<PAGE> 1
As filed with the Securities and Exchange Commission on June 26, 1997
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GENELABS TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-3010150
(State of incorporation) (I.R.S. employer
identification no.)
505 PENOBSCOT DRIVE
REDWOOD CITY, CALIFORNIA 94063
(Address of principal executive offices)
1991 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
IRENE A. CHOW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
505 PENOBSCOT DRIVE
REDWOOD CITY, CALIFORNIA 94063
(415) 369-9500
(Name, address and telephone number of agent for service)
COPIES TO:
Greg Smith, Esq.
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, California 94111-3580
(415) 693-2000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE PRICE FEE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 500,000(1) $2.78125(2) $1,390,625 $479.53
- --------------------------------------------------------------------------------
</TABLE>
(1) Additional shares available for issuance as of May 22, 1997 under the
1991 Employee Stock Purchase Plan.
(2) Estimated based on the average of the high and low prices reported on
The Nasdaq National Market on June 24, 1997 pursuant to Rule 457(c) and
(h)(1) solely for the purpose of calculating the registration fee.
Exhibit Index appears on page 9.
<PAGE> 2
GENELABS TECHNOLOGIES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for fiscal
year ended December 31, 1996 filed pursuant to Section
13(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(b) The Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1997 filed with the
Commission pursuant to Section 13(a) of the Exchange
Act.
(c) The description of the Registrant's Common Stock
contained in the Registrant's registration statement on
Form 8-A filed on April 30, 1991 with the Commission
under Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation include a provision
that eliminates the personal liability of its directors to the Registrant and
its shareholders for monetary damages for breach of the directors' fiduciary
duties in certain circumstances. This limitation has no effect on a director's
liability (i) for acts or omissions that involve intentional misconduct or a
knowing and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the Registrant or its
shareholders or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard for
the director's duty to the Registrant or its shareholders in circumstances in
which the director was aware, or should have been aware, in the ordinary course
of performing a director's duties, of a risk of a serious injury to
2
<PAGE> 3
the Registrant or its shareholders, (v) for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its shareholders, (vi) under Section 310 of the
California Corporations Code (the "California Code") (concerning contracts or
transactions between the Registrant and a director) or (vii) under Section 316
of the California Code (concerning directors' liability for improper dividends,
loans and guarantees). The provision does not extend to acts or omissions of a
director in his or her capacity as an officer. Further, the provision has no
effect on claims arising under federal or state securities laws and will not
affect the availability of injunctions and other equitable remedies available to
the Registrant's shareholders for any violation of a director's fiduciary duty
to the Registrant or its shareholders.
The Registrant's Articles of Incorporation also include an
authorization for the Registrant to indemnify its agents (as defined in Section
317 of the California Code), through bylaw provisions, by agreement or
otherwise, to the fullest extent permitted by law. Pursuant to this latter
provision, the Registrant's Bylaws provide for indemnification of the
Registrant's directors, officers and employees. In addition, the Registrant, at
its discretion, may provide indemnification to persons whom the Registrant is
not obligated to indemnify. The Bylaws also allow the Registrant to enter into
indemnity agreements with individual directors, officers, employees and other
agents. These indemnity agreements have been entered into with all directors and
provide the maximum indemnification permitted by law. These agreements, together
with the Registrant's Bylaws and Articles of Incorporation, may require the
Registrant, among other things, to indemnify such directors against certain
liabilities that may arise by reason of their status or service as directors
(other than liabilities resulting from willful misconduct of a culpable nature),
to advance expenses to them as they are incurred, provided that they undertake
to repay the amount advanced if it is ultimately determined by a court that they
are not entitled to indemnification, and to obtain directors' and officers'
insurance if available on reasonable terms.
Section 317 of the California Code and the Registrant's Bylaws
make provision for the indemnification of officers, directors and other
corporate agents in terms sufficiently broad to indemnify such persons, under
certain circumstances, for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act.
