As filed with the Securities and Exchange Commission on January 6, 2000.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENTA INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 33-0326866
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
99 Hayden Avenue, Suite 200
Lexington, Massachusetts 02421-7966
(Address of Principal Executive Offices)
--------------------------
GENTA INCORPORATED
NON-EMPLOYEE DIRECTORS' 1998 STOCK OPTION PLAN
(Full Title of the Plan)
Gerald M. Schimmoeller
Chief Financial Officer
Genta Incorporated
99 Hayden Avenue, Suite 200
Lexington, Massachusetts 02421-7966
(Name and Address of Agent for Service)
(781) 860-5150
(Telephone Number, Including Area Code,
of Agent for Service)
Copy to:
Monica C. Lord, Esq.
Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
(212) 715-9100
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value 1,725,000 shares(1) $0.94 $8,438,600 $2,228
$0.001 per share) 350,000 shares(2) $2.875
925,000 shares $6.282(3)
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents shares which were issued pursuant to the Plan on May 28, 1998.
(2) Represents shares which were issued pursuant to the Plan on July 13, 1999.
<PAGE>
(3) Estimated, in accordance with 17 CFR 230.457(c), solely for the purpose of
calculating the registration fee. The Proposed Maximum Offering Price Per
Share is based on the average of the high and low prices reported by the
Nasdaq SmallCap Market of The Nasdaq Stock Market on January 3, 2000, which
is within five (5) business days prior to the date of this Registration
Statement.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(1) The Registrant's Annual Report on Form 10-K, as amended, for
the fiscal year ended December 31, 1998;
(2) The Registrant's Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 1999, June 30, 1999 and September 30, 1999;
(3) The Registrant's Current Reports on Form 8-K and 8-K/A, filed
on January 6, 1999, February 12, 1999, April 21, 1999, April 28, 1999, April 29,
1999, May 3, 1999, May 11, 1999, May 18, 1999, May 21, 1999, July 20, 1999,
August 11, 1999 and November 12, 1999;
(4) The Registrant's Registration Statement on Form S-1 filed on
November 4, 1991, the Exchange Act, which contains a description of the
Registrant's Common Stock, including any amendment or report filed for the
purpose of updating such description; and
(5) All documents subsequently filed by the Registrant with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to the Registration Statement which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which permits a corporation in its certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's fiduciary duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions), or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's Amended and Restated Certificate of Incorporation
contains provisions permitted by Section 102(b)(7) of the DGCL.
Reference is made to Section 145 of the DGCL which provides that a
corporation may indemnify any persons, including directors and officers, who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person is or was a director,
officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such director, officer, employee or agent acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceedings, had no reasonable cause to believe that his conduct was unlawful. A
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<PAGE>
Delaware corporation may indemnify directors and/or officers in an action or
suit by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the director
or officer is adjudged to be liable to the corporation. Where a director or
officer is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses which such director or officer actually and reasonably incurred.
The Registrant's Amended and Restated Certificate of Incorporation
provides for the indemnification of directors and officers of the Registrant to
the fullest extent permitted by the DGCL.
The Registrant maintains liability insurance for each director and
officer for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
-------------- -----------
4.1 Amended and Restated Certificate of
Incorporation of the Registrant
(incorporated by reference to Exhibit 3(i).1
to the Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, File
No. 019635).
4.2 Amended and Restated By-laws of the
Registrant (incorporated by reference to
Exhibit 3(ii).1 to the Annual Report on Form
10-K for the fiscal year ended December 31,
1998, File No. 019365).
5 Opinion of Kramer Levin Naftalis & Frankel
LLP regarding legality of securities being
registered (including consent).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Deloitte & Touche Experta Ltd.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Kramer Levin Naftalis & Frankel
LLP (see Exhibit Number 5 above).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include any
material information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (the "Securities Act"), each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at the time
shall be deemed to be the initial bona fide offering thereof.
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<PAGE>
(3) To remove from registration by means of post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lexington, Commonwealth of Massachusetts, on this
29th day of December, 1999.
GENTA INCORPORATED
By: /s/ GERALD M. SCHIMMOELLER
------------------------------
Name: Gerald M. Schimmoeller
Title: Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title(s) Date
--------- -------- ----
/s/ RAYMOND P. WARRELL, JR. President, Chief December 29 , 1999
- ----------------------------- Executive Officer
Raymond P. Warrell, Jr., M.D. and Director
/s/ MARK C. ROGERS Chairman of the December 29, 1999
- ----------------------------- Board of Directors
Mark C. Rogers, M.D.
/s/ GERALD M. SCHIMMOELLER Vice President and December 29, 1999
- ----------------------------- Chief Financial
Gerald M. Schimmoeller Officer (Principal
Financial and
Accounting Officer)
/s/ GLENN L. COOPER Director December 29, 1999
- -----------------------------
Glenn L. Cooper, M.D.
/s/ DONALD G. DRAPKIN Director December 29, 1999
- -----------------------------
Donald G. Drapkin
/s/ KENNETH G. KASSES Director December 23, 1999
- -----------------------------
Kenneth G. Kasses, Ph.D.
/s/ LAWRENCE J. KESSEL Director December 23, 1999
- -----------------------------
Lawrence J. Kessel, M.D.
/s/ Director
- -----------------------------
Robert E. Klem, Ph.D.
/s/ PETER SALOMON Director December 22, 1999
- -----------------------------
Peter Salomon, M.D.
/s/ BOBBY W. SANDAGE, JR. Director December 29, 1999
- -----------------------------
Bobby W. Sandage, Jr., Ph.D.
