Volu-Sol, Inc.
Stock Option Grant and Agreement
Pursuant to the terms and conditions of the Volu-Sol, Inc. 1997 Stock Option and
Incentive Plan (the "Plan"), Volu-Sol, Inc. (the "Company"), hereby grants to
the Participant an Option to purchase shares of the Company's common stock on
the following terms and conditions:
1. Identifying Provisions. As used in this Option, the following terms shall
have the following respective meanings:
a. Participant is W. W. Kirton, III
b. Date of Grant is October 10, 2000.
c. Number of Covered Shares is Four Hundred Thousand (400,000).
d. Exercise Price Per Share is $1.00.
2. Award. This Agreement specifies the terms of the option ("Option") granted
to the Participant to purchase the number of Covered Shares of Stock at the
Exercise Price set forth above in Paragraph 1. The Option is not intended
to constitute an "incentive stock option" ("ISO") as that term is used in
Code section 422.
3. Date of Exercise. Except as limited by this Agreement or by the Plan, this
Option shall become exercisable immediately or at any time prior to the
Expiration Date of this Option, whereupon the Option shall expire and may
thereafter no longer be exercised.
An installment shall not become exercisable on the otherwise applicable
vesting date if the Participant's Date of Termination (as defined in
Paragraph 9, below) occurs on or before such vesting date. Notwithstanding
the foregoing provisions of this Paragraph 3, the Option shall become
exercisable with respect to all of the Covered Shares (to the extent it is
not then otherwise exercisable) as follows:
a. The Option shall become fully exercisable upon the Participant's Date
of Termination, if the Date of Termination occurs by reason of the
Participant's death or Disability.
b. The Option shall become fully exercisable upon a Change in Control, if
the Participant's Date of Termination does not occur on or before the
Change in Control.
c. The Option may be exercised on or after the Date of Termination only
as to that portion of the Covered Shares as to which it was
exercisable immediately prior to the Date of Termination, or as to
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which it became exercisable on the Date of Termination in accordance
with this Paragraph 3.
4. Expiration. The Option shall not be exercisable after the Company's close
of business on the last business day that occurs prior to the Expiration
Date. The Expiration Date shall be the earliest to occur of:
a. The five-year anniversary of the Grant Date;
b. If the Participant's Date of Termination occurs by reason of death,
Disability or Retirement, the one-year anniversary of such Date of
Termination; or
c. If the Participant's Date of Termination occurs for reasons other than
death, Disability, or Retirement, the 90-day anniversary of such Date
of Termination.
5. Method of Exercise. Subject to the terms of this Agreement and the Plan,
the Option may be exercised in whole or in part by filing a written notice
with the Secretary of the Company at its corporate headquarters prior to
the Company's close of business on the last business day that occurs prior
to the Expiration Date. Such notice shall specify the number of Covered
Shares the Participant elects to purchase, and shall be accompanied by
payment of the Exercise Price for such shares. Payment shall be by cash or
by check payable to the Company. Except as otherwise provided by the
Committee before the Option is exercised, (i) all or a portion of the
Exercise Price may be paid by the Participant by delivery of shares of
Stock owned by the Participant and acceptable to the Committee having an
aggregate Fair Market Value (as of the date of exercise) that is equal to
the amount of cash that would otherwise be required; and (ii) the
Participant may pay the Exercise Price by authorizing a third party to sell
shares of Stock (or a sufficient portion of the shares) acquired upon
exercise of the Option and remit to the Company a sufficient portion of the
sale proceeds to pay the entire Exercise Price and any tax withholding
resulting from such exercise. The Option shall not be exercisable if and to
the extent the Company determines that such exercise would violate
applicable state or federal securities laws or the rules and regulations of
any securities exchange on which the Stock is traded. If the Company makes
such a determination, it shall use all reasonable efforts to obtain
compliance with such laws, rules or regulations. In making any
determination hereunder, the Company may rely on the opinion of counsel for
the Company.
6. Withholding. All deliveries and distributions under this Agreement are
subject to withholding of all applicable taxes. At the election of the
Participant, and subject to such rules and limitations as may be
established by the Committee from time to time, such withholding
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obligations may be satisfied through the surrender of shares of Stock which
the Participant already owns, or to which the Participant is otherwise
entitled under the Plan.
7. Transferability. Except as otherwise provided in this Paragraph 7, the
Option is not transferable other than as designated by the Participant by
will or by the laws of descent and distribution, and during the
Participant's life, may be exercised only by the Participant. However, the
Participant, with the prior approval of the Committee, may transfer the
Option for no consideration to or for the benefit of the Participant's
Immediate Family (including, without limitation, to a trust for the benefit
of the Participant's Immediate Family or to a partnership or limited
liability company for one or more members of the Participant's Immediate
Family), subject to such limits as the Committee may establish, and the
transferee shall remain subject to all terms and conditions applicable to
the Option prior to such transfer. The foregoing right to transfer the
Option shall apply to the right to consent to amendments to this Agreement
and, in the discretion of the Committee, shall also apply to the right to
transfer ancillary rights associated with the Option. The term "Immediate
Family" means the Participant's spouse, parents, children, stepchildren,
adoptive relationships, sisters, brothers and grandchildren.
8. Definitions. Capitalized terms in this Agreement shall have the meaning
given them in the Plan, or elsewhere in this Agreement. In addition, the
following definitions shall apply:
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"Competitor" is any person or entity engaged in the distribution or
promotion of related products in the United States.
