U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 POS
Amendment #1
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED
GENEMAX CORP
_________________________________________________________________
(Exact name of small business issuer as specified in its charter)
NEVADA 88-0277072
_______________________________ ___________________
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
435 Martin Street, Suite 2000
Blaine, Washington 98230
________________________________________
(Address of Principal Executive Offices)
N/A
_________________________________________
(Former name, address and fiscal year, if
changed since last report)
Stock Option Plan for GeneMax Corp.
___________________________________
(Full title of the plan)
Diane D. Dalmy
Attorney at Law
8965 W. Cornell Place
Lakewood, Colorado 80227
_______________________________________
(Name and address of agent for service)
303.985.9324
_______________________________________
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
Securities Amount offering aggregate Amount of
To be to be price offering registration
Registered Registered per share price fee
________________________________________________________________________________
(1) (2)
Common Stock 1,825,000 $0.50 $912,500 $73.82
425,000 $1.00 $425,000 $34.38
Total 2,250,000 $1,337,500 $108.20
________________________________________________________________________________
(1)
Estimated solely for the purpose of computing the registration fee pursuant to
Rule 457(c) and (h) under the Securities Act of 1933, as amended. The Proposed
Maximum Offering Price Per Share was determined by the Board of Directors and
set contractually. As of the date of this Registration Statement, 2,250,000
Stock Options as registered hereunder have been issued.
(2)
This Registration Statement relates to such indeterminate number of additional
shares of Common Stock of GeneMax Corp. (the "Company") as may be issuable as a
result of stock splits, stock dividends or similar transactions.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed with or furnished to the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(i) the latest annual report of the Company filed on Form 10-KSB pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(ii) all other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report on Form 10-K referred to in (a) above.
(iii) the registration statement of the Company filed on Form 10-SB pursuant to
Section 12(g) of the Exchange Act.
(iv) The description of securities which is contained in the registration
statement on Form 10-SB filed by the Company pursuant to Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which either indicates that all securities offered have been sold or
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 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 prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or 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
prospectus.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the securities being registered will be passed upon by Diane D.
Dalmy, Esq., General Counsel to the Company, 8965 W. Cornell Place, Lakewood,
Colorado 80227.
None of the experts named in the Registration Statement as having prepared or
certified a report or counsel for the Company named in the Registration
Statement as having given an opinion upon the validity of the securities being
registered or upon other legal matters in connection with the registration of
offering of such securities have or will receive in connection with the offering
a substantial interest, direct or indirect, in the Company or its subsidiary, if
any, nor was connected with the Company or its subsidiary, if any, as a
promoter, managing underwriter, voting trustee, director, officer or employee.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 78.7502 of the Nevada Revised Statutes contains provisions for
indemnification of the officers and directors of the Company. Nevada law
provides for indemnification (which may eliminate any personal liability of a
director to the Company or its shareholders for monetary damages for gross
negligence or lack of care in carrying out the director's fiduciary duties) if a
director or officer acts in good faith in a manner reasonably believed to be in,
or not opposed to, the best interests of the Company. A director or officer may
be indemnified as to any matter in which he successfully defends himself.
The officers and directors of the Company are accountable to the shareholders of
the Company as fiduciaries, which means such officers and directors are required
to exercise good faith and integrity in handling the Company's affairs.
A shareholder may be able to institute legal action on behalf of himself and all
other similarly situated shareholders to recover damages where the Company has
failed or refused to observe the law. Shareholders may, subject to applicable
rules of civil procedure, be able to bring a class action or derivative suit to
enforce their rights, including rights under certain federal and state
securities laws and regulations. Shareholders who have suffered losses in
connection with the purchase or sale of their interest in the Company due to a
breach of a fiduciary duty by an officer or director of the Company in
connection with such sale or purchase including, but not limited to, the
misapplication by any such officer or director of the proceeds from the sale of
any securities, may be able to recover such losses from the Company.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the 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 Company of expenses incurred or paid by a director, officer
or controlling person of the Company in the successful defense or any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company 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.
The Company has no agreements with any of its directors or executive officers
providing for indemnification of any such persons with respect to liability
arising out of their capacity or status as officers and directors.
