pursuant
to Section 11 of the Plan to receive a number of shares of Common Stock or, in
the discretion of the Committee, an amount of cash or a combination of shares
and cash, based on the increase in the Fair Market Value or book value of the
shares subject to the right.
(v) "Stock Payment" means a payment in shares of the Common Stock to
replace all or any portion of the compensation (other than base salary) that
would otherwise become payable to an employee in cash.
3
<PAGE>
(w) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. 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.
(x) "Total and Permanent Disability" means that the Holder is unable to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can 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.
3. Shares of Common Stock Subject to the Plan.
(a) Subject to the provisions of Sections 3(c) and 15 of the Plan, the
aggregate number of shares of Common Stock that may be issued or transferred
pursuant to Incentive Awards or covered by Stock Appreciation Rights unrelated
to Options under the Plan shall not exceed 5,600,000, and the number of shares
that may be issued or transferred during any 12-month period to any Eligible
Person pursuant to an Incentive Award or a Stock Appreciation Right unrelated to
an Option shall not exceed 250,000 (or 350,000 in the event of an Option
repricing during that 12-month period). Additionally, the number of shares of
Common Stock available under the Company's 1990 Stock Plan (whether by
forfeiture, termination or nongrant) shall also become available under this
Plan.
(b) The shares to be delivered under the Plan will be made available, at
the discretion of the Board of Directors or the Committee, either from
authorized but unissued shares of Common Stock or from previously issued shares
of Common Stock reacquired by the Company, including shares purchased on the
open market.
(c) If Incentive Awards are forfeited or if Incentive Awards terminate for
any other reason before being exercised, then such Incentive Awards shall again
become available for award under the Plan. If Stock Appreciation Rights are
exercised, then only the number of Common Shares (if any) actually issued in
settlement of such Stock Appreciation Rights shall reduce the number of Common
Shares available under Section 3(a) and the balance shall again become available
for award under the Plan. If Restricted Stock is forfeited, then such
Restricted Stock shall again become available for award under the Plan.
4. Administration of the Plan.
(a) The Plan shall be administered by the Committee. The Committee shall
consist exclusively of directors of the Company, who shall be appointed by the
Board. In addition, the composition of the Committee shall satisfy:
4
<PAGE>
(1) Such requirements, if any, 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
(2) Such requirements as the Internal Revenue Service may establish
for outside directors acting under plans intended to qualify for exemption
under Section 162(m) of the Code.
The Board shall act on its own behalf with respect to the grant or amendment of
Incentive Awards to Outside Directors and may also appoint separate committees
of the Board, each composed of one or more officers of the Company who need not
be directors of the Company, to administer the Plan with respect to Key
Employees who are not "covered employees" under Section 162(m) of the Code and
who are not required to report pursuant to Section 16(a) of the Exchange Act.
(b) The Committee has and may exercise such powers and authority as may be
necessary or appropriate for the Committee to carry out its functions as
described in the Plan. The Committee has authority in its discretion to
determine the Eligible Persons to whom, and the time or times at which,
Incentive Awards may be granted and the number of shares or Rights subject to
each award. Subject to the express provisions of the Plan, the Committee also
has authority to interpret the Plan, and to determine the terms and provisions
of the respective Incentive Award agreements (which need not be identical) and
to make all other determinations necessary or advisable for Plan administration.
The Committee has authority to prescribe, amend, and rescind rules and
regulations relating to the Plan. All interpretations, determinations, and
actions by the Committee will be final, conclusive, and binding upon all
parties.
(c) No member of the Board of Directors or the Committee will be liable
for any action or determination made in good faith by the Committee with respect
to the Plan or any Incentive and Performance Award under it.
5. Eligibility and Date of Grant.
The date of grant of an Incentive Award will be the date the Committee
takes the necessary action to approve the grant; provided, however, that if the
minutes or appropriate resolutions of the Committee provide that an Incentive
Award is to be granted as of a date in the future, the date of grant will be
such future date.
