As Filed with the Securities and Exchange Commission on September , 1997
Registration Number 000-14039
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN GENERAL VENTURES, INC.
(Exact name of registrant as specified in charter)
NEVADA 11-2712721
(State or other (I.R.S. Employer
jurisdictions identification number)
of incorporation
or organization)
1065 Elkton Drive
Colorado Springs, Colorado 80907
Telephone: (719) 532-9442
(Registrant's principal executive offices and principal place of business)
AMERICAN GENERAL VENTURES, INC. Stock Purchase Plan
Steven H. Walker
236 S. Rainbow Boulevard, #136
Las Vegas, Nevada 89128
Telephone: (719) 532-9442
(Name, address and telephone number of agent for service.)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each Proposed Proposed Amount of
class of Amount to be offering aggregate Registration
securities registered price offering price fee
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.001 par value 1,000,000 $.26 $260,000 $78.79
- -----------------------------------------------------------------------------
<PAGE2>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents are incorporated by reference in the registration
statement:
(a) The registrant's latest annual report on Form 10-KSB.
(b) All other reports filed by the registrant pursuant to sections
13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the annual report referred to in (a) above.
(c) Description of securities contained in the registrant's latest
annual report on Form 10-KSB.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to
the filing of a post-effective amendment to the registration statement which
indicates that all of the shares of common stock offered have been sold or
which deregisters all of such shares then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be a
part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Names Experts and Counsel.
Not Applicable
Item 6. Indemnification of Directors and Officers.
Pursuant to the Articles of Incorporation and By-Laws of the corporation,
Registrant may indemnify an officer or director who is made a party to any
proceeding, including a law suit, because of his position, if he acted in
good faith and in a manner he reasonably believed to be in the best interest
of Registrant. In certain cases, the Registrant may advance expenses
incurred in defending any such proceeding. To the extent that the officer or
director is successful on the merits in any such proceeding as to which such
person is to be indemnified, Registrant must indemnify him against all
expenses incurred, including attorney's fees. With respect to a derivative
action, indemnity may be made only for expenses actually and reasonably
incurred in defending the proceeding, and if the officer or director is
judged liable, only by a court order. The indemnification is intended to be
to the fullest extent permitted by the laws of the State of Nevada.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors or officers pursuant to
the foregoing provisions, Registrant is informed indemnification is against
public policy, as expressed in said Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
The exhibits to the registration statement are listed in the Exhibit Index
elsewhere herein.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
<PAGE>3
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(1)(ii) shall not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 124c-3 under the Securities Exchange Act
of 1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 6, 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 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 proceedings) 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 Act and will be governed by the final
adjudication of such issue.
<PAGE>4
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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in Colorado Springs, Colorado on August 3, 1997.
AMERICAN GENERAL VENTURES, INC.
Date: September 9, 1997 /s/ Steven H. Walker
-------------------------------
By: Steven H. Walker, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement or amendment thereto has been signed by the following persons in
the capacities and on the dates indicated.
Name Date
/s/ Steven H. Walker 9/9/97
- ------------------------------ -------------------
Steven H. Walker, Principal executive
officer and Director
/s/ Christopher S. Walker 9/9/97
- ------------------------------ -------------------
Christopher S. Walker, Principal financial
officer, Controller and Director
<PAGE>5
Exhibit Index.
(1) Not Applicable
(2) Not Applicable
(3) Not Applicable
(4) Not Applicable
(5) Consent and Opinion of J.M. Walker, 7841 South
Garfield Way, Littleton, 80122 regarding legality
of securities registered under this Registration
Statement and to the references to such attorney
in the Registration Statement on Form S-8
(6) Not Applicable
(7) Not Applicable
(8) Not Applicable
(9) Not Applicable
(10) Not Applicable
(11) Not Applicable
(12) Not Applicable
(13) Not Applicable
(14) Not Applicable
(15) Not Applicable
(16) Not Applicable
(17) Not Applicable
(18) Not Applicable
(19) Not Applicable
(20) Not Applicable
(21) Not Applicable
(22) Not Applicable
(23) Not Applicable
(24) Consent of Winter Scheifley & Associates, P.C., Certified
Public Accountants for the Company
(25) Not Applicable
(26) Not Applicable
(27) Not Applicable
(28) Stock Purchase Plan
</TABLE>
<PAGE>6
September , 1997
Re: OPINION RE: LEGALITY AND CONSENT OF COUNSEL TO USE OF NAME
IN THE
REGISTRATION STATEMENT ON FORM S-8 OF AMERICAN GENERAL
VENTURES,
INC.