At present, there is no pending litigation or proceeding involving a director or
executive officers of the Company as to which indemnification is being sought.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
In the event certain Stock Options issued under the Stock Option Plan are not
registered pursuant to this Registration Statement, the shares of Common Stock
to be issued pursuant to an exercise of such Stock Option shall be issued in
reliance upon the exemption from the registration requirements of the Securities
Act of 1933, as amended, contained in Section 4(2) thereof, covering
transactions not involving any public offering or not involving any "offer" or
"sale".
In such event, each optionee, as a condition of exercise, shall represent,
warrant and agree in a form of written certificate approved by the Company that
(i) all shares of Common Stock are being acquired solely for his own account and
not on behalf of any other person or entity; (ii) no shares of Common Stock will
be sold or otherwise distributed in violation of the Securities Act of 1933, as
amended, or any other applicable federal or state securities laws; (iii) if he
is subject to reporting requirements under Section 16(a) of the Securities
Exchange Act of 1934, as amended, he will (a) furnish the Company with a copy of
each Form 4 filed by him and (b) timely file all reports required under the
federal securities laws; and (iv) he will report all sales of shares of Common
Stock to the Company in writing.
ITEM 8. EXHIBITS
The following documents are filed as exhibits to this Registration Statement:
5.1 Opinion of Diane D. Dalmy, as counsel to the Company, regarding the
legality of the securities being registered.
23.1 Consent of Diane D. Dalmy, as counsel to the Company, included in the
Opinion as exhibit 5.1.
23.2 Consent of LaBonte & Co. as independent public accountants.
99.1 Stock Option Plan.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes to deliver or cause to be delivered
with the prospectus to each employee to whom the prospectus is sent or given a
copy of the registrant's annual report to stockholders for its last fiscal year,
unless such employee otherwise has received a copy of such report, in which case
the registrant shall state in the prospectus that it will promptly furnish,
without charge, a copy of such report on written request of the employee.
The undersigned registrant hereby undertakes to transmit or cause to be
transmitted to all employees participating in the plan who do not otherwise
receive such material as stockholders of the registrant, at the time and in the
manner such material is sent to its stockholders, copies of all reports, proxy
statements and other communications distributed to its stockholders generally.
The undersigned registrant hereby undertakes (i) to file, during any period in
which offers or sales are being made, a post-effective amendment to this
Registration Statement, if applicable, 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; (ii) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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; and (iii) to remove from registration by
means of a 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 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 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 or 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Blaine, State of Washington, on January 20, 2004.
GENEMAX CORP.
BY: /s/ RONALD HANDFORD
_________________________________________
Ronald Handford
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
amendment no. 1 to the registration statement has been signed by the following
person in the capacity and on the date indicated.
SIGNATURE TITLE DATE
_________________________ ________ ________________
/s/ RONALD L. HANDFORD DIRECTOR APRIL 20, 2004
_________________________
Ronald L. Handford
/s/ DR. WILFRED JEFFERIES DIRECTOR APRIL 20, 2004
_________________________
Dr. Wilfred Jefferies
/s/ DR. KARL E. HELLSTROM DIRECTOR APRIL 20, 2004
_________________________
Dr. Karl E. Hellstrom
/s/ GRANT R. ATKINS DIRECTOR APRIL 20, 2004
_________________________
Grant R. Atkins
EXHIBIT 5.1
DIANE D. DALMY
ATTORNEY AT LAW
8965 W. CORNELL PLACE
LAKEWOOD, COLORADO 80227
303.985.9324
303.988.6954 (facsimile)
email: ddalmy@earthlink.net
January 26, 2004
GeneMax Corp.
435 Martin Street, Suite 2000
Blaine, Washington 98230
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
Please be advised that I have been engaged as counsel to GeneMax Corp., a Nevada
corporation (the "Company") in connection with preparation of a Registration
Statement on Form S-8 filed with the Securities and Exchange Commission (the
"Registration Statement"). The Registration Statement pertains to the
registration of 2,250,000 shares of the Company's Common Stock, par value
$0.001, for the issuance pursuant to the terms and provisions of the Stock
Option Plan of the Company (the "Stock Option Plan").