6. Outside Director Participation. Outside Directors shall receive
Option grants under the Plan as described below:
(a) Upon the conclusion of each regular annual meeting of the Company's
shareholders, each incumbent Outside Director who will continue serving as a
member of the Board thereafter may receive a grant of a Nonstatutory Option for
such number of Common
5
<PAGE>
Shares (subject to adjustment under Section 15 and prorated for partial year
service) as the Board shall determine in its sole discretion.
(b) New Outside Directors shall receive a one-time grant of a Nonstatutory
Option for a number of Common Shares as determined in the sole discretion of the
Board; provided, however, that such grant shall not be made in any calendar year
in which the same individual receives an Option under (a) above. Such Option,
if any, shall be granted on the date when such Outside Director first joins the
Board of Directors of the Company or the board of directors of a Subsidiary.
(c) Total grants under this Section 6 (less forfeitures) shall not exceed
15% of the maximum number of Common Shares available for grant under Section
3(a) of the Plan (subject to adjustment under Section 15).
7. Nonqualified Stock Options.
The Committee may approve the grant of Nonqualified Stock Options to
Eligible Persons, subject to the following terms and conditions:
(a) The purchase price of Common Stock under each Nonqualified Stock
Option may not be less than eighty-five percent (85%) of the Fair Market
Value of the Common Stock on the date the Nonqualified Stock Option is
granted.
(b) No Nonqualified Stock Option may be exercised after ten (10)
years from the date of grant.
(c) No fractional shares will be issued pursuant to the exercise of a
Nonqualified Stock Option nor will any cash payment be made in lieu of
fractional shares.
8. Incentive Stock Options. The Committee may approve the grant of
Incentive Stock Options to Eligible Persons, subject to the following terms and
conditions:
(a) The purchase price of each share of Common Stock under an
Incentive Stock Option will be at least equal to the Fair Market Value of a
share of the Common Stock on the date of grant; provided, however, that if
an employee, at the time an Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company (as defined in Section 424 of the
Code), then the Exercise Price of each share of Common Stock subject to
such Incentive Stock Option shall be at least one hundred and ten percent
(110%) of the Fair Market Value of such share of Common Stock, as
determined in the manner stated above.
(b) No Incentive Stock Option may be exercised after ten (10) years
from the date of grant; provided, however, that if any employee, at the
time an Incentive Stock Option
6
<PAGE>
is granted to him, owns stock representing more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company (as
defined in Section 424 of the Code), the Incentive Stock Option granted
shall not be exercisable after the expiration of five (5) years from the
date of grant.
(c) No fractional shares will be issued pursuant to the exercise of
an Incentive Stock Option nor will any cash payment be made in lieu of
fractional shares.
9. Option Rules. The purchase price under each Option may be paid in
cash, cash equivalents or notes acceptable to the Committee, by arrangement with
a broker which is acceptable to the Committee where payment of the Option price
is made pursuant to an irrevocable direction to the broker to deliver all or
part of the proceeds from the sale of the Option shares to the Company, by the
surrender of shares of Common Stock owned by the Holder exercising the Option
and having a Fair Market Value on the date of exercise equal to the purchase
price or in any combination of the foregoing. Each Option granted to an
Eligible Person shall be exercisable in such manner and at such times as the
Committee shall determine. The Committee may modify, accelerate the
exercisability of, extend or assume outstanding Options or may accept the
cancellation of outstanding Options (whether granted by the Company or by
another issuer) in return for the grant of new Options for the same or a
different number of shares and at the same or a different purchase price. The
foregoing notwithstanding, no modification of an Option shall, without the
consent of the Holder, alter or impair his or her rights or obligations under
such Option.
10. Restricted Stock. The Committee may approve the grant of Restricted
Stock related or unrelated to Nonqualified Stock Options or Stock Appreciation
Rights to Eligible Persons, subject to the following terms and conditions:
(a) The Committee in its discretion will determine the purchase price.
(b) All shares of Restricted Stock sold or granted pursuant to the Plan
(including any shares of Restricted Stock received by the Holder as a result of
stock dividends, stock splits, or any other forms of capitalization) will be
subject to the following restrictions:
(i) The shares may not be sold, transferred, or otherwise alienated
or hypothecated until the restrictions are removed or expire.
