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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
---------
GENTA INCORPORATED
--------------------------------------------------------
(Name of Issuer)
COMMON STOCK
--------------------------------------------------------
(Title of Class of Securities)
37245M 10 8
--------------------------------------------------------
(CUSIP Number)
ROBERT E. PATTERSON
600 HANSEN WAY
PALO ALTO, CALIFORNIA 94304
(415) 856-6500
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
MAY 3, 1996
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with this statement /X/. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
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SCHEDULE 13D
CUSIP No. 37245M 10 8
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
JAGOTEC AG
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) /X/
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
HERGISWIL, SWITZERLAND
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 700,000 (FOR DETAILS SEE SCHEDULE ATTACHED)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting Power
0
--------------------------------------------------
(9) Sole Dispositive Power
605,613 (FOR DETAILS SEE SCHEDULE ATTACHED)
--------------------------------------------------
(10) Shared Dispositive Power
0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
700,000 (FOR DETAILS SEE SCHEDULE ATTACHED)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
2.7% (FOR DETAILS SEE SCHEDULE ATTACHED)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP No. 37245M 10 8
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
JAGO FINANCE LIMITED
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) /X/
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
JERSEY, CHANNEL ISLANDS
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 1,620,561 (FOR DETAILS SEE SCHEDULE ATTACHED)
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting Power
0
--------------------------------------------------
(9) Sole Dispositive Power
1,457,111 (FOR DETAILS SEE SCHEDULE ATTACHED)
--------------------------------------------------
(10) Shared Dispositive Power
0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
1,620,561 (FOR DETAILS SEE SCHEDULE ATTACHED)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
6.2% (FOR DETAILS SEE SCHEDULE ATTACHED)
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP No. 37245M 10 8
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
JAGO HOLDING AG
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) /X/
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
HERGISWIL, SWITZERLAND
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 2,320,561 (POWER TO DIRECT ONLY; FOR DETAILS
by Each Reporting SEE SCHEDULE ATTACHED)
Person With --------------------------------------------------
(8) Shared Voting Power
0
--------------------------------------------------
(9) Sole Dispositive Power
2,062,724 (POWER TO DIRECT ONLY; FOR DETAILS
SEE SCHEDULE ATTACHED)
--------------------------------------------------
(10) Shared Dispositive Power
0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,320,561 (POWER TO DIRECT ONLY; FOR DETAILS SEE SCHEDULE ATTACHED)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
8.8%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO/HC
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
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SCHEDULE 13D
CUSIP No. 37245M 10 8
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
SKYEPHARMA PLC
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) /X/
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
OO
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
LONDON, ENGLAND
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting Power
Beneficially Owned 2,320,561 (POWER TO DIRECT ONLY; FOR DETAILS
by Each Reporting SEE SCHEDULE ATTACHED)
Person With --------------------------------------------------
(8) Shared Voting Power
0
--------------------------------------------------
(9) Sole Dispositive Power
2,062,724 (POWER TO DIRECT ONLY; FOR DETAILS
SEE SCHEDULE ATTACHED)
--------------------------------------------------
(10) Shared Dispositive Power
0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
2,320,561 (POWER TO DIRECT ONLY; FOR DETAILS SEE SCHEDULE ATTACHED)
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
8.8%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
CO/HC
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
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SCHEDULE 13(d)
ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, par value USD .01 per share ("COMMON
STOCK"), of Genta Incorporated, a Delaware corporation (the "ISSUER"). The
principal executive offices of the Issuer are located at 3550 General Atomics
Court, San Diego, CA 92121.
ITEM 2. IDENTITY AND BACKGROUND
Under a certain Common Stock Transfer Agreement between the Issuer and Jagotec
AG dated December 15, 1992, the Issuer issued to Jagotec AG a total of 700,000
shares of Common Stock and agreed to a system according to which such 700,000
shares of Common Stock would be vesting in Jagotec AG over a period of four
years on a daily basis, subject to forfeiture and reacquisition by the Issuer.
This Common Stock Transfer Agreement was filed by the Issuer with the SEC as
EXHIBIT NO. 10.36 to the Form 10-K for the fiscal year ended on December 31,
1995 (the "10-K"). As per May 31, 1996, a total of 605,613 shares of Common
Stock have vested in Jagotec AG under said Common Stock Transfer Agreement; an
additional 94,387 shares of Common Stock will vest in Jagotec AG until the end
of the four-year period ending on December 15, 1996, as provided for in the said
Common Stock Transfer Agreement.
Under a second Common Stock Transfer Agreement between the Issuer and Jago
Finance Limited dated May 30, 1995, the Issuer issued to Jago Finance Limited a
total of 1,240,000 shares of Common Stock and agreed with respect to 1,200,000
shares of Common Stock to a system according to which such Common Stock would be
vesting in Jago Finance Limited over a period of four years on a daily basis,
subject to forfeiture and reacquisition by the Issuer. This second Common Stock
Transfer Agreement was filed by the Issuer with the SEC as EXHIBIT NO. 10.53 to
the 10-K. As
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per May 31, 1996, a total of 1,076,550 shares of Common Stock have vested in
Jago Finance Limited under said second Common Stock Transfer Agreement;
additional 163,450 shares of Common Stock will vest in Jago Finance Limited
until the end of the four-year period ending on December 17, 1996 provided for
in said second Common Stock Transfer Agreement. In addition, Jago Finance
Limited has been transferred additional 380,561 shares of Common Stock from Dr.
Jacques Gonella pursuant to a certain Stock Transfer Agreement made as of
December 31, 1995, which 380,561 shares of Common Stock remain subject to a
certain Common Stock Transfer Agreement between the Issuer and Dr. Jacques
Gonella dated December 15, 1992, which agreement has been filed by the Issuer
with the SEC as EXHIBIT NO. 10.21 to the 10-K.
All Common Stock owned by Jagotec AG and Jago Finance Limited remain subject to
a certain Stockholders Agreement dated as of May 30, 1995, between the Issuer,
Jagotec AG, Jago Finance Limited and Dr. Jacques Gonella, which Agreement has
been filed by the Issuer with the SEC as EXHIBIT NO. 10.54 to the 10-K.
On May 3, 1996 (the "CLOSING DATE") SkyePharma PLC acquired 100% of the shares
of Jago Holding AG, a Swiss corporation with registered offices at Hergiswil,
Switzerland. Jago Holding AG is the direct parent company of both, Jagotec AG
and Jago Finance Limited by holding 100% of the share capital and voting rights
of each of Jagotec AG and Jago Finance Limited. As a result of SkyePharma PLC's
acquisition of Jago Holding AG, SkyePharma PLC has become the beneficial owner
of the Common Stock held by Jagotec AG and Jago Finance Limited, and each of the
corporations filing this statement (hereinafter referred to individually as
"REPORTING PERSON" and collectively as "REPORTING PERSONS") have become members
of a group within the meaning of Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Securities Exchange
Commission thereunder (the "ACT") which holds beneficial ownership of more than
5% of the Issuer's outstanding Common Stock and consequently are required to
file a statement under Section 13(d)(1) of the Act.
The information provided in this statement with respect to each Reporting Person
and the directors, executive officers and controlling persons of every Reporting
Person, if
2
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any, has been provided solely by that Reporting Person and no Reporting Person
is responsible for the accuracy and completeness of the information included
herein about any Reporting Person other than itself and such directors,
executive officers and controlling persons.
Set forth in APPENDIX A hereto are the names of each Reporting Person and the
information required by Item 2 of Schedule 13(d) about the identity and
background of the Reporting Persons and their respective directors, executive
officers and controlling persons, if any, supplied by each such Reporting
Person.
Neither the Reporting Persons nor, to the best of each Reporting Person's
knowledge, none of such Reporting Person's officers, directors, partners and
controlling persons identified in Appendix A has, during the last five years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and, as a result of such
proceeding, was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities' law or any violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The Common Stock issued to Jagotec AG under the Common Stock Transfer Agreement
dated December 15, 1992, between the Issuer and Jagotec AG constituted partial
consideration for Jagotec AG's grant of a license to the Issuer under a certain
License Agreement dated December 15, 1992, as restated as of May 12, 1995, which
restated License Agreement has been filed by the Issuer with the SEC as EXHIBIT
NO. 10.59 to the 10-K.
The Common Stock issued to Jago Finance Limited under the second Common Stock
Transfer Agreement dated May 30, 1995, between the Issuer and Jago Finance
Limited have been issued to Jago Finance Limited as partial consideration for
Jago Finance Limited's waiver of certain option rights under a Option
Termination Agreement dated May 12, 1995, between the Issuer and Jago Finance
Limited, which Option Termination Agreement is attached hereto as APPENDIX B.
The waiver of said
3
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option rights by Jago Finance Limited allowed Genta Jago Technologies B.V. to
enter into the joint venture company established by the Issuer and Jagotec AG,
to enter into the Restated GEOMATRIX-Registered Trademark- License Agreement and
the GEOMATRIX-Registered Trademark- Manufacturing License Agreement, both dated
of May 12, 1995, which both agreements have been filed by the Issuer with the
SEC as EXHIBIT NOS. 10.61 AND 10.62 to the 10-K, respectively.
The acquisition of the shares of Jago Holding AG by SkyePharma PLC which created
the beneficial ownership of SkyePharma PLC in the Common Stock held by Jagotec
AG and Jago Finance Limited, was financed through a private placement and open
offer with subsequent listing of the shares of SkyePharma PLC at the London
Stock Exchange.
ITEM 4. PURPOSE OF TRANSACTION
The Common Stock issued to both Jagotec AG and Jago Finance Limited under the
Common Stock Transfer Agreements described above have been and will be acquired
in connection with the grant of licenses to the Issuer and/or Genta Jago
Technologies B.V., a joint venture company between the Issuer and Jagotec AG,
which are described in Item 3 above. Through the acquisition by SkyePharma PLC
of Jago Holding AG, including its subsidiaries Jagotec AG and Jago Finance
Limited, SkyePharma PLC became the beneficial owner of shares of the Issuer's
Common Stock held by such entities. One or more of the Reporting Persons may,
however, from time to time determine to purchase additional shares of the
Issuer's Common Stock on the open market, in negotiated transactions or
otherwise.
