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EXHIBIT 99.2
IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
ISO
GENETRONICS BIOMEDICAL LTD.
INCENTIVE STOCK OPTION AGREEMENT
Genetronics Biomedical Ltd. (the "Company") has granted to _________ (the
"Optionee"), an option to purchase a total of _____________ (_______) shares of
Common Stock (the "Shares"), at the price set out herein, and, except as
otherwise specifically provided herein, in all respects subject to the terms,
definitions and provisions of the 1995 Stock Option Plan (the "Plan") adopted by
the Company which is incorporated herein by reference. The terms defined in the
Plan shall have the same defined meanings herein.
1. NATURE OF THE OPTION. This Option is intended to qualify as an Incentive
Stock Option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. EXERCISE PRICE. The exercise price is $_____ (Canadian funds) for each
share: of Common Stock.
3. EXERCISE OF OPTION. This Option shall, be exercisable during its term in
accordance with the provisions of the Plan as follows:
3.1 RIGHT TO EXERCISE.
(a) Subject to subsection 3.1(b) below, this Option shall be
exercisable as follows:
(i) immediately, as to ___ of the Shares subject to the
Option;
(ii) as to a further ___ the Shares subject to the Option,
or any portion thereof, during the period commencing one year from the Date of
Grant and ending ________ (the "Expiry Date");
(iii) as to a further ___ of the Shares subject to the
Option, or any portion thereof, during the period commencing two years from the
Date of Grant and ending on the Expiry Date;
(iv) as to the balance of the Shares subject to the Option,
or any portion thereof, during the period commencing three years from the Date
of Grant and ending on the Expiry Date;
Notwithstanding the foregoing, to the extent that the aggregate Fair Market
Value (determined as of the Date of the Grant) of stock with respect to which
all Incentive Stock Options (including this Option) are exercisable for the
first time by the Optionee during any
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calendar year under all stock option plans of the Company and its Affiliates
exceeds one hundred thousand dollars ($100,000 U.S.), the Options or portions
thereof which exceed such limit (according to the order in which they were
granted) shall be treated as Non Statutory Stock Options, i.e., an Option which
for purposes of U.S. tax law is not treated as an Incentive Stock Option and is
governed under die provisions of Section 83 of the Code.
(b) This Option may not be exercised for a fraction of a share.
(c) In the event of Optionee's death, disability or other termination
of employment, the exercisability of the Option is governed by the provisions of
the Plan.
3.2 REORGANIZATION. In the event of a reorganization as defined in this
Section 3.2 in which the Company is not the surviving or acquiring company, or
in which the Company is or becomes a wholly-owned subsidiary of another company
an or after the effective date of the reorganization, then unless provision is
made by the acquiring corporation for the assumption of each Option granted
under this Plan, or the substitution of in option therefor, such that no
"modification" of any such Option occurs under Section 424 of the Code, the
Options granted under this Agreement shall terminate. The term "reorganization"
as used in this Section 3.2 shall mean any statutory merger, statutory
consolidation, sale of all or substantially all of the assets of the Company, or
sale, pursuant to an agreement with the Company, of securities of the Company
pursuant to which the Company is or becomes a wholly-owned subsidiary of another
corporation after the effective date of the reorganization.
3.3 METHOD OF EXERCISE. This Option shall be exercisable by written notice
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised, and such other representations
and agreements as to the Optionee's investment intent with respect to such
shares of Common Stock as my be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company. The written
notice shall be accompanied by payment of the exercise price as provided in
Section 5 below.
No Shares will be issued pursuant to the exercise of an Option unless such
issuance and such exercise shall comply with all relevant provisions of law and
the requirements of any stock exchange upon which the Shares may then be listed.
