EXHIBIT INDEX
Exhibit
Number Description of Exhibits
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4.1 1992 Stock Option Plan, as amended*
5 Opinion of Counsel.*
23.1 Consent of Deloitte & Touche LLP*
23.2 Consent of Counsel is contained in
the Opinion of Counsel, filed as a part
hereof as Exhibit 5.*
25 Power of Attorney (See Page II-3)
- -------------------------
* Filed herewith.
Exhibit 4.1
BIOTIME, INC.
1992 STOCK OPTION PLAN
(as amended)
ARTICLE I
GENERAL
1. PURPOSE
This BioTime, Inc. 1992 Stock Option Plan (the "Plan") is intended to
increase incentive and to encourage stock ownership on the part of selected key
employees, consultants, professionals, and members of the scientific advisory
board of BioTime, Inc. (the "Company"), and other individuals whose efforts may
aid the Company, other corporations which may become subsidiaries or a parent of
the Company. Except where the context obviously requires otherwise, as used in
this Plan, the term "Company" includes BioTime, Inc. and any corporation that is
or becomes a parent or subsidiary, as defined in Section 425 of the Internal
Revenue Code of 1986, as amended (the "Code"), of BioTime, Inc. It is also the
purpose of the Plan to provide such employees, consultants, and other
individuals with a proprietary interest, or to increase their proprietary
interest, in the Company and to encourage them to remain in the employ of the
Company or to continue to provide consulting, professional, or advisory services
to the Company. It is intended that certain options granted pursuant to the Plan
shall constitute incentive stock options within the meaning of Section 422(b) of
the Code and that certain other options granted pursuant to the Plan shall not
constitute incentive stock options ("nonqualified stock options").
2. ADMINISTRATION
The Plan shall be administered by the Company's Board of Directors (the
"Board") or, in the discretion of the Board, by a committee (the "Committee") of
not less than two members of the Board; provided, that options may be granted to
officers and directors of the corporation only by the Board or by a Committee
all of the members of which are "Non-Employee Directors" as such term is defined
in paragraph (b)(3)(i) of Rule 16b-3 promulgated under the Securities Exchange
Act of 1934. No member of the Committee shall grant to himself or herself any
options under the Plan or options, stock or stock appreciation rights under any
other stock option or stock bonus plan of the Company or any of its affiliates
while serving on the Committee. The Committee's interpretation and construction
of any term or provision of the Plan or of any option granted under the Plan
shall be final, unless otherwise determined by the Board, in which event such
determination by the Board shall be final. The Board or the Committee may from
time to time adopt rules and regulations for carrying out this Plan and, subject
to the provisions of this Plan, may prescribe the form or forms of the
instruments evidencing any option granted under this
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Plan. No member of the Board or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any option granted
under the Plan.
Subject to the provisions of this Plan, the Board or the Committee, by
delegation from the Board, shall have full and final authority in its discretion
to select the eligible persons to whom options are granted, to grant such
options and to determine the number of shares to be subject thereto, the
exercise prices, the terms of exercise, expiration dates and other pertinent
provisions of such options. The Board may delegate to the Committee the power to
make all determinations with respect to the Plan, or may delegate to the
Committee only certain aspects of Plan administration, such as selecting
officers and directors for participation and decisions concerning the timing,
pricing, and amount of a grant or award of options.
3. ELIGIBILITY.
Subject to Section 2 of this Article I, the persons who shall be
eligible to receive options under the Plan shall be such officers and key
employees (including directors who are also salaried employees of the Company)
of the Company as the Board (or the Committee if designated by the Board) shall
select. In addition, directors, consultants, professionals (such as accountants
and lawyers), members of the Company's scientific advisory board, and
independent contractors of the Company who are not also salaried employees of
the Company shall be eligible to receive nonqualified stock options (but such
persons shall not be eligible to receive incentive stock options). The terms
"officers and key employees" as used herein shall mean such key employees as may
be determined by the Board (or the Committee if designated by the Board) in its
sole discretion.