I am securities counsel for the above mentioned corporation and I have
prepared the registration statement on Form S-8. I hereby consent to the
inclusion and reference to my name in the Registration Statement on Form S-8
and any documents incorporated by reference into said document for American
General Ventures, Inc.
It is my opinion that the securities registered with the Securities and
Exchange Commission pursuant to Form S-8 Registration Statement of American
General Ventures, Inc. will be legally issued, fully paid and non-assessable.
Very truly yours,
/s/ Jody M. Walker
- ------------------------
Jody M. Walker
<PAGE>7
INDEPENDENT AUDITOR'S CONSENT
We do hereby consent to the use of our report dated May 22, 1997 on the
financial statements of Aas of December 31, 1996 included in and made part of
the registration statement of American General Ventures, Inc. dated September 9,
1997.
September 9, 1997
/s/ Winter, Scheifley & Associates, P.C.
Certified Public Accountant
<PAGE>8
APPLIED GENETIC VENTURES, INC.
INCENTIVE STOCK OPTION PLAN
ARTICLE I
Purpose of Plan
This INCENTIVE STOCK OPTION PLAN (the "Plan") of APPLIED GENETIC
VENTURES,
INC. (the "Company") for executive and other key employees of the Company, is
intended to advance the best interest of the Company by providing those key
employees of the Company, thereby encouraging them to remain in its employ.
Further, the availability and offering of incentive stock options under the
Plan supports and increases the Company's ability to attract and retain
individuals of exceptional managerial talent upon whom, in large measure, the
sustained progress, growth and profitability of the Company depends.
ARTICLE II
Definitions
For Plan purposes, except where the context might clearly indicate otherwise,
the following terms shall have the meanings set forth below:
"Board" shall mean the Board of Directors of the Company.
"Code" shall mean the Internal Revenue Code of 1954, as amended, and the
rules and regulations promulgated thereunder.
"Committee" shall mean the Compensation Committee, or such other committee of
the Board, which shall be designated by the Board, to administer the Plan.
The Committee shall be composed of one or more persons as from time to time
are appointed to serve by the Board. Each member of the Committee, while
service as such, shall also be a member of the Board.
"Common Shares" shall mean the Company's Common Shares, par value $.OOOI per
share, or, in the event that the outstanding Common Shares are hereafter
changed into or exchanged for different shares or securities of the Company,
such other shares or securities. The total number of shares under the
Agreement shall be 25,000,000 shares.
"Fair Market Value" shall mean, with respect to the date given stock option
is granted or exercised, the average of the highest and lowest reported sales
prices of the Common Shares for the previous 12 months, as reported by such
responsible reporting service as the Committee may select, or if there were
no transactions in the Common Shares on such day, then the last preceding day
on which transactions took place. The above notwithstanding, the Committee
may determine the Fair Market Value in such other manner as it may deem more
equitable for Plan purposes or as is required by applicable laws or
regulations.
"Incentive Stock Options" or "ISO" shall mean a stock option which is
intended to meet and comply with the terms and conditions for an incentive
stock option as set forth in Section 422A of the Code.
"Optionee" shall mean an employee of the Company who has been granted one or
more Incentive Stock Options under the Plan.
"Stock Option Agreement" shall mean the agreement between the Company and the
Optionee under which the Optionee may purchase Common Shares hereunder.
"10% Shareholder" shall mean an employee who owns 10% or more of the Common
Shares as such amount is calculated under Section 422A(b)(6) of the Code.
Attribution rules under Section 425(d) of the Code are applicable to
determine whether the 10% ownership rule is satisfied.
ARTICLE III
Administration of the Plan
1. The Committee shall administer the Plan and accordingly, it shall have
full power to grant Incentive Stock Options, construe and interpret the Plan,
establish rules and regulations and perform all other acts, including the
delegation of administrative responsibilities, it believes reasonable and
proper.