Reference is made to Exhibit 10.04 to the Registrant's
registration statement on Form S-1 (No. 33-40120) filed by the Registrant with
the Commission on April 29, 1991, which sets forth certain provisions with
respect to the indemnification of certain controlling persons, directors and
officers against certain losses and liabilities, including certain liabilities
under the Securities Act.
The Registrant currently carries a directors and officers
liability insurance policy.
Reference is also made to the following documents incorporated
by reference herewith regarding relevant indemnification provisions described
above and elsewhere herein: Registrant's Amended and Restated Articles of
Incorporation (incorporated herein by reference to Exhibit 3.01 to Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1991); and
Registrant's Bylaws, as amended to date (incorporated herein by reference to
Exhibit 4.02 to Registrant's Registration Statement on Form S-3 filed with the
Securities and Exchange Commission on June 15, 1994 (Registration No.
33-76242)).
3
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are incorporated by reference or filed
herewith.
4.01 Registrant's Amended and Restated Articles of
Incorporation (incorporated herein by reference to
Exhibit 3.01 to Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1991).
4.02 Registrant's Certificate of Determination of
Preferences of Series A Convertible Preferred Stock of
Genelabs Technologies, Inc. (incorporated herein by
reference to Exhibit 10.37 to Registrant's Quarterly
Report on Form 10-Q for the Quarter ended June 30,
1995).
4.03 Registrant's Bylaws, as amended to date (incorporated
herein by reference to Exhibit 3.02 to Registrant's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1993).
4.04 Registrant's 1991 Employee Stock Purchased Plan, as
amended.
5.01 Opinion of Cooley Godward LLP.
23.01 Consent of Cooley Godward LLP (included in
Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney is contained on signature pages.
4
<PAGE> 5
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement:
Provided, however, that paragraphs (1)(i) and (1)(ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered 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.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
5
<PAGE> 6
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted for directors, officers and controlling persons
of the Registrant pursuant to the foregoing 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 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 hereby, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
EXPERTS
The consolidated financial statements of Genelabs Technologies,
Inc., appearing in Genelabs Technologies, Inc.'s Annual Report (Form 10-K) for
the year ended December 31, 1996, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
6
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Redwood City, State of California, on the 25th
day of June 1997.
GENELABS TECHNOLOGIES, INC.
By: /s/ IRENE A. CHOW
----------------------------------
Chief Executive Officer, President
and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Irene A. Chow and Melinda Griffith, and
each of them, his or her true and lawful attorneys-in-fact and agents with full
power of substitution, for him or her and in his or her name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to
file the same with all exhibits thereto and all 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 in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or his, her or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ IRENE A. CHOW Chief Executive Officer, June 25, 1997
- ---------------------------- President and Director
Irene A. Chow
PRINCIPAL FINANCIAL OFFICER:
/s/ JAMES A.D. SMITH Chief Operating Officer June 25, 1997
- ----------------------------
James A.D. Smith
PRINCIPAL ACCOUNTING OFFICER:
/s/ MATTHEW M. LOAR Director of Finance and June 25, 1997
- ---------------------------- Controller
Matthew M. Loar
</TABLE>
7
<PAGE> 8
<TABLE>
<S> <C> <C>
ADDITIONAL DIRECTORS:
/s/ EDGAR G. ENGLEMAN Director June 25, 1997
- ----------------------------
Edgar G. Engleman
/s/ ARTHUR GRAY, JR. Director June 25, 1997
- ----------------------------
Arthur Gray, Jr.
/s/ H. H. HAIGHT Director June 25, 1997
- ----------------------------
H. H. Haight
/s/ DAMARIS SKOURAS Director June 25, 1997
- ----------------------------
Damaris Skouras
Director
- ----------------------------
Nina K. Wang
</TABLE>
8
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.01 Registrant's Amended and Restated Articles of Incorporation
(incorporated herein by reference to Exhibit 3.01 to
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1991).
