-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, C6dZTXUr+rpNZXRlueQy8C9HtbBRdH8rZpmDYRX9xV5rDqv8g89Db/pah3FfosLF Oujib/k7KRo7olMBE/1kPg== 0001012895-01-500174.txt : 20020413 0001012895-01-500174.hdr.sgml : 20020413 ACCESSION NUMBER: 0001012895-01-500174 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20011213 EFFECTIVENESS DATE: 20011213 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DIATECT INTERNATIONAL CORP CENTRAL INDEX KEY: 0000319124 STANDARD INDUSTRIAL CLASSIFICATION: AGRICULTURE CHEMICALS [2870] IRS NUMBER: 953555738 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75022 FILM NUMBER: 1812779 BUSINESS ADDRESS: STREET 1: 875 SOUTH INDUSTRIAL PARKWAY CITY: HEBER STATE: UT ZIP: 84032 BUSINESS PHONE: 435-654-4370 MAIL ADDRESS: STREET 1: 875 SOUTH INDUSTRIAL PARKWAY CITY: HEBER STATE: UT ZIP: 84032 FORMER COMPANY: FORMER CONFORMED NAME: SAN DIEGO BANCORP DATE OF NAME CHANGE: 19931124 S-8 1 fs8_01d.txt REGISTRATION STATEMENT ON FORM S-8 1 As filed with the Securities and Exchange Commission on December 13, 2001 SEC File No. ___________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 DIATECT INTERNATIONAL, INC. ------------------------------------------------------ (Exact name of registrant as specified in its charter) CALIFORNIA 95-355578 - ------------------------------- ------------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 875 South Industrial Parkway, Heber, UT 84032 - ---------------------------------------- --------- (Address of Principal Executive Offices) (Zip Code) ELLIOTT N. TAYLOR NON-QUALIFIED STOCK OPTION -------------------------------------------- (Full title of the plan) JOHN C. THOMPSON NON-QUALIFIED STOCK OPTION ------------------------------------------- (Full title of the plan) Jay Downs, 875 South Industrial Parkway, Heber, UT 84032 - ------------------------------------------------------------------------------ (Name, address, including zip code of agent for service) Telephone number, including area code, of agent for service: (435) 654-4370
CALCULATION OF REGISTRATION FEE Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Per Offering Registration Registered Registered (2) Share (1) Price Fee - ---------- ---------- ----------- ---------- ------------ Common Stock, no par value 200,000 $0.31 $62,000 $ 14.82
(1) Bona fide estimate of maximum offering price solely for the purpose of calculating the registration fee as determined under Regulation C, Rule 457(c) and/or (g), of the Securities Act of 1933, based on the average of the bid and ask price of the Registrant's common stock as reported on the NASD's OTC Bulletin Board on December 10, 2001. 2 DIATECT INTERNATIONAL CORPORATION PART I Cross Reference Sheet Pursuant to Rule 404(a) Cross-reference between items of part I of form S-8 and the section 10(a) prospectus which will be delivered to each employee, director or consultant who participates in the stock option plan. Registration Statement Item Numbers and Headings Prospects Headings - ------------------------------------------------ ------------------ 1) Plan Information Section 10(a) Prospectus 2) Registration Information and Employee Plan Annual Information Section 10(a) Prospectus 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by the Company with the Commission are hereby incorporated by reference: 1) The Company's annual report on Form 10-KSB for the period ended December 31, 2000, dated March 29, 2001; 2) The Company's quarterly report on Form 10-QSB for the period ended September 30, 2001, dated November 14, 2001; and 3) All additional reports filed by the Company with the Commission pursuant to section 13(a) or 15(d) of the Exchange Act after September 30, 2001. All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 12, or 15(d) of the Exchange Act prior to the filing of any post-effective amendment which indicates that all securities covered by this Prospectus have been sold or which deregisters all such securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. 4 ITEM 4. DESCRIPTION OF SECURITIES Common Stock The Company is authorized to issue 50,000,000 shares of common stock, no par value per share (the "Common Stock"). The holders of the Common Stock are entitled to one vote per share on each matter submitted to a vote at any meeting of shareholders. Shares of Common Stock do not carry cumulative voting rights and, therefore, a majority of the shares of outstanding Common Stock will be able to elect the entire board of directors and, if they do so, minority shareholders would not be able to elect any persons to the board of directors. The Company's articles of incorporation and bylaws provide that a majority of the issued and outstanding shares of the Company shall constitute a quorum for shareholders' meetings, except with respect to certain matters for which a different percentage quorum is required by statute. Shareholders of the Company have no preemptive rights to acquire additional shares of Common Stock or other securities. The Common Stock is not subject to redemption and carries no subscription or conversion rights. In the event of liquidation of the Company, the shares of Common Stock are entitled to share equally in corporate assets after satisfaction of all liabilities and payment of any preferences on preferred stock. Holders of Common Stock are entitled to receive such dividends as the board of directors may from time to time declare out of funds legally available for the payment of dividends. The board of directors has the authority to issue the authorized but unissued shares of Common Stock without action by the shareholders. The issuance of such shares would reduce the percentage ownership held by persons purchasing Common Stock in this offering and may dilute the book value of the then existing shareholders. Registrar and Transfer Agent The registrar and transfer agent of the Company's securities is Interwest Transfer Company, 1981 East Murray-Holladay Road, Holladay, Utah 84117, (801) 272-9294. 