4. SHARES OF STOCK SUBJECT TO THE PLAN.
The shares that may be issued under the Plan shall be authorized and
unissued or reacquired Common Shares of the Company (the "Common Shares"). The
aggregate number of shares which may be issued under the Plan shall not exceed
600,000 Common Shares, unless an adjustment is required in accordance with
Article III.
5. AMENDMENT OF THE PLAN.
The Board may, insofar as permitted by law, from time to time, suspend
or discontinue the Plan or revise or amend it in any respect whatsoever, except
that no such amendment shall alter or impair or diminish any rights or
obligations under any option theretofore granted under the Plan, without the
consent of the person to whom such option was granted, except as permitted under
Section 8 of this Article I. In addition, without further shareholder approval,
no such amendment shall increase the number of shares subject to the Plan
(except as authorized by Article III), change the designation in Section 3 of
Article I of the class of persons eligible to receive options under the Plan,
extend the term during which options may be exercised, or extend the final date
upon which options under the Plan may be granted.
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6. APPROVAL OF SHAREHOLDERS.
All options granted under the Plan before the Plan is approved by
affirmative vote of the holders of a majority of the Common Shares present and
eligible to vote at the next meeting of shareholders of the Company, or any
adjournment thereof, shall be subject to such approval. No option granted
hereunder may become exercisable unless and until such approval is obtained.
7. TERM OF PLAN.
Options may be granted under the Plan until June 30, 2002, the date of
termination of the Plan. Notwithstanding the foregoing, each option granted
under the Plan shall remain in effect until such option has been exercised or
terminated in accordance with its terms and the terms of the Plan.
8. LISTING, REGISTRATION, QUALIFICATION, AND CONSENTS.
All options granted under the Plan shall be subject to the requirement
that, if at any time the Board or the Committee shall determine, in its
discretion, that the listing, registration or qualification of the shares
subject to options granted under the Plan, upon any securities exchange or under
any state or federal law, or the consent or approval of any government
regulatory body, is necessary or desirable as a condition of, or in connection
with, the granting of such option or the issuance, if any, or purchase of shares
in connection therewith, such option may not be exercised in whole or in part
unless such listing, registration, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to the Board or
the Committee. Furthermore, if the Board or the Committee determines that any
amendment to any option (including, but not limited to, an increase in the
exercise price) is necessary or desirable in connection with the registration or
qualification of any of its shares under any state securities or "blue sky" law,
then the Board or the Committee shall have the unilateral right to make such
changes without the consent of the optionee.
9. NONASSIGNABILITY.
No option shall be assignable or transferable by the grantee except by
will or by the laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act or the rules thereunder; provided, that, to
facilitate the optionee's financing of the exercise of an option, the Board or
Committee may permit the assignment of an option to a broker-dealer that is a
member of the National Association of Securities Dealers if such broker-dealer
acquires such option for the purpose of immediate exercise and sale of the
underlying Common Shares. During the lifetime of the optionee, the option shall
be exercisable only by the optionee, and no other person shall acquire any
rights therein, except as permitted by the preceding sentence. The designation
of a beneficiary by an optionee does not constitute transfer.
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10. WITHHOLDING TAXES.
Whenever Common Shares are to be issued upon the exercise of any option
under the Plan, the Company shall have the right to require the optionee to
remit to the Company an amount sufficient to satisfy federal, state, and local
withholding tax requirements prior to the delivery of any certificate or
certificates for such shares.
11. DEFINITION OF "FAIR MARKET VALUE".
For the purposes of this Plan, the term "fair market value," when used
in reference to the date of grant of an option or the date of surrender of
Common Shares in payment for the purchase of shares pursuant to the exercise of
any option, as the case may be, shall mean the amount determined by the Board or
the Committee as follows:
(a) If the shares are listed or have unlisted trading privileges on a
national securities exchange, the shares shall be valued at their last sale
price on the principal national securities exchange (measured by volume of
transactions in such shares) on which such securities shall have traded, or, if
available, such sales price as reported on the composite tape, on the last
trading day immediately preceding the date of grant or surrender.