(ii) The Committee may require the Holder to enter into an escrow
agreement providing that the certificates representing Restricted Stock
sold or granted pursuant to the Plan will remain in the physical custody of
an escrow holder until all restrictions are removed or expire.
7
<PAGE>
(iii) Each certificate representing Restricted Stock sold or granted
pursuant to the Plan will bear a legend making appropriate reference to the
restrictions imposed on the Restricted Stock.
(iv) The Committee may impose restrictions on any shares sold
pursuant to the Plan as it may deem advisable, including, without
limitation, restrictions designed to facilitate exemption from or
compliance with the Securities Exchange Act of 1934, as amended, with
requirements of any stock exchange upon which such shares or shares of the
same class are then listed and with any blue sky or other securities laws
applicable to such shares.
(c) The restrictions imposed under subparagraph (b) above upon Restricted
Stock will lapse in accordance with a schedule or other conditions as determined
by the Committee, subject to the provisions of Section 17, subparagraph (d).
(d) Subject to the provisions of subparagraph (b) above and Section 17,
subparagraph (d), the Holder will have all rights of a shareholder with respect
to the Restricted Stock granted or sold, including the right to vote the shares
and receive all dividends and other distributions paid or made with respect
thereto.
(e) Notwithstanding the provisions of subparagraph (b) above and Section
17, subparagraph (d), Restricted Stock granted or sold may be held by the
trustee of a revocable inter vivos trust (or other trust if such transfer
associated therewith does not cause income to be recognized pursuant to Code (S)
83 and if the trust takes subject to the forfeiture provisions of the Restricted
Stock), approved by the Company, established in whole or in part by the Holder
and/or the Holder's spouse. So long as the Holder is still an employee,
transfer to such trust shall not violate the provisions of subparagraph (b)
above and ownership by such trust shall not invoke any right or obligation of
the Company under Section 17, subparagraph (d).
11. Stock Appreciation Rights. The Committee may approve the grant of
Rights related or unrelated to Options to Eligible Persons, subject to the
following terms and conditions:
(a) A Stock Appreciation Right may be granted
(i) at any time if unrelated to an Option;
(ii) either at the time of grant, or at any time thereafter during
the Option term if related to a Nonqualified Stock Option; or
(iii) only at the time of grant if related to an Incentive Stock
Option.
(b) A Stock Appreciation Right granted in connection with an Option will
entitle the Holder of the related Option, upon
8
<PAGE>
exercise of the Stock Appreciation Right, to surrender such Option, or any
portion thereof to the extent unexercised, with respect to the number of shares
as to which such Stock Appreciation Right is exercised, and to receive payment
of an amount computed pursuant to Section 11(d). Such Option will, to the
extent surrendered, then cease to be exercisable.
(c) Subject to Section 11(g), a Stock Appreciation Right granted in
connection with an Option hereunder will be exercisable at such time or times as
the Committee in its discretion may determine, and only to the extent that a
related Option is exercisable, and will not be transferable except to the extent
that such related Option is exercisable.
(d) Upon the exercise of a Stock Appreciation Right related to an Option,
the Holder will be entitled to receive payment of an amount determined by
multiplying:
(i) The difference obtained by subtracting the purchase price of a
share of Common Stock specified in the related Option from the Fair Market
Value of a share of Common Stock on the date of exercise of such Stock
Appreciation Right, by
(ii) The number of shares as to which such Stock Appreciation Right
has been exercised.
(e) The Committee may grant Stock Appreciation Rights unrelated to Options
to Eligible Persons which will be exercisable at such times as the Committee
shall determine. Section 11(d) shall be used to determine the amount payable at
exercise under such Stock Appreciation Right if Fair Market Value is used,
except that Fair Market Value shall not be used if the Committee specifies in
the grant of the Right that book value or other measure as deemed appropriate by
the Committee is to be used, and the initial share value specified in the award
shall be used in lieu of "price of a share of Common Stock specified in the
related Option," as provided in Section 11(d).
(f) Payment of the amount determined under Section 11(d) or (e) may be
made solely in whole shares of Common Stock in a number determined at their Fair
Market Value on the date of exercise of the Stock Appreciation Right or
alternatively, at the sole discretion of the Committee, solely in cash or in a
combination of cash and shares as the Committee deems advisable. If the
Committee decides to make full payment in shares of Common Stock, and the amount
payable results in a fractional share, payment for the fractional share will be
made in cash.
