As filed with the Securities and Exchange Commission on July 16, 2015
Registration Statement No. 333-●
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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(Exact name of registrant as specified in its charter)
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Alberta, Canada
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer Identification No.)
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Suite 210, 1167 Kensington Crescent NW
Calgary, Alberta
Canada T2N 1X7
(Address of principal executive offices)
Amended and Restated Stock Option Plan
Incentive Share Award Plan
Dorsey & Whitney LLP
1400 Wewatta Street, Suite 400
Denver, CO 80202-5549
(Name and address of agent for service)
(303) 629-3450
(Telephone number, including area code, of agent for service)
Copies to:
Kenneth G. Sam, Esq.
Jason K. Brenkert, Esq.
Dorsey & Whitney LLP
1400 Wewatta Street, Suite 400
Denver, CO 80202-5549
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “Accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act (Check one):
Large Accelerated Filer o Accelerated Filer x Non-Accelerated Filer o Smaller Reporting Company o
CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered
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Amount to
be Registered(1)
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Proposed Maximum
Offering Price Per
Share
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Shares reserved for issuance pursuant to the Stock Option Plan and the Incentive Share Award Plan
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11,412,394
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$0.70(2)
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$7,988,675.80
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$928.28
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TOTAL
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11,412,394
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$0.70(2)
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$7,988,675.80
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$928.28
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(1)
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Common Shares, without par value, available for issuance by the Registrant pursuant to the Plans described herein. The Plans draw upon a common pool of Common Shares.
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(2)
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Calculated in accordance with Rule 457(c) and Rule 457(h)(1) under the Securities Act based on the average of the high and low prices ($0.72 and $0.67, respectively) for the Company’s Common Shares on July 15, 2015, as quoted on the NASDAQ Capital Market.
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INTRODUCTORY STATEMENT
This registration statement on Form S-8 by Oncolytics Biotech Inc. (the “Registrant”) is filed to: (i) to register additional common shares (“Common Shares”) pursuant to General Instruction E to Form S-8 which have been reserved under the Oncolytics Biotech Inc. Stock Option Plan as most recently amended pursuant to the approval of the Registrant’s shareholders on June 8, 2015 (the “Stock Option Plan”); and (ii) to register Common Shares reserved for issuance pursuant to the exercise of awards under the Registrant’s Incentive Share Award Plan (the “Incentive Share Award Plan” together with the Stock Option Plan are collectively referred to herein as, the “Plans”). The maximum number of shares issuable under the Plans is a fixed amount of 11,412,394 Common Shares. An aggregate 6,154,997 Common Shares reserved for issuance under the Stock Option Plan were previously registered with the United States Securities and Exchange Commission (the “Commission”) on Form S-8 filed with the Commission on January 10, 2011 (File No. 333-171625) (“Prior Registration Statement”). With respect to the Stock Option Plan the Registrant incorporates by reference herein the contents of the Prior Registration Statement.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* This information is not required to be included in, and is not incorporated by reference in, this registration statement.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or furnished by the Registrant with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference in this registration statement:
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(a)
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the Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2014 filed with the Commission on March 20, 2015;
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(b)
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all other reports of the Registrant filed pursuant to Section 13(a) or 15(d) of the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Annual Report incorporated by reference herein pursuant to (a) above; and
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(c)
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the description of the Common Shares contained in the Registrant’s registration statement on Form F-10 filed with the Commission on June 2, 2010, including any amendment or report for the purpose of updating such description.
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All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicate that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this 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 the 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 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 Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Under the Business Corporations Act (Alberta), the Registrant may indemnify a director or officer, a former director or officer, or a person who acts or acted at the Registrant’s request as a director or officer or a body corporate of which the Registrant is or was a shareholder or creditor, and the director’s or officer’s heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal or administrative action or proceeding to which the individual is involved because of that association with the Registrant or other entity, and the Registrant may advance moneys to such an individual for the costs, charges and expenses of such a proceeding. The Registrant may not indemnify such an individual unless the individual acted honestly and in good faith with a view to the best interests of the Registrant, or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Registrant’s request, and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individual’s conduct was lawful. In addition, the individual must repay any moneys advanced by the Registrant if the individual has not fulfilled the conditions set out in the preceding sentence. Such indemnification or advance of moneys may be made in connection with a derivative action only with court approval. Such an individual is entitled to indemnification from the Registrant as a matter of right if the individual was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done, and the individual fulfilled the conditions set forth above.
In accordance with and subject to the Business Corporations Act (Alberta), the by-laws of the Registrant provide that the Registrant shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Registrant’s request as a director or officer, or a body corporate of which the Registrant is or was a shareholder or creditor, and the director’s or officer’s heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Registrant or other entity if he acted honestly and in good faith with a view to the best interests of the Registrant or, as the case may be, to the best interests of the other entity for which he acted as a director or officer at the Registrant’s request, and, in the case of a criminal or administrative action or proceeding that is enforced by monetary penalty, he had reasonable grounds for believing that his conduct was lawful. The Registrant shall also indemnify such person in such other circumstances as the Business Corporations Act (Alberta) permits or requires.
The Registrant maintains a directors’ & officers’ insurance policy for the benefit of the directors and officers of the Registrant and its subsidiaries against liability incurred by them in their official capacities for which they become obligated to pay to the extent permitted by applicable law.
Item 7. Exemption from Registration Claimed.
Not Applicable
Item 8. Exhibits.
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Exhibit No.