4. OPTIONEE'S REPRESENTATIONS. If the Optionee is a resident or citizen of the
United States of America, in the event the Shares purchasable pursuant to the
exercise of this Option have not been registered under the Securities Act of
1933, as amended, at the time this Option is exercised, the Optionee shall,
concurrently with the exercise of all or any portion of this Option, deliver to
the Company the Optionee's Investment Representation Statement in such form, as
may be required in the opinion of the Company's legal counsel to comply with
applicable state and federal securities laws.
5. METHOD OF PAYMENT. Payment of the exercise price shall be by way of cheque,
in Canadian funds (or U.S. equivalent), made payable, to the Company in an
amount equal to the full purchase price of the number of optioned Shares
specified in the notice of exercise.
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6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the issuance
of such Shares upon such exercise or the method of payment of consideration for
such shares would violate any applicable federal or state securities or other
law or regulation, or the rules, regulations or listing requirements of any
stock exchange upon which the shares are listed or included.
7. RESIDENTS OF THE UNITED STATES. If the Optionee is a resident or citizen of
the United States of America at the time of the exercise of the Option, the
certificate(s) representing the optioned Shares may be endorsed with the
following or a similar legend: "The shares represented by this Certificate have
not been registered under the Securities Act of 1933, as amended, of the United
States of America (the "Act") or the securities laws of any state ("State") of
the United States of America and may not be sold, transferred, pledged,
hypothecated or distributed, directly or indirectly, to a U.S. person (as
defined in Regulation S adopted by the U.S. Securities and Exchange Commission
under the Act) or within the United States unless such shares are (i) registered
under the Act and any applicable State securities act (a "State Act"), or (ii)
exempt from registration under the Act and any applicable State Act and the
Company has received an opinion of counsel to such effect reasonably
satisfactory to it, or (iii) sold in accordance with Regulation S."
8. CALIFORNIA LEGEND. If the Optionee is subject to the requirements of the
California Corporate Securities Act of 1968, as amended, at the time of the
exercise of this Option. the certificate(s) representing the optioned Shares may
be endorsed with the following or a similar legend, prominently stamped or
printed thereon in capital letters of not less than 10-point size, reading as
follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
9. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in any
manner otherwise than by will or by the laws of descent or distribution and may
be exercised during the lifetime of Optionee only by the Optionee or by the
Optionee's Guardian, if any, as provided in the Plan. The terms of this Option
shall be binding upon the executors, administrators, heirs, successors and
assigns of the Optionee.
10. TERM OF OPTION. The term of this Option may not exceed five years if the
Optionee owns, immediately before this Option is granted, stock representing
more than ten percent of the total combined voting power of all classes of stock
of the Company or of any Affiliate, and may be exercised during such term only
in accordance with the Plan and the terms of this Option. This Option is for a
term of Ten (10) years, expiring on October 14, 2006.
11. EARLY DISPOSITION OF STOCK. The Optionee understands that if the Optionee
disposes of any Shares received under this Option within two years after the
date of this Agreement or within one year after such Shares were transferred to
the Optionee, the Optionee may be treated for federal income tax purposes as
having received ordinary income at the time of such disposition
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in an amount equal to the excess of the fair market value of the Shares at the
time such Shares were delivered to Optionee over the price paid for the Shares.
The Optionee hereby agrees to notify the Company in writing 30 days after the
date of any such disposition.
(The remainder of this page is intentionally left blank) 12.
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12. NO EMPLOYMENT AGREEMENT. This agreement is not an employment agreement, and
nothing contained in this agreement shall obligate the Company or an Affiliate,
of the Company to retain an Optionee as an employee, officer, director, or
consultant for any period, nor shall this agreement interfere in any way with
the right of the Company or Affiliates of the Company to reduce such Optionee's
compensation.
DATE OF GRANT: _______________
GENETRONICS BIOMEDICAL LTD.