4.02 Registrant's Certificate of Determination of Preferences of
Series A Convertible Preferred Stock of Genelabs Technologies,
Inc. (incorporated herein by reference to Exhibit 10.37 to
Registrant's Quarterly Report on Form 10-Q for the Quarter ended
June 30, 1995).
4.03 Registrant's Bylaws, as amended to date (incorporated herein
by reference to Exhibit 3.02 to Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1993).
4.04 Registrant's 1991 Employee Stock Purchase Plan, as amended.
5.01 Opinion of Cooley Godward LLP.
23.01 Consent of Cooley Godward LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent Auditors.
24.01 Power of Attorney (see page 7).
</TABLE>
9
<PAGE> 1
EXHIBIT 4.04
GENELABS TECHNOLOGIES, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Adopted by the Board of Directors on April 24,
1991) As Amended February 11, 1994, September 20, 1995,
January 26, 1996 and May 22, 1997
1. ESTABLISHMENT OF PLAN
Genelabs Technologies, Inc. (the "Company") proposes to grant options
for purchase of the Company's Common Stock (an "Offering") to eligible employees
of the Company and its Subsidiaries (as hereinafter defined) pursuant to this
Employee Stock Purchase Plan (this "Plan"). For purposes of this Plan, "Parent
Corporation" and "Subsidiary" (collectively, "Subsidiaries") shall have the same
meanings as "parent corporation" and "subsidiary corporation" in Sections 424(e)
and 424(f), respectively, of the Internal Revenue Code of 1986, as amended (the
"Code"). The Company intends the Plan to qualify as an "employee stock purchase
plan" under Section 423 of the Code (including any amendments to or replacements
of such Section), and the Plan shall be so construed. Any term not expressly
defined in the Plan but defined for purposes of Section 423 of the Code shall
have the same definition herein. A total of 1,000,000 shares of the Company's
Common Stock are reserved for issuance under the Plan. Such number shall be
subject to adjustments effected in accordance with Section 14 of the Plan.
2. PURPOSE
The purpose of the Plan is to provide employees of the Company and
Subsidiaries designated by the Board of Directors of the Company (the "Board")
as eligible to participate in the Plan with a convenient means of acquiring an
equity interest in the Company through payroll deductions, to enhance such
employees' sense of participation in the affairs of the Company and
Subsidiaries, and to provide an incentive for continued employment.
3. ADMINISTRATION
This plan may be administered by the Board or a committee appointed by
the Board (the "Committee"). If, at the time the Company registers under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), a majority of
the Board is not comprised of Disinterested Persons as defined in Rule 16b-3(d)
promulgated under the Exchange Act, the Board shall appoint a committee
consisting of not less than three (3) persons (who need not be members of the
Board), each of whom is a Disinterested Person. As used in this Plan, references
to the "Committee" shall mean either such committee or the Board if no committee
has been established. After registration of the Company under the Exchange Act,
Board members who are not Disinterested Persons may not vote on any matters
affecting the administration of this Plan, but any such member may be counted
for determining the existence of a quorum at any meeting of the Board. Subject
to the provisions of the Plan and the limitations of Section 423 of the Code or
any successor provision in the Code, all questions of interpretation or
application of the Plan shall be determined by the Board and its decisions shall
be final and binding upon all participants. Members of the Board shall receive
no compensation for their services in connection with the administration of the
Plan, other
10
<PAGE> 2
than standard fees as established from time to time by the Board for services
rendered by Board members serving on Board committees. All expenses incurred in
connection with the administration of the Plan shall be paid by the Company.
4. ELIGIBILITY
Any employee of the Company or the Subsidiaries is eligible to
participate in an Offering Period (as hereinafter defined) under the Plan except
the following:
(a) employees who are not employed by the Company or Subsidiaries on
the fifteenth (15th) day of the month before the beginning of such
Offering Period;
(b) employees who are customarily employed for less than 20 hours per
week;
(c) employees who are customarily employed for less than 5 months in a
calendar year;
(d) employees who, together with any other person whose stock would be
attributed to such employee pursuant to Section 424(d) of the Code,
own stock or hold options to purchase stock or who, as a result of
being granted an option under the Plan with respect to such
Offering Period, would own stock or hold options to purchase stock
possessing 5 percent or more of the total combined voting power or
value of all classes of stock of the Company or any of its
Subsidiaries.