(g) The Committee shall, at the time a Stock Appreciation Right is
granted, impose such conditions on the exercise of the Stock Appreciation Right
as may be required to satisfy the requirements of Rule 16b-3 under the
Securities Exchange Act of 1934 (or any other comparable provisions in effect at
the time or times in question). In addition, a Stock Appreciation Right granted
under the Plan may provide that it will be exercisable only in the event of a
Change-in-Control.
9
<PAGE>
12. Performance Awards. The Committee may approve Performance Awards to
Eligible Persons. Such awards may be based on Common Stock performance over a
period determined in advance by the Committee or any other measures as
determined appropriate by the Committee. Payment will be in cash unless
replaced by a Stock Payment in full or in part as determined by the Committee.
13. Stock Payment. The Committee may approve Stock Payments of Common
Stock to Eligible Persons for all or any portion of the compensation (other than
base salary) that would otherwise become payable to an employee in cash.
14. Dividend Equivalents. A Holder may also be granted at no additional
cost "Dividend Equivalents" based on the dividends declared on the Common Stock
on record dates during the period between the date an Option is granted and the
date such Option is exercised, or such other equivalent period, as determined by
the Committee. Such Dividend Equivalents shall be converted to additional
shares or cash by such formula as may be determined by the Committee.
Dividend Equivalents shall be computed, as of each dividend record date,
both with respect to the number of shares under the Option and with respect to
the number of Dividend Equivalent shares previously earned by the Holder (or his
successor in interest) and not issued during the period prior to the dividend
record date.
15. Adjustment Provisions.
(a) Subject to Section 15(b), if the outstanding shares of Common Stock
are increased, decreased, or exchanged for a different number or kind of shares
or other securities, or if additional shares or new or different shares or other
securities are distributed with respect to such shares of Common Stock or other
securities, through merger, consolidation, sale of all or substantially all of
the property of the Company, reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split or other distribution with
respect to such shares of Common Stock, or other securities, an appropriate and
proportionate adjustment shall be made in (i) the maximum number and kind of
shares provided in Section 3 of the Plan, (ii) the number and kind of shares or
other securities subject to the then outstanding Incentive Awards, and (iii) the
price for each share or other unit of any other securities subject to then
outstanding Incentive Awards without change in the aggregate purchase price or
value as to which Incentive Awards remain exercisable or subject to
restrictions.
(b) In addition, upon a Change-in-Control, all Options, Stock Appreciation
Rights, and Performance Awards then outstanding under the Plan will be fully
vested and exercisable and all restrictions on Restricted Stock will immediately
cease. The Committee or any agreement of merger or reorganization may offer the
Holder the right to exchange such vested Incentive Awards for fully vested and
equivalent value awards under a successor plan.
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16. General Provisions.
(a) With respect to any shares of Common Stock issued or transferred under
any provision of the Plan, such shares may be issued or transferred subject to
such conditions, in addition to those specifically provided in the Plan, as the
Committee may direct.
(b) Nothing in the Plan or in any instrument executed pursuant to the Plan
will confer upon any Holder any right to continue in the employ of the Company
or any of its Subsidiaries or affect the right of the Company to terminate the
employment of any Holder at any time and for any reason.
(c) No shares of Common Stock will be issued or transferred pursuant to an
Incentive Award unless and until all then applicable requirements imposed by
federal and state securities and other laws, rules, and regulations and by any
regulatory agencies having jurisdiction, and by any stock exchanges upon which
the Common Stock may be listed, have been fully met. As a condition precedent
to the issue of shares pursuant to the grant or exercise of an Incentive Award,
the Company may require the Holder to take any reasonable action to meet such
requirements.
(d) No Holder (individually or as a member of a group) and no beneficiary
or other person claiming under or through such Holder will have any right,
title, or interest in or to any shares of Common Stock allocated or reserved
under the Plan or subject to any Incentive Award except as to such shares of
Common Stock, if any, that have been issued or transferred to such Holder.