In connection with this opinion, I have examined originals or copies of such
documents, corporate records and other instruments as I have deemed necessary or
appropriate for the purpose of the opinion hereinafter expressed including, but
not limited to, the following: (i) the Registration Statement on Form S-8; (ii)
the Articles of Incorporation and the Bylaws of the Company, as amended and
currently in effect; (iii) the Stock Option Plan and associated documents; (iv)
certain resolutions of the Board of Directors of the Company relating to the
adoption of the Stock Option Plan and other transactions contemplated by the
Registration Statement; and (v) such other documents as I have deemed necessary
of appropriate as a basis for this opinion. I have assumed, without independent
verification, the genuineness of signatures, the authenticity of documents and
the conformity with originals of copies.
Based upon the foregoing, I am of the opinion that the shares of Common Stock,
when issued and sold in accordance with the terms of the Stock Option Plan, will
be validly issued, fully paid and non-assessable.
GeneMax Corp.
Page Two
January 26, 2004
I am a member of the Bar of the State of Colorado and the opinions expressed
herein are limited to the corporate laws of Nevada pertaining to matters such as
the issuance of stock, but not including the "securities" or "blue sky" laws of
various states.
I hereby consent to the use of this opinion as an exhibit to the Registration
Statement. By giving the foregoing consent, I do not admit that I come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended.
Sincerely,
/s/ DIANE D. DALMY
__________________
Diane D. Dalmy
EXHIBIT 23.2
DALE MATHESON 610 - 938 HOWE STREET
CARR-HILTON LABONTE VANCOUVER, BC CANADA
_______________________________________ V6Z 1N9
TELEPHONE (604) 682-2778
C H A R T E R E D A C C O U N T A N T S FACSIMILE (604) 689-2778
_______________________________________ EMAIL: INFO@LABONTECO.COM
January 26, 2004
U.S. SECURITIES AND EXCHANGE COMMISSION
Division of Corporation Finance
450 Fifth St. N.W.
Washington DC 20549
RE: GENEMAX CORP. - FORM S-8
________________________________________________________________________________
Dear Sirs:
As chartered accountants, we hereby consent to the incorporation by reference in
this Form S-8 Registration Statement dated January 26, 2004 of the following
report contained in the Company's December 31, 2002 Annual Report filed on Form
10-KSB dated April 14, 2003.
o Our report to the Board of Directors and Stockholders of GeneMax Corp.
dated February 25, 2003 on the consolidated balance sheets of the Company
as at December 31, 2002 and 2001 and the consolidated statements of
operations, changes in stockholders' equity and cash flows for the years
ended December 31, 2002 and 2001, and the period from July 27, 1999
(inception) to December 31, 2002.
Yours truly,
"DALE MATHESON CARR-HILTON LABONTE"
DALE MATHESON CARR-HILTON LABONTE
(FORMERLY LABONTE & CO.)
CHARTERED ACCOUNTANTS
VANCOUVER, BRITISH COLUMBIA
EXHIBIT 99.1
GENEMAX CORP.
STOCK OPTION PLAN
EFFECTIVE SEPTEMBER 2, 2003
This stock option plan (the "PLAN") is adopted in
consideration of services rendered and to be rendered by key personnel to
GeneMax Corp., its subsidiaries and affiliates.
1. DEFINITIONS.
The terms used in this Plan shall, unless otherwise indicated
or required by the particular context, have the following meanings:
BOARD: The Board of Directors of GeneMax Corp.
COMMON STOCK: The U.S. $0.001 par value common stock of
GeneMax Corp.
COMPANY: GeneMax Corp., a corporation incorporated
under the laws of the State of Nevada,
U.S.A., and any successors in interest by
merger, operation of law, assignment or
purchase of all or substantially all of the
property, assets or business of the Company.
DATE OF GRANT: The date on which an Option (see hereinbe-
low) is granted under the Plan.
FAIR MARKET VALUE: The Fair Market Value of the Option Shares.
Such Fair Market Value as of any date shall
be reasonably determined by the Board.