No Reporting Person has any plans or proposals of the type described in
paragraphs (a) through (j) of Item 4 of Schedule 13(d), except as stated below.
(i) DIRECTORSHIP. According to Article 3 of the Stockholders Agreement between
the Issuer, Jagotec AG, Jago Finance Limited and Dr. Jacques Gonella dated
May 30, 1995 (filed by the Issuer with the SEC as EXHIBIT NO. 10.54 to
the 10-K), Dr. Jacques Gonella as an Executive Director of SkyePharma PLC
and of Jago Holding AG, Jagotec AG and Jago Finance Limited, has the right
to request
4
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to be nominated and appointed as a member of the board of directors of the
Issuer; however, Dr. Jacques Gonella has not requested to be appointed as
member of the board of the Issuer.
(ii) ACQUISITION OF ADDITIONAL SECURITIES. At the time of acquisition of Common
Stock by Jagotec AG and Jago Finance Limited, and at the Closing Date, the
Reporting Persons had no intention to acquire additional securities of the
Issuer; any Reporting Person may, however, from time to time determine to
purchase additional shares of the Issuer's Common Stock on the open market,
in negotiated transactions or otherwise. The management of SkyePharma PLC
and Jago Holding AG have entered into discussions with management of the
Issuer concerning mutually agreeable steps that may be taken to strengthen
the financial resources and operations of Genta Jago Technologies B.V., a
joint venture company between the Issuer and Jagotec AG.
ITEM 5. SECURITIES OF THE ISSUER
The Reporting Persons and any other persons who, together with any of the
Reporting Person, comprise a group within the meaning of Section 13(d)(3) of the
Act, beneficially own Common Stock in the Issuer as listed in the table below,
with those shares vesting in the respective Reporting Person under the Common
Stock Transfer Agreements dated December 15, 1992 and May 30, 1995,
respectively, listed separately:
REPORTING COMMON STOCK COMMON STOCK TOTAL OF PERCENTAGE OF
PERSON OWNED VESTING IN COMMON STOCK COMMON
AS OF REPORTING STOCK
31.05.1996 PERSON
- ------------- -------------- --------------- -------------- --------------
Jagotec AG 605,613 94,387 700,000 2.7 %
Jago Finance 1,457,111 163,450 1,620,561 6.2 %
Limited
GROUP TOTAL 2,062,724 257,837 2,320,561 8.8 %
5
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Dr. Jacques Gonella, being one of the other persons (other than the Reporting
Persons) listed in Appendix A has entered with the Issuer on December 15, 1992
in that Common Stock Transfer Agreement (filed by the Issuer with the SEC as
EXHIBIT NO. 10.21 to the 10-K), according to which agreement the Issuer issued a
total of 500,000 shares of Common Stock to Dr. Jacques Gonella (of which 380,561
shares have been transferred to Jago Finance Limited under Appendix G hereto),
subject to a system of forfeiture and reacquisition by the Issuer during a
period of four years ending on December 15, 1996. As of May 31, 1996, Dr.
Jacques Gonella owned 67,420 (0,3%) shares of Common Stock and additional 52,019
shares of Common Stock (0,2%) will vest in Dr. Jacques Gonella until December
15, 1996.
Neither the Reporting Persons other than as listed in the table above, nor any
other person listed in Appendix A hereto, other than as listed above, is the
record owner of any of the Issuer's Common Stock or any other securities,
warrants or the like of the Issuer.
The beneficial ownership by all Reporting Persons is being reported to be
2,320,561 shares of Common Stock, of which 2,062,724 shares of Common Stock have
vested in the Reporting Persons as per May 31, 1996 pursuant to the Common Stock
Transfer Agreements mentioned above.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Jagotec AG has entered with the Issuer into that Common Stock Transfer Agreement
dated December 15, 1992 (Appendix D); Jago Finance Limited has entered into that
second Common Stock Transfer Agreement with the Issuer dated May 30, 1995
(Appendix E); Dr. Jacques Gonella has entered into that third Common Stock
Transfer Agreement with the Issuer dated December 15, 1992 (Appendix C); Jagotec
AG, Jago Finance Limited and Dr. Jacques Gonella have entered with the Issuer
into the Stockholders Agreement dated May 30, 1995 (Appendix F); copies of all
these Agreements are attached hereto and are incorporated herein by reference in
their entirety.
6
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Except as described in the preceding paragraph, there are no contracts,
arrangements, understandings or relationships among the persons named in
Appendix A or between such persons and any person with respect to any securities
of the Issuer.
ITEM 7. MATERIALS TO BE FILED AS APPENDICES
APPENDIX A: Information about the Identity and Background of the Reporting
Persons
APPENDIX B: Copy of the Option Termination Agreement between the Issuer and
Jago Finance Limited
APPENDIX C: Copy of the Common Stock Transfer Agreement between the Issuer
and Dr. Jacques Gonella
APPENDIX D: Copy of the Common Stock Transfer Agreement between the Issuer
and Jagotec AG
APPENDIX E: Copy of the Common Stock Transfer Agreement between the Issuer
and Jago Finance Limited
APPENDIX F: Copy of the Stockholders Agreement between the Issuer, Dr.
Jacques Gonella, Jagotec AG and Jago Finance Limited
APPENDIX G: Copy of the Share Transfer Agreement between Dr. Jacques Gonella
and Jago Finance Limited.
7
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After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certifies that the information set forth in this
Statement and Report is true, complete and correct.
Dated June 26, 1996
SKYEPHARMA PLC
/s/ Ian Gowrie-Smith
- ------------------------------
by: Ian Gowrie-Smith
its: Executive Chairman
JAGO HOLDING AG
/s/ Ian Gowrie-Smith /s/ Dr. Jacques Gonella
- ------------------------------ ------------------------------
by: Ian Gowrie-Smith by: Dr. Jacques Gonella
its: President its: Vice-President and CEO
JAGOTEC AG
/s/ Ian Gowrie-Smith /s/ Dr. Jacques Gonella
- ------------------------------ ------------------------------
by: Ian Gowrie-Smith by: Dr. Jacques Gonella
its: President its: Vice-President and CEO
JAGO FINANCE LIMITED
/s/ Dr. Jacques Gonella
- ------------------------------
by: Dr. Jacques Gonella
its: Director
8
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APPENDIX A
IDENTITY AND BACKGROUND OF REPORTING PERSONS
1. SKYEPHARMA PLC
BUSINESS ADDRESS:
105 Piccadilly, London W1V 9FN, England
PRIMARY BUSINESS:
Acquisition and holding of investments
EXECUTIVE OFFICERS AND DIRECTORS:
- IAN GOWRIE-SMITH, Executive Chairman
of 105 Piccadilly, London W1V 9FN
- JOSEPH FRANK BOZMAN JR., Executive Director
of 105 Piccadilly, London W1V 9FN
President of Brightstone Pharma Inc., USA
- DR. JACQUES GONELLA, Executive Director
of Eptingerstrasse 51, CH-4132 Muttenz, Switzerland
CEO of Jago Pharma AG, Switzerland
- ERNST GUTZWILLER, Executive Director
of Eptingerstrasse 51, CH-4132 Muttenz, Switzerland
Executive Director of Jago Pharma AG
- DR. ROBERT ZIMMER, Executive Director
of Eptingerstrasse 51, CH-4132 Muttenz, Switzerland
Executive Director of Jago Pharma AG
- NIGEL WRAY, Non-Executive Deputy Chairman
of 105 Piccadilly, London W1V 9FN, Executive Chairman of Burford
Holdings PLC and Trocadero Holdings PLC, England
- SIR MICHAEL BEAVIS, Non-Executive Director
of 105 Piccadilly, London W1V 9FN
- WALTER ZELLER, Non-Executive Director
of Zehntenfreistrasse 58, 4103 Bottmingen, Switzerland
- STEPHEN HARRIS, Non-Executive Director
of 105 Piccadilly, London W1V 9FN
<PAGE>
- DAVID LEES, Non-Executive Director
of 105 Piccadilly, London W1V 9FN
CEO of Flare Group PLC, England
- DR. KEITH MANSFORD, Non-Executive Director
of 105 Piccadilly, London W1V 9FN
- DR. THOMAS M. RINDERKNECHT, Non-Executive Director
of 7 Beethovenstrasse, CH-8002 Zurich, Switzerland
Partner of the law firm Rinderknecht Glaus & Stadelhofer, Switzerland
- RICHARD ALLISTER BALFOUR STEWART, Finance Director
of 105 Piccadilly, London W1V 9FN
- DAVID NICHOLSON, Chief Financial Officer
of 105 Piccadilly, London W1V 9FN
- PETER WARBURTON, Company's Secretary
105 Piccadilly, London W1V 9FN
CONTROLLING PERSON:
None
2
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2. JAGO HOLDING AG
BUSINESS ADDRESS:
Seestrasse 47, CH-6052 Hergiswil, Switzerland
PRIMARY BUSINESS:
Acquisition, holding and financing of investments
EXECUTIVE OFFICERS AND DIRECTORS:
- IAN GOWRIE-SMITH, President (for details see above under 1.)
- DR. JACQUES GONELLA, Vice-President and CEO (for details see above
under 1.)
- WALTER ZELLER, Director
of Zehntenfreistrasse 58, CH-4103 Bottmingen, Switzerland
- DR. THOMAS M. RINDERKNECHT, Director
of Beethovenstrasse 7, CH-8002 Zurich, Switzerland
Partner of the law firm Rinderknecht Glaus & Stadelhofer
CONTROLLING PERSON:
SkyePharma PLC (for details see under 1. above)
3
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3. JAGOTEC AG
BUSINESS ADDRESS:
Seestrasse 47, CH-6052 Hergiswil, Switzerland
PRIMARY BUSINESS:
Consultancy and other services primarily in the area of pharmaceutical
business; holding and exploitation of intellectual property rights.