(e) The Company may make such provisions as it deems appropriate to
withhold any taxes which it determines it is required to withhold in connection
with any Incentive or Performance Award.
(f) No Incentive Award and no right under the Plan, contingent or
otherwise, will be assignable or subject to any encumbrance, pledge (other than
a pledge to secure a loan from the Company), or charge of any nature except
that, under such rules and regulations as the Company may establish pursuant to
the terms of the Plan, a beneficiary may be designated with respect to an
Incentive Award in the event of death of a Holder of such Incentive Award. If
such beneficiary is the executor or administrator of the estate of the Holder of
such Incentive Award, any rights with respect to such Incentive Award may be
transferred to the person or persons or entity (including a trust) entitled
thereto under the will of the Holder of such Incentive Award, or, in the case of
intestacy, under the laws relating to intestacy. Except as determined by the
Committee, no Incentive Award shall be transferable by any Eligible Person other
than by will or the laws of descent and distribution or pursuant to a qualified
domestic relations order. In considering transferability of an Incentive Award,
the Committee may also consider the registration limitation of SEC Form S-8 and
on that basis may in its discretion determine whether to prohibit
transferability, permit alternative
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registration of the Incentive Award, treat the Incentive Award as SEC Rule 144
"restricted stock," or take such other measures as the Committee deems
appropriate.
(g) The Committee may permit a Holder to satisfy all or part of his or her
withholding or income tax obligations by having the Company withhold all or a
portion of any Common Stock that otherwise would be issued to him or her or by
surrendering all or a portion of any Common Stock that he or she previously
acquired. Such Common Stock shall be valued at its Fair Market Value on the
date when taxes otherwise would be withheld in cash. Any payment of taxes by
assigning Common Stock to the Company may be subject to restrictions, including
any restrictions required by rules of the Securities and Exchange Commission.
(h) All Incentive Awards shall become 100% vested in the event of death or
total and permanent disability.
17. Amendment and Termination.
(a) The Board of Directors may, in its discretion, amend, suspend, or
terminate the Plan at any time. An amendment of the Plan shall be subject to
the approval of the Company's shareholders to the extent it affects the
application of the accelerated vesting provisions herein, Section 15, or to the
extent required by applicable laws, regulations and or rules.
(b) The Committee may, with the consent of a Holder, make such
modifications in the terms and conditions of the Incentive Award as it deems
advisable or cancel the Incentive Award (with or without consideration) with the
consent of the Holder.
(c) No amendment, suspension, or termination of the Plan will, without the
consent of the Holder, alter, terminate, impair, or adversely affect any right
or obligation under any Incentive Award previously granted under the Plan.
(d) In the event a Holder of Restricted Stock ceases to be an employee,
all such Holder's Restricted Stock which remains subject to substantial risk of
forfeiture at the time his or her employment terminates will be repurchased by
the Company at the original price at which such Restricted Stock had been
purchased unless the Committee determines otherwise.
(e) In the event a Holder of a Performance Award ceases to be an employee,
all such Holder's Performance Awards will terminate except in the case of
retirement, death, or Total and Permanent Disability. The Committee, in its
discretion, may authorize full or partial payment of Performance Awards in all
cases involving retirement, death, or permanent and total disability.
(f) The Committee may in its sole discretion determine, with respect to an
Incentive Award, that any Holder who is on unpaid leave of absence for any
reason will be considered as still in the employ of the Company, provided that
rights to such Incentive
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Award during an unpaid leave of absence will be limited to the extent to which
such right was earned or vested at the commencement of such leave of absence.
18. Effective Date of Plan and Duration of Plan. This Plan will become
effective upon approval by the shareholders of the Company within twelve (12)
months following the date of its adoption by the Board of Directors. Unless
previously terminated by the Board of Directors, the Plan will terminate ten
(10) years after its approval by the shareholders of the Company.
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Exhibit 23.1
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
--------------------------------------------------
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Amended and Restated 1997 Long-Term Incentive Plan
of SICOR Inc. (formerly Gensia Sicor Inc.) of our report dated March 8, 1999
with respect to the consolidated financial statements of SICOR Inc. (formerly
Gensia Sicor Inc.) included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
San Diego, California
July 9, 1999