---------------------------------
---------------------------------
Print Name
Optionee acknowledges receipt of a copy of the Plan, a copy of which is annexed
hereto; represents that Optionee is familiar with the terms and provisions of
the Plan; and hereby accepts this Option subject to all of the terms and
provisions of the Plan. Optionee further acknowledges that if the Plan has not
been approved by the Company's shareholders on the date of grant of this Option,
this Option is not exercisable until such approval has been obtained. If
Optionee is subject to the requirements of the California Corporate Securities
Act of 1968, as amended, Optionee further acknowledges receipt of a copy of the
Rules of the Commissioner of Corporations of the State of California, U.S.A.,
found at Section 260.141. 11 of Title 10 of the California Code of Regulations,
which is attached hereto.
OPTIONEE:
Dated:
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Signature of Optionee
----------------------------------
Dated:
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Print Name
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Address
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EXHIBIT A
STOCK OPTION EXERCISE NOTICE
AND
INVESTMENT REPRESENTATION STATEMENT
PURCHASER: _____________________________
Company: GENETRONICS BIOMEDICAL LTD.
SECURITY: COMMON STOCK
AMOUNT:
DATE:
I hereby give notice of my election to purchase the above-described Securities
pursuant to exercise of options granted under the GENETRONICS, BIOMEDICAL LTD.
1995 Stock Option Plan. In connection with the purchase of the above-listed
Securities, I, the Purchaser, represent to the Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am
purchasing these Securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933 ("Securities Act").
(b) I understand that the Securities have not been registered under
the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that, in
the view of the Securities and Exchange Commission ("SEC"), the statutory basis
for such exemption may be unavailable if my representation was predicated solely
upon a present intention to hold these Securities for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. I understand that the
Company is under no obligation to register the Securities. In addition, I
understand that the certificate evidencing the Securities will be imprinted with
a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Purchaser satisfactory to the Company or a no-action letter is received from
the Securities and Exchange Commission.
(d) I am aware of the provisions of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, if applicable, including, among other
things: the availability of certain public information about the Company; the
resale occurring not less than two years after the party has purchased and paid
for the securities to be
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sold; the sale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934) and the amount of Securities
being sold during any three month period not exceeding the specified limitations
stated therein.
(e) I further understand that at the time I wish to sell the
Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, I would be precluded from selling the Securities under Rule 144 even
if the two-year minimum holding period has been satisfied.
(f) I further understand that in the event all of the requirements
of Rule 144 are not satisfied, registration under the Securities Act or
compliance with a registration exemption will be required; and that,
notwithstanding the fact that Rule 144 is not exclusive, the Staff of the SEC
has expressed its opinion that persons proposing to sell private placement
securities other than in a registered offering and otherwise than pursuant to
Rule 144 will have a substantial burden of proof in establishing that an
exemption from registration is available for such offers or sales, and that such
persons and their respective brokers who participate in such transactions do so
at their own risk.
(g) I further understand that if the Plan has not been approved by
the Company's shareholders this Option is not exercisable until such approval
has been obtained.
Signature of Purchaser:
-----------------------------------
-----------------------------------
Name of Purchaser
Date:
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IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY, OR ANY
INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA,
EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
NON-ISO
GENETRONICS BIOMEDICAL LTD.
NONSTATUTORY STOCK OPTION AGREEMENT
Genetronics Biomedical Ltd. (the "Company") has granted to _________________
(the "Optionee"), an option to purchase a total of _________________ shares of
Common Stock, at the price set out herein, and in all respects subject to the
terms, definitions and provisions of the 1995 Stock Option Plan (the "Plan")
adopted by the Company which is incorporated herein by reference. The terms
defined in the Plan shall have the same defined meaning herein.
1. NATURE OF THE OPTION. This Option is nonstatutory option and is not
intended to qualify for any special tax benefits to the Optionee.
2. EXERCISE PRICE. The exercise price is $_____ (Canadian funds) for each
share of Common Stock.
3. EXERCISE OF OPTION. This Option shall be exercisable during its term in
accordance with the provisions of the Plan as follows:
3.1 RIGHT TO EXERCISE.
(a) This option shall be exercisable immediately.