"Date of Termination" is the first day occurring on or after the Grant Date
on which the Participant is not employed by the Company or any Subsidiary,
regardless of the reason for the termination of employment; provided that a
termination of employment shall not be deemed to occur by reason of a
transfer of the Participant between the Company and a Subsidiary or between
two Subsidiaries; and further provided that the Participant's employment
shall not be considered terminated while the Participant is on an
authorized leave of absence from the Company or Subsidiary. If, as a result
of a sale or other transaction, the Participant's employer ceases to be a
Subsidiary (and the Participant's employer is or becomes an entity that is
separate from the Company), the occurrence of such transaction shall be
treated as the Participant's Date of Termination caused by the Participant
being discharged by the employer.
9. Heirs and Successors. This Agreement shall be binding upon, and inure to
the benefit of, the Company and its successors and assigns, and upon any
person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the Company's assets and business.
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If any rights exercisable by the Participant or benefits deliverable to the
Participant under this Agreement have not been exercised or delivered,
respectively, at the time of the Participant's death, such rights shall be
exercisable by the Designated Beneficiary, and such benefits shall be
delivered to the Designated Beneficiary in accordance with the provisions
of this Agreement and the Plan. The "Designated Beneficiary" shall be the
beneficiary or beneficiaries designated by the Participant in a writing
filed with the Committee in such form and at such time as the Committee
shall require. If a deceased Participant fails to designate a beneficiary,
or if the Designated Beneficiary does not survive the participant, any
rights that would have been exercisable by the Participant and any benefits
distributable to the Participant shall be exercised by or distributed to
the legal representative of the estate of the Participant. If a deceased
Participant has designated a beneficiary but the Designated Beneficiary
dies before the Designated Beneficiary's exercise of all rights under this
Agreement or before the complete distribution of benefits to the Designated
Beneficiary under this Agreement, then any rights that would have been
exercisable by the Designated Beneficiary shall be exercised by the legal
representative of the estate of the Designated Beneficiary, and any
benefits distributable to the Designated Beneficiary shall be distributed
to the legal representative of the estate of the Designated Beneficiary.
10. Administration. The authority to manage and control the operation and
administration of this Agreement shall be vested in the Committee, and the
Committee shall have all powers with respect to this Agreement as it has
with respect to the Plan. Any interpretation of the Agreement by the
Committee and any decision made by it with respect to the Agreement is
final and binding on all persons.
11. Plan Governs. This Option is subject to and the Participant is bound by all
of the terms and conditions of the Plan, as the same may have been amended
from time to time in accordance with its terms. A copy of the Plan in its
present form is available from the office of the Secretary of the Company.
In the event of a conflict between the terms of the Plan and the terms of
this Agreement, the terms and provisions of the Plan shall govern.
12. Not an Employment Contract. The Option does not confer any right on the
Participant with respect to continuation of employment or other service
with the Company or any Subsidiary, nor will it interfere in any way with
any right the Company or any Subsidiary would otherwise have to terminate
or modify the terms of such Participant's employment or other service at
any time.
13. Rights in Stock Before Issuance and Delivery. No person shall be entitled
to the privileges of stock ownership in respect of any shares issuable upon
exercise of this Option unless and until such shares have been issued to
such person as fully-paid shares.
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14. Notices. Any notice to be given to the Company shall be addressed to the
Company in care of its corporate Secretary at its principal offices and any
notice to be given to the Participant shall be addressed to the Participant
at the address set forth beneath the Participant's signature hereto or at
such other address as the Participant may hereafter designate in writing to
the Company. Any such notice shall be deemed duly given when enclosed in a
properly sealed envelope or wrapper addressed as before said, registered or
certified and deposited postage and registry or certification fees prepaid
in a post office or branch post office regularly maintained by the United
States Postal Service.
15. Other Terms. This Agreement has been executed and delivered by the Company
in Salt Lake City, Utah and shall be construed and enforced in accordance
with the laws of said state, other than any choice of law rules calling for
the application of laws of another jurisdiction. This Agreement may be
amended by written agreement of the Participant and the Company, without
the consent of any other person. If the Company enters into a transaction
which is intended to be accounted for using the pooling-of-interests method
of accounting, but it is determined by the Board that the Option or any
aspect thereof could reasonably be expected to preclude such treatment,
then the Board may modify (to the minimum extent required) or revoke (if
necessary) the Option or any of the provisions thereof to the extent that
the Board determines that such modification or revocation is necessary to
enable the transaction to be subject to pooling-of-interests accounting.
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IN WITNESS WHEREOF the Company has granted this Option on the Date of
Grant specified above.
Volu-Sol, Inc.
5095 West 2100 South
Salt Lake City, Utah 84120
By: /s/ W.W. Kirton III
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Its: President & Chief Executive Officer
Participant:
/s/ W. W. Kirton, III
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W. W. Kirton, III
4616 Park Manor Drive
Salt Lake City, UT 84117
NOTICE OF EXERCISE
Volu-Sol, Inc.
5095 West 2100 South
Salt Lake City, Utah 84120
Ladies and Gentlemen:
The undersigned hereby elects to purchase, pursuant to the provisions of the
Stock Option Agreement and Option held by the undersigned, dated ___________,
_________ shares of Stock of Volu-Sol, Inc., a Utah corporation, issuable upon
exercise of said Option.
The undersigned hereby represents and warrants that the undersigned is acquiring
such stock for his own account and not for resale or with a view to distribution
of any part thereof.
The undersigned hereby attaches the purchase price payable for such shares at
$______ per share in the form of ____________________________________ (specify
cash, check, money order, other securities, etc.).
Dated:
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Signature
Printed Name
Address:
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(Social Security Number)