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Exhibit
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4.1
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Amended and Restated Stock Option Plan, dated December 1, 2010, as amended and incorporated herein by reference to the Registration Statement on Form S-8 filed with the SEC on January 10, 2011 (File No. 333-171625).
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4.2
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Incentive Share Award Plan
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5.1
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Opinion of McCarthy Tétrault LLP
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23.1
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Consent of Ernst & Young LLP
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23.2
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Consent of McCarthy Tétrault LLP (contained in its opinion filed as Exhibit 5.1)
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24.1
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Powers of Attorney (See page II-8 of this registration statement)
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Item 9. Undertakings.
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(a)
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The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act;
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(ii)
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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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represents no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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(iii)
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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;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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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.
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(b)
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The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act, (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(h)
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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 of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of 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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Calgary, Province of Alberta, Canada on this 16th day of July, 2015.
ONCOLYTICS BIOTECH INC.
/s/ Kirk Look
Name: Kirk Look
Title: Chief Financial Officer
POWERS OF ATTORNEY
Each person whose signature appears below constitutes and appoints Bradley G. Thompson and Kirk Look, or either one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by or on behalf of the following persons in the capacities indicated on July 16, 2015:
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Signature
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Title
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/s/ Bradley G. Thompson
Bradley G. Thompson
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Executive Chairman, President, and Chief Executive Officer
(Principal Executive Officer)
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/s/ Kirk Look
Kirk Look
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ Matt Coffey
Matt Coffey
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Director
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/s/ Linda Hohol
Linda Hohol
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Director
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/s/ Robert B. Schultz
Robert B. Schultz
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Director
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/s/ Angela Holtham
Angela Holtham
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Director
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/s/ Wayne Pisano
Wayne Pisano
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Director and Chair
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/s/ J. Mark Lievonen
J. Mark Lievonen
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Director
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/s/ James Dinning
James Dinning
/s/ William G. Rice
William G. Rice
/s/ Bernd. R. Seiziner
Bernd. R. Seizinger
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Director
Director
Director
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this registration statement, solely in his capacity as the duly authorized representative of Oncolytics Biotech Inc. executed in Alberta, Canada, on July 16 , 2015.
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Oncolytics Biotech (US) Inc. |
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By: |
/s/ Kirk Look |
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Name: |
Kirk Look |
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Title: |
Chief Financial Officer |
EXHIBIT INDEX
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Exhibit No.
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Exhibit
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4.1
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Amended and Restated Stock Option Plan, dated December 1, 2010, as amended and incorporated herein by reference to the Registration Statement on Form S-8 filed with the SEC on January 10, 2011 (File No. 333-171625).
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4.2
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Incentive Share Award Plan
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5.1
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Opinion of McCarthy Tétrault LLP
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23.1
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Consent of Ernst & Young LLP
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23.2
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Consent of McCarthy Tétrault LLP (contained in its opinion filed as Exhibit 5.1)
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24.1
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Powers of Attorney (See page II-8 of this registration statement)
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EXHIBIT 4.2
INCENTIVE SHARE AWARD PLAN
The Board of Directors of Oncolytics Biotech Inc. (“Oncolytics”) has adopted this Incentive Share Award Plan (the “Plan”) governing the issuance of: (i) Performance Share Awards (as defined herein) of Oncolytics to Eligible Employees (as defined herein); and (ii) Restricted Share Awards (as defined herein) of Oncolytics to Non-Employee Directors (as defined herein).
The principal purposes of the Plan are as follows:
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(a)
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to retain and attract qualified directors, officers and employees for Oncolytics;
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(b)
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to promote ownership of common shares of Oncolytics by such directors, officers and employees and to encourage such persons to remain in the employ or service of Oncolytics and put forth maximum efforts for the success of the affairs of Oncolytics; and
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(c)
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to focus management of Oncolytics on operating and financial performance and total long-term shareholder return.
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Where used herein, the following terms shall have the following meanings, respectively:
"Adjustment Ratio" means, with respect to any Share Award, the ratio used to adjust the number of Common Shares underlying such Share Award and issuable on the applicable Issue Date, subject to and in accordance with the terms of the Plan; and, in respect of each Share Award, the Adjustment Ratio shall initially be equal to one, and shall be cumulatively adjusted on a compounding basis thereafter by increasing the Adjustment Ratio on each Dividend Payment Date, effective on the day following the corresponding Dividend Record Date, by an amount, rounded to the nearest four decimal places, equal to a fraction having as its numerator the Dividend, expressed as an amount per Common Share, paid on that Dividend Payment Date, and having as its denominator the Market Price of the Common Shares on that Dividend Payment Date;
“Black-Out Period” means any period during which the holder of such Share Award is not permitted to trade Common Shares pursuant to the policies of Oncolytics;
“Board” means the board of directors of Oncolytics as constituted from time to time or, if established and duly authorized to act with respect to the Plan, any committee of the board of directors of Oncolytics;