5. OFFERING DATES
The Offering Periods of the Plan (the "Offering Period") shall be of
twenty-four (24) months duration commencing on January 2 and July 2 of each year
and ending on July 1 and January 1 of each year. Each Offering Period shall
consist of four (4) six-month purchase periods (individually, a "Purchase
Period") during which payroll deductions of the participants are accumulated
under the Plan. The first business day of each Offering Period is referred to as
the "Offering Date". The last business day of each Offering Period is referred
to as the "Purchase Date". Notwithstanding the foregoing, if the fair market
value of the Company's Common Stock on any Purchase Date is less than it was on
an Offering Date, then the Offering Period (s) for such Offering Date(s) shall
immediately terminate and a new Offering Period shall commence for those
employees participating in such terminated Offerings (See also Section 11(c)
below). The Board shall have the power to change the duration of Offering
Periods or Purchase Periods with respect to offerings without shareholder
approval if such change is announced at least fifteen (15) days prior to the
scheduled beginning of the first Offering Period or Purchase Period to be
affected.
6. PARTICIPATION IN THE PLAN
Eligible employees may become participants in an Offering Period under the Plan
upon the commencement of the next Purchase Period after satisfying the
eligibility requirements by delivering a subscription agreement to the Company's
or Subsidiary's (whichever employs such employee) Treasury Department (the
"Treasury Department") not later than the 15th day of the month before such
Purchase Period begins unless a later time for filing the subscription agreement
authorizing payroll deductions is set by the Board for all eligible employees
with respect to a given Purchase Period. An eligible employee who does not
11
<PAGE> 3
deliver a subscription agreement to the Treasury Department by such date after
becoming eligible to participate in such Purchase Period shall not participate
in that Purchase Period or any subsequent Purchase Period unless such employee
enrolls in the Plan by filing a subscription agreement with the Treasury
Department not later than the 15th day of the month preceding the beginning of a
subsequent Purchase Period. Once an employee becomes a participant in a Purchase
Period, such employee will automatically participate in the next Purchase Period
unless the employee withdraws from the Plan or terminates further participation
in the Purchase Period as set forth in Section 11 below. Such participant is not
required to file any additional subscription agreement in order to continue
participation in the Plan.
7. GRANT OF OPTION ON ENROLLMENT
Enrollment by an eligible employee in the Plan with respect to an
Offering Period will constitute the grant (as of the Offering Date) by the
Company to such employee of an option to purchase on the Purchase Date up to
that number of shares of Common Stock of the Company determined by dividing the
amount accumulated in such employee's payroll deduction account during such
Purchase Period by the lower of (i) eighty-five percent (85%) of the fair market
value of a share of the Company's Common Stock on the Offering Date (the "Entry
Price") or (ii) eighty-five percent (85%) of the fair market value of a share of
the Company's Common Stock on the Purchase Date; provided, however, that the
number of shares of the Company's Common Stock subject to any option granted
pursuant to this Plan shall not exceed the lesser of (a) the maximum number of
shares set by the Board pursuant to Section 10(c) below with respect to the
applicable Purchase Period, or (b) the maximum number of shares which may be
purchased pursuant to Section 10(b) below with respect to the applicable
Purchase Period. Fair market value of a share of the Company's Common Stock
shall be determined as provided in Section 8 hereof.
8. PURCHASE PRICE
The purchase price per share at which a share of Common Stock will be
sold during any Offering Period shall be 85 percent of the lesser of:
(a) The fair market value on the Offering Date; or
(b) The fair market value on the Purchase Date.