INCENTIVE STOCK
OPTION: An Option as described in Section 9 herein-
below intended to qualify under section 422
of the United States INTERNAL REVENUE CODE
OF 1986, as amended.
KEY PERSON: A person designated by the Board upon
whose judgment, initiative and efforts the
Company or a Related Company may rely, who
shall include any Director, Officer,
employee or consultant of the Company. A Key
Person may include a corporation that is
wholly-owned and controlled by a Key Person
who is eligible for an Option grant.
OPTION: The rights granted to a Key Person to
purchase Common Stock pursuant to the terms
and conditions of an Option Agreement (see
hereinbelow).
OPTION AGREEMENT: The written agreement (and any amendment or
supplement thereto) between the Company and
a Key Person designating the terms and
conditions of an Option.
OPTION SHARES: The shares of Common Stock underlying an
Option granted to a Key Person.
OPTIONEE: A Key Person who has been granted an Option.
RELATED COMPANY: Any subsidiary or affiliate of the Company
or of any subsidiary of the Company. The
determination of whether a corporation is a
Related Company shall be made without regard
to whether the entity or the relationship
between the entity and the Company now
exists or comes into existence hereafter.
2. PURPOSE AND SCOPE.
(a) The purpose of the Plan is to advance the interests of the
Company and its stockholders by affording Key Persons, upon
whose judgment, initiative and efforts the Company may rely
for the successful conduct of their businesses an opportunity
for investment in the Company and the incentive advantages
inherent in stock ownership in the Company.
(b) This Plan authorizes the Board to grant Options to purchase
shares of Common Stock to Key Persons selected by the Board
while considering criteria such as employment position or
other relationship with the Company, duties and
responsibilities, ability, productivity, length of service or
association, morale, interest in the Company, recommendations
by supervisors and other matters.
3. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by the Board. The Board shall
have the authority granted to it under this section and under each other section
of the Plan.
-2-
In accordance with and subject to the provisions of the Plan,
the Board is hereby authorized to provide for the granting, vesting, exercise
and method of exercise of any Options all on such terms (which may vary between
Options and Optionees granted from time to time) as the Board shall determine.
In addition, and without limiting the generality of the foregoing, the Board
shall select the Optionees and shall determine: (i) the number of shares of
Common Stock to be subject to each Option, however, in no event may the maximum
number of shares reserved for any one individual exceed 25% of the issued and
outstanding share capital of the Company; (ii) the time at which each Option is
to be granted; (iii) the purchase price for the Option Shares; (iv) the Option
period; and (v) the manner in which the Option becomes exercisable or
terminated. In addition, the Board shall fix such other terms of each Option as
it may deem necessary or desirable. The Board may determine the form of Option
Agreement to evidence each Option.
The Board from time to time may adopt such rules and
regulations for carrying out the purposes of the Plan as it may deem proper and
in the best interests of the Company subject to the rules and policies of any
exchange or over-the-counter market which is applicable to the Company.
The Board may from time to time make such changes in and
additions to the Plan as it may deem proper, subject to the prior approval of
any exchange or over-the-counter market which is applicable to the Company, and
in the best interests of the Company; provided, however, that no such change or
addition shall impair any Option previously granted under the Plan. If the
shares are not listed on any exchange, then such approval is not necessary.
Each determination, interpretation or other action made or
taken by the Board shall be final, conclusive and binding on all persons,
including without limitation, the Company, the stockholders, directors, officers
and employees of the Company and the Related Companies, and the Optionees and
their respective successors in interest.