“Business Day” means each day other than a Saturday, Sunday, a statutory holiday in Alberta or any day on which the principal chartered banks located in Calgary, Alberta are not open for business during normal business hours;
“Cessation Date” means, in respect of a Participant, the last day of active employment or service of the Participant with Oncolytics, regardless of the reason for the cessation of employment or service and regardless of whether any or any adequate or proper advance notice of termination or resignation is provided in respect of such cessation of employment or service;
“Change of Control” for the purposes of this Plan means:
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(a)
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the acceptance by the holders of Common Shares of Oncolytics, representing in the aggregate of more than 40 percent of all issued and voting Common Shares of Oncolytics, of any offer, whether by way of a takeover bid or otherwise, for all or any of the Common Shares of Oncolytics;
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(b)
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the acquisition, by whatever means (including, without limitation, amalgamation, arrangement, consolidation or merger), by a person (or two or more persons who in such acquisition have acted jointly or in concert or intend to exercise jointly or in concert any voting rights attaching to the Common Shares acquired), directly or indirectly, of the beneficial ownership of such number of voting Common Shares or rights to voting Common Shares of Oncolytics, which together with such person’s then owned voting Common Shares and rights to voting Common Shares, if any, represent (assuming the full exercise of such rights to voting Common Shares) more than 40 percent of the combined voting rights of Oncolytics’ then outstanding voting Common Shares, together with the voting Common Shares that would be outstanding on the full exercise of the rights to voting Common Shares acquired and such person’s previously own rights to voting Common Shares;
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(c)
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the entering into of any agreement by Oncolytics to merge, consolidate, amalgamate, initiate an arrangement or be absorbed by or into another company;
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(d)
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the passing of a resolution by the Board or shareholders of Oncolytics to substantially liquidate assets or wind-up its business or significantly rearrange its affairs in one or more transactions or series of transactions or the commencement of proceedings for such a liquidation, winding-up or re-arrangement (except where such re-arrangement is part of a bona fide reorganization of Oncolytics in circumstances where the business of Oncolytics is continued and where the shareholdings remain substantially the same following the re-arrangement as existed prior to the re-arrangement); or
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(e)
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individuals who were members of the Board of Oncolytics immediately prior to a meeting of the shareholders of Oncolytics involving a contest for or, an item of business relating to the election of directors shall not constitute a majority of the board of directors following such election;
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“Committee” has the meaning set forth in Section 3 hereof;
“Common Shares” means the Common Shares of Oncolytics;
“Dividend” means a dividend paid by Oncolytics in respect of the Common Shares, whether in cash, Common Shares or other securities or other property, expressed as an amount per Common Share;
“Dividend Payment Date” means any date that a Dividend is paid to Shareholders;
“Dividend Record Date” means the applicable record date in respect of any Dividend used to determine the Shareholders entitled to receive such Dividend;
“Eligible Employee” means any officer or employee of Oncolytics (including, for greater certainty, any subsidiary of Oncolytics);
“Exchange” means the Toronto Stock Exchange, the Nasdaq Capital Market and such other stock exchange(s) on which the Common Shares are then listed and posted for trading from time to time;
“Grant Date” means the grant date for a Share Award;
“Grant Value” means the dollar amount of a Share Award as determined by the Board in accordance with Section 4 hereof;
“Grantee” means a Participant to whom a Share Award has been granted;
“Insider” has the meaning set forth in the applicable rules of the Exchange for this purpose;
“Issue Date” means the date on which Common Shares are issued to a Grantee in respect of a Share Award following completion of the applicable Vesting Period;
“Market Price” with respect to a Common Share, as at any date means the volume weighted average (rounded to four decimal places) of the prices at which the Common Shares traded on the Toronto Stock Exchange for the five (5) trading day period ending one Business Day prior to such date (or, if the Common Shares are not then listed and posted for trading on the Toronto Stock Exchange or are then listed and posted for trading on more than one Exchange, on such Exchange on which the Common Shares are then listed and posted for trading as may be selected for such purpose by
the Board acting reasonably and in good faith). In the event that the Common Shares are not listed and posted for trading on any Exchange, the Fair Market Value shall be the fair market value of the Common Shares as determined by the Board in its sole discretion, acting reasonably and in good faith. If initially determined in United States dollars, the Fair Market Value shall be converted into Canadian dollars at an exchange rate selected and calculated in the manner determined by the Board from time to time acting reasonably and in good faith;
“Non-Employee Director” means any director of Oncolytics (including, for greater certainty, any subsidiary of Oncolytics) who is not also an officer or employee of Oncolytics (including, for greater certainty, any subsidiary of Oncolytics);
“Participant(s)” means the Eligible Employees and the Non-Employee Directors;
“Performance Criteria” means any performance-related measures or criteria as determined by the Board in its sole discretion at Grant Date to be taken into consideration over the Vesting Period of a Performance Share Award for purposes of determining the applicable Vesting Percentage, which measures or criteria may include, Oncolytics’ performance compared to identified operational or financial targets, Oncolytics’ shareholder return, and any such other performance-related measures or criteria matters as the Board may determine, in its sole discretion;
“Performance Share Award” means an award to Eligible Employees under the Plan pursuant to which Common Shares shall be issued on the Issue Dates, as applicable, determined in accordance with Section 7 hereof, based upon achieving the applicable Performance Criteria and subject to adjustment in accordance with the terms of the Plan;
“Restricted Share Award” means an award to Non-Employee Directors under the Plan pursuant to which Common Shares shall be issued on the Issue Dates, as applicable, determined in accordance with Section 7 hereof, subject to adjustment in accordance with the terms of the Plan;
“Security Based Compensation Arrangement” has the meaning ascribed thereto in Section 613 of the Toronto Stock Exchange Company Manual, as amended from time to time;
“Share Award” means a Performance Share Award or Restricted Share Award, as applicable;
“Share Award Account “ means an account maintained by Oncolytics for each Grantee that shall be credited with such Share Awards as are granted to the Grantee and any dividend equivalent Share Awards in respect of such Share Awards;
“Share Award Agreement” has the meaning set forth in Section 7 hereof;
“Shareholder” means a holder of Common Shares;
“Vested” means the applicable Vesting Period having been completed and additionally in the case of Performance Share Awards, the applicable Performance Criteria in relation to a whole or percentage of the number of Common Shares covered by such Performance Share Award determined by the Board having been met, where “Vesting” (or any applicable derivative term) has a comparable meaning;
“Vesting Percentage” means the percentage of outstanding Performance Share Awards that will vest based upon the relative achievement of the Performance Criteria for such award during the Vesting Period, where such percentage will range from 0 percent to 100 percent reflecting the Board’s determination, in its sole discretion, of the achievement of the Performance Criteria; and
“Vesting Period” means the three-year period over which Share Awards granted under the Plan shall vest in accordance with Section 7(b)(i), subject to adjustment or modification pursuant to the terms and conditions of the Plan.