2. The determination of those eligible to receive Incentive Stock Options,
and the amount, type and timing of each stock option and the terms and
conditions of the respective stock option agreements shall rest in the sole
discretion of the Committee, subject to the provisions of the Plan.
3. The Committee may cancel any Incentive Stock Options awarded under the
Plan if an Optionee conducts himself in a manner which the Committee
determines to be inimical to the best interest of the Company.
<PAGE>9
4. The Board, or the Committee, may correct any defect, supply any omission
or reconcile any inconsistency in the Plan, in the manner and to the extent
it shall deem necessary to carry it into effect.
5. Any decision made, or action taken, by the Committee or the Board
arising out of or in connection with the interpretation and administration of
the Plan shall be final and conclusive.
6. Meetings of the Committee shall be held at such times and places as
shall be determined by the Committee. A majority of the members of the
Committee shall constitute a quorum for the transaction of business, and the
vote of a majority of those members present at any meeting shall decide any
question brought before the meeting. In addition, the Committee may take any
action otherwise proper under the Plan by the affirmative vote, taken without
a meeting, of a majority of its members.
7. No member of the Committee shall be liable for any act or omission of
any other member of the Committee or for any act or omission on his own part,
including, but not limited to, the exercise of any power or discretion given
to him under the Plan, except those resulting from his own gross negligence
or willful misconduct.
8. The Company, through its management, shall supply full and timely
information to the Committee on all matters relating to eligible employees,
their duties and performance, and current information on death, retirement,
and disability or other termination of employment of Optionee, and such other
pertinent information as the Committee may require.
ARTICLE IV
Shares Subject to the Plan
1. The total number of shares of the Company available for grants of
Incentive Stock Options under the Plan shall be 25,000,000 Common Shares,
subject to adjustment in accordance with Article VII of the Plan, which
shares may be either authorized but unissued or reacquired Common Shares of
the Company. If the Company has not reacquired Common Shares, only
authorized but unissued Common Shares will be available for grants of
Incentive Stock Options.
2. If an Incentive Stock Option or portion thereof shall expire or
terminate for any reason without having been exercised in full, the
unpurchased shares covered by such ISO shall be available for future grants
of Incentive Stock Options.
ARTICLE V
Eligible Employees
1. Consistent with the Plan's purpose, Incentive Stock Options may be
granted to employees of the Company who are performing or who have been
engaged to perform services of special importance to the management,
operation or development of the Company. Included as eligible employees are
officers of the Company, including those who are also members of the Board.
2. Any Incentive Stock Option granted hereunder to a 10%
Shareholder shall meet the terms as set forth in Section 422(c)(8) of the
Code.
ARTICLE VI
Stock Option Terms and Conditions
1. All Incentive Stock Options granted under the Plan shall be evidenced by
agreements which shall be subject to applicable provisions of the Plan, and
such other provisions as the Committee may adopt.
2. The option price per unrestricted share shall not be less than 67% of
the Fair Market Value of a Common Share on the date of grant, and the
Committee, in its discretion, may specify a higher price than the Fair Market
Value. The price at which unrestricted shares may be purchased by a 10%
Shareholder shall be not less than 75% of the Fair Market Value of the Common
Shares on the date the option is granted. The option price of restricted
stock shall not be less than 30% of the Fair Market Value. The price at
which restricted shares may be purchased by a 10% shareholder shall be not
less than 35% of the Fair Market Value of the Common Shares on the date the
option is granted.
3. All Incentive Stock Options granted hereunder must be granted within ten
years from the earlier of the date this Plan is adopted.
4. No Incentive Stock Option granted to any employee or 10% Shareholder
shall be exercisable after the expiration of five years from the date such
ISO is granted. The Committee, in its discretion, may provide that an option
shall be exercisable during such five year period or during any lesser period
of time.
<PAGE>10
The Committee may establish installment exercise terms for an Incentive Stock
Option such that the ISO becomes fully exercisable in a series of cumulating
portions. If an Optionee shall not, in any given installment period,
purchase within such installment period, such Optionee's right to purchase
any Common Shares not purchased in such installment period shall continue
until the expiration or sooner termination of such ISO. The committee may
also accelerate the exercise of any ISO. However, no ISO, or any portion
thereof, may be exercisable until one year following the date of grant ("One-
Year Holding Period").
