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
---------------
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
1998 STOCK INCENTIVE 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.
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------- -------------------- --------------------- ---------------------- --------------------
Proposed Proposed
Title of Maximum Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
- ---------------------------- -------------------- --------------------- ---------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock (par value 2,911,263 shares(1) $0.94 $18,605,898 $4,912
$0.001 per share) 250,000 shares(2) $0.88
350,000 shares(3) $0.9688
350,000 shares(4) $2.375
695,500 shares(5) $2.0313
95,000 shares(6) $2.4063
30,000 shares(7) $2.4063
50,000 shares(8) $3.25
20,000 shares(9) $2.50
1,998,237 shares $6.282(10)
- ---------------------------- -------------------- --------------------- ---------------------- --------------------
</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 October 1,
1998.
(3) Represents shares which were issued pursuant to the Plan on November
16, 1998.
(4) Represents shares which were issued pursuant to the Plan on February
1, 1999.
(5) Represents shares which were issued pursuant to the Plan on March 19,
1999.
(6) Represents shares which were issued pursuant to the Plan on March 31,
1999.
(7) Represents shares which were issued pursuant to the Plan on April 1,
1999.
(8) Represents shares which were issued pursuant to the Plan on May 11,
1999.
(9) Represents shares which were issued pursuant to the Plan on May 16,
1999.
(10) 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.
<PAGE>
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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 Company 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 Executive December 29, 1999
Raymond P. Warrell, Jr., M.D. Officer and Director
/s/ MARK C. ROGERS, M.D
- ----------------------------- Chairman of the Board of December 29, 1999
Mark C. Rogers, M.D Directors
/s/ GERALD M. SCHIMMOELLER
- ----------------------------- Vice President and Chief December 29, 1999
Gerald M. Schimmoeller Financial Officer
(Principal Financial and
Accounting Officer)
/s/ GLENN L. COOPER, M.D.
- ---------------------------- Director December 29, 1999
Glenn L. Cooper, M.D.
/s/ DONALD G. DRAPKIN
- ---------------------------- Director December 29, 1999
Donald G. Drapkin
/s/ KENNETH G. KASSES, PH.D.
- ---------------------------- Director December 23, 1999
Kenneth G. Kasses, Ph.D.
/s/ LAWRENCE J. KESSEL, M.D.
- ---------------------------- Director December 23, 1999
Lawrence J. Kessel, M.D.
/s/
- --------------------------- Director
Robert E. Klem, M.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/ GLENN L. COOPER Member of Genta Incorporated's
- ----------------------------
Glenn L. Cooper, M.D. Compensation Committee
/s/ MICHAEL S. WEISS Member of Genta Incorporated's
- ----------------------------
Michael S. Weiss Compensation Committee
-7-
<PAGE>
EXHIBIT INDEX
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).
-8-
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 6,750,000 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 1998 Stock Incentive 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 and other stock-based awards 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.
<PAGE>
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
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement on Form S-8 with respect to an aggregate of 6,750,000
shares of common stock to be issued pursuant to the Genta Incorporated 1998
Stock Incentive 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
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 1998 Stock Incentive
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