The Plan shall be administered by the Board, or if delegated, by a committee of the Board that has been assigned the responsibility of determining Oncolytics’ policies with respect to executive compensation. Such committee, or if no such committee has been delegated the authority to administer the Plan, then the Board is hereinafter referred to as (the “Committee”).
The Committee shall have the authority in its sole and absolute discretion to administer the Plan and to exercise all the powers and authorities either specifically granted to it under the Plan or necessary or advisable in the administration of the Plan subject to and not inconsistent with the express provisions of this Plan and of Section 10 hereof, including, without limitation, the authority to:
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(a)
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grant Restricted Share Awards to Non-Employee Directors and Performance Share Awards to Eligible Employees;
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(b)
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determine the Grant Date for Share Awards;
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(c)
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determine the officers and employees who may participate in this Plan and designate any officer or employee as being an Eligible Employee under this Plan;
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(d)
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determine the Participants to whom and the time or times at which Share Awards shall be granted and shall become issuable;
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(e)
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determine the number of Common Shares to be covered by and the Grant Value for each Share Award (and accordingly the number of Common Shares to be covered by each Share Award) in accordance with Section 4 hereof;
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(f)
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determine Performance Criteria applicable to any Performance Share Award;
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(g)
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prescribe, amend and rescind rules and regulations relating to the Plan;
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(h)
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interpret the Plan and the Share Award Agreements;
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(i)
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approve the form and determine the terms and provisions of Share Award Agreements (which need not be identical) entered into in connection with Share Awards;
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(j)
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determine whether and the extent to which adjustments shall be made pursuant to the Plan; and
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(k)
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make all other determinations deemed necessary or advisable for the administration of the Plan.
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The Committee may delegate to one or more of its members or to one or more agents such administrative duties as it may deem advisable, and the Committee or any person to whom it has delegated duties as aforesaid may employ one or more persons to render advice with respect to any responsibility the Committee or such person may have under the Plan.
For greater certainty and without limiting the discretion conferred on the Committee pursuant to this Section, the Committee’s decision to approve the grant of a Share Award in any period shall not require the Committee to approve the grant of a Share Award to any Participant in any other period; nor shall the Committee’s decision with respect to the size or terms and conditions of a Share Award in any period require it to approve the grant of a Share Award of the same or similar size or with the same or similar terms and conditions to any Participant in any other period. The Committee shall not be precluded from approving the grant of a Share Award to any Participant solely because such Participant may previously have been granted a Share Award under this Plan or any other similar compensation arrangement of Oncolytics. No Participant has any claim or right to be granted a Share Award. There is no obligation for uniformity of treatment of Eligible Employees, or any group of Eligible Employees.
Any interpretation, rule, regulation, determination or other act of the Committee hereunder shall be made in its sole discretion and shall be final and conclusively binding upon Oncolytics and all persons affected by the Plan. No member of the Committee shall be liable for any action or determination made in good faith pursuant to the Plan or any instrument of grant evidencing any Share Award awarded under the Plan. To the fullest extent permitted by law, Oncolytics shall indemnify and save harmless each person made, or threatened to be made, a party to any action or proceeding in respect of the Plan by reason of the fact that such person is or was a member of the Committee.
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4.
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Eligibility and Share Award Determination
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The Committee may grant Share Awards in such amounts and at such times as the Committee in its sole absolute discretion may determine. In determining the Participants to whom Share Awards may be granted and the Grant Value for (and accordingly the number of Common Shares to be covered by) each Share Award (subject to adjustment in accordance with the Performance Criteria in the case of Performance Share Awards), the Committee may take into account such factors as it shall determine in its sole and absolute discretion. Notwithstanding any other provision of this Plan, Performance Share Awards may only be granted to Eligible Employees and Restricted Share Awards may only be granted to Non-Employee Directors.
The number of Common Shares to be covered by each Share Award shall be determined by dividing the Grant Value for such Share Award by the Market Price of a Common Share as at the Grant Date, rounded down to the next whole number.
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5.
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Reservation of Common Shares
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Unless otherwise approved by the Shareholders, the aggregate number of Common Shares that may be issuable pursuant to Share Awards granted pursuant to this Plan in combination with all other Security Based Compensation Arrangements of Oncolytics, including the Stock Option Plan, is 11,412,394 Common Shares.
The number of Common Shares issuable to Insiders at any time, under all Security Based Compensation Arrangements of Oncolytics, shall not exceed 10% of the issued and outstanding Common Shares. The number of Common Shares issued to Insiders, within any one-year period, under all Security Based Compensation Arrangements of Oncolytics, shall not exceed 10% of the issued and outstanding Common Shares. The number of Common Shares reserved for issuance under all Security Based Compensation Arrangements of Oncolytics to any one Participant shall not exceed 5% of the total number of issued and outstanding Common Shares.