5. An Incentive Stock Option, or portion thereof, shall be exercised by
delivery of (i) a written notice of exercise to the Company specifying the
number of Common Shares to be purchased, and (ii) payment of the full price
of such Common Shares, as fully set forth in paragraph 6 of this Article VI.
No ISO or installment thereof shall be reusable except with respect to whole
shares, and fractional share interests shall be disregarded. Not less than
100 Common Shares may be purchased at one time unless the number purchased is
the total number at the time available for purchase under the ISO are issued
to an Optionee, he shall have none of the rights of a shareholder.
6. The price of an exercised Incentive Stock Option, or portion thereof, may
be paid:
A. In United States dollars, in cash or by cashier's check, certified check,
bank draft or money order, payable to the order of the company in an amount
equal to the option price; or
B. At the discretion of the Committee, through the delivery of fully paid
and nonassessable Common Shares, with an aggregate Fair Market Value on the
date of the ISO exercise equal to the option price, provided such tendered
Shares have been owned by the Optionee for at least one year prior to such
exercise; or
C. By a combination of both A and B above.
The Committee shall determine acceptable methods for tendering Common Shares
as payment upon exercise of an Incentive Stock Option and may impose such
limitations and prohibitions on the use of Common Share to exercise an ISO as
it deems appropriate.
7. With the Optionee's consent, the Committee may cancel any Incentive Stock
Option issued under this Plan and issue a new ISO to such Optionee.
8. Except by will or the laws of descent and distribution, no right or
interest in any Incentive Stock Option granted under the Plan shall be
assignable or transferable, and no right or interest of any Optionee shall be
liable for, or Incentive Stock Options shall be exercisable during the
Optionee's lifetime only by the Optionee or the duly appointed legal
representative of an incompetent Optionee.
9. In the event an Optionee shall cease to be employed by the Company, die
or become permanently or totally disabled (within the meaning of Section
105(b)(4) of the Code) while he is holding one or more Incentive Stock
Options, each ISO held shall expire at the earlier of the expiration of the
Incentive Stock Option's term or the following:
A. If the Optionee's termination of employment occurs for any reason, except
death, during the One-year holding period described in paragraph 4 of this
Article VI, the Optionee's right to exercise such ISO shall terminate and all
rights shall cease; provided, however, that if during that same period, the
Optionee shall (i) retire pursuant to company-approved retirement policies
then in effect, or (ii) become permanently and totally disabled (within the
meaning of Section 105(b)(4) of the Code), such ISO shall become exercisable
in full on the date of such retirement or disability and remain exercisable
for three months after such termination date;
B. If the Optionee's termination of employment occurs for any reason, except
death, after the One-Year Holding Period described in paragraph 4 of this
Article VI, such Optionee shall have the right to exercise the ISO for three
month after such termination date to the extent that it was exercisable on
the date of such termination of employment; or
C. If the Optionee shall die while employed by the Company or within three
months after termination of such employment, the personal representative or
administrator of the Optionees estate or the person(s) to whom an ISO granted
hereunder shall have been validly transferred by such personal representative
or administrator pursuant to the Optionee's will or the laws of descent and
distribution, shall have the right to exercise the ISO for one year after the
date of the Optionee's death, to the extent (i) such ISO was exercisable on
the date of such termination of employment by death and (ii) such ISO was not
exercised.
<PAGE>11
No transfer of an Incentive Stock Option by the will of an Optionee or by the
laws of descent and distribution shall be effective to bind the Company
unless the Company shall have been furnished with written notice thereof and
an authenticated copy of the will and/or such other evidence as the Committee
may deem necessary to establish the validity of the transfer.
In the event of death following termination of employment while any portion
of an ISO remains exercisable, the Committee, in its discretion, may provide
for an extension of the exercise period of up to one year after the
Optionee's death but not beyond the expiration of the term of the Incentive
Stock Option.