EXECUTIVE OFFICERS AND DIRECTORS:
- IAN GOWRIE-SMITH, President (for details see above under 1.)
- DR. JACQUES GONELLA, Vice-President and CEO (for details see above
under 1.)
- WALTER ZELLER, Director
of Zehntenfreistrasse 58, CH-4103 Bottmingen, Switzerland
- DR. THOMAS M. RINDERKNECHT, Director
of Beethovenstrasse 7, CH-8002 Zurich, Switzerland
Partner of the law firm Rinderknecht Glaus & Stadelhofer
CONTROLLING PERSON:
Jago Holding AG (for details see under 2. above)
4
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4. JAGO FINANCE LIMITED
BUSINESS ADDRESS:
Wellington House, 17 Union Street, St. Helier, Jersey JE4 8Y9, Channel
Islands
PRIMARY BUSINESS:
Providing of financial services; acquisition and holding of investments
EXECUTIVE OFFICERS AND DIRECTORS:
- DR. JACQUES GONELLA, Director (details see above under 1.)
- MICHAEL JOHN QUARRINGTON, Director
of Commerce House, St. Peter Port, Guernsey, Channel Islands
- ANTHONY CHRISTOPHER ROGERS, Director
of Commerce House, St. Peter Port, Guernsey, Channel Islands
CONTROLLING PERSON:
Jago Holding AG (for details see under 2. above)
5
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APPENDIX B
OPTION TERMINATION AGREEMENT
THIS AGREEMENT is made as of this 12th day of May 1995 by and between JAGO
FINANCE LTD., having its registered office at Wellington House, 17 Union
Street, St. Helier, Jersey, Channel Islands (hereinafter referred to as "Jago
Finance") and GENTA INCORPORATED, a Delaware corporation, having a place of
business located at 3500 General Atomics Court, San Diego, California 92121,
U.S.A. (hereinafter referred to as "Genta")
W I T N E S S E T H:
WHEREAS, VECAP Venture Capital Partners AG, of Hergiswil, Switzerland
(hereinafter referred to as "VECAP") has entered into an Option Agreement with
Jagotec AG, of Seestrasse 47, 6052 Hergiswil (hereinafter referred to as
"Jagotec") on July 14, 1993 (hereinafter referred to as "Option Agreement") a
copy whereof is attached hereto as Exhibit A; and
WHEREAS, VECAP has been granted under the Option Agreement certain options for
development, distribution and marketing licenses as well as for manufacturing
licenses for certain generic products; and
WHEREAS, Jago Finance has entered into a License Option Transfer Agreement with
VECAP on November 24, 1994 (hereinafter referred to as "License Option Transfer
Agreement", a copy is attached hereto as Exhibit B) whereunder certain options
granted under the Option Agreement for specific products have been assigned and
transferred upon Jago Finance; and
WHEREAS, Genta and Jago have agreed in a certain agreement dated May 12, 1995
(hereinafter referred to as "Restructuring Agreement") to expand their existing
joint venture by adding certain additional products to the products list and by
the grant to the joint venture of a manufacturing license for the joint venture
products.
NOW THEREFORE, the Parties hereto agree as follows:
<PAGE>
1. WAIVER OF THE OPTION RIGHTS
1.1. In order to allow Genta and Jago to enter into the Restructuring Agreement
and to expand the existing joint venture with Jago for the use and
exploitation of certain Licenses for the products listed in Exhibit A to
the License Option Transfer Agreement and for other products and to allow
the joint venture to acquire from Jagotec additional direct licenses for
such products, through the joint venture company, Jago Finance hereby
agrees to waive and give up any and all license option rights assigned and
transferred to Jago Finance under the License Option Transfer Agreement.
Jago Finance agrees to release Jagotec from all obligations and duties
under the Option Agreement to the extent the corresponding rights, claims
and entitlements have been assigned and transferred unto Jago Finance under
the License Option Transfer Agreement.
1.2. This waiver and release by Jago Finance is conditional upon Genta's and
Jago's executing the various agreements referred to in the Restructuring
Agreement and upon the terms and conditions of the Restructuring Agreement
being consummated.
2. ASSISTANCE OF JAGO FINANCE IN THE EXPANSION OF JOINT VENTURE
Jago Finance has already assisted Genta and agrees to continue to use its
best efforts in assisting Genta in expanding the existing joint venture
with Jago for the joint exploitation of the licenses for the generic
products listed in Exhibit A to the License Option Transfer Agreement and
certain other products and to continue to assist Genta in its negotiations
with Jago.
3. COMPENSATION FOR WAIVERS, RELEASES AND ASSISTANCE
3.1. Provided that the condition set forth in section 1.2. above shall be
fulfilled, Genta has agreed to pay to VECAP for the waiver of the option
rights pertaining to a license for the development, utilization, marketing
and distribution of the products listed in Exhibit A to the License Option
Transfer Agreement an option termination fee (hereinafter referred to as
"Option Termination Fee") in the aggregate amount of USD 3,500,000 which
were paid directly to VECAP as follows:
(a) an amount of USD 2,900,000 (two-million-nine-hundred-thousand)
previously has been paid to VECAP, the receipt whereof is hereby
acknowledged, and
(b) the balance of USD 600,000 (six-hundred-thousand) previously has been
paid to VECAP on January 10, 1995, the receipt whereof is hereby
acknowledged.
3.2. In addition and also provided that the condition set forth in section 1.2.
above shall be fulfilled, Genta agrees to have the joint venture company,
Genta Jago Technologies
<PAGE>
B.V., pay to VECAP for the waiver of the option rights pertaining to a
license for the manufacturing of the products listed in Exhibit A to the
License Option Transfer Agreement a fee (hereinafter referred to as
"Manufacturing Option Fee") in the aggregate amount of USD 1,500,000
(one-million-five-hundred-thousand), on the terms and subject to
the conditions of Section 5.2(a) of the Restated Joint Venture and
Shareholders Agreement dated as of the date hereof (the "Joint Venture
Agreement"). As set forth in the Joint Venture Agreement, such
Manufacturing Option Fee shall be payable directly from Genta Jago
Technologies B.V. to VECAP in one or several installments at such dates and
pro rata when the manufacturing license fee under section 5.2.(a) of the
Joint Venture Agreement and under section 4.1. of the Geomatrix
Manufacturing License Agreement to be executed between Genta Jago
Technologies B.V. and Jagotec becomes due and payable, and in such a way
that VECAP and Jagotec shall at all times receive each 50% of the
applicable revenues received by the joint venture and that VECAP and
Jagotec shall equally share all payments until VECAP and Jagotec each shall
have received an aggregate amount of USD 1,500,000 which two amounts
together shall constitute USD 3,000,000.
3.3. Furthermore, and also provided that the condition set forth in section 1.2.
above shall be fulfilled, Genta agrees to issue to Jago Finance for the
waiver of all the option rights mentioned above and for Jago Finance's
efforts in assisting Genta in the expansion of the existing joint venture
with Jago and obtaining through the joint venture company certain
additional licenses for the generic products listed in Exhibit A to the
License Option Transfer Agreement and other products, 1,240,000 shares of
unregistered Genta common stock which shares shall vest daily over a period
of four years (commencing retroactively as of December 17, 1992, inasmuch
as the shares vested between December 17, 1992 and the date when the
condition set forth in section 1.2. above shall be fulfilled shall be
deemed to have vested as of such date) based on a straight-line vesting
schedule over such period, provided that Jago or its member(s) are not in
default in their respective obligations under the joint venture agreements.
The shares are to be issued pursuant to, and shall be subject to, the terms
and conditions as set forth in the Common Stock Transfer Agreement attached
hereto as Exhibit C which is to be executed by the Parties as of May 30,
1995 provided the condition set forth in section 1.2. above shall be
fulfilled.
4. EXECUTION OF A STOCKHOLDER'S AGREEMENT
Jago Finance and certain of its affiliates agree to enter into the
Stockholders' Agreement which is attached to this Agreement as Exhibit D.
<PAGE>
5. MISCELLANEOUS
5.1. ENTIRE AGREEMENT. This Agreement sets forth all the promises, agreements,
conditions and understandings between the Parties hereto relating to tile
contract matters, and constitutes the entire agreement between the Parties
in this connection and no subsequent alterations, amendments, changes or
additions hereto shall be binding and valid unless reduced in writing and
signed by a duly authorised official of each Party.
5.2. INVALIDITY OF PROVISIONS. In the event that any of the terms or provisions
of this Agreement should be in conflict with any rule or law or statutory
provision or should be otherwise unenforceable under the laws or regulation
of any government or subdivision thereof, such terms or provisions shall be
deemed stricken from this Agreement but such invalidity or unenforceability
shall not invalidate any of the other terms and provisions of this
Agreement and this Agreement shall remain otherwise fully in force
5.3. ASSIGNMENTS. This Agreement may not be assigned or otherwise transferred,
nor, except as expressly provided hereunder, may any right or obligation
hereunder be assigned or transferred by either party, without the consent
of the other party (with respect to the assignment of the right to receive
payments only, which consent shall not be unreasonably withheld); provided,
however, that either party may, without such consent, assign this Agreement
and its rights and obligations hereunder in connection with the transfer or
sale of all or substantially all of its business, or in the event of its
merger, consolidation, change in control or similar transaction. Any
permitted assignee shall assume all obligations of its assignor under this
Agreement. The assignment to VECAP of the payments owed under Sections 3.1.
and 3.2. above is hereby approved.
5.4. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.5. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of SWITZERLAND, without reference to the conflicts
of law principles thereof.
5.6. ARBITRATION. Any disputes, claim or controversy among the Parties relating
to, arising out of or in any way connected with this Agreement or any term
or condition hereof, or the performance by any Party of its obligations
hereunder, whether before or after termination of this Agreement, shall be
finally resolved by binding arbitration. Whenever a Party shall decide to
institute arbitration proceedings, it shall give written notice to that
effect to the other Party. Any arbitration hereunder shall be conducted
under the Rules of Conciliation and Arbitration of the International
Chamber of
<PAGE>
Commerce. Any such arbitration shall be conducted in the English language
by a panel of three (3) arbitrators appointed in accordance with such
rules, and shall be held in Paris, France. The arbitrators shall have the
authority to grant specific performance, and to allocate among the parties
the costs of arbitration in such equitable manner as they determine.