Share Awards that are canceled, terminated or expire prior to the settlement of all or a portion thereof, shall result in the Common Shares that were reserved for issuance thereunder being available for a subsequent grant of Share Awards pursuant to this Plan to the extent of any Common Shares issuable thereunder that are not issued under such canceled, terminated or expired Share Award.
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6.
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Participation Limits for Non-Employee Directors
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The maximum number of Common Shares that may be reserved for issuance to Non-Employee Directors pursuant to Restricted Share Awards under the Plan is 1% of the Common Shares outstanding at the time of the grant (on a non-diluted basis), less the aggregate number of Common Shares reserved for issuance to such Non-Employee Director under any other security-based-compensation arrangement, and the total annual grant of Restricted Share Awards to any one Non-Employee Director cannot exceed a grant value of $100,000 (based upon a Black-Scholes calculation or such other similar and acceptable methodology, applied consistently and appropriately as determined by the Board).
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7.
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Terms and Conditions of Share Awards
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Each Share Award granted under the Plan shall be subject to the terms and conditions of the Plan and evidenced by a written agreement between Oncolytics and the Grantee or an award letter from Oncolytics to the Grantee (a “Share Award Agreement”) which agreement shall comply with, and be subject to, the requirements of the Exchange and the following terms and conditions (and with such other terms and conditions as the Committee, in its discretion, shall establish):
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(a)
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Number of Share Awards - The Committee shall determine the number of Common Shares to be awarded to a Grantee pursuant to the Share Award (subject to adjustment in accordance with provisions of the Plan) in accordance with the provisions set forth in Section 4 of the Plan.
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(b)
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Vesting of Share Awards
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(i)
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Share Awards hereunder shall vest on the third anniversary of the Grant Date of such Share Awards.
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(ii)
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The Committee shall determine the Performance Criteria for each Performance Share Award at the time of the grant of the award.
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(iii)
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The Committee shall, as soon as reasonably practicable following the completion of the Vesting Period applicable to a Performance Share Award determine, in its sole discretion, the “Vesting Percentage”.
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(iv)
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Notwithstanding any other provision of this Plan, no term or condition of a grant of Share Awards hereunder or any Share Award Agreement may have the effect of causing any Common Shares to be issued pursuant to any Share Award under the Plan to a Grantee in satisfaction of such Grantee’s Performance Share Awards under the Plan (or any portion thereof) to occur after December 31 in the third (3rd) calendar year following the calendar year in respect of which such Share Awards were granted.
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(c)
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Adjustment of Share Awards - Unless otherwise determined by the Committee and subject to the remaining provisions of this Section 7, following the completion of the Vesting Period for a Share Award, the number of Common Shares underlying such Share Award shall be adjusted by multiplying such number by (A) the Adjustment Ratio applicable in respect of such Share Award, and (in the case of Performance Share Awards only) (B) the Vesting Percentage, if any, applicable to such Performance Share Award.
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(d)
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Issuance of Common Shares - Subject to Section 5, the Common Shares that are issuable to the Grantee on the Issue Date shall be issued from treasury as fully paid and non-assessable Common Shares. No fractional Common Shares will be issued and all fractional entitlements shall be rounded down to the nearest whole number.
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(e)
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Delivery of Common Shares - The Issue Date shall occur as soon as practicable and in any event within 31 days following the completion of the Vesting Period applicable to a Share Award. Subject to the remainder of this Section 7(e), on the Issue Date, Oncolytics will issue from treasury to the Grantee that number of Common Shares to which the Grantee is entitled to receive in respect of such Share Award in accordance with this Section 7, subject to Section 9 hereof, and sent by pre-paid mail or delivered to the Grantee. Notwithstanding the foregoing, if on the Issue Date a Black-Out Period has been imposed upon a Grantee which is still in effect, then the Issue Date shall not occur until the date which is the tenth (10th) business day after the last day of the applicable Black- Out Period.
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(f)
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Business Combinations and Certain Adjustments - Subject to Section 7(e), if, during the term of an outstanding Share Award, Oncolytics shall complete or be subject to any transaction which constitutes a Change of Control, and as a result of such transaction the holders of Common Shares receive securities of another issuer (the "Continuing Entity") in full substitution or replacement for the Common Shares ("Replacement Securities"), Oncolytics (including the Continuing Entity as successor thereof) will make provision such that all outstanding Share Awards shall remain outstanding and continue in effect following the effective date of such transaction, with appropriate adjustments made as required, including without limitation to (i) the number of Replacement Securities underlying the Share Awards held by each Grantee, (ii) the Dividends paid on the Common Shares (as replaced by the Replacement Securities) during the Vesting Period, and (iii) the Market Price of the Common Shares determined for the beginning of the Vesting Period, in each case to appropriately account for and provide economic equivalence based on the exchange ratio of Replacement Securities issued for Common Shares pursuant to such transaction.
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Prior to or contemporaneously with the consummation of such Change of Control transaction, Oncolytics and the Continuing Entity shall execute such instruments and do such things as are necessary to establish that upon the consummation of such transaction the Continuing Entity will have assumed all the covenants and obligations of Oncolytics under this Plan, the Share Award Agreements and the Share Awards outstanding on consummation of such transaction in a manner that substantially preserves and does not impair the rights of the Grantees thereunder in any material respect (including the right to receive Replacement Securities or other cash or property of the Continuing Entity in lieu of Common Shares upon the subsequent vesting of Share Awards).