5 ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL Members of the law firm Taylor and Associates, Inc., legal counsel to the Registrant, have been granted options under the plan being registered hereunder aggregating 200,000 shares at an exercise price of $0.20 per share, for an aggregate fair market value of $62,000, based on the average of the bid and ask price of the Registrant's common stock as reported on the NASD's OTC Bulletin Board on December 10, 2001. Except as otherwise disclosed herein, no other expert or counsel for the Company named in this registration statement as having prepared or certified any part hereof, or as giving an opinion as to the validity of the securities being registered was employed on a contingency basis, or has or is to receive, in connection with the offering, a substantial interest in the Company or its subsidiaries. In addition no such expert or counsel is connected with the Company or its subsidiaries as a promoter, managing underwriter, voting trustee, director, officer, or employee. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The following is a brief summary of certain indemnification provisions of the Company's certificate of incorporation and the California Corporations Code. This summary is qualified in its entirety by reference to the text thereof. Section 317 of the California Corporation code, as amended ("Section 317") permits a California corporation to indemnify its directors and officers for certain of their acts. More specifically, Section 317 grants authority to any corporation to indemnify directors and officers against any judgments, fines, amounts paid in settlement and reasonable expenses, including attorneys' fees, by reason of his having been such a corporate director or officer. Such provision is limited to instances where the director or officer acted in good faith and in a manner he reasonably believed to e in or not opposed to the best interests of the corporation, or, in criminal proceedings, he had no reasonable cause to believe his conduct was unlawful. Such section confers on the director or officer an absolute right to indemnification for expenses, including attorney's fees, actually and reasonably incurred by him to the extent he is successful on the merits or otherwise defense of any claim, issue, or matter. Section 317 expressly makes indemnification contingent upon a determination that indemnification is proper in the circumstances. Such determination must be made by the board of directors acting through a quorum of disinterested directors, or by the board of directors acting on the advice of independent legal counsel, or by the shareholders. Further, Section 317 permits a corporation to pay attorneys' fees and other litigation expenses on behalf of a director or officer in advance of the final disposition of the action upon receipt of an undertaking by or on behalf of such director or officer to repay such expenses to the corporation if it is ultimately determined that he is not entitled to be indemnified by the corporation or to the extent the expenses so advanced by the corporation exceed the indemnification to which he is entitled. Such indemnification provisions do not exclude other indemnification rights to which a director or officer may be entitled under the certificate of incorporation, a bylaw, an agreement, a vote of shareholders, or otherwise. The corporation may also purchase and maintain insurance to provide indemnification. The foregoing discussion of indemnification merely summarizes certain aspects of indemnification provisions and is limited by reference to Section 317 of the California Corporations code, as amended. 6 Insofar as indemnification for liabilities arising under the Securities Act may be permitted to members of the board of directors, officers, employees, or persons controlling the Company pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. ITEM 8. EXHIBITS Exhibits. - --------- Copies of the following documents are included as exhibits to this registration statement pursuant to Item 601 of Regulation S-K. SEC Exhibit Reference No. No. Description Location - ------- --------- ----------- -------- 4.01 4 Elliott N. Taylor Non-qualified Stock Option This filing 4.02 4 John C. Thompson Non-qualified Stock Option This Filing 5.01 5 & 23 Letter opinion, including consent of Taylor and Associates, Inc. Attorneys and Counselors at Law, regarding legality of Common Stock to be issued pursuant to options granted under the Plans. This Filing 23.01 23 Consent of Williams & Webster, P.S. Certified Public Accountants This Filing 25.01 25 Powers of Attorney See Signature Page 7 ITEM 