Judgment upon the award so rendered may be entered in any court having
jurisdiction or application may be made to such court for judicial
acceptance of any award and an order of enforcement, as the case may be.
Whether a claim, dispute or other matter in question would be barred by the
applicable statute of limitations, which also shall apply to any
arbitration under this section, shall be determined by binding arbitration
pursuant to this section.
IN WITNESS WHEREOF, the parties hereto and their duly authorized officers, have
executed and signed this Agreement as of the day and year hereinbefore written.
GENTA INCORPORATED JAGO FINANCE LTD.
/s/ Thomas H. Adams /s/ Anthony C. Rogers
- -------------------------- ------------------------
by: Thomas H. Adams, PH.D. by: Anthony C. Rogers
Chairman and CEO Director
<PAGE>
APPENDIX C
COMMON STOCK TRANSFER AGREEMENT
THIS COMMON STOCK TRANSFER AGREEMENT dated and effective as of December 15,
1992 (the "Agreement"), is entered into between GENTA INCORPORATED, a Delaware
corporation ("Genta"), having a place of business located at 3550 General
Atomics Court, San Diego, California 92121, U.S.A., and DR. JACQUES GONELLA, an
individual ("Dr. Gonella").
W I T N E S S E T H:
WHEREAS, Dr. Gonella holds 100% of the issued and outstanding stock (the
"Technologies Stock") of Jobewol Investments BV (to be renamed Genta Jago
Technologies BV), a Dutch corporation ("Technologies");
WHEREAS, Dr. Gonella is willing to sell the Technologies Stock in
consideration for the issuance of 500,000 shares of Genta common stock as herein
described, on the terms and conditions hereinafter set forth; and
WHEREAS, Genta is willing to issue shares of Genta common stock to Dr.
Gonella on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. On the date hereof, Genta shall issue and transfer to Dr. Gonella
500,000 shares of its common stock (the "Stock") in consideration for the sale
of the Technologies Stock by Dr. Gonella to Genta.
2. The shares of the Stock to be transferred to Dr. Gonella pursuant to
the Agreement shall be subject to automatic forfeiture and reacquisition by
Genta as follows:
(a) Upon the last day (the "Termination Date") of the Joint Venture
Term (defined below) prior to the fourth anniversary of the date hereof, Dr.
Gonella shall forfeit to Genta and Genta shall automatically reacquire the
number of shares equal to the number of shares of the Stock less the product
(rounded to the nearest integer) of (i) the number of days that have elapsed
since the date hereof through and including the Termination Date, times (ii) the
number of shares of the Stock, times (iii) .0006844627.
<PAGE>
Joint Venture Term shall mean the period during which Genta and Jagotec, or
their respective successors-in-interest or affiliates, directly or indirectly,
hold an ownership interest in Technologies.
3. Genta shall notify Dr. Gonella and Howard Sampson (solely in his
capacity as escrow agent, the "Escrow Agent") as provided in Section 16 of the
Joint Escrow Instructions attached as Exhibit A to the Agreement of such
forfeiture and reacquisition.
4. (a) As security for Dr. Gonella's faithful performance of the terms of
the Agreement and to insure the availability for delivery of Dr. Gonella's
shares upon their forfeiture provided for in the Agreement, on the date hereof
Dr. Gonella shall deposit with the Escrow Agent the certificate or certificates
evidencing the Stock and two Assignments Separate from Certificate duly executed
(with date and number of shares in blank) in the form attached hereto as Exhibit
C. Such documents are to be held by the Escrow Agent and delivered by the Escrow
Agent pursuant to the Joint Escrow Instructions, which instructions shall also
be executed and delivered to the Escrow Agent on the date hereof.
(b) Within 30 days after the last day of each successive completed
calendar quarter after the date hereof, if Dr. Gonella so requests, the Escrow
Agent will deliver to Dr. Gonella certificates representing so many shares of
Stock as are no longer subject to forfeiture (less such shares as have been
previously delivered). Sixty days after the Termination Date prior to the fourth
anniversary of the date hereof, Genta will direct the Escrow Agent to deliver to
Dr. Gonella a certificate or -certificates representing the number of shares of
Stock vested to Dr. Gonella prior to termination (less such shares as have been
previously delivered).
5. Subject to the provisions of the Certificate of Incorporation of
Genta, if, from time to time, prior to the fourth anniversary of the date hereof
(a) there is any stock dividend or liquidating dividend of cash and/or property,
stock split or other change in the character or amount of any of the outstanding
securities of Genta, or (b) there is any consolidation, merger or sale of all or
substantially all, of the assets of Genta, then, in either such event, any and
all new substituted or additional securities or other property to which Dr.
Gonella is entitled by reason of his ownership of the Stock, which is subject to
forfeiture pursuant to the terms of this Agreement, shall be immediately subject
to forfeiture and be included in the word "Stock" for all purposes hereof with
the same force and effect as the shares of Stock from time to time subject to
forfeiture under the Agreement.
6. All certificates representing the Stock purchased under the Agreement
hall, where applicable, have endorsed thereon the following legends:
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<PAGE>
(a) "The shares represented by this Certificate are subject to
forfeiture by holder and reacquisition by Genta Incorporated as set forth in an
agreement between Genta Incorporated and the registered holder, or his
predecessor in interest. Such agreement grants certain reacquisition rights to
Genta (Or its assigns) upon termination of a corporate joint venture between
Genta and Jagotec AG A copy of such agreement is on file at the principal office
of Genta and will be furnished upon written request to the Secretary of Genta by
the holder of record of the shares represented by this Certificate."
(b) "The securities represented by this Certificate have not been
registered under the Securities Act of 1933 These securities have been acquired
for investment and not with a view to distribution or resale, and may not be
transferred without an effective registration statement for such shares under
the Securities Act of 1933, or pursuant to Rule 144 under such Act or an opinion
of counsel satisfactory to Genta that registration is not required under such
Act."
(c) Any legend required to be placed thereon by the California
Commissioner of Corporations and any state securities law.
7. (a) The Agreement is made with Dr. Gonella in reliance upon his
representation to Genta, which by his acceptance hereof he confirms, that the
Stock which he will receive will be acquired with his own funds for investment
for an indefinite period for his own account, not as a nominee or agent, and not
with a view to the sale or distribution of any part thereof, and that he has no
present intention of selling, granting participation in, or otherwise
distributing the same, but subject, nevertheless, to any requirement of law that
the disposition of his property shall at all times be within his control. By
executing the Agreement, Dr. Gonella further represents that he does not have
any contract, understanding or agreement with any person to sell, transfer or
grant participations, to such person or to any third person, with respect to any
of the Stock
(b) Dr. Gonella understands that the Stock will not be registered
under the Securities Act of 1933 (the "Securities Act") on the ground that the
sale provided for in the Agreement is exempt pursuant to section 4(2) of the
Securities Act, and that Genta's reliance on such exemption is predicated on his
representations set forth herein.
(c) Dr. Gonella agrees that in no event will he make a disposition of
any of the Stock, unless and until (i) he shall have notified Genta of the
proposed disposition and shall have furnished Genta with a statement of the
circumstances surrounding the proposed disposition and (ii) he shall have
furnished Genta with an opinion of counsel satisfactory to Genta to the effect
that (A) such disposition will not require registration of such Stock under the
Securities Act or (B) that appropriate action
-3-
<PAGE>
necessary for compliance with the Securities Act has been taken or (iii) Genta
shall have waived, expressly and in writing, its rights under clauses (i) and
(ii) of this Section 7(c).
(d) In connection with the investment representations made herein,
Dr. Gonella represents that he is able to fend for himself in the transactions
contemplated by the Agreement, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of his
investment, has the ability to bear the economic risks of his investment and has
been furnished with and has had access to such information as would be made
available in the form of a registration statement together with such additional
information as is necessary to verify the accuracy of the information supplied
and to have all questions answered by Genta.
(e) Dr. Gonella understands that if a registration statement covering
the Stock (or a filing pursuant to the exemption from registration under
Regulation A of the Securities Act) under the Securities Act is not in effect
when he desires to sell the Stock, he may be required to hold the Stock for an
indeterminate period. Dr. Gonella also acknowledges that he understands that any
sale of the Stock which might be made by him in reliance upon Rule 144 under the
Securities Act may be made only in limited amounts in accordance with the terms
and conditions of that Rule.
(f) Dr. Gonella represents that he does not own stock possessing more
than ten percent of the total combined voting power or value of all classes of
stock of Genta.
(g) Dr. Gonella represents that he is an accredited investor as
defined in Rule 501(a) of Regulation D, as amended, of the SEC under the
Securities Act.
8. Genta covenants and agrees that (a) it will use its best efforts to
comply with the current public information requirements of Rule 144(c)(1) under
the Securities Act; (b) it will furnish Dr. Gonella upon request with all
information required for the preparation and filing of Form 144; and (C) it will
on a timely basis use its best efforts to file all reports required to be filed
and make all disclosures, including disclosures of material adverse information,
required to permit Dr. Gonella to make the required representations in Form 144.
9. Genta shall not be required (a) to transfer on its books any shares of
Stock of Genta which shall have been sold or transferred in violation of any of
the provisions set forth in the Agreement or (b) to treat as owner of such
shares or to accord the right to vote as such owner or to pay dividends to any
transferee to whom such shares shall have been so transferred.
-4-
<PAGE>
10. Except as otherwise provided herein, Dr. Gonella shall, during the
term of the Agreement, exercise all rights and privileges of a stockholder of
Genta with respect to the Stock.
11. The parties shall execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of the
Agreement.
