Rule
10b5-1 Sales Plan
This
Sales Plan dated August 17, 2009 (this “Sales Plan”) is
between James R. Musick (“Seller’) and Ameriprise
Financial Services, Inc. acting as agent for Seller.
A.
Recitals
1.
This Sales Plan is entered into between Seller and
Ameriprise Financial Services, Inc. for the purpose of establishing
a trading plan that complies with the requirements of Rule
10b5-1(c)(1) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
2.
Seller is establishing this Sales Plan in order to
permit the orderly disposition of a portion of Seller's holdings of
the common stock (the "Stock") of Vitro Diagnostics, Inc. (the
"Issuer"), including Stock that Seller has the right to acquire
under the outstanding stock options issued by the Issuer listed on
Schedule A hereto (the "Options").
B.
Seller's Representations, Warranties and Covenants
1. As of
the date hereof, Seller is not aware of any material nonpublic
information concerning the Issuer or its securities. Seller is
entering into this Sales Plan in good faith and not as part of a
plan or scheme to evade compliance with the federal securities
laws.
2.
The securities to be sold under this Sales Plan are owned
free and clear by Seller (subject, in the case of shares underlying
Options, only to the compliance by Seller with the exercise
provisions of such Options) and are not subject to any agreement
granting any pledge, lien, mortgage, hypothecation, security
interest, charge, option or encumbrance or any other limitation on
disposition, other than those which may have been entered into
between Seller and Ameriprise Financial Services, Inc. or imposed
by Rules 144 or 145 under the Securities Act of 1933, as amended
(the "Securities Act").
3. While
this Sales Plan is in effect, Seller agrees not to enter into or
alter any corresponding or hedging transaction or position with
respect to the securities covered by this Sales Plan (including,
without limitation, with respect to any