4. THE COMMON STOCK.
Save and except as may be determined by the Board at a duly
constituted meeting of the Board as set forth hereinbelow, the Board is
presently authorized to appropriate, grant Options, issue and sell for the
purposes of the Plan, a total number of shares of the Company's Common Stock not
to exceed 10,000,000, or the number and kind of shares of Common Stock or other
securities which in accordance with Section 10 shall be substituted for the
shares or into which such shares shall be adjusted. Save and except as may
otherwise be determined by the disinterested approval of the shareholders of the
Company at any duly called meeting of the shareholders of the Company, at any
duly constituted Board meeting the Board may determine that the total number of
shares of the Company's Common Stock which may be reserved for issuance for
Options granted and to be granted under this Plan, from time to time, may be to
the maximum extent of up to 100% of the Company's issued and outstanding Common
Stock as at the date of any such meeting of the Board. In this regard, and
subject to the prior disinterested approval of the shareholders of the Company
at any duly called meeting of the shareholders of the Company, the total number
of shares of the Company's Common Stock which may be reserved for issuance for
-3-
Options granted and to be granted under this Plan, from time to time, may be
increased to greater than 100% of the Company's issued and outstanding Common
Stock as at the date of notice of any such meeting of the shareholders of the
Company whereat such disinterested shareholders' approval is sought and obtained
by the Company. All or any unissued shares subject to an Option that for any
reason expires or otherwise terminates may again be made subject to Options
under the Plan.
5. ELIGIBILITY.
Options will be granted only to Key Persons. Key Persons may
hold more than one Option under the Plan and may hold Options under the Plan and
options granted pursuant to other plans or otherwise.
6. OPTION PRICE AND NUMBER OF OPTION SHARES.
The Board shall, at the time an Option is granted under this
Plan, fix and determine the exercise price at which Option Shares may be
acquired upon the exercise of such Option; provided, however, that any such
exercise price shall not be less than that, from time to time, permitted under
the rules and policies of any exchange or over-the-counter market which is
applicable to the Company.
The number of Option Shares that may be acquired under an
Option granted to an Optionee under this Plan shall be determined by the Board
as at the time the Option is granted; provided, however, that the aggregate
number of Option Shares reserved for issuance to any one Optionee under this
Plan, or any other plan of the Company, shall not exceed 25% of the total number
of issued and outstanding Common Stock of the Company.
7. DURATION, VESTING AND EXERCISE OF OPTIONS.
(a) The option period shall commence on the Date of Grant and
shall be up to 10 years in length subject to the limitations
in this Section 7 and the Option Agreement.
(b) During the lifetime of the Optionee the Option shall be
exercisable only by the Optionee. Subject to the limitations
in paragraph (a) hereinabove, any Option held by an Optionee
at the time of his death may be exercised by his estate within
one year of his death or such longer period as the Board may
determine.
(c) The Board may determine whether an Option shall be exercisable
at any time during the option period as provided in paragraph
(a) of this Section 7 or whether the Option shall be
exercisable in installments or by vesting only. If the Board
determines the latter it shall determine the number of
installments or vesting provisions and the percentage of the
Option exercisable at each installment or vesting date. In
addition, all such installments or vesting shall be
-4-
cumulative. In this regard the Company will be subject, at all
times, to any rules and policies of any exchange or
over-the-counter market which is applicable to the Company and
respecting any such required installment or vesting provisions
for certain or all Optionees.
(d) In the case of an Optionee who is a director or officer of
the Company or a Related Company, if, for any reason (other
than death or removal by the Company or a Related Company),
the Optionee ceases to serve in that position for either the
Company or a Related Company, any option held by the Optionee
at the time such position ceases or terminates may, at the
sole discretion of the Board, be exercised within up to 90
calendar days after the effective date that his position
ceases or terminates (subject to the limitations at paragraph
(a) hereinabove), but only to the extent that the option was
exercisable according to its terms on the date the Optionee's
position ceased or terminated. After such 90-day period any
unexercised portion of an Option shall expire.
(e) In the case of an Optionee who is an employee or consultant
of the Company or a Related Company, if, for any reason (other
than death or termination for cause by the Company or a
Related Company), the Optionee ceases to be employed by either
the Company or a Related Company, any option held by the
Optionee at the time his employment ceases or terminates may,
at the sole discretion of the Board, be exercised within up to
60 calendar days (or up to 30 calendar days where the Optionee
provided only investor relations services to the Company or a
Related Company) after the effective date that his employment
ceased or terminated (that being up to 60 calendar days (or up
to 30 calendar days) from the date that, having previously
provided to or received from the Company a notice of such
cessation or termination, as the case may be, the cessation or
termination becomes effective; and subject to the limitations
at paragraph (a) hereinabove), but only to the extent that the
option was exercisable according to its terms on the date the
Optionee's employment ceased or terminated. After such 60-day
(or 30-day) period any unexercised portion of an Option shall
expire.