12. Any consent, notice or report required or permitted to be given or
made under the Agreement by one of the parties hereto to the other party shall
be in writing, delivered personally or by facsimile (and promptly confirmed by
personal delivery, first class mail or courier), first class mail or courier,
postage prepaid (where applicable), addressed to such other party at its address
indicated below, or to such other address as the addressee shall have last
furnished in writing to the addressor and (except as otherwise provided in the
Agreement) shall be effective upon receipt by the addressee.
If to Genta: Genta Incorporated
3550 General Atomics Court
San Diego, CA 92121, U.S.A.
Attention: Thomas H. Adams, Ph.D.
with a copy to: Pillsbury Madison & Sutro
235 Montgomery Street, 15th Floor
San Francisco, CA 94104, U.S.A.
Attention: Thomas E. Sparks, Jr.
If to Dr. Gonella: Dr. Jacques Gonella
Hintere Wartenbergstrasse 18
CH-4132 Muttenz, Switzerland
with a copy to: Rinderknecht, Glaus & Stadelhofer
Beethovenstrasse 7
Postfach 4451
CH-8022 Zurich, Switzerland
Attention: Dr. Thomas Rinderknecht
13. The Agreement shall inure to the benefit of the successors and assigns
of Genta and, subject to the restrictions on transfer herein set forth, be
binding upon Dr. Gonella, his heirs, executors, administrators, successors and
assigns.
14. No waiver of any breach or condition of the Agreement shall be deemed
to be a waiver of any other or subsequent breach or condition, whether of a like
or different nature.
15. The Agreement shall be governed by and construed in accordance with
the laws of the State of California.
16. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THE AGREEMENT HAS
NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA AND THE ISSUANCE OF SUCH
-5-
<PAGE>
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM THE QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE, THE RIGHTS OF ALL PARTIES TO THE AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
17. No modification of the Agreement shall be valid unless made in writing
and signed by the parties hereto.
18. The Agreement constitutes the entire complete and final agreement
between Genta and Dr. Gonella regarding the Stock. Any and all prior agreements
and negotiations are merged herein.
IN WITNESS WHEREOF, the parties have duly executed and delivered the
Agreement as of the date first written above.
GENTA INCORPORATED
By: /s/ William E. Bliss
---------------------------
William E. Bliss, President
/s/ Dr. Jacques Gonella
-------------------------------
DR. JACQUES GONELLA
-6-
<PAGE>
APPENDIX D
COMMON STOCK TRANSFER AGREEMENT
THIS COMMON STOCK TRANSFER AGREEMENT dated and effective as of December 15,
1992 (the "Agreement"), is entered into between GENTA INCORPORATED, a Delaware
corporation ("Genta"), having a place of business located at 3550 General
Atomics Court, San Diego, California 92121, U.S.A., and JAGOTEC AG, a Swiss
corporation ("Jagotec"), having a place of business located at Seestrasse 47,
CH-6052 Hergiswil, Switzerland.
W I T N E S S E T H:
WHEREAS, Jagotec has granted to Genta an exclusive license (the "License")
under its oral drug delivery technology to make, use and sell therapeutic
anticode products in certain fields.
WHEREAS, in consideration for Jagotec's grant of the License to Genta,
Genta is willing to issue and Jagotec desires to acquire shares of Genta common
stock as herein described, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. On the date hereof, Jagotec shall purchase from Genta, and Genta shall
sell and issue to Jagotec, 700,000 shares of its common stock (the "Stock") in
consideration for Jagotec's grant of the License to Genta.
2. The shares of the Stock to be purchased by Jagotec pursuant to the
Agreement shall be subject to automatic forfeiture and reacquisition by Genta as
follows:
(a) Upon the last day (the "Termination Date") of the term of the
License prior to the fourth anniversary of the date hereof, Jagotec shall
forfeit to Genta and Genta shall automatically reacquire the number of shares
equal to the number of shares of the Stock less the product (rounded to the
nearest integer) of (i) the number of days that have elapsed since the date
hereof through and including the Termination Date, times (ii) the number of
shares of the Stock, times (iii) .0006844627.
<PAGE>
3. Genta shall notify Jagotec and Howard Sampson (solely in his capacity
as escrow agent, the "Escrow Agent") as provided in Section 16 of the Joint
Escrow Instructions attached as Exhibit A to the Agreement of such forfeiture
and reacquisition.
4. (a) As security for Jagotec's faithful performance of the terms of the
Agreement and to insure the availability for delivery of Jagotec's shares upon
forfeiture provided for in the Agreement, on the date hereof, Jagotec shall
deliver to and deposit with the Escrow Agent the certificate or certificates
evidencing the Stock and two Assignments Separate from Certificate duly executed
(with date and number of shares in blank) in the form attached hereto as Exhibit
C. Such documents are to be held by the Escrow Agent and delivered by the Escrow
Agent pursuant to the Joint Escrow Instructions, which instructions shall also
be executed and delivered to the Escrow Agent on the date hereof.
(b) Within 30 days after the last day of each successive completed
calendar quarter after the date hereof, if Jagotec so requests, the Escrow Agent
will deliver to Jagotec certificates representing so many shares of Stock as are
no longer subject to forfeiture (less such shares as have been previously
delivered). Sixty days after the Termination Date prior to the fourth
anniversary of the date hereof, Genta will direct the Escrow Agent to deliver to
Jagotec a certificate or certificates representing the number of shares of Stock
vested to Jagotec prior to termination (less such shares as have been previously
delivered).
5. Subject to the provisions of the Certificate of Incorporation of
Genta, if, from time to time, prior to the fourth anniversary of the date hereof
(a) there is any stock dividend or -liquidating dividend of cash and/or
property, stock split or other change in the character or amount of any of the
outstanding securities of Genta, or (b) there is any consolidation, merger or
sale of all or substantially all, of the assets of Genta, then, in either such
event, any and all new substituted or additional securities or other property to
which Jagotec is entitled by reason of its ownership of the Stock, which is
subject to forfeiture pursuant to the terms of this Agreement, shall be
immediately subject to forfeiture and be included in the word "Stock" for all
purposes hereof with the same force and effect as the shares of Stock from time
to time subject to forfeiture under the Agreement.
6. All certificates representing the Stock purchased under the Agreement
shall, where applicable, have endorsed thereon the following legends;
(a) "The shares represented by this Certificate are subject to
forfeiture by holder and reacquisition by Genta Incorporated as set forth in an
agreement between Genta Incorporated and the registered holder, or its
predecessor in interest. Such agreement grants certain reacquisition rights to
-2-
<PAGE>
Genta (or its assigns) upon termination of a corporate joint venture between
Genta and Jagotec AG. A copy of such agreement is on file at the principal
office of Genta and will be furnished upon written request to the Secretary of
Genta by the holder of record of the shares represented by this Certificate."
(b) "The securities represented by this Certificate have not been
registered under the Securities Act of 1933. These securities have been acquired
for investment and not with a view to distribution or resale, and may not be
transferred without an effective registration statement for such shares under
the Securities Act of 1933, or pursuant to Rule 144 under such Act or an opinion
of counsel satisfactory to Genta that registration is not required under such
Act."
(c) Any legend required to be placed thereon by the California
Commissioner of Corporations and any state securities law.
7. (a) The Agreement is made with Jagotec in reliance upon its
representation to Genta, which by its acceptance hereof it confirms, that the
Stock which it will receive will be acquired with its own funds for investment
for an indefinite period for its own account, not as a nominee or agent, and not
with a view to the sale or distribution of any part thereof, and that it has no
present intention of selling, granting participation in, or otherwise
distributing the same, but subject, nevertheless, to any requirement of law that
the disposition of its property shall at all times be within its control. By
executing the Agreement, Jagotec further represents that it does not have any
contract, understanding or agreement with any person to sell, transfer or grant
participations, to such person or to any third person, with respect to any of
the Stock.
(b) Jagotec understands that the Stock will not be registered under
the Securities Act of 1933 (the "Securities Act") on the ground that the sale
provided for in the Agreement is exempt pursuant to section 4(2) of the
Securities Act, and that Genta's reliance on such exemption is predicated on its
representations set forth herein.
(c) Jagotec agrees that in no event will it make a disposition of any
of the Stock, unless and until (i) it shall have notified Genta of the proposed
disposition and shall have furnished Genta with a statement of the circumstances
surrounding the proposed disposition and (ii) it shall have furnished Genta with
an opinion of counsel satisfactory to Genta to the effect that (A) such
disposition will not require registration of such Stock under the Securities Act
or (B) appropriate action necessary for compliance with the Securities Act has
been taken or (iii) Genta shall have waived, expressly and in writing, its
rights under clauses (i) and (ii) of this Section 7(c).
-3-
<PAGE>
(d) In connection with the investment representations made herein,
Jagotec represents that it is able to fend for itself in the transactions
contemplated by the Agreement, has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of its
investment, has the ability to bear the economic risks of its investment and has
been furnished with and has had access to such information as would be made
available in the form of a registration statement together with such additional
information as is necessary to verify the accuracy of the information supplied
and to have all questions answered by Genta.
(e) Jagotec understands that if a registration statement covering
the Stock (or a filing pursuant to the exemption from registration under
Regulation A of the Securities Act) under the Securities Act is not in effect
when it desires to sell the Stock, it may be required to hold the Stock for an
indeterminate period Jagotec also acknowledges that it understands that any sale
of the Stock which might be made by it in reliance upon rule 144 under the
Securities Act may be made only in limited amounts in accordance with the terms
and conditions of that Rule.
(f) Jagotec represents that it does not own stock possessing more
than ten percent of the total combined voting power or value of all classes of
stock of Genta.
(g) Jaqotec represents that it is an accredited investor as defined
in Rule 501(a) of Regulation D, as amended, of the SEC under the Securities Act.
8. Genta covenants and agrees that (a) it will use its best efforts to
comply with the current public information requirements of rule 144(c)(l) under
the Securities Act; (b) it will furnish Jagotec upon request with all
information required for the preparation and filing of Form 144; and (c) it will
on a timely basis use its best efforts to tile all reports required to be filed
and make all disclosures, including disclosures of material adverse information,
required to permit Jagotec to make the required representations in Form 144.