(b) This Option may not be exercised for a fraction of a share.
(c) In the event of Optionee's death, disability, divorce or
termination of service with the Company, the exercisability of the Option is
governed by the provisions of the Plan.
3.2 METHOD OF EXERCISE. This Option shall be exercisable by written notice
which shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised, and such other representations
and agreements as to the Optionee's investment intent with respect to such
shares of Common Stock as may be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Company. The written
notice shall be accompanied by payment of the exercise price as provided in
Section 5 below.
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No Shares will be issued pursuant to the exercise of an Option unless such
issuance and such exercise shall comply with all relevant provisions of law,
including all tax withholding laws, and the requirements of any stock exchange
upon which the Shares may then be listed.
4. OPTIONEE'S REPRESENTATIONS. If the Optionee is a resident or citizen of the
United States of America, in the event the Shares purchasable pursuant to the
exercise of this Option have not been registered under the Securities Act of
1933, as amended, at the time this Option is exercised, Optionee shall,
concurrently with the exercise of all or any portion of this Option, deliver to
the Company the Optionee's Investment Representation Statement in such form as
may be required in the opinion of the Company's legal counsel to comply with
applicable state and federal securities laws.
5. METHOD OF PAYMENT. Payment of the exercise price shall be by way of cheque,
in Canadian funds, made payable to the Company in an amount equal to the full
purchase price of the number of optioned Shares specified in th notice of
exercise.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the issuance
of such Shares upon such exercise or the method of payment of consideration for
such shares would constitute a violation of any applicable federal or state
securities or other law or regulation, or the rules, regulations or listing
requirements of any stock exchange upon which the shares are listed or included.
7. RESIDENTS OF THE UNITED STATES. If the Optionee is a resident or citizen of
the United States of America at the time of the exercise of the Option, the
certificate(s) representing the optioned Shares may be endorsed with the
following or a similar legend: "The shares represented by this Certificate have
not been registered under the Securities Act of 1933, as amended, of the United
States of America (the "Act") or the securities laws of any state ("State") of
the United States of America and may not be sold, transferred, pledged,
hypothecated or distributed, directly or indirectly, to a U.S. person (as
defined in Regulation S adopted by the U.S. Securities and Exchange Commission
under the Act) or within the United States unless such shares are (i) registered
under the Act and any applicable State securities act (a "State Act"), or (ii)
exempt from registration under the Act and any applicable State Act and the
Company has received an opinion of counsel to such effect reasonably
satisfactory to it, or (iii) sold in accordance with Regulation S."
8. CALIFORNIA LEGEND. If the Optionee is subject to the requirements of the
California Corporate Securities Act of 1968, as amended, at the time of the
exercise of this Option, the certificate(s) representing the optioned Shares may
be endorsed with the following or a similar legend, prominently stamped or
printed thereon in capital letters of not less than 10-point size, reading as
follows:
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY,
OR ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF
CORPORATIONS OF THE STATE
2.
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OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES.
9. NON-TRANSFERABILITY OF OPTION. This Option may not be transferred in any
manner otherwise than by will or by the laws of descent or distribution, and may
be exercised during the lifetime of Optionee only by the Optionee or by the
Optionee's Guardian, if any, as provided in the Plan. The terms of this Option
shall be binding upon the executors, administrators, heirs, successors and
assigns of the Optionee.
10. TERM OF OPTION. This Option is for a term of ten years expiring on December
14, 2005.
11. TAXATION UPON EXERCISE OF OPTION. Optionee understands that, pursuant to
certain provisions of the Code, upon exercise of this Option, an Optionee who is
subject to the Code must recognize income for tax purposes in an amount equal to
the excess of the then fair market value of the shares over the exercise price.
If this is the case, the Company will withhold tax from Optionee's current
compensation with respect to such income; to the extent that Optionee's current
compensation is insufficient to satisfy the withholding tax liability, the
Company may require the Optionee to make a cash payment to cover such liability
as a condition of exercise of this Option.