For purposes of the Plan, the term "fair market value" on a given date
shall mean the closing price from the previous day's trading of a share of the
Company's Common Stock as reported on The Nasdaq National Market.
9. PAYMENT OF PURCHASE PRICE; CHANGES IN PAYROLL
DEDUCTIONS; ISSUANCE OF SHARES
(a) The purchase price of the shares is accumulated by regular payroll
deductions made during each Purchase Period. The deductions are made as a
percentage of the participant's compensation in one percent increments not less
than 2 percent nor greater than 10 percent, not to exceed $25,000 per year or
such other limit set by the Committee. Compensation shall mean all W-2
compensation, including, but not limited to base salary, wages, commissions,
overtime, shift premiums and bonuses, plus draws against commissions; provided,
however, that for purposes of determining a participant's compensation, any
election by such participant to reduce his or her regular cash remuneration
under Sections 125 or 401(k) of the Code shall be treated as if the participant
did not make such election.
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<PAGE> 4
Payroll deductions shall commence on the first payday following the Offering
Date and shall continue to the end of the Purchase Period unless sooner altered
or terminated as provided in the Plan.
(b) A participant may lower (but not increase) the rate of payroll
deductions during a Purchase Period by filing with the Treasury Department a new
authorization for payroll deductions, in which case the new rate shall become
effective for the next payroll period commencing more than 15 days after the
Treasury Department's receipt of the authorization and shall continue for the
remainder of the Purchase Period unless changed as described below. Such change
in the rate of payroll deductions may be made at any time during a Purchase
Period, but not more than one change may be made effective during any Purchase
Period. A participant may increase or decrease the rate of payroll deductions
for any subsequent Purchase Period by filing with the Treasury Department a new
authorization for payroll deductions not later than the 15th day of the month
before the beginning of such Purchase Period. An increase or decrease in your
payroll deduction does not start a new Offering Period.
(c) All payroll deductions made for a participant are credited to his
or her account under the Plan and are deposited with the general funds of the
Company. No interest accrues on the payroll deductions. All payroll deductions
received or held by the Company may be used by the Company for any corporate
purposes, and the Company shall not be obligated to segregate such payroll
deductions.
(d) On each Purchase Date, so long as the Plan remains in effect and
provided that the participant has not submitted a signed and completed
withdrawal form before that date which notifies the Company that the participant
wishes to withdraw from that Purchase Period under the Plan and have all payroll
deductions accumulated in the account maintained on behalf of the participant as
of that date returned to the participant, the Company shall apply the funds then
in the participant's account to the purchase of whole shares of Common Stock
reserved under the option granted to such participant with respect to the
Purchase Period to the extent that such option is exercisable on the Purchase
Date. The purchase price per share shall be as specified in Section 8 of the
Plan. Any cash remaining in a participant's account after such purchase of
shares shall be refunded to such participant in cash, without interest;
provided, however, that any amount remaining in such participant's account on a
Purchase Date which is less than the amount necessary to purchase a full share
of Common Stock of the Company shall be carried forward, without interest, into
the next Purchase Period. In the event that the Plan has been oversubscribed,
all funds not used to purchase shares on the Purchase Date shall be returned to
the participant, without interest. No Common Stock shall be purchased on a
Purchase Date on behalf of any employee whose participation in the Plan has
terminated prior to such Purchase Date.
(e) As promptly as practicable after the Purchase Date, the Company
shall arrange the delivery to each participant of a certificate representing the
shares purchased upon exercise of his option; provided that the Board may
deliver certificates to a broker or brokers that hold such certificate in a
street name for the benefit of each such participant.
(f) During a participant's lifetime, such participant's option to
purchase shares hereunder is exercisable only by him or her. The participant
will have no interest or voting right in shares covered by his or her option
until such option has been exercised. Shares to be
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<PAGE> 5
delivered to a participant under the Plan will be registered in the name of the
participant or in the name of the participant and his or her spouse.