9. Genta shall not be required (a) to transfer on its books any shares of
Stock of Genta which shall have been sold or transferred in violation of any of
the provisions set forth in the Agreement or (b) to treat as owner of such
shares or to accord the right to vote as such owner or to pay dividends to any
transferee to whom such shares shall have been so transferred.
10. Except as otherwise provided herein, Jagotec shall, during the term of
the Agreement, exercise all rights and privileges of a stockholder of Genta with
respect to the Stock.
-4-
<PAGE>
11. The parties shall execute such further instruments and take such
further action as may reasonably be necessary to carry out the intent of the
Agreement.
12. Any consent, notice or report required or permitted to be given or
made under the Agreement by one of the parties hereto to the other party shall
be in writing delivered personally or by facsimile (and promptly confirmed by
personal delivery, first class mail or courier), first class mail or courier,
postage prepaid (where applicable), addressed to such other party at its address
indicated below, or to such other address as the addressee shall have last
furnished in writing to the addressor and (except as otherwise provided in the
Agreement) shall be effective upon receipt by the addressee.
If to Genta: Genta Incorporated
3550 General Atomics Court
San Diego, CA 92121, U.S.A.
Attention: Thomas H. Adams, Ph.D.
with a copy to: Pillsbury Madison & Sutro
235 Montgomery Street, 15th Floor
San Francisco, CA 94104, U.S.A.
Attention: Thomas E. Sparks, Jr.
If to Jagotec: Jagotec AG
Seestrasse 47
CH-6052 Hergiswil, Switzerland
Attention: Dr. Jacques Gonella
with a copy to: Rinderknecht, Glaus & Stadelhofer
Beethovenstrasse 7
Postfach 4451
CH-8022 Zurich, Switzerland
Attention: Dr. Thomas Rinderknecht
13. The Agreement shall inure to the benefit of the successors and assigns
of Genta and, subject to the restrictions on transfer herein set forth, be
binding upon Jagotec, its heirs, executors, administrators, successors and
assigns.
14. No waiver of any breach or condition of the Agreement shall be deemed
to be a waiver of any other or subsequent breach or condition, whether of a like
or different nature.
15. The Agreement shall be governed by and construed in accordance with
the laws of the State of California.
16. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THE AGREEMENT HAS
NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF
CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY
PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH QUALIFICATION IS UNLAWFUL,
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<PAGE>
UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE QUALIFICATION BY SECTION 25100,
25102, OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES
TO THE AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING
OBTAINED, UNLESS THE SALE IS SO EXEMPT.
17. No modification of the Agreement shall be valid unless made in writing
and signed by the parties hereto.
18. The Agreement constitutes the entire complete and final agreement
between Genta and Jagotec regarding the Stock. Any and all prior agreements and
negotiations are merged herein.
IN WITNESS WHEREOF, the parties have duly executed and delivered the
Agreement as of the date first written above.
GENTA INCORPORATED
By: /s/ William E. Bliss,
-------------------------------
William E. Bliss,
President
JAGOTEC AG
By: /s/ Jacques Gonella
-------------------------------
Jacques Gonella, Ph.D.,
Director
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<PAGE>
APPENDIX E
COMMON STOCK TRANSFER AGREEMENT
THIS COMMON STOCK TRANSFER AGREEMENT dated as of May 30, 1995 (the
"Agreement"), is entered into between GENTA INCORPORATED, a Delaware corporation
("Genta"), having a place of business at 3550 General Atomics Court, San Diego,
California 92121, U.S.A., and JAGO FINANCE LIMITED, a Jersey corporation ("Jago
Finance"), having its registered office at 17 Union Street, St. Helier, Jersey.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of the Agreement, the terms defined in this Article 1 shall
have the respective meanings set forth below:
1.1 "AFFILIATE" shall mean, with respect to any Person, any other
Person which directly or indirectly controls, is controlled by, or is under
common control with, such Person. A Person shall be regarded as in control of
another Person if it owns, or directly or indirectly controls, more than fifty
percent (50%) of the voting stock or other ownership interest of the other
Person, or if it directly or indirectly possesses the power to direct or cause
the direction of the management and policies of the other Person by any means
whatsoever.
1.2 "ESCROW AGENT" shall mean Howard Sampson.
1.3 "GENTA JAGO" shall mean Genta Jago Technologies B.V., a Dutch
company.
1.4 "JAGOTEC" shall mean Jagotec AG, a Swiss corporation.
1.5 "PERSON" shall have the meaning set forth in the Use License
Agreement.
1.6 "STOCK" shall mean unregistered shares of Genta common stock.
1.7 "STOCKHOLDERS AGREEMENT" shall mean the Stockholders' Agreement
dated as of the date hereof, among Genta, Jagotec, Dr. Jacques Gonella and Jago
Finance (as amended or restated from time to time).
<PAGE>
1.8 "USE LICENSE AGREEMENT" shall mean the Restated Geomatrix License
Agreement dated as of May 12, 1995, between Jagotec and Genta Jago (as amended
or restated from time to time.
ARTICLE 2
ISSUANCE OF STOCK
2.1 ISSUANCE OF STOCK. On the date hereof, Genta will issue to Jago
Finance 1,240,000 shares of Stock in partial consideration for Jagotec's
agreement to enter into the Use License Agreement with Genta Jago. As a
condition precedent to the issuance and transfer of the Stock to Jago Finance,
together with Jagotec and Dr. Jacques Gonella, shall enter into the
Stockholders' Agreement with Genta.
2.2 FORFEITURE. 1,200,000 of the shares of the Stock to be purchased
by Jago Finance pursuant to the Agreement shall be subject to automatic
forfeiture and reacquisition by Genta as follows:
2.2.1 Upon the last day (the "Termination Date") of the term of the Use
License Agreement prior to December 16, 1996, Jago Finance shall forfeit to
Genta and Genta shall automatically reacquire the number of shares equal to the
number of shares of the Stock less the product (rounded to the nearest integer)
of (i) the number of days that have elapsed since December 17, 1992 through and
including the Termination Date, times (ii) the number of shares of the Stock,
times (iii) .0006844627.
2.3 NOTICE TO ESCROW AGENT. Genta shall notify Jago Finance and the
Escrow Agent as provided in Section 16 of the Joint Escrow Instructions attached
as Exhibit A to the Agreement of such forfeiture and reacquisition.
2.4 ADDITIONAL STOCK. Subject to the provisions of the Certificate of
Incorporation of Genta, if, from time to time, prior to December 16, 1996, (a)
there is any stock dividend or liquidating dividend of cash and/or property,
stock split or other change in the character or amount of any of the outstanding
securities of Genta, or (b) there is any consolidation, merger or sale of all or
substantially all, of the assets of Genta, then, in either such event, any and
all new, substituted or additional securities or other property to which Jago
Finance is entitled by reason of its ownership of the Stock, which is subject to
forfeiture pursuant to the terms of the Agreement, shall be immediately subject
to forfeiture and be included in the word "Stock" for all purposes hereof with
the same force and effect as the shares of Stock from time to time subject to
forfeiture under the Agreement.
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<PAGE>
2.5 DELIVERY OF CERTIFICATES BY JAGO FINANCE. As security for Jago
Finance's faithful performance of the terms of the Agreement and to insure the
availability for delivery of Jago Finance's shares of Stock upon forfeiture
provided for in the Agreement, on the date hereof, Jago Finance shall deliver to
and deposit with the Escrow Agent the certificate or certificates evidencing the
Stock and two (2) Assignments Separate from Certificate duly executed (with date
and number of shares in blank) in the form attached hereto as Exhibit B. Such
documents are to be held by the Escrow Agent and delivered by the Escrow Agent
pursuant to the Joint Escrow Instructions, which instructions shall also be
executed and delivered to the Escrow Agent on the date hereof
2.6 DELIVERY OF CERTIFICATES BY ESCROW AGENT. Within thirty (30) days
after the last day of each successive completed calendar quarter after the date
hereof, if Jago Finance so requests, the Escrow Agent will deliver to Jago
Finance certificates representing so many shares of Stock as are no longer
subject to forfeiture (less such shares of Stock as have been previously
delivered). Sixty (60) days after the Termination Date prior December 16, 1996,
Genta will direct the Escrow Agent to deliver to Jago Finance a certificate or
certificates representing the number of shares of Stock vested to Jago Finance
prior to the Termination Date (less such shares as have been previously
delivered).
2.7 TRANSFER OF STOCK. Jago Finance shall have the right to transfer
up to an aggregate of 240,000 shares of Stock to not more than an aggregate of
five (5) Persons; PROVIDED, HOWEVER, that (a) not less than thirty (30) days
prior to the date of such transfer, Jago Finance shall deliver a notice, in
writing, to Genta stating the number of shares of Stock which Jago Finance
intends to transfer and the name, address and telephone number of the Person to
whom Jago Finance intends to transfer such shares of Stock; (b) such transfer
shall not violate the provisions of Article 3 below; (c) prior to the date of
such transfer, the transferee shall duly execute and deliver to Genta an
Acknowledgment of Agreement to be Bound by the Common Stock w Transfer Agreement
of Genta Incorporated, in the form attached hereto as Exhibit C; and (d) all
shares of Stock so transferred shall continue to be subject to the provisions of
the Agreement.
ARTICLE 3
SECURITIES ACT COMPLIANCE
3.1 UNREGISTERED SHARES OF COMMON STOCK. Jago Finance understands
that the Stock will not be registered under the Securities Act of 1933, as
amended (the "Securities Act") on the ground that the sale provided for in the
Agreement is exempt pursuant to section 4(2) of the Securities Act, and that
Genta's
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<PAGE>
reliance on such exemption is predicated on its representations set forth
herein.