(f) In the case of an Optionee who is an employee or consultant of
the Company or a Related Company, if the Optionee's employment
by the Company or a Related Company ceases due to the
Company's termination of such Optionee's employment for cause,
any unexercised portion of any Option held by the Optionee
shall immediately expire. For this purpose "cause" shall mean
conviction of a felony or continued failure, after notice, by
the Optionee to perform fully and adequately the Optionee's
duties.
(g) Neither the selection of any Key Person as an Optionee nor the
granting of an Option to any Optionee under this Plan shall
confer upon the Optionee any right to continue as a director,
officer, employee or consultant of the Company or a Related
Company, as the case may be, or be construed as a guarantee
that the Optionee will continue as a director, officer,
employee or consultant of the Company or a Related Company, as
the case may be.
(h) Each Option shall be exercised in whole or in part by
delivering to the office of the Treasurer of the Company
written notice of the number of shares with respect to which
-5-
the Option is to be exercised and by paying in full the
purchase price for the Option Shares purchased as set forth in
Section 8.
8. PAYMENT FOR OPTION SHARES.
The board of directors shall determine the acceptable form of
consideration for exercising an Option, including the method
of payment. Such consideration may consist entirely of: (i)
cash; (ii) check; (iii) promissory note; (iv) other shares
which (A) in the case of shares acquired upon exercise of an
option, have been owned by the optionee for more than six
months on the date of surrender, and (B) have a fair market
value on the date of surrender equal to the aggregate exercise
price of the shares as to which said option shall be
exercised; (v) consideration received by the Company under a
cashless exercise program implemented by the Company in
connection with the Plan; (vi) a reduction in the amount of
any Company liability to the optionee; (vii) such other
consideration and method of payment for the issuance of shares
to the extent permitted by applicable laws; or (viii) any
combination of the foregoing methods of payment.
Notwithstanding the foregoing, any method of payment other
than in cash may be used only with the consent of the board of
directors or if and to the extent so provided in an Agreement.
9. INCENTIVE STOCK OPTIONS.
(a) The Board may, from time to time, and subject to the
provisions of this Plan and such other terms and conditions as
the Board may prescribe, grant to any Key Person who is an
employee eligible to receive Options one or more Incentive
Stock Options to purchase the number of shares of Common Stock
allotted by the Board.
(b) The Option price per share of Common Stock deliverable upon
the exercise of an Incentive Stock Option shall be no less
than the Fair Market Value of a share of Common Stock on the
Date of Grant of the Incentive Stock Option.
(c) The Option term of each Incentive Stock Option shall be
determined by the Board and shall be set forth in the Option
Agreement, provided that the Option term shall commence no
sooner than from the Date of Grant and shall terminate no
later than 10 years from the Date of Grant and shall be
subject to possible early termination as set forth in Section
7 hereinabove.
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10. CHANGES IN COMMON STOCK, ADJUSTMENTS, ETC.
In the event that each of the outstanding shares of Common
Stock (other than shares held by dissenting stockholders which are not changed
or exchanged) should be changed into, or exchanged for, a different number or
kind of shares of stock or other securities of the Company, or, if further
changes or exchanges of any stock or other securities into which the Common
Stock shall have been changed, or for which it shall have been exchanged, shall
be made (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividends, reclassification, split-up, combination of
shares or otherwise), then there shall be substituted for each share of Common
Stock that is subject to the Plan, the number and kind of shares of stock or
other securities into which each outstanding share of Common Stock (other than
shares held by dissenting stockholders which are not changed or exchanged) shall
be so changed or for which each outstanding share of Common Stock (other than
shares held by dissenting stockholders) shall be so changed or for which each
such share shall be exchanged. Any securities so substituted shall be subject to
similar successive adjustments.
In the event of any such changes or exchanges, the Board
shall determine whether, in order
to prevent dilution or enlargement of rights, an adjustment should be made in
the number, kind, or option price of the shares or other securities then subject
to an Option or Options granted pursuant to the Plan and the Board shall make
any such adjustment, and such adjustments shall be made and shall be effective
and binding for all purposes of the Plan.