(b) If the shares are included in the National Market System of the
Nasdaq Stock Market, the shares shall be valued at their last sale price on the
last trading day immediately preceding the date of grant or surrender as
reported in the price quotations for the National Market System in The Wall
Street Journal, if such a trade occurs.
(c) If the shares are described in either subparagraph (a) or (b) above
but were not traded on the last trading day immediately preceding the date of
grant or surrender, or if prices of the shares are quoted in the Nasdaq Stock
Market (but not the National Market System), or if prices of the shares are
published by the National Quotation Bureau, Inc., then the shares shall be
valued at the last sale price on the last trading day immediately preceding the
date of grant or surrender as reported in The Wall Street Journal, if such a
trade occurs; or if no such trade occurs, the average of the last bid and last
asked prices reported in the Wall Street Journal or published by the National
Quotation Bureau within the 30 days prior to the date of grant or surrender.
(d) If the shares are not described in and valued under subparagraphs
(a), (b) or (c) above, then the shares shall be valued by the Board or the
Committee, in its sole judgement, in good faith.
(e) If the shares are listed or traded on a national securities
exchange and are included in the Nasdaq Stock Market (whether or not included in
the National Market System), the Board or the Committee may, in its sole
judgment and good faith, determine to value the shares under subparagraphs (a),
(b) or (c).
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ARTICLE II
STOCK OPTIONS
1. AWARD OF STOCK OPTIONS.
Awards of stock options may be made under the Plan under all the terms
and conditions contained herein. However, in the case of incentive stock
options, the aggregate fair market value (determined as of the date of grant of
the option) of the Common Shares with respect to which incentive stock options
are exercisable for the first time by such officer or key employee during any
calendar year (under all incentive stock option plans of the Company) shall not
exceed $100,000. The date on which any option is granted shall be the date of
the Board's or the Committee's authorization of such grant or such later date as
may be determined by the Board or the Committee at the time such grant is
authorized.
2. TERM OF OPTIONS AND EFFECT OF TERMINATION.
Notwithstanding any other provision of the Plan, an option shall not be
exercisable after the expiration of ten (10) years from the date of its grant.
In addition, notwithstanding any other provision of the Plan, no incentive stock
option granted under the Plan to a person who, at the time such option is
granted, owns stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or of any parent or subsidiary
corporation, shall be exercisable after the expiration of five (5) years from
the date of its grant.
In the event that any outstanding option under the Plan expires by
reason of lapse of time or otherwise is terminated or canceled for any reason,
then the Common Shares subject to any such option which have not been issued
pursuant to the exercise of the option shall again become available in the pool
of Common Shares for which options may be granted under the Plan.
3. CANCELLATION OF AND SUBSTITUTION FOR OPTIONS.
The Company shall have the right to cancel any option at any time
before it otherwise would have expired by its terms and to grant to the same
optionee in substitution therefor a new stock option stating an option price
which is lower (but not higher) than the option price stated in the canceled
option. Any such substituted option shall contain all the terms and conditions
of the canceled option provided, however, that notwithstanding Section 2 of
Article II, such substituted option shall not be exercisable after the
expiration of ten (10) years from the date of grant of the canceled option.
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4. TERMS AND CONDITIONS OF OPTIONS.
Options granted pursuant to the Plan shall be evidenced by agreements
in such form as the Board or the Committee shall from time to time determine,
which agreements shall comply with the following terms and conditions.
(A) Number of Shares and Type of Option
Each option agreement shall state the number of Common Shares
for which the option is exercisable and whether the option is intended to be an
incentive stock option or a nonqualified stock option.
(B) Option Price
Each option agreement shall state the exercise price per share
or the method by which such price shall be computed. The exercise price per
share shall be determined by the Board or the Committee at the date such option
is granted. In the case of a nonqualified option, the exercise price may be not
less than 85% of the fair market value of the Common Shares on the date such
option is granted. In the case of an incentive stock option, the exercise price
shall be not less than 100% of the fair market value of the Common Shares on the
date such option is granted. Notwithstanding the foregoing, the exercise price
per share of a option granted to a person who, on the date of such grant and in
accordance with Section 425(d) of the Code, owns stock possessing more than 10%
of the total combined voting power of all classes of stock of the Company or of
any parent or subsidiary corporation, shall be not less than 110% of the fair
market value of the Common Shares on the date that the option is granted.