3.2 LEGENDS. All certificates representing the Stock purchased under
the Agreement shall, where applicable, have endorsed thereon the following
legends:
3.2.1 "The shares represented by this Certificate are subject to
forfeiture by the holder and reacquisition by Genta Incorporated as set forth in
an agreement between Genta Incorporated and the registered holder, or its
predecessor in interest. Such agreement grants certain reacquisition rights to
Genta Incorporated (or its assigns) upon termination of a corporate joint
venture between Genta Incorporated and Jago Holding AG, a Swiss corporation. A
copy of such agreement is on file at the principal office of Genta Incorporated
and will be furnished upon written request to the Secretary of Genta
Incorporated by the holder of record of the shares represented by this
Certificate."
3.2.2 "The securities represented by this Certificate have not been
registered under the Securities Act of 1933. These securities have been acquired
for investment and not with a view to distribution or resale, and may not be
transferred without an effective registration statement for such shares under
the Securities Act of 1933, or pursuant to Rule 144 under such Act or an opinion
of counsel satisfactory to Genta Incorporated that registration is not required
under such Act."
3.2.3 Any legend required to be placed thereon by the California
Commissioner of Corporations and any state securities law.
3.3 INVESTOR'S REPRESENTATION. The Agreement is made with Jago
Finance in reliance upon the following representations to Genta which by its
acceptance hereof it confirms:
3.3.1 The Stock which Jago Finance will receive will be acquired with
its own funds for investment for an indefinite period for its own account, not
as a nominee or agent, and not with a view to the sale or distribution of any
part thereof, and that it has no present intention of selling, granting
participation in, or otherwise distributing the same, but subject, nevertheless,
to any requirement of law that the disposition of its property shall at all
times be within its control. By executing the Agreement, Jago Finance further
represents that it does not have any contract, understanding or agreement with
any Person to sell, transfer or grant participations, to such Person or to any
third Person, with respect to any of the Stock.
3.3.2 Jago Finance represents that it is able to fend for itself in
the. transactions contemplated by the Agreement, has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of its
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<PAGE>
investment, has the ability to bear the economic risks of its investment and has
been furnished with and has had access to such information as would be made
available in the form of a registration statement together with such additional
information as is necessary to verify the accuracy of the information supplied
and to have all questions answered by Genta.
3.3.3 Jago Finance understands that if a registration statement
covering the Stock (or a filing pursuant to the exemption from registration
under Regulation A of the Securities Act) under the Securities Act is not in
effect when it desires to sell the Stock, it may be required to hold the Stock
for an indeterminate period. Jago Finance also acknowledges that it understands
that any sale of the Stock which might be made by it in reliance upon Rule 144
under the Securities Act may be made only in limited amounts in accordance with
the terms and conditions of that Rule.
3.3.4 Jago Finance represents that it is an accredited investor as
defined in Rule 501(a) of Regulation D, as amended, of the Securities and
Exchange Commission under the Securities Act.
3.4 Jago Finance agrees that in no event will it make a disposition
of any of the Stock, unless and until (i) it shall have notified Genta of the
proposed disposition and shall have furnished Genta with a statement of the
circumstances surrounding the proposed disposition, (ii) it shall have furnished
Genta with an opinion of counsel satisfactory to Genta to the effect that (A)
such disposition will not require registration of such Stock under the
Securities Act or (B) appropriate action necessary for compliance with the
Securities Act has been taken, (iii) Genta shall have waived, expressly and in
writing, its rights under clauses (i) and (ii) of this Section 3.4, and (iv)
Jago Finance has complied with and fulfilled all of its obligations under
Article 2 of the Stockholders' Agreement.
3.5 RULE 144. Genta covenants and agrees that (a) it will use its
best efforts to comply with the current public information requirements of Rule
144(c)(1) under the Securities Act; (b) it will furnish Jago Finance upon
request with all information required for the preparation and filing of Form
144; and (c) it will on a timely basis use its best efforts to file all reports
required to be filed and make all disclosures, including disclosures of material
adverse information, required to permit Jago Finance to make the required
representations in Form 144.
3.6 STOCK TRANSFERRED IN VIOLATION OF AGREEMENT. Genta shall not be
required to (a) transfer on its books any shares of Stock which shall have been
sold or transferred in violation of any of the provisions set forth in the
Agreement or (b) treat as owner of such shares of Stock or to accord the right
to vote as such owner or to pay dividends to any transferee to whom such shares
of Stock shall have been so transferred.
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<PAGE>
3.7 FURTHER ASSURANCES. The parties shall execute such further
instruments and take such further action as may reasonably be necessary to carry
out the intent of the Agreement.
ARTICLE 4
ASSIGNMENT
The Agreement shall inure to the benefit of the successors and assigns of
Genta and, subject to the restrictions on transfer herein set forth, be binding
upon Jago Finance, its legal representatives, successors and assigns.
ARTICLE 5
MISCELLANEOUS
5.1 STOCKHOLDER'S RIGHTS. Except as otherwise provided herein and in
the Stockholders' Agreement, Jago Finance shall, during the term of the
Agreement, exercise all rights and privileges of a stockholder of Genta with
respect to the Stock.
5.2 CALIFORNIA QUALIFICATION. THE SALE OF THE SECURITIES WHICH ARE
THE SUBJECT OF THE AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF
CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR
THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR PRIOR TO SUCH
QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM THE
QUALIFICATION BY SECTION 25100, 25102, OR 25105 OF THE CALIFORNIA CORPORATIONS
CODE. THE RIGHTS OF ALL PARTIES TO THE AGREEMENT ARE EXPRESSLY CONDITIONED UPON
SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.
5.3 NOTICES. Any consent, notice or report required or permitted to
be given or made under the Agreement by one party to the other party shall be in
English and in writing, delivered personally or by facsimile (and promptly
confirmed by personal delivery, first class mail or courier), first class mail
or courier, postage prepaid (where applicable), addressed to such other party at
its address indicated below, or to such other address as the addressee shall
have last furnished in writing to the addressor and (except as otherwise
provided in the Agreement) shall be effective upon receipt by the addressee.
If to Genta: Genta Incorporated
3550 General Atomics Court
San Diego, CA 92121, U.S.A.
Attn: Thomas H. Adams, Ph.D.
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<PAGE>
with a copy to: Pillsbury Madison & Sutro
235 Montgomery Street, 15th Floor
San Francisco, CA 94104, U.S.A.
Attn: Thomas E. Sparks, Jr., Esq.
If to Jago Finance: Jago Finance Limited
Wellington House
17 Union Street
St. Helier, Jersey
Attn: Anthony C. Rogers
with a copy to: Rinderknecht, Glaus & Stadelhofer
Beethovenstrasse 7
Postfach 4451
CH-8022 Zurich, Switzerland
Attn: Dr. Thomas M. Rinderknecht
5.4 APPLICABLE LAW. The Agreement shall be governed by and construed
in accordance with the laws of the State of California, without reference to the
conflicts of law principles thereof.
5.5 HEADINGS. The titles and headings used in the Agreement are or
convenience only and shall not in any way affect the meaning or construction of
any provision of the Agreement.
5.6 WAIVER. The waiver by either party hereto of any right hereunder
or the failure to perform or of a breach by the other party shall not be deemed
a waiver of any other right hereunder or of any other breach or failure by said
other party whether of a similar nature or otherwise.
5.7 AMENDMENTS. The provisions of the Agreement may not be waived,
altered, amended or repealed in whole or in part except by the written consent
of both of the parties to the Agreement.
5.8 ENTIRE AGREEMENT. The terms, covenants, conditions and provisions
contained in the Agreement, including its exhibits, together with all of the
documents referred to herein as having been provided by one party to another,
constitute the total and complete agreement of the parties and supersede all
prior understandings and agreements hereto made, and there are no other
representations, understandings or agreements relating to the subject matter
hereof.
5.9 COUNTERPARTS. The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[THE BALANCE OF THIS PAGE
IS INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date
first set forth above.
GENTA INCORPORATED
By /s/ Thomas H. Adams
----------------------------
Thomas H. Adams, Ph.D.
Chairman and Chief Executive
Officer
JAGO FINANCE LIMITED
By /s/ Anthony C. Rogers
----------------------------
Anthony C. Rogers
Director
<PAGE>
APPENDIX F
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT dated as of May 30, 1995 (the "Agreement", is
entered into among GENTA INCORPORATED, a Delaware corporation ("Genta"), having
a place of business at 3550 General Atomics Court, San Diego, California 92121,
U.S.A., JAGOTEC AG, a Swiss corporation ("Jagotec"), having a place of business
at Seestrasse 47, CH-6052 Hergiswil, Switzerland, DR. JACQUES GONELLA, an
individual ("Dr. Gonella"), having an address at Hintere Wartenbergstrasse 18,
CH-4132 Muttenz, Switzerland, and JAGO FINANCE LIMITED, a Jersey corporation
("Jago Finance"), having its registered office located at 17 Union Street, St.
Helier, Jersey.
NOW, THEREFORE, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of the Agreement, the terms defined in this Article 1 shall
have the respective meanings set forth below:
1.1 "AFFILIATE" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, is controlled by, or is under common
control with, such Person. A Person shall be regarded as in control of another
Person if it owns, or directly or indirectly controls, more than fifty percent
(50%) of the voting stock or other ownership interest of the other Person, or if
it directly or indirectly possesses the power to direct or cause the direction
of the management and policies of the other Person by any means whatsoever.
1.2 "COMMISSION" shall mean the Securities and Exchange Commission.
1.3 "COMMON STOCK" shall mean shares of Genta common stock.
1.4 "INVESTORS" shall mean, collectively, Jagotec, Dr. Gonella and Jago
Finance, and "INVESTOR" shall mean any one of them.
1.5 "PERSON" shall mean an individual, corporation, partnership, trust,
business trust, association, joint stock company, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, governmental
authority or any other form of entity not specifically listed herein.
<PAGE>
1.6 "RESTRICTED SECURITIES" shall mean (a) the Shares and (b) any other
securities of Genta issued as a dividend or other distribution with respect to,
or in exchange for or in replacement of, such Shares.