/s/ HARLAN J. WAKOFF Director December 29, 1999
- -----------------------------
Harlan J. Wakoff
/s/ MICHAEL S. WEISS Director December 29, 1999
- -----------------------------
Michael S. Weiss
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Lexington, Commonwealth
of Massachusetts, on December 29, 1999.
Signature Title(s)
--------- --------
/s/ RAYMOND P. WARRELL, JR. President, Chief Executive Officer and
- -----------------------------
Raymond P. Warrell, Jr., M.D. Director
/s/ MARK C. ROGERS Chairman of the Board of Directors
- -----------------------------
Mark C. Rogers, M.D.
/s/ GLENN L. COOPER Director
- -----------------------------
Glenn L. Cooper, M.D.
/s/ DONALD G. DRAPKIN Director
- -----------------------------
Donald G. Drapkin
/s/ KENNETH G. KASSES Director
- -----------------------------
Kenneth G. Kasses, Ph.D.
/s/ LAWRENCE J. KESSEL Director
- -----------------------------
Lawrence J. Kessel, M.D.
/s/ Director
- -----------------------------
Robert E. Klem, Ph.D.
/s/ PETER SALOMON Director
- -----------------------------
Peter Salomon, M.D.
/s/ BOBBY W. SANDAGE, JR. Director
- -----------------------------
Bobby W. Sandage, Jr., Ph.D.
/s/ HARLAN J. WAKOFF Director
- -----------------------------
Harlan J. Wakoff
/s/ MICHAEL S. WEISS Director
- -----------------------------
Michael S. Weiss
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<PAGE>
EXHIBIT INDEX
Exhibit Number Description
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4.1 Amended and Restated Certificate of Incorporation of
the Registrant (incorporated by reference to Exhibit
3(i).1 to the Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, File No. 019635).
4.2 Amended and Restated By-laws of the Registrant
(incorporated by reference to Exhibit 3(ii).1 to the
Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, File No. 019365).
5 Opinion of Kramer Levin Naftalis & Frankel LLP
regarding legality of securities being registered
(including consent).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Deloitte & Touche Experta Ltd.
23.3 Consent of Ernst & Young LLP.
23.4 Consent of Kramer Levin Naftalis & Frankel LLP (see
Exhibit Number 5 above).
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KRAMER LEVIN NAFTALIS & FRANKEL LLP
919 THIRD AVENUE
NEW YORK, N.Y. 10022 - 3852
TEL (212) 715-9100 47, Avenue Hoche
FAX (212) 715-8000 75008 Paris
France
December 29, 1999
Genta Incorporated
99 Hayden Avenue, Suite 200
Lexington, Massachusetts 02421-7966
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to Genta Incorporated, a Delaware
corporation (the "Registrant"), in connection with the preparation and filing of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 3,000,000 shares (the "Shares") of common stock, par value $0.001
per share (the "Common Stock"), to be issued pursuant to the Registrant's Genta
Incorporated Non-Employee Directors' 1998 Stock Option Plan (the "Plan").
In connection with the registration of the Shares, we have
reviewed copies of the Registration Statement, the Plan, the Restated
Certificate of Incorporation of the Registrant and the Amended and Restated
By-laws of the Registrant, and such documents and records as we have deemed
necessary to enable us to express an opinion on the matters covered hereby.
We have also examined and relied upon representations,
statements, or certificates of public officials and officers and representatives
of the Registrant.
Based upon the foregoing, we are of the opinion that the
Shares covered by the Registration Statement, following the granting of the
options described in the Plan and upon delivery of such Shares and payment
therefor at the prices and in accordance with the terms stated in the Plan, will
be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement. In giving the foregoing consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act or the rules and regulations of the Commission thereunder.
We are delivering this opinion to the Registrant, and no
person other than the Registrant may rely upon it.
Very truly yours,
/s/ Kramer Levin Naftalis & Frankel LLP
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-8 with respect to an aggregate of 3,000,000 shares of common
stock to be issued pursuant to the Genta Incorporated Non-Employee Directors'
1998 Stock Option Plan of our report dated April 15, 1999 with respect to the
consolidated financial statements of Genta Incorporated and its subsidiaries
(which report expresses an unqualified opinion and includes an explanatory
paragraph which indicates that there are matters that raise substantial doubt
about the Company's ability to continue as a going concern) appearing in Genta
Incorporated's Annual Report on Form 10-K, as amended, for the year ended
December 31, 1998.
/s/ DELOITTE AND TOUCHE, LLP
Boston, Massachusetts
January 4, 2000
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Genta Incorporated on Form S-8 of our report dated April 15, 1999,
with respect to the financial statements of Genta Jago Technologies B.V.,
appearing in the Annual Report on Form 10-K, as amended, of Genta Incorporated
for the year ended December 31, 1998 (which report expresses an unqualified
opinion and includes an explanatory paragraph which indicates that there are
matters that raise substantial doubt about the Company's ability to continue as
a going concern).
/s/ DELOITTE AND TOUCHE EXPERTA LTD.
Bernardin Marty Tobias Pfeiffer
Basle, Switzerland
January 4, 2000
Exhibit 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Genta Incorporated Non-Employee
Directors' 1998 Stock Option Plan of our reports dated June 18, 1998, with
respect to the consolidated financial statements of Genta Incorporated and the
financial statements of Genta Jago Technologies B.V. included in the Genta
Incorporated Annual Report on Form 10-K for the year ended December 31, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Diego, California
January 4, 2000