10. For the purposes of this paragraph, it shall not be considered a
termination of employment when an Optionee is placed by the Company on
military or sick leave or such other type of leave of absence which is
considered as continuing intact the employment relationship of the Optionee.
In case of such leave of absence, the employment relationship shall be
continued until the later of the date when such leave equals 90 days or the
date when the Optionee's right to re-employment with the Company shall no
longer be guaranteed either by statute or contract.
11. Notwithstanding any other provision of the Plan, in the case of any ISO
granted under the Plan, the following provisions will apply:
A. The aggregate Fair Market Value of the Common Shares, determined as of
the time the ISO is granted, for which any Optionee may be granted Incentive
Stock Options under the Plan or any other plan of the Company or of any
corporation which is a parent corporation (as defined in any calendar year)
shall not exceed $100,000 plus any unused limit carryover (or such larger
individual employee maximum as may be in effect from time to time under the
Code at the time the ISO is granted), computed in accordance with Section
422A(c) (4) of the Code;
B. No ISO shall be exercisable while there is outstanding any other
Incentive Stock Option (including any option outstanding any other Incentive
S of any election by the Company pursuant to Section 251 (c) (1) (B) of the
Economic Recovery Tax Act of 1981) which was granted to other plan which
gives the right such option under the Plan or any plan which gives the right
to the Optionee to purchase stock in the Company or in a corporation which is
a parent corporation (as defined in Section 425(e) of the Code) of the
Company, or any predecessor corporation of any of such corporations at the
time of the grant. In ISO shall be treated as outstanding until it is
either exercised in full or expires by reason of lapse of time; and
C. Any optionee who disposes of Common Shares acquired on the exercise
of an ISO by sale or exchange either (i) within two years after the date of
the grant of the ISO under which the stock was acquired, or (ii) within one
year after the acquisition of such Shares, shall notify the Company of such
disposition and of the amount realized upon such disposition. The transfer
of Common Shares may also be restricted by applicable provisions of the
Securities Act of 1933, as amended.
ARTICLE VII
Adjustments or Changes in Capitalization
1. In the event that the outstanding Common Shares of the
Company are hereafter changed into or exchanged for a different number or
kind of Shares Company are hereafter c or other securities of the Company by
reason of merger, consolidations other reorganization, recapitalization,
reclassification, combination of Shares, stock split-up, or stock dividend:
A. Prompt, proportionate, equitable, lawful and adequate adjustment
shall be made of the aggregate number and kind of Shares subject to Incentive
Stock Options which may be granted under the Plan, such that the Optionee
shall have the right to purchase such Common Shares as may be issued in
exchange for the Common Shares purchasable on exercise of the ISO had such
merger, consolidation, other reorganization, recapitalization,
reclassification, combination of Shares, stock split-up or stock dividend not
taken place;
B . Rights under unexercised Incentive Stock Options or portions thereof
granted prior to any such changes both as to the number or kind of Shares and
the exercise price per Share, shall be adjusted appropriately, provided that
such adjustments shall be made without change in the total exercise price
applicable to the unexercised portion of such ISO's but an adjustment in the
price for each Share covered by such ISO's; or
<PAGE>12
C. Upon any dissolution of the Company or any merger in which the
Company is not a surviving corporation, each outstanding ISO granted
hereunder shall terminate, but the Optionee shall have the right, immediately
prior to such dissolution or merger to exercise his ISO in whole or in part.
2 The foregoing adjustments and the manner of application of the
foregoing provisions shall be determined solely by the Committee, whose
determination as to what adjustments shall be made and the extent thereof,
shall be final, binding and conclusive. No fractional Shares shall be issued
under the Plan.
ARTICLE VIII
Merger, Consolidation or Tender Offer
1. If the Company shall be a party to a; binding agreement to any
merger, reorganization or sale of substantially all the assets of the
Company, each outstanding ISO shall pertain and apply to the securities
and/or property which a shareholder of the number of Common Shares of the
Company subject to the ISO would be entitled to receive pursuant to such
merger, consolidation or reorganization or sale of assets.