Subject to compliance with this Section 7(f), any such Continuing Entity shall succeed to, and be substituted for, and may exercise every right and power of Oncolytics under this Plan and such Share Award Agreements with the same effect as though the Continuing Entity had been named as Oncolytics herein and therein, and Oncolytics shall be relieved of all obligations and covenants under this Plan and such Share Award Agreements and the obligation of Oncolytics to the Grantees in respect of the Share Awards shall terminate and be at an end and the Grantees shall cease to have any further rights in respect thereof including, without limitation, any right to acquire Common Shares upon vesting of the Share Awards.
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(g)
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Acceleration of Payment for Certain Transactions - Notwithstanding Section 7(f), in the event that:
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(i)
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the Continuing Entity does not (or, upon the occurrence of the Change of Control transaction, will not) substitute or replace, or the nature of the transaction does not provide for the full substitution or replacement of, the Common Shares with Replacement Securities on the same terms as described in Section 7(f);
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(ii)
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the Board determines, acting reasonably, that such substitution or replacement is not practicable or impairs or does not substantially preserve the rights of the holders of Share Awards;
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(iii)
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the Board determines, acting reasonably, that such substitution or replacement would give rise to adverse tax results to holders of Share Awards; or
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(iv)
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the Replacement Securities are not (or, upon the occurrence of the transaction, will not be) listed and posted for trading on a recognizable stock exchange;
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then the Grantee shall receive a cash payment in respect of all outstanding Share Awards in respect of which payment has not yet been made (whether or not otherwise vested or payable), conditional upon the Change of Control transaction being completed, immediately prior to the effective time of the transaction.
For the purposes of this Section 7(g), the cash amount to be paid for outstanding and unpaid (i) Share Awards shall be calculated in accordance with Section 7(c) on the basis that each uncompleted Vesting Period shall be deemed to have consisted of the time elapsed from the start of the particular Vesting Period to and including the effective date of the Change of Control transaction, notwithstanding any prior designation of that Vesting Period, and (ii) Share Awards shall be calculated based on the Market Price of the Common Shares on the effective date of the Change of Control transaction, or in each case based on such other date(s) as Oncolytics, acting reasonably, determines is practicable.
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(h)
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Board Discretion - Notwithstanding anything else in this Plan, the Committee may, in its sole discretion, but subject to the limits described in Sections 5 and 11 hereof and any other applicable requirements of the Exchange or other regulatory authority:
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(i)
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make any additional adjustments to the Vesting Percentage (in respect of any Performance Share Awards) or the number of Common Shares to be issued or delivered to a Grantee in connection with any Share Award if, in the sole discretion of the Board, such adjustments are appropriate in the circumstances having regard to the principal purposes of the Plan;
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(ii)
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change the Issue Date (including amending the Vesting Period related thereto) for all or any Share Awards at any time and from time to time; and
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(iii)
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otherwise amend or modify the terms and conditions regarding any grant of Share Awards or payments in respect of any Share Awards hereunder, provided, however, that no such amendment or modification may, without the consent of the affected Grantee, impair or adversely affect a Share Award granted to the Grantee under the Plan prior to the date of such amendment or modification.
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(i)
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Effect of Certain Changes - In the event:
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(i)
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of any change in the Common Shares through subdivision, consolidation, reclassification, recapitalization or similar transaction; or
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(ii)
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that any rights are granted to Shareholders to purchase Common Shares at prices substantially below fair market value, and such events do not constitute a Change of Control transaction for the purposes of Section 7(f), then, in any such case, the Board may make such adjustments to the Plan, to any Share Awards and to any Share Award Agreements outstanding under the Plan as the Board may, in its sole discretion, consider appropriate in the circumstances to prevent dilution or enlargement of the rights granted to Grantees hereunder.
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(j)
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Termination of Relationship as Employee - Unless otherwise determined by the Committee or unless otherwise expressly set forth in a Share Award Agreement pertaining to a particular Share Award or any written employment or other agreement governing a Grantee’s role as an officer or employee, the following provisions shall apply in the event that a Grantee ceases to be an Eligible Employee or Non-Employee Director:
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(i)
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Termination - If a Grantee (A) ceases to be an Eligible Employee for any reason other than termination without cause, death, disability or retirement of the Grantee, and regardless of the reason for the cessation of employment and regardless of whether any or any adequate or proper advance notice of termination or resignation is provided in respect of such cessation, or (B) ceases to be a director due to the decision of the Grantee to not stand for or obtain re-election to the Board, all outstanding Share Award Agreements under which Share Awards have been granted to such Grantee shall be terminated and all rights to receive Common Shares thereunder pursuant to Share Awards which have not Vested shall be forfeited by the Grantee effective on the Cessation Date. For greater certainty, no Performance Share Award shall vest during any reasonable notice period.
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(ii)
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Termination Without Cause - Subject to any provisions to the contrary in the employment agreement of any particular Grantee, upon the termination without cause of such Grantee,
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those Common Shares awarded pursuant to any Performance Share Award to such Grantee that have not yet Vested and been issued, but would be eligible for Vesting and issuance during the notice period specified in such Grantee’s employment agreement shall vest on the Cessation Date with a deemed Vesting Percentage of 100.
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(iii)
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Termination Upon Death or Permanent Disability or Retirement - Upon the death, permanent disability or retirement of a Grantee, all outstanding Share Award Agreements under which Share Awards have been made to such Grantee prior to the Cessation Date shall be terminated and all rights to receive Common Shares thereunder pursuant to Share Awards that have not Vested shall be forfeited by the Grantee effective as of the date that is twelve (12) months from the Cessation Date.