(C) Medium and Time of Payment
The exercise price shall be payable upon the exercise of an
option in the lawful currency of the United States of America or, in the
discretion of the Board or the Committee, in Common Shares or in a combination
of such currency and such shares. Upon receipt of payment, the Company shall
deliver to the optionee (or person entitled to exercise the option) a
certificate or certificates for the Common Shares purchased through such
exercise.
(D) Exercise of Options
Each option shall state the time or times when it becomes
exercisable, which shall be determined by the Board or the Committee; provided,
that all options shall vest at a rate not less than 20% per year over 5 years
from the date of grant.
To the extent that an option has become vested (except as provided in
Article III), and subject to the foregoing restrictions, it may be exercised in
whole or in such lesser amount as may
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be authorized by the option agreement. If exercised in part, the unexercised
portion of an option shall continue to be held by the optionee and may
thereafter be exercised as herein provided.
(E) Termination of Employment Except By Disability or Death
In the event that an optionee who is an employee of the Company shall
cease to be employed by the Company for any reason other than his or her death
or disability, his or her option shall terminate on the date (3) months after
the date that he ceases to be an employee of the Company. The Committee or the
Board may waive the provisions of this Subsection 4(E) at the date of grant of
an option or at a later date.
(F) Disability of Optionee
If an optionee who is an employee of the Company shall cease
to be employed by the Company by reason of his or her becoming permanently and
totally disabled within the meaning of Section 22(e)(3) of the Code (as
determined by the Board or the Committee), such option shall terminate on the
date one (1) year after cessation of employment due to such disability. The
Committee or the Board may waive the provisions of this Subsection 4(F) at the
time of grant of an option or at a later date if the option is not an incentive
stock option.
(G) Death of Optionee and Transfer of Option
If an optionee should die while in the employ of the Company,
or within the three-month period after termination of his or her employment with
the Company during which he or she is permitted to exercise an option in
accordance with Subsection 4(F) of this Article II, such option shall terminate
on the date one (1) year after the optionee's death. During such one-year
period, such option may be exercised by the executors or administrators of the
optionee's estate or by any person or persons who shall have acquired the option
directly from the optionee by his or her will or the applicable law of descent
and distribution. During such one year period, such option may be exercised with
respect to the number of shares for which the deceased optionee would have been
entitled to exercise it at the time of his or her death. The Committee or the
Board may waive the provisions of this Subsection 4(G) at the date of grant of
an option or at a later date if the option is not an incentive stock option.
ARTICLE III
RECAPITALIZATIONS AND REORGANIZATIONS
The number of Common Shares covered by the Plan, and the number of
Common Shares and price per share of each outstanding option, shall be
proportionately adjusted for any increase or decrease in the number of issued
and outstanding Common Shares resulting from a subdivision or consolidation of
shares or the payment of a stock dividend, or any other increase or decrease
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in the number of issued and outstanding Common Shares effected without receipt
of consideration by the Company.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company as a result of which the
outstanding securities of the class then subject to options hereunder are
changed into or exchanged for cash or property or securities not of the
Company's issue, or upon a sale of substantially all the property of the Company
to, or the acquisition of stock representing more than eighty percent (80%) of
the voting power of the stock of the Company then outstanding by, another
corporation or person, the Plan shall terminate, and all options theretofore
granted hereunder shall terminate, unless provision can be made in writing in
connection with such transaction for the continuance of the Plan and/or for the
assumption of options theretofore granted, or the substitution for such options
of options covering the stock of a successor corporation, or a parent or a
subsidiary thereof, with appropriate adjustments as to the number and kind of
shares and prices, in which event the Plan and options theretofore granted shall
continue in the manner and under the terms so provided.
To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
The grant of an option pursuant to the Plan shall not affect in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes or its capital or business structure or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or any part of
its business or assets.
