Biomune Systems, Inc.
Stock Option Grant and Agreement
Pursuant to the terms and conditions of the Biomune Systems, Inc. 1999 Stock
Option and Incentive Plan (the "Plan"), Biomune Systems, 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 ___________________.
b. Date of Xxxxx is ____________________.
c. Number of Covered Shares is ____________________.
d. Exercise Price Per Share is $__________.
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 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
2
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 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 nutraceutical, functional or
medical foods or 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
3
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. 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
4
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.
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.
5
IN WITNESS WHEREOF the Company has granted this Option on the Date of
Grant specified above.
Biomune Systems, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
By:
-----------------------------------
Its: President & Chief Executive Officer
Participant:
-----------------------------------------
6
NOTICE OF EXERCISE
Biomune Systems, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
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 Biomune Systems, Inc., a Nevada 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:
------------------------------------
Signature
------------------------------------
Printed Name
Address: --------------------------
------------------------------------
------------------------------------
-----------------------------------
(Social Security Number)
7