2. In the event that:
A. Any person other than the Company shall acquire more than 20% of the
Common Shares of the Company through a tender offer, exchange offer or
otherwise;
B. A change in the "control" of the Company occurs, as such term is
defined in Rule 405 under the Securities Act of 1933;
C. There shall be a sale of all or substantially all of the assets of
the Company;
any then outstanding ISO held by an Optionee, who is deemed by the Committee
to be a statutory officer ("insider") for purposes of Section 16 of the
Securities Exchange Act of 1934 shall be entitled to receive, subject to any
action by the Committee revoking such an entitlement as provided for below,
in lieu of exercise of such ISO, a cash payment in an amount equal to the
difference between the aggregate exercise price of such ISO, or portion
thereof, and, (i) in the event of an offer or similar event, the final offer
price per Share paid for Common Shares, or such lower price as the Committee
may determine to conform an option to preserve its ISO status, times the
number of Common Shares covered by the ISO or portion thereof , of (ii) in
the case of an event by B or C above, the aggregate Fair Market Value of the
Common Shares covered by the ISO as determined by the Committee at such time.
3. Any payment which the Company is required to make pursuant to paragraph 2
of this Article VIII, shall be made within 15 business days, following the
event which results in the Optionee's right to such payment. In the event of
a tender offer in which fewer than all the Shares which are validly tendered
in compliance with such offer are purchased or exchanged, then only that
portion of the Shares covered by an ISO as results from multiplying such
Shares by a fraction, the numerator of which is the number of Common Shares
acquired pursuant to the offer and the denominator of which is the number of
Common Shares tendered in compliance with such offer, shall be used to
determine the payment thereupon. To the extent that all or any portion of an
ISO shall be affected by this provision, all or such portion of the ISO shall
be terminated.
ARTICLE IX
Amendment and termination of Plan
1. The Board, without further approval of the shareholders, may at any
time, and from time to time, suspend or terminate the Plan in whole or in
part or amend it in such respects as the Board may deem appropriate and in
the best interest of the Company; provided, however, that no such amendment
shall be made which would, without approval of the shareholders:
A. Materially modify the eligibility requirements for receiving
Incentive Stock Options;
B. Increase the total number of Common Shares which may be issued
pursuant to Incentive Stock Options, except as is provided for in accordance
with Article VII under the Plan;
C. Reduce the minimum option price per Share;
D. Extend the period of granting Incentive Stock
Options; or
E. Materially increases in any other way the benefits accruing to
Optionee.
2. No amendments, suspension or termination of this Plan
shall, without the Optionee's consent, alter or impair any of the rights or
obligations under any ISO thereto fore granted to him under the Plan.
<PAGE>13
3. The Board may amend the Plan, subject to the limitations cited
above, in such manner as it deems necessary to permit the granting of ISOs
meeting the requirements of future amendments or issued regulations, if any
to the Code.
4. No ISO may be granted during any suspension of the Plan or after
termination of the Plan.
ARTICLE X
Government and Other Regulations
1. The obligation of the Company to issue, transfer and
deliver Common Shares for ISOs exercised under the Plan shall be subject to
all applicable laws, regulations, rules, orders and approval which shall then
be in effect and required by the relevant stock exchanges on which the Common
Shares are traded and by government entities as set forth below or as the
Committee in its sole discretion shall deem necessary or advisable.
Specifically, in connection with the Securities Act of 1933, upon exercise of
any ISO, the Company shall not be required to issue Common Shares unless the
Committee has received evidence satisfactory to it to the effect that the
Optionee will not transfer such Shares except pursuant to a registration
statement in effect under such Act or unless an opinion of counsel -
satisfactory to the Company has been received by the Company to the effect
that such registration is not required. Any determination in this connection
by the Committee shall be conclusive.
ARTICLE XI
Miscellaneous Provisions
1. No person shall have any claim or right to be granted an Incentive
Stock Option under the Plan, and the grant of an ISO under the Plan shall not
be construed as giving an Optionee the right to be retained in the employ of
the Company. Furthermore, the Company expressly reserves the right at any
time to dismiss an Optionee with or without cause, free from any liability,
or any claim under the Plan, except as provided herein or in an option
agreement.
2. Any expenses of administering this Plan shall be borne by the
Company.