10. LIMITATIONS ON SHARES TO BE PURCHASED
(a) No employee shall be entitled to purchase stock under the Plan at a
rate which, when aggregated with his or her rights to purchase stock under all
other employee stock purchase plans of the Company or any Subsidiary, exceeds
$25,000 in fair market value, determined as of the Offering Date (or such other
limit as may be imposed by the Code) for each calendar year in which the
employee participates in the Plan.
(b) No more than 200% of the number of shares determined by using 85%
of the fair market value of a share of the Company's Common Stock on the
Offering Date as the denominator may be purchased by a participant on any single
Purchase Date.
(c) No employee shall be entitled to purchase more than the Maximum
Share Amount (as defined below) on any single Purchase Date. Not less than
thirty days prior to the commencement of any Purchase Period, the Board may, in
its sole discretion, set a maximum number of shares which may be purchased by
any employee at any single Purchase Date (hereinafter the "Maximum Share
Amount"). In no event shall the Maximum Share Amount exceed the amounts
permitted under Section 10(b) above. If a new Maximum Share Amount is set, then
all participants must be notified of such Maximum Share Amount not less than
fifteen days prior to the commencement of the next Purchase Period. Once the
Maximum Share Amount is set, it shall continue to apply with respect to all
succeeding Purchase Dates and Purchase Periods unless revised by the Board as
set forth above.
(d) If the number of shares to be purchased on a Purchase Date by all
employees participating in the Plan exceeds the number of shares then available
for issuance under the Plan, the Company will make a pro rata allocation of the
remaining shares in as uniform a manner as shall be practicable and as the Board
shall determine to be equitable. In such event, the Company shall give written
notice of such reduction of the number of shares to be purchased under a
participant's option to each participant affected thereby.
(e) Any payroll deductions accumulated in a participant's account which
are not used to purchase stock due to the limitations in this Section 10 shall
be returned to the participant as soon as practicable after the end of the
Purchase Period, without interest.
11. WITHDRAWAL
(a) Each participant may withdraw from a Purchase Period under the Plan
by signing and delivering to the Treasury Department notice on a form provided
for such purpose. Such withdrawal may be elected at any time at least 15 days
prior to the end of a Purchase Period.
(b) Upon withdrawal from the Plan, the accumulated payroll deductions
shall be returned to the withdrawn participant, without interest, and his or her
interest in the Plan shall terminate. In the event a participant voluntarily
elects to withdraw from the Plan, he or she may not resume his or her
participation in the Plan during the same Purchase Period, but he or she may
participate in any Purchase Period under the Plan which commences on a date
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subsequent to such withdrawal by filing a new authorization for payroll
deductions in the same manner as set forth above for initial participation in
the Plan.
(c) For an Offering Period in which a participant is enrolled, if the
fair market value of the Company's Common Stock on the Purchase Date is less
than it was on the Offering Date, the Company will automatically enroll such
participant in the subsequent Offering Period. A participant does not need to
file any forms with the Company to automatically be enrolled in the subsequent
Offering Period.
12. TERMINATION OF EMPLOYMENT
Termination of a participant's employment for any reason, including
retirement, death or the failure of a participant to remain an eligible
employee, immediately terminates his or her participation in the Plan. In such
event, the payroll deductions credited to the participant's account will be
returned to him or her or, in the case of his or her death, to his or her legal
representative, without interest. For purposes of this Section 12, an employee
will not be deemed to have terminated employment or failed to remain in the
continuous employ of the Company in the case of sick leave, military leave, or
any other leave of absence approved by the Board; provided that such leave is
for a period of not more than ninety (90) days or reemployment upon the
expiration of such leave is guaranteed by contract or statute.
13. RETURN OF PAYROLL DEDUCTIONS
In the event a participant's interest in the Plan is terminated by
withdrawal, termination of employment or otherwise, or in the event the Plan is
terminated by the Board, the Company shall promptly deliver to the participant
all payroll deductions credited to his account. No interest shall accrue on the
payroll deductions of a participant in the Plan.