9. UNDERTAKINGS REGULATION S-K Post-Effective Amendments-Item 512(a) - ------------------------------------- The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement, 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. (2) 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. (3) 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. Filings Incorporating Subsequent Exchange Act Documents by Reference-Item 512(b) - ------------------------------------------------------------------------- The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended , each filing of the Registrant's annual report pursuant to section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(a) of the Securities Exchange Act of 1934) 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. Filing of Registration Statement on Form S-8 - Item 512(h) - ---------------------------------------------------------- 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 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. 8 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Heber, state of Utah, this 11th day of December, 2001. DIATECT INTERNATIONAL CORPORATION By /S/ Jay Downs, President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jay Downs, with power of substitution, as his attorney-in-fact for him, in all capacities, to sign any amendments to this registration statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact or his substitutes may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date - --------- ----- ---- /S/ Jay Downs Director December 10, 2001 /S/ David Andrus Director December 10, 2001 /S/ John Runft Director December 10, 2001 /S/ Stewart Hyndman Director December 10, 2001 /S/ Robert Crouch Director December 10, 2001 EX-5 2 fs85_23.txt OPINION AND CONSENT OF COUNSEL EXHIBIT NO. 5 & 23 TAYLOR AND ASSOCIATES, INC. 2681 East Parleys Way, Suite 203 Salt Lake City, UT 84109 December 10, 2001 Board of Directors Diatect International Corporation 875 South Industrial Parkway Heber, Utah 84032 Re: Diatect International Corporation Registration Statement on Form S-8 Ladies and Gentlemen: We have been retained by Diatect International Corporation (the "Company") in connection with the registration statement (the "Registration Statement") on Form S-8 to be filed by the Company with the Securities and Exchange Commission relating to the securities of the Company. You have requested that we render our opinion as to whether or not the securities proposed to be issued on the terms set forth in the Registration Statement will be validly issued, fully paid, and nonassessable. In connection with this request, we have examined the following: 1. Articles of Incorporation of the Company, and amendments thereto; 2. Bylaws of the Company; 3. Unanimous consent resolutions of the Company's board of directors; 4. The Registration Statement; 5. The Elliott N. Taylor Non-qualified Stock Option; and 6. The John C. Thompson Non-qualified Stock Option. We have examined such other corporate records and documents and have made such other examinations as we have deemed relevant. Based on the above examination, we are of the opinion that the securities of the Company to be issued pursuant to the Registration Statement are validly authorized and, when issued in accordance with the terms set forth in the Registration Statement, will be validly issued, fully paid, and nonassessable under corporate laws of the state of California. This opinion is limited in scope to the shares to be issued pursuant to the Registration Statement and does not cover subsequent issuance of shares to be made in the future. Such transactions are required to be included in either a new registration statement or a post-effective amendment to the Registration Statement, including updated opinions concerning the validity of issuance of such shares. Further, we consent to our name, Taylor and Associates, Inc. being included in the Registration Statement as having rendered the foregoing opinion and as having represented the Company in connection with the Registration Statement. Sincerely, /S/ TAYLOR AND ASSOCIATES, INC. EX-4 3 s8ex402.txt TAYLOR OPTION 1 Exhibit 4.01 NON-QUALIFIED STOCK OPTION THIS NONQUALIFIED STOCK OPTION (this "Option") is granted this 20th day of November 2001, by Diatect International Corporation, a California corporation (the "Company"), to John C. Thompson (the "Optionee"). Premises A. The Company has engaged Taylor and Associates, Inc., a law firm, of which Optionee is an employee, to provide professional and legal services to the Company in connection with the Company's ongoing and periodic reporting obligations and other general corporate matters. In consideration for Optionee s services, the Company has agreed to issue Optionee an option to purchase up to one hundred thousand (100,000) shares of the Company s common stock, no par value (the "Common Stock"). B. The Company intends to register the shares of Common Stock issuable on exercise of the Option under a registration statement on Form S-8 to be filed with the Securities and Exchange Commission. C. The Options have an exercise price of $0.20 per share. The exercise price is in excess of the closing price per share of the Company's Common Stock on November 19, 2001, the day prior to the grant of this Option. Grant 1. Grant of Option. The Company hereby irrevocably grants to Optionee the right and option to purchase all or any part of an aggregate of one hundred thousand (100,000) shares of Common Stock on the terms and conditions hereinafter set forth. 