3. The payment received from Optionee from the exercise of Incentive
Stock Options under the Plan shall be used for the general corporate purposes
of the Company.
4. The place of administration of the Plan shall be in the
State of Colorado.
5. In addition to such other rights of indemnification as
they may have as members of the Board or the Committee, the members of the
Committee shall be indemnified by the company against all costs and expenses
reasonably incurred by them in connection with any action, suit or proceeding
to which they or any of them may be party by reason of any action taken or
failure to act under or in connection with the Plan or any ISO granted
thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected
by the Company) or paid by them in satisfaction of a judgment in any such
action, suit or proceeding, except a judgment based upon a finding of bad
faith; provided that upon the institution of any such action, suite or
proceeding a Committee member shall, in writing, give the Company notice
thereof and an opportunity, at its own expense, to handle and defend the same
before such Committee member undertakes to handle and defend it on his own
behalf.
6. Notwithstanding anything to the contrary in the Plan, if the
Committee finds by a majority vote, after full consideration of the facts
presented on behalf of both the Company and the Optionee, that the Optionee
has been engaged in fraud, embezzlement, theft, commission of a felony or
proven dishonesty in the course of his employment by the company or any
subsidiary corporation which damaged the company or any subsidiary
corporation, or for disclosing trade secrets of the Company or any subsidiary
corporation, the Optionee shall forfeit all unexercised ISOs and all
exercised ISOs under which the Company has not yet delivered the certificates
and which have been earlier granted the Optionee by the Committee, The
decision of the Committee as to the cause of an Optionee's discharge and the
damage done to the Company shall be final.
ARTICLE XII
Effective Dates
This Plan shall become effective upon approval of the Shareholders and the
Board of Directors but in no event earlier than January 1, 1987. No stock
option may be granted before January 1, 1987; provided, however, that the
Plan and all outstanding Incentive Stock Options shall remain in effect until
such ISO's have expired or until such options are canceled.
<PAGE>14
ARTICLE XIII
WRITTEN AGREEMENT
Each ISO granted hereunder shall be embodied in a written ISO Agreement which
shall be subject to the terms and conditions prescribed above and shall be
signed by the Optionee and by any officer of the Company, for and in the name
and on behalf of the Company. Such an ISO Agreement shall contain such other
provisions as the Committee, in its discretion shall deem advisable.
/s/ Steven H. Walker
- -------------------------------------
Steven H. Walker
President--Chairman
July 22, 1988
<PAGE>15
Attachment B
(Suggested form of letter to be used for notification of election to
exercise. Please do not use this page, but follow this form in a separately
typed letter).
Date:
-------------------
Treasurer,
Applied Genetic
Ventures, Inc.
Dear Sir:
In accordance with paragraph 2 of the Stock Option Agreement
evidencing the Option granted to me on under the Applied
Genetic Ventures Inc. Incentive Stock Option Plan, I hereby elect to
exercise this Option to the extend of Common Shares.
Enclosed is (i) Certificate(s) No.(s) representing fully-paid
Common Shares of Applied Genetic Ventures, Inc. endorsed to the Company with
signature guaranteed, and/or a certified check payable to the order of
"Applied Genetic Ventures, Inc." in the amount of $ as the
balance of the purchase price of $ for the Shares which I have
elected to purchase and (ii) the original Incentive Stock Option Agreement
for endorsement by the Company as to exercise on Schedule I thereof. I
acknowledge that the Common Shares (if any) submitted as part payment for the
exercise price due hereunder will be valued by the Company at their Fair
market Value (as defined in the Plan) on the date this Option exercise is
effected by the company. In the event I hereafter sell any Common Shares
issued pursuant to this option exercise within one year from the date of
exercise or within two years after the Date of Grant of this Option, I agree
to notify the Company promptly of the amount of taxable compensation realized
by me by reason of such sale for Federal income tax purposes.
When the certificate for Common Shares which I have elected to purchase has
been issued, please deliver it to me, along with my endorsed Incentive Stock
Option Agreement in the event there remains an unexercised balance of Shares
under the Option, at the following address:
- ----------------------------------
- ----------------------------------
Address
Very Truly Yours,
- ----------------------------------
Signature of Optionee
- ----------------------------------
Print Name