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(k)
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Rights as a Shareholder - Until the Common Shares underlying any Share Award have been issued in accordance with the terms of the Plan, the Grantee to whom such Share Award has been made shall not possess any incidents of ownership of such Common Shares including, for greater certainty and without limitation, the right to receive Dividends on such Common Shares and the right to exercise voting rights in respect of such Common Shares. Such Grantee shall only be considered a Shareholder in respect of such Common Shares when such issuance has been entered upon the records of the duly authorized transfer agent of Oncolytics.
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8.
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Ratification and Approval by Shareholders
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Notwithstanding any other provision of this Plan:
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(a)
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no Common Shares may be issued pursuant to any Share Award until the Plan has been approved by the Shareholders at a duly called meeting of the Shareholders; and
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(b)
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any grants of Share Awards by the Committee prior to the Plan being approved by the Shareholders must be ratified by the Shareholders at the meeting of the Shareholders at which the Shareholders approve the Plan.
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When a Grantee or other person becomes entitled to receive Common Shares under any Share Award, Oncolytics shall have the right to require the Grantee or such other person to remit to Oncolytics an amount sufficient to satisfy any withholding tax requirements relating thereto. Unless otherwise prohibited by the Board or by applicable law, satisfaction of the withholding tax obligation may be accomplished by any of the following methods or by a combination of such methods:
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(a)
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the tendering by the Grantee of cash payment to Oncolytics in an amount equal to the total withholding tax obligation;
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(b)
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the withholding or sale by Oncolytics from the Common Shares otherwise due to the Grantee, of such number of Common Shares having a value determined by Oncolytics in its sole discretion, acting reasonably, equal to the amount of the total withholding tax obligation (and in the case of a treasury issuance of Common Shares to settle Share Awards hereunder, such sale of Common Shares shall be automatically made on or as soon as practicable after the applicable Issue Date for the purposes of satisfying withholding tax obligations, unless otherwise agreed to by Oncolytics and the Grantee);
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(c)
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the withholding by Oncolytics from any cash payment otherwise due to the Grantee of such amount of cash as is equal to the amount of the total withholding tax obligation; or
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(d)
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any other method determined by Oncolytics in its sole discretion, acting reasonably,
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provided, however, that the sum of any cash so paid or withheld and the value of any Common Shares so withheld or sold is, sufficient, in the reasonable estimation of Oncolytics, to satisfy the total withholding tax obligation.
The right to receive Common Shares pursuant to a Share Award granted to a Grantee may only be settled by such Grantee personally or through the Grantee’s personal representative or estate and no assignment, sale, transfer, pledge or charge of a Share Award, whether voluntary, involuntary, by operation of law or otherwise (except by will or the laws of descent and distribution), vests any interest or right in such Share Award whatsoever in any assignee or transferee and, immediately upon any assignment, sale, transfer, pledge or charge or attempt to assign, sell, transfer, pledge or charge, such Share Award shall terminate and be of no further force or effect.
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11.
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Amendment and Termination of Plan
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This Plan and any Share Awards granted pursuant to the Plan may be amended, modified or terminated by the Committee including but not limited to amending the Vesting Periods under the Plan without approval of Shareholders subject to any required approval of the Exchange. Notwithstanding the foregoing, the Plan or any Share Award may not be amended without Shareholder approval to:
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(a)
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increase the number of Common Shares issuable pursuant to outstanding Share Awards at any time pursuant to Section 5 hereof;
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(b)
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increase the number of Common Shares issuable to Insiders, Non-Employee Directors or any one Participant, at any time under the Incentive Share Award Plan, together with all other Security Based Compensation Arrangements of the Corporation;
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(c)
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increase the number of Common Shares issued to Insiders within any one-year period, under the Incentive Share Award Plan, together with all other Security Based Compensation Arrangements of the Corporation;
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(d)
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expand the categories of individuals contained in the definition of "Eligible Employee" who are eligible to participate in the Plan;
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(e)
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extend the term of any Share Award beyond the term of such awards provided for under the terms and conditions of this Plan;
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(f)
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permit the transfer or assignment of Share Awards, except to permit a transfer to a family member, an entity controlled by the holder of the Share Awards or a family member, a charity or for estate planning or estate settlement purposes;
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(g)
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change the terms of any Share Awards held by Insiders;
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(h)
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amend this Section 11 to delete any of the above.
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In addition, no amendment to the Plan or Share Awards granted pursuant to the Plan may be made without the consent of the Grantee, if such amendment adversely alters or impairs the rights of any Grantee in respect of any Share Award previously granted to such Grantee under the Plan.
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(a)
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Effect of Headings - The Section headings contained herein are for convenience only and shall not affect the construction hereof.
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(b)
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Compliance with Legal Requirements - Oncolytics shall not be obliged to issue any Common Shares if such issuance would violate any law or regulation or any rule of any government authority or Exchange. Oncolytics, in its sole discretion, may postpone the issuance or delivery of Common Shares under any Share Award as the Committee may consider appropriate, and may require any Grantee to make such representations and furnish such information as it may consider appropriate in connection with the issuance or delivery of Common Shares in compliance with applicable laws, rules and regulations. Oncolytics shall not be required to qualify for resale pursuant to a prospectus or similar document any Common Shares awarded under the Plan, provided that, if required, Oncolytics shall notify the Exchange and any other appropriate regulatory bodies in Canada of the existence of the Plan and the granting of Share Awards hereunder in accordance with any such requirements.