1.7 "SHARES" shall mean all shares of Common Stock issued to the Investors
pursuant to the (a) Common Stock Transfer Agreement dated as of December 15,
1992 between Genta and Dr. Gonella, (b) Common Stock Transfer Agreement dated as
of December 15, 1992 between Genta and Jagotec, (c) Nonstatutory Stock Option
Agreement dated as of December 15, 1992 between Genta and Dr. Gonella and (d)
Common Stock Transfer Agreement dated as of the date hereof between Genta and
Jago Finance.
ARTICLE 2
MARKET STAND-OFF PROVISIONS
2.1 MARKET STAND-OFF. The Investors shall not, to the extent requested by
Genta or an underwriter of Common Stock or other securities of Genta, directly
or indirectly, sell, offer to sell, contract to sell, grant any option to
purchase or otherwise transfer or dispose of any Restricted Securities of Genta
held by them (other than to donees who agree to be similarly bound) during a
reasonable and customary period of time, as agreed to by Genta and such
underwriters, not to exceed one hundred and eighty (180) days, following the
effective date of a registration statement of Genta filed under the Securities
Act of 1933, as amended; PROVIDED, HOWEVER, that all officers and directors of
Genta enter into similar agreements.
2.2 TREATMENT OF SHARES TRANSFERRED IN VIOLATION OF Agreement. Genta shall
not be required (a) to transfer on its any Restricted Securities that shall have
been sold or transferred in violation of any of the provisions set forth in the
Agreement or (b) to treat as owner of such Restricted Securities or accord the
right to vote as such owner or pay dividends to any transferee to whom such
voting securities shall have been so transferred in violation of any of the
provisions set forth in the Agreement. Any purported transfer of Restricted
Securities by any holder that is not in compliance with the terms and conditions
of the Agreement shall be void, and the transferee under any such purported
transfer shall acquire no title or ownership thereby. Each Investor agrees to
the entry of a stop transfer order with the transfer agent or agents of Genta
against the transfer of Restricted Securities except in compliance with the
requirements of the Agreement or, if Genta acts as its own transfer agent with
respect to any Restricted Securities, to refusal by Genta to transfer any
Restricted Securities except in compliance with the requirements of the
Agreement.
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<PAGE>
ARTICLE 3
BOARD SEAT
As soon as reasonably practicable after the request of Dr. Gonella, the
management of Genta shall recommend to its Board of Directors (a) to promptly
nominate and appoint Dr. Jacques Gonella as a member of its Board of Directors,
and (b) thereafter, during the term of the Agreement, to nominate Dr. Gonella as
a member of its Board of Directors, unless Dr. Gonella otherwise requests.
ARTICLE 4
TERM AND TERMINATION
4.1 TERM. The Agreement shall terminate only when the Investors, and their
Affiliates, collectively, directly or indirectly, own, control or otherwise have
rights to, less than five percent (5%) of the voting power of Genta.
4.2 EFFECT OF TERMINATION. The termination of the Agreement shall not
relieve the parties of any obligation accruing prior to such termination.
ARTICLE 5
ASSIGNMENT
The Agreement may not be assigned or otherwise transferred, nor, except as
expressly provided hereunder, may any right or obligation hereunder be assigned
or transferred by any party, other than to an Affiliate of such party, without
the consent of all of the other parties; PROVIDED, HOWEVER, that any party may,
without such consent, assign the Agreement and its rights and obligations
hereunder in connection with the transfer or sale of all or substantially all of
its business, or in the event of its merger, consolidation, change in control or
similar transaction. Any permitted assignee shall assume all obligations of its
assignor under the Agreement.
ARTICLE 6
SEVERABILITY
Each party acknowledges that it does not intend to violate any public
policy, statutory or common laws, rules, regulations, treaty or decision of any
government agency or executive body thereof of any country or community or
association of countries. Should one or more provisions of the Agreement be or
become invalid, the parties hereto shall substitute, by mutual consent, valid
provisions for such invalid provisions which valid
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<PAGE>
provisions in their economic effect are sufficiently similar to the invalid
provisions that it can be reasonably assumed that the parties would have entered
into the Agreement with such provisions. In case such provisions cannot be
agreed upon, the invalidity of one or several provisions of the Agreement shall
not affect the validity of the Agreement as a whole, unless the invalid
provisions are of such essential importance to the Agreement that it is to be
reasonably assumed that the parties would not have entered into the Agreement
without the invalid provisions.
ARTICLE 7
MISCELLANEOUS
7.1 NOTICES. Any consent, notice or report required or permitted to be
given or made under the Agreement by one party to any of the other parties shall
be in English and in writing, delivered personally or by facsimile (and promptly
confirmed by personal delivery, first class mail or courier), first class mail
or courier, postage prepaid (where applicable), addressed to such other party at
its address indicated below, or to such other address as the addressee shall
have last furnished in writing to the addressor and (except as otherwise
provided in the Agreement) shall be effective upon receipt by the addressee.
If to Genta: Genta Incorporated
3550 General Atomics Court
San Diego, CA 92121, U.S.A.
Attention: Thomas H. Adams, Ph.D.
with a copy to: Pillsbury Madison & Sutro
235 Montgomery Street, 15th Floor
San Francisco, CA 94104, U.S.A.
Attention: Thomas E. Sparks, Jr., Esq.
If to Jagotec: Jagotec AG
Seestrasse 47
CH-6052 Hergiswil, Switzerland
Attention: Dr. Jacques Gonella
If to Dr. Gonella: Dr. Jacques Gonella
Hintere Wartenbergstrasse 18
CH-4132 Muttenz, Switzerland
If to Jago Finance: Jago Finance Limited
Wellington House
17 Union Street
St. Helier, Jersey
Attention: Anthony C. Rogers
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<PAGE>
If from Genta,
with a copy to: Rinderknecht, Glaus & Stadelhofer
Beethovenstrasse 7
Postfach 4451
CH-8022 Zurich, Switzerland
Attention: Dr. Thomas M. Rinderknecht
7.2 APPLICABLE LAW. The Agreement shall be governed by and construed in
accordance with the laws of the State of California, without reference to the
conflicts of law principles thereof.
7.3 HEADINGS. The titles and headings used in the Agreement are intended
for convenience only and shall not in any way affect the meaning or construction
of any provision of the Agreement.
7.4 WAIVER. The waiver by any party hereto of any right hereunder or the
failure to perform or of a breach by any other party shall not be deemed a
waiver of any other right hereunder or of any other breach or failure by any
other party whether of a similar nature or otherwise.
7.5 AMENDMENTS. The provisions of the Agreement may not be waived,
altered, amended or repealed in whole or in part except by the written consent
of all of the parties to the Agreement.
7.6 ENTIRE AGREEMENT. The terms, covenants, conditions and provisions
contained in the Agreement, together with all of the documents referred to
herein as having been provided by one party to all of the other parties,
constitute the total and complete agreement of the parties and supersede all
prior understandings and agreements hereto made, and there are no other
representations, understandings or agreements relating to the subject matter
hereof.
7.7 COUNTERPARTS. The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[THE BALANCE OF THIS PAGE
IS INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date
first set forth above.
GENTA INCORPORATED
By /s/ Thomas H. Adams
-----------------------------
Thomas H. Adams, Ph.D.
Chairman and Chief Executive
Officer
JAGOTEC AG
By /s/ Dr. Jacques Gonella
-----------------------------
Dr. Jacques Gonella
President
/s/ Dr. Jacques Gonella
--------------------------------
DR. JACQUES GONELLA
JAGO FINANCE LIMITED
By /s/ Anthony C. Rogers
-----------------------------
Anthony C. Rogers
Director
<PAGE>
APPENDIX G
SHARE TRANSFER AGREEMENT
This Share Transfer Agreement (this "Agreement"), is made as of the date last
written hereunder, by and between Dr. Jacques Gonella, an individual residing at
Hallenweg 10, CH-4132 Muttenz, Switzerland (hereinafter referred to as "Dr.
Gonella") and Jago Finance Limited, having its registered offices at 17 Union
Street, St. Helier, Jersey (hereinafter referred to as "Jago").
The Parties hereto agree as follows:
1. Dr. Gonella hereby assigns and transfers to Jago and Jago hereby accepts
such assignment and transfer, of 380,561 unregistered shares (hereinafter
referred to as the "Shares") of common stock of Genta Incorporated, a
Delaware corporation (hereinafter referred to as "Genta"), for sufficient
and adequate consideration the receipt of which is hereby acknowledged by
Dr. Gonella.
2. Jago acknowledges that the Shares are subject to that certain Common Stock
Transfer Agreement entered into by Dr. Gonella and Genta on December 15,
1992 (hereinafter referred to as the "Common Stock Transfer Agreement"), a
copy of which has been delivered to Jago upon execution of this Agreement.
Jago hereby undertakes and agrees to be bound by, and hereby assumes, any
and all rights and obligations under said Common Stock Transfer Agreement
insofar as such rights and obligations apply to the Shares; PROVIDED
HOWEVER, that the Shares have as of the date hereof fully vested to Dr.
Gonella in accordance with the provisions of the Common Stock Transfer
Agreement and are not subject to the automatic forfeiture and reacquisition
right of Genta provided for in the Common Stock Transfer Agreement.
3. The Parties understand that the transfer and assignment of the Shares is
subject to the provisions of Sections 7 and 9 of the Common Stock Transfer
Agreement and the Parties undertake to execute all documents and perform
all actions necessary or desirable to effect the full transfer of the
Shares to Jago in the books and records of Genta to Jago.
4. This Agreement shall governed by the laws of Switzerland without reference
to the principles of conflict of laws thereof and shall not be governed by
the United Nations Convention on International Contracts for the Sale of
Goods.
<PAGE>
5. Any and all disputes arising out of or in connection with this Agreement
shall be settled exclusively by the ordinary courts of CH-4132 MUTTENZ,
SWITZERLAND.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of
December 31, 1995.
Jago Finance Limited
/s/ Dr. Jacques Gonella /s/ M.J. Quarrington
- ------------------------ -----------------------
Dr. Jacques Gonella by: M.J. Quarrington
its: Director
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