14. CAPITAL CHANGES
Subject to any required action by the shareholders of the Company, the
number of shares of Common Stock covered by each option under the Plan which has
not yet been exercised and the number of shares of Common Stock which have been
authorized for issuance under the Plan but have not yet been placed under option
(collectively, the "Reserves"), as well as the price per share of Common Stock
covered by each option under the Plan which has not yet been exercised, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split or the payment of a stock
dividend (but only on the Common Stock) or any other increase or decrease in the
number of shares of Common Stock effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible securities of
the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose determination
shall be final, binding and conclusive. Except as expressly provided herein, no
issue by the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common
Stock subject to an option.
In the event of the proposed dissolution or liquidation of the Company,
the Purchase Period will terminate immediately prior to the consummation of such
proposed action, unless otherwise provided by the Board. The Board may, in the
exercise of its sole discretion in
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such instances, declare that the options under the Plan shall terminate as of a
date fixed by the Board and give each participant the right to exercise his or
her option as to all of the optioned stock, including shares which would not
otherwise be exercisable. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger of the Company
with or into another corporation, each option under the Plan shall be assumed or
an equivalent option shall be substituted by such successor corporation or a
parent or subsidiary of such successor corporation, unless the Board determines,
in the exercise of its sole discretion and in lieu of such assumption or
substitution, that the participant shall have the right to exercise the option
as to all of the optioned stock. If the Board makes an option exercisable in
lieu of assumption or substitution in the event of a merger or sale of assets,
the Board shall notify the participant that the option shall be fully
exercisable for a period of twenty (20) days from the date of such notice, and
the option will terminate upon the expiration of such period.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the price
per share of Common Stock covered by each outstanding option, in the event that
the Company effects one or more reorganizations, recapitalizations, rights
offerings or other increases or reductions of shares of its outstanding Common
Stock, or in the event of the Company being consolidated with or merged into any
other corporation.
15. NONASSIGNABILITY
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an option or to receive shares under the
Plan may be assigned, transferred, pledged or otherwise disposed of in any way
(other than by will, the laws of descent and distribution or as provided in
Section 22 hereof) by the participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect.
16. REPORTS
Individual accounts will be maintained for each participant in the
Plan. Each participant shall receive promptly after the end of each Purchase
Period a report of his account setting forth the total payroll deductions
accumulated, the number of shares purchased, the per share price thereof and the
remaining cash balance, if any, carried forward to the next Purchase Period.
17. NOTICE OF DISPOSITION
Each participant shall notify the Company if the participant disposes
of any of the shares purchased in any Purchase Period pursuant to this Plan if
such disposition occurs within two years from the Offering Date or within one
year from the Purchase Date on which such shares were purchased (the "Notice
Period"). Unless such participant is disposing of any of such shares during the
Notice Period, such participant shall keep the certificates representing such
shares in his or her name (and not in the name of a nominee) during the Notice
Period. The Company may, at any time during the Notice Period, place a legend or
legends on any certificate representing shares acquired pursuant to the Plan
requesting the Company's transfer agent to notify the Company of any transfer of
the shares. The obligation of the participant to provide such notice shall
continue notwithstanding the placement of any such legend on the certificates.
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18. NO RIGHTS TO CONTINUED EMPLOYMENT
Neither this Plan nor the grant of any option hereunder shall confer
any right on any employee to remain in the employ of the Company or any
Subsidiary, or restrict the right of the Company or any Subsidiary to terminate
such employee's employment.
19. EQUAL RIGHTS AND PRIVILEGES
All eligible employees shall have equal rights and privileges with
respect to the Plan so that the Plan qualifies as an "employee stock purchase
plan" within the meaning of Section 423 or any successor provision of the Code
and the related regulations. Any provision of the Plan which is inconsistent
with Section 423 or any successor provision of the Code shall, without further
act or amendment by the Company or the Board, be reformed to comply with the
requirements of Section 423. This Section 19 shall take precedence over all
other provisions in the Plan.