11. RELATIONSHIP OF EMPLOYMENT.
Nothing contained in the Plan, or in any Option granted
pursuant to the Plan, shall confer upon any Optionee any right with respect to
employment by the Company, or interfere in any way with the right of the Company
to terminate the Optionee's employment or services at any time.
12. NON-TRANSFERABILITY OF OPTION.
Options granted under the Plan may be transferable by the
Optionee.
13. RIGHTS AS A STOCKHOLDER.
No person shall have any rights as a stockholder with respect
to any share covered by an Option until that person shall become the holder of
record of such share and, except as provided in Section 10, no adjustments shall
be made for dividends or other distributions or other rights as to which there
is an earlier record date.
14. SECURITIES LAWS REQUIREMENTS.
No Option Shares shall be issued unless and until, in the
opinion of the Company, any applicable registration requirements of the United
States SECURITIES ACT OF 1933, as amended (the "U.S. ACT"), any applicable
listing requirements of any securities exchange on which stock of the same class
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is then listed, and any other requirements of law or of any regulatory bodies
having jurisdiction over such issuance and delivery, have been fully complied
with. Each Option and each Option Share certificate may be imprinted with
legends reflecting federal and state securities laws restrictions and
conditions, and the Company may comply therewith and issue "stop transfer"
instructions to its transfer agent and registrar in good faith without
liability.
In addition, the Company may not, except as otherwise directed
by counsel to the Company, register any Option Shares for resale under the U.S.
Act or under any other applicable securities legislation when the registration
of any such Option Shares may be contrary or inconsistent with the intent of any
provisions, rules or policies promulgated under the U.S. Act or any other
securities legislation applicable to any such Option Shares.
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15. DISPOSITION OF OPTION SHARES.
Each Optionee, as a condition of exercise, shall represent,
warrant and agree, in a form of written certificate approved by the Company, as
follows: (i) that all Option Shares are being acquired solely for his own
account and not on behalf of any other person or entity; (ii) that no Option
Shares will be sold or otherwise distributed in violation of the U.S. Act or any
other applicable federal or state securities laws; (iii) that if he is subject
to reporting requirements under Section 16(a) of the United States SECURITIES
EXCHANGE ACT OF 1934, as amended, he will (a) furnish the Company with a copy of
each Form 4 filed by him and (b) timely file all reports required under the
federal securities laws; and (iv) that he will report all sales of Option Shares
to the Company in writing on a form prescribed by the Company.
16. EFFECTIVE DATE OF PLAN; TERMINATION DATE OF PLAN.
The Plan shall be deemed effective as of September 2,
2003. The Plan shall terminate at midnight on September 2, 2013 except as to
Options previously granted and outstanding under the Plan at the time. No
Options shall be granted after the date on which the Plan terminates. The Plan
may be abandoned or terminated at any earlier time by the Board, except with
respect to any Options then outstanding under the Plan.
17. OTHER PROVISIONS.
The following provisions are also in effect under the Plan:
(a) the use of a masculine gender in the Plan shall also include
within its meaning the feminine, and the singular may include
the plural, and the plural may include the singular, unless
the context clearly indicates to the contrary;
(b) any expenses of administering the Plan shall be borne by the
Company;
(c) this Plan shall be construed to be in addition to any and all
other compensation plans or programs. The adoption of the Plan
by the Board shall not be construed as creating any
limitations on the power or authority of the Board to adopt
such other additional incentive or other compensation
arrangements as the Board may deem necessary or desirable; and
(d) the validity, construction, interpretation, administration and
effect of the Plan and of its rules and regulations, and the
rights of any and all personnel having or claiming to have an
interest therein or thereunder shall be governed by and
determined exclusively and solely in accordance with the laws
of the State of Nevada, U.S.A.
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This Plan is dated and made effective on this 2nd day of
September, 2003.
BY ORDER OF THE BOARD OF DIRECTORS OF
GENEMAX CORP.
Per:
RONALD L. HANDFORD
President and a Director
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