12. NOT EMPLOYMENT AGREEMENT. This agreement is not an employment agreement,
and nothing contained in this agreement shall obligate the Company or an
Affiliate of the Company to retain an Optionee as an employee, officer,
director, or consultant for any period, not shall this agreement interfere in
any way with the right of the Company or Affiliates of the Company to reduce
such Optionee's compensation.
DATE OF GRANT: _________________
GENETRONICS BIOMEDICAL LTD.
By:
---------------------------------------
Authorized Signatory
---------------------------------------
Print Name
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Optionee acknowledges receipt of a copy of the Plan, a copy of which is
annexed hereto; represents that Optionee is familiar with the terms and
provisions of the Plan; and hereby accepts this Option subject to all of the
terms and provisions of the Plan. Optionee further acknowledges that if the Plan
has not been approved by the Company's shareholders on the date of grant of this
Option, this Option is not exercisable until such approval has been obtained. If
Optionee is subject to the requirements of the California Corporate Securities
Act of 1968, as amended, Optionee further acknowledges receipt of a copy of the
Rules of the Commissioner of Corporations of the State of California, U.S.A.
found at Section 260.141.11 of Title 10 of the California Code of Regulations,
which is attached hereto.
OPTIONEE:
DATE SIGNED:
-------------------------------- --------------------------
NAME
--------------------------------
PRINT NAME
--------------------------------
ADDRESS
--------------------------------
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EXHIBIT A
STOCK OPTION EXERCISE NOTICE
AND
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
COMPANY: GENETRONICS BIOMEDICAL LTD.
SECURITY: COMMON STOCK
AMOUNT:
DATE:
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I hereby give notice of my election to purchase the above-described Securities
pursuant to exercise of options granted under the Genetronics Biomedical Ltd.
1995 Stock Option Plan. In connection with the purchase of the above-listed
Securities, I, the Purchaser, represent to the Company the following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the Securities. I am
purchasing these Securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933 ("Securities Act").
(b) I understand that the Securities have not been registered under
the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other th8ings, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that, in
the view of the Securities and Exchange Commission ("SEC"), the statutory basis
for such exemption may be unavailable if my representation as predicated solely
upon a present intention to hold these Securities for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. I understand that the
Company is under no obligation to register the Securities. In addition, I
understand that the certificate evidencing the Securities will be imprinted with
a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Purchaser satisfactory to the Company or a no-action letter is received from
the Securities and Exchange Commission.
5.
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(d) I am aware of the provision of Rule 144, promulgated under the
Securities Act, which, in substance, permits limited resale of "restricted
securities" acquired directly or indirectly, from the issuer thereof (or from an
affiliate of such issuer), in a non-public offering subject to the satisfaction
of certain conditions, if applicable, including, among other things: the
availability of certain public information about the Company; the resale
occurring not less than two years after the party has purchased and paid for the
securities to be sold; the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934) and the amount of
Securities being sold during any three month period not exceeding the specified
limitations stated therein.
(e) I further understand that at the time I wish to sell the
Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, I would be precluded from selling the Securities under Rule 144 even
if the two-year minimum holding period has been satisfied.
(f) I further understand that in the event all of the requirements of
Rule 144 are not satisfied, registration under the Securities Act or compliance
with a registration exemption will be required; and that, notwithstanding the
fact that Rule 144 is not exclusive, the Staff of the SEC has expressed its
opinion that persons proposing to sell private placement securities other than
in a registered offering and otherwise than pursuant to Rule 144 will have a
substantial burden of proof in establishing that an exemption from registration
is available for such offers or sales, and that such persons and their
respective brokers who participate in such transactions do so at their own risk.
(g) I further understand that the Plan has not been approved by the
Company's shareholders and that this Option is not exercisable until such
approval has been obtained.
SIGNATURE OF PURCHASER:
Date:
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6.