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(c)
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No Right to Continued Employment - Nothing in the Plan or in any Share Award Agreement entered into pursuant hereto shall confer upon any Grantee the right to continue in the employ or service of Oncolytics, to be entitled to any remuneration or benefits not set forth in the Plan or a Share Award Agreement or to interfere with or limit in any way the right of Oncolytics to terminate Grantee’s employment or service arrangement with Oncolytics.
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(d)
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Expenses - All expenses in connection with the Plan shall be borne by Oncolytics.
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(e)
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Governing Language -This Plan is drawn up in the English language and each notice, instrument, certificate or other communication to be given under or in connection with this Plan shall be in the English language. If this Plan or any notice, instrument, certificate or other communication is translated into any other language, the English language text shall prevail.
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(f)
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Unfunded and Unsecured Plan - Unless otherwise determined by the Committee, the Plan shall be unfunded and Oncolytics will not secure its obligations under the Plan. To the extent any Grantee holds any rights by virtue of a grant of a Share Award under the Plan, such rights (unless otherwise determined by the Board) shall be no greater than the rights of an unsecured creditor of Oncolytics.
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(g)
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Market Fluctuations - No amount will be paid to, or in respect of, a Grantee under the Plan to compensate for a downward fluctuation in the price of Common Shares which impacts the Share
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Award, nor will any other form of benefit be conferred upon, or in respect of, a Grantee for such purpose. Oncolytics makes no representations or warranties to a Grantee with respect to the Plan or the Share Awards whatsoever. In seeking the benefits of participation in the Plan, a Grantee agrees to exclusively accept all risks associated with a decline in the market price of Common Shares and all other risks associated with the holding of Share Awards.
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(h)
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Currency - Any payments and benefits under the Plan to be paid in cash shall be determined in the lawful currency of Canada and paid in the local currency of the Grantee’s country of residence using the currency exchange rate available to Oncolytics at the time of payment.
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(i)
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Participation is Voluntary; No Additional Rights - Participation in the Plan shall be entirely voluntary and any decision by a Grantee not to participate shall not affect any Participant’s employment or service with Oncolytics. In such instance where a Grantee provides notice in writing to Oncolytics of his or her intent to not participate in a Share Award, such award shall be immediately terminated and the Grantee shall not be eligible to receive any form of in lieu compensation.
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The Plan shall be governed by, interpreted and construed in accordance with the laws in force in the Province of Alberta.
This Plan shall take effect on June 8, 2015. The issuance of Common Shares under the Plan is subject to the acceptance of the Plan by the Exchange and any other relevant regulatory authorities and approval of the Shareholders.
EXHIBIT 5.1
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Suite 3300, 421 7th Avenue SW
Calgary AB T2P 4K9
Canada
Tel: 403-260-3500
Fax: 403-260-3501
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Oncolytics Biotech Inc.
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Suite 210, 1167 Kensington Crescent NW
Calgary, Alberta T2N 1X7
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Dear Sirs/Mesdames:
This opinion is furnished to Oncolytics Biotech Inc. (“Oncolytics” or the “Company”), a corporation incorporated under the laws of the Province of Alberta, Canada, in connection with the preparation and filing with the United States Securities and Exchange Commission (the “Commission”) under the United States Securities Act of 1933, as amended (the “Securities Act”), of the Company’s Registration Statement on Form S-8 to be filed on the date hereof (the “Registration Statement”) relating to 11,412,394 common shares of the Company (the “Shares”) issuable upon the due exercise of options granted pursuant to the amended and restated stock option plan of the Company, as amended (the “Option Plan”) and the vesting of restricted share awards and performance share awards (collectively, “Share Awards”) granted pursuant to the incentive share award plan of the Company (the “Incentive Share Award Plan” and, together with the Option Plan, the “Plans”).
As counsel, we have made such investigations and examined the originals, or duplicate, certified, conformed, facsimiled or photostatic copies of such corporate records, agreements, documents and other instruments and have made such other investigations as we have considered necessary or relevant for the purposes of this opinion. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers, or other representatives of the Company, and such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth herein.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic, electronic, or facsimile copies and the authenticity of the originals of such documents. In making our examination of executed documents or documents which may be executed, we have assumed that the parties thereto, other than the Company, had or will have the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties, of such documents and that such documents constitute or will constitute valid and binding obligations of the parties thereto.
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page 2 |
In connection with our opinions expressed below, we have assumed that, at or prior to the time of the issuance of any such Shares, the authorization to issue the Shares pursuant to the Plans will not have been modified or rescinded by the Board of Directors of Oncolytics and there will not have occurred any change in law affecting the validity or enforceability of such issuance of Shares. We have also assumed that neither the issuance of the Shares, nor the compliance by Oncolytics with the terms of the Plans, will violate any applicable federal, provincial or state law or will result in a violation of any provision of any instrument or agreement then binding upon Oncolytics or any restriction imposed by any court or governmental body having jurisdiction over Oncolytics.
The opinions expressed herein are limited to the laws of the Province of Alberta and the federal laws of Canada applicable therein (the “Applicable Law”).
Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued (i) upon the exercise of options in accordance with the terms of the Option Plan and any relevant agreements thereunder and upon payment of the consideration provided therein to the Company; and (ii) upon the due vesting of the Share Awards in accordance with the terms of the Incentive Share Award Plan and any relevant agreements thereunder; will be validly issued as fully paid and non-assessable common shares of the Company.
We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under the Securities Act or the rules and regulations promulgated thereunder. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes of the facts stated or assumed herein or any subsequent changes in Applicable Law.
Yours truly,
/s/ McCarthy Tétrault LLP
EXHIBIT 23.1