ARTICLE IV
MISCELLANEOUS PROVISIONS
1. RIGHTS AS A SHAREHOLDER.
An optionee or a transferee of an option shall have no rights as a
shareholder with respect to any Common Shares covered by an option until the
date of the receipt of payment (including any amounts required by the Company
pursuant to Section 10 of Article I) by the Company. No adjustment shall be made
as to any option for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distributions or other rights for which the
record date is prior to such date, except as provided in Article III.
2. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS
Subject to the terms and conditions and within the limitations of the
Plan, the Board or the Committee may modify, extend, renew, or cancel
outstanding options granted under the Plan.
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Notwithstanding the foregoing, however, no modification of an option shall,
without the consent of the optionee impair or diminish any rights or obligations
under any option theretofore granted under the Plan, except as provided in
Section 8 of Article I. For purposes of the preceding sentence, the right of the
Company pursuant to Section 3 of Article II to cancel any outstanding option and
to issue theretofor a substituted option stating a lower option price shall not
be construed as impairing or diminishing an optionee's rights or obligations.
3. OTHER PROVISIONS.
The option agreements authorized under the Plan shall contain such
other provisions, including, without limitation, restrictions upon the exercise
of the option or restrictions required by any applicable securities laws, as the
Board or the Committee shall deem advisable.
4. APPLICATION OF FUNDS.
The proceeds received by the Company from the sale of Common Shares
pursuant to the exercise of options will be used for general corporate purposes.
5. NO OBLIGATION TO EXERCISE OPTION.
The granting of an option shall impose no obligation upon the optionee
or a transferee of the option to exercise such option.
6. FINANCIAL ASSISTANCE.
The Company is vested with authority under this Plan to assist any
employe to whom an option is granted hereunder (including any director or
officer of the Company or any of its subsidiaries who is also an employee) in
the payment of the purchase price payable on exercise of that option, by lending
the amount of such purchase price to such employee on such terms and at such
rates of interest and upon such security (or unsecured) as shall have been
authorized by or under authority of the Board or the Committee.
7. FINANCIAL REPORTS.
The Company shall deliver to each grantee of an option a balance sheet
of the Company as at the end of its most recently completed fiscal year, and an
income statement of the Company as of the end of such fiscal year. Such
financial statements shall be delivered no less frequently than annually;
provided, that such financial statements need not be delivered to any employee
whose duties as an employee assure them access to such financial information.
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Exhibit 5
LAW OFFICES
LIPPENBERGER, THOMPSON, WELCH & SOROKO LLP
250 MONTGOMERY STREET
SUITE 500
SAN FRANCISCO, CA 94104
(415) 421-5300
FACSIMILE (415) 421-0225
June 30, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: BioTime, Inc.
Registration Statement on Form S-8
Ladies/Gentlemen:
We are counsel to BioTime, Inc. (the "Company") in connection with the
offer and sale of up to 200,000 Common Shares (the "Shares") issuable upon the
exercise of a like number of options (the "Options") that may be granted from
time to time under the Company's 1992 Stock Option Plan, as amended (the
"Plan"). The offer and sale of the Options and Shares is being registered under
the Securities Act of 1933, as amended, pursuant to a Registration Statement on
Form S-8.
We are of the opinion that when the Options are granted under the terms
and provisions of the Plan, the Options will be the legally and validly issued
and outstanding and will constitute binding obligations of the Company,
enforceable in accordance with their terms. We are also of the opinion that when
the Shares are issued and sold upon the exercise of the Options, in accordance
with the terms and provisions of the Options and the Plan, the Shares will be
legally and validly issued and outstanding, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the State of California
and the Federal laws of the United States of America.
We hereby consent to the use of our opinion in the Registration
Statement.
Very truly yours,
Lippenberger, Thompson, Welch & Soroko LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
BioTime, Inc. on Form S-8 of our report dated August 8, 1996 (which report
expresses an unqualified opinion and includes an explanatory paragraph referring
to the Company being in the development stage), appearing in the Annual Report
on Form 10-K of BioTime, Inc. for the year ended June 30, 1996.
DELOITTE & TOUCHE LLP
San Jose, California
July 1, 1997