20. NOTICES
All notices or other communications by a participant to the Company
under or in connection with the Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
21. SHAREHOLDER APPROVAL OF AMENDMENTS
Any required approval by the shareholders of the Company shall be
solicited substantially in accordance with Section 14(a) of the Exchange Act,
and the rules and regulations promulgated thereunder. Such approval of an
amendment shall be solicited at or prior to the first annual meeting of
shareholders held subsequent to the grant of an option under the Plan to an
employee of the Company. If such shareholder approval is obtained at a duly held
shareholders' meeting, it must be obtained by a majority of all of the
outstanding shares of the Company, or if such shareholder approval is obtained
by written consent, it must be obtained by a majority of all shareholders of the
Company; provided, however, that approval at a meeting or by written consent may
be obtained by a lesser degree of shareholder approval if the Board determines,
in its discretion after consultation with the Company's legal counsel, that such
lesser degree of shareholder approval will comply with all applicable laws and
will not adversely affect the qualification of the Plan under Section 423 of the
Code or Rule 16b-3 promulgated under the Exchange Act ("Rule 16b-3").
22. DESIGNATION OF BENEFICIARY
(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account under
the Plan in the event of such participant's death subsequent to the end of a
Purchase Period but prior to delivery to him or her of such shares and cash. In
addition, a participant may file a written designation of a beneficiary who is
to receive any cash from the participant's account under the Plan in the event
of such participant's death prior to a Purchase Date.
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(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall deliver such shares or
cash to the executor or administrator of the estate of the participant, or if no
such executor or administrator has been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares or cash to the
spouse or to any one or more dependents or relatives of the participant, or if
no spouse, dependent or relative is known to the Company, then to such other
person as the Company may designate.
23. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES
Shares shall not be issued with respect to an option unless the
exercise of such option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
24. APPLICABLE LAW
The Plan shall be governed by the substantive laws (excluding the
conflict of laws rules) of the State of California.
25. AMENDMENT OR TERMINATION OF THE PLAN
This Plan shall be effective July 1, 1991, subject to approval by the
shareholders of the Company within twelve (12) months after the date the Plan is
adopted by the Board and the Plan shall continue until the earlier to occur of
termination by the Board, issuance of all of the shares of Common Stock reserved
for issuance under the Plan, or ten (10) years from the adoption of the Plan by
the Board. No purchase of shares pursuant to the Plan shall occur prior to such
shareholder approval. The Board may at any time amend or terminate the Plan,
except that any such termination cannot affect options previously granted under
the Plan, nor may any amendment make any change in an option previously granted
which would adversely affect the right of any participant, nor may any amendment
be made without approval of the shareholders of the Company obtained in
accordance with Section 21 hereof within 12 months of the adoption of such
amendment (or earlier if required by Section 21) if such amendment would:
(a) increase the number of shares that may be issued under the Plan;
(b) change the designation of the employees (or class of employees)
eligible for participation in the Plan; or
(c) constitute an amendment for which shareholder approval is required
in order to comply with Rule 16b-3 (or any successor rule) of the Exchange Act.
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[COOLEY GODWARD LETTERHEAD]
Exhibit 5.01
June 25, 1997
Genelabs Technologies, Inc.
505 Penobscot Drive
Redwood City, California 94063
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Genelabs Technologies, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 500,000 shares of the
Company's Common Stock, no par value, (the "Shares") pursuant to its 1991
Employee Stock Purchase Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Restated Articles of Incorporation and Bylaws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectuses, will be validly issued, fully
paid and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
/s/GREG C. SMITH
Gregory C. Smith
<PAGE> 1
EXHIBIT 23.02
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the 1991 Employee Stock Purchase
Plan and to the incorporation by reference therein of our report dated February
12, 1997, with respect to the consolidated financial statements of Genelabs
Technologies, Inc. included in its Annual Report on Form 10-K for the year ended
December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
June 25, 1997