2. Exercise Price. The exercise price of this Option shall be $0.20 per share. 3. Term of Option. Subject to the other provisions contained herein, this Option may be exercised, in whole or in part, at any time until November 19, 2006. 4. Shareholder's Rights. The Optionee shall have the rights of a shareholder only with respect to Common Stock fully paid for by Optionee under this Option. 5. Record Owner, Persons Entitled to Exercise and Assignability. The Company may deem the Optionee as the absolute owner of this Option for all purposes. During the Optionee s lifetime, this Option can only be exercised by the Optionee, and neither this Option nor any right hereunder can be transferred other than by testamentary disposition or the laws of descent and distribution. This Option is not assignable and in the event of any alienation, assignment, pledge, hypothecation, or other transfer of this Option or any right hereunder, except as permitted herein, this Option and all rights granted hereunder shall be immediately null and void. 2 6. Method of Exercise. This Option may be exercised by delivery of a notice of exercise, a form of which is attached hereto as Exhibit "A" and incorporated herein by this reference, setting forth the number of Options to be exercised along with either: (a) A certified check or bank check payable to the order of the Company in the amount of the full exercise price of the Common Stock being purchased; (b) Shares of Common Stock of the Company already owned by the Optionee equal to the exercise price with the Common Stock valued at its fair market value based on the closing bid quotation for such stock on the close of business on the day last preceding the date of exercise of such Option, as reported or quoted on the NASDAQ System or, if not included in the NASDAQ System, shall mean the closing bid quotation for such stock as determined by the Company through any other reliable means of determination available on the close of business on the day last preceding the date of such Option; (c) Options or other rights to purchase Common Stock valued at the amount by which the closing bid quotations as determined in accordance with Clause (b) above of the Common Stock subject to the options or other rights exceeds the exercise or purchase price provided on such options or rights; or (d) Cancellation of debt owed by the Company to the Option Holder, including debt from professional fees, services, employment relationships or otherwise, upon presentation of an invoice for services provided to the Company. As soon as practicable after receipt by the Company of such notice a certificate or certificates representing such shares of Common Stock shall be issued in the name of the Optionee, or, if the Optionee shall so request in the notice exercising the Option, in the name of the Optionee and another person jointly, with right of survivorship, and shall be delivered to the Optionee. If this Option is not exercised with respect to all Common Stock subject hereto, Optionee shall be entitled to receive a similar Option of like tenor covering the number of shares of Common Stock with respect to which this Option shall not have been exercised. 7. Availability of Shares. During the term of this Option, the Company shall at all times keep available for issuance the number of shares of Common Stock subject to this Option. 8. Restrictions on Transfer. The Option and the Common Stock subject to the Option (collectively referred to as the "Securities") are subject to registration under the Securities Act of 1933, as amended (the "Securities Act"), and any applicable state securities statutes. Optionee acknowledges that unless a registration statement with respect to the Securities is filed and declared effective by the Securities and Exchange Commission, the Securities have or will be issued in reliance on specific exemptions from such registration requirements for transactions by an issuer not involving a public offering and specific exemptions under state statutes. Any disposition of the Securities may, under certain circumstances, be inconsistent with such exemptions. The Securities may be offered for sale, sold, or otherwise transferred only if (i) registered under the Securities Act, and in some cases, under the applicable state securities acts, or, if not registered, (ii) only if pursuant to an exemption from such registration requirements and only 3 after the Optionee provides an opinion of counsel or other evidence satisfactory to the Company to the effect that registration is not required. In some states, specific conditions must be met or approval of the securities regulatory authorities may be required before any such offer or sale. If rule 144 is available (and no assurance is given that it will be), only routine sales of the Common Stock in limited amounts can be made after one year following the acquisition date of the Securities, as determined under rule 144(d), in accordance with the terms and conditions of rule 144. In any event, in the absence of an effective registration statement covering the Securities, the Company may refuse to consent to any transfer in the absence of an opinion of legal counsel, satisfactory to and independent of counsel of the Company, that such proposed transfer is consistent with the above conditions and applicable securities laws. The Company has agreed to use its best efforts to register the shares of Common Stock issuable on exercise of this Option by filing a registration statement on Form S-8 with the Securities and Exchange Commission within sixty (60) days from the date of the grant of this Option. 9. Validity and Construction. The validity and construction of this Option shall be governed by the laws of the state of Utah. EXECUTED as of the date first above written. The Company: Optionee: DIATECT INTERNATIONAL CORPORATION, a California corporation By /S/ Its Duly Authorized Officer /S/John C. Thompson EXHIBIT A Form of Exercise (to be signed only upon exercise of Option) TO: Diatect International Corporation 875 South Industrial Parkway Heber, UT 84032 The undersigned, the owner of the attached Option (the "Option Holder"), hereby irrevocably elects to exercise the purchase rights represented by the Option for, and to purchase thereunder, ______________ shares of Common Stock of DIATECT INTERNATIONAL CORPORATION. The Option Holder has enclosed ___________________________________________________________________ (the "Consideration"), pursuant to paragraph 6 of the Option, as payment of the exercise price of the Common Stock to be acquired. Please have the certificate(s) registered as follows: DATED this ____ day of ______________, 20___. ________________________________________ Signature of Optionee EX-4 4 s8ex401.txt THOMPSON OPTION 1 Exhibit 4.01 NON-QUALIFIED STOCK OPTION THIS NONQUALIFIED STOCK OPTION (this "Option") is granted this 20th day of November 2001, by Diatect International Corporation, a California corporation (the "Company"), to Elliott N. Taylor (the "Optionee"). Premises A. The Company has engaged Taylor and Associates, Inc., a law firm, of which Optionee is a principal, to provide professional and legal services to the Company in connection with the Company's ongoing and periodic reporting obligations and other general corporate matters. In consideration for Optionee s services, the Company has agreed to issue Optionee an option to purchase up to one hundred thousand (100,000) shares of the Company s common stock, no par value (the "Common Stock"). B. The Company intends to register the shares of Common Stock issuable on exercise of the Option under a registration statement on Form S-8 to be filed with the Securities and Exchange Commission. C. The Options have an exercise price of $0.20 per share. The exercise price is in excess of the closing price per share of the Company's Common Stock on November 19, 2001, the day prior to the grant of this Option. Grant 1. Grant of Option. The Company hereby irrevocably grants to Optionee the right and option to purchase all or any part of an aggregate of one hundred thousand (100,000) shares of Common Stock on the terms and conditions hereinafter set forth. 2. Exercise Price. The exercise price of this Option shall be $0.20 per share. 3. Term of Option. Subject to the other provisions contained herein, this Option may be exercised, in whole or in part, at any time until November 19, 2006. 4. Shareholder's Rights. The Optionee shall have the rights of a shareholder only with respect to Common Stock fully paid for by Optionee under this Option. 5. Record Owner, Persons Entitled to Exercise and Assignability. The Company may deem the Optionee as the absolute owner of this Option for all purposes. During the Optionee s lifetime, this Option can only be exercised by the Optionee, and neither this Option nor any right hereunder can be transferred other than by testamentary disposition or the laws of descent and distribution. This Option is not assignable and in the event of any alienation, assignment, pledge, hypothecation, or other transfer of this Option or any right hereunder, except as permitted herein, this Option and all rights granted hereunder shall be immediately null and void. 2 6. Method of Exercise. This Option may be exercised by delivery of a notice of exercise, a form of which is attached hereto as Exhibit "A" and incorporated herein by this reference, setting forth the number of Options to be exercised along with either: (a) A certified check or bank check payable to the order of the Company in the amount of the full exercise price of the Common Stock being purchased; (b) Shares of Common Stock of the Company already owned by the Optionee equal to the exercise price with the Common Stock valued at its fair market value based on the closing bid quotation for such stock on the close of business on the day last preceding the date of exercise of such Option, as reported or quoted on the NASDAQ System or, if not included in the NASDAQ System, shall mean the closing bid quotation for such stock as determined by the Company through any other reliable means of determination available on the close of business on the day last preceding the date of such Option; (c) Options or other rights to purchase Common Stock valued at the amount by which the closing bid quotations as determined in accordance with Clause (b) above of the Common Stock subject to the options or other rights exceeds the exercise or purchase price provided on such options or rights; or (d) Cancellation of debt owed by the Company to the Option Holder, including debt from professional fees, services, employment relationships or otherwise, upon presentation of an invoice for services provided to the Company. As soon as practicable after receipt by the Company of such notice a certificate or certificates representing such shares of Common Stock shall be issued in the name of the Optionee, or, if the Optionee shall so request in the notice exercising the Option, in the name of the Optionee and another person jointly, with right of survivorship, and shall be delivered to the Optionee. If this Option is not exercised with respect to all Common Stock subject hereto, Optionee shall be entitled to receive a similar Option of like tenor covering the number of shares of Common Stock with respect to which this Option shall not have been exercised. 7. Availability of Shares. During the term of this Option, the Company shall at all times keep available for issuance the number of shares of Common Stock subject to this Option. 8. Restrictions on Transfer. The Option and the Common Stock subject to the Option (collectively referred to as the "Securities") are subject to registration under the Securities Act of 1933, as amended (the "Securities Act"), and any applicable state securities statutes. Optionee acknowledges that unless a registration statement with respect to the Securities is filed and declared effective by the Securities and Exchange Commission, the Securities have or will be issued in reliance on specific exemptions from such registration requirements for transactions by an issuer not involving a public offering and specific exemptions under state statutes. Any disposition of the Securities may, under certain circumstances, be inconsistent with such exemptions. The Securities may be offered for sale, sold, or otherwise transferred only if (i) registered under the Securities Act, and in some cases, under the applicable state securities acts, or, if not registered, (ii) only if pursuant to an exemption from such registration requirements and only 3 after the Optionee provides an opinion of counsel or other evidence satisfactory to the Company to the effect that registration is not required. In some states, specific conditions must be met or approval of the securities regulatory authorities may be required before any such offer or sale. If rule 144 is available (and no assurance is given that it will be), only routine sales of the Common Stock in limited amounts can be made after one year following the acquisition date of the Securities, as determined under rule 144(d), in accordance with the terms and conditions of rule 144. In any event, in the absence of an effective registration statement covering the Securities, the Company may refuse to consent to any transfer in the absence of an opinion of legal counsel, satisfactory to and independent of counsel of the Company, that such proposed transfer is consistent with the above conditions and applicable securities laws. The Company has agreed to use its best efforts to register the shares of Common Stock issuable on exercise of this Option by filing a registration statement on Form S-8 with the Securities and Exchange Commission within sixty (60) days from the date of the grant of this Option. 9. Validity and Construction. The validity and construction of this Option shall be governed by the laws of the state of Utah. EXECUTED as of the date first above written. The Company: Optionee: DIATECT INTERNATIONAL CORPORATION, a California corporation By /S/ Its Duly Authorized Officer /S/Elliott N. Taylor EXHIBIT A Form of Exercise (to be signed only upon exercise of Option) TO: Diatect International Corporation 875 South Industrial Parkway Heber, UT 84032 The undersigned, the owner of the attached Option (the "Option Holder"), hereby irrevocably elects to exercise the purchase rights represented by the Option for, and to purchase thereunder, ______________ shares of Common Stock of DIATECT INTERNATIONAL CORPORATION. The Option Holder has enclosed ___________________________________________________________________ (the "Consideration"), pursuant to paragraph 6 of the Option, as payment of the exercise price of the Common Stock to be acquired. Please have the certificate(s) registered as follows: DATED this ____ day of ______________, 20___. ________________________________________ Signature of Optionee EX-23 6 s82302.txt AUDITOR CONSENT 1 Exhibit 23.02 Board of Directors Diatect International, Inc. Heber, Utah Consent of Certified Public Accountants - --------------------------------------- We consent to the incorporation by reference of our audit report dated March 29, 2001, on the financial statements of Diatect International, Inc. as of December 31, 2000, and also to the incorporation by reference of our review report dated November 14, 2001 on the financial statements of Diatect International, Inc. as of September 30, 2001 for the filing with and attachment to the Form S-8. December 12, 2001 /S/ Williams & Webster, P.S. Williams & Webster, P.S. Bank of America Financial Center 601 W. Riverside, Suite 1940 Spokane, WA 99201-0611 Tel: 509-838-5111 Fax: 509-838-5114 -----END PRIVACY-ENHANCED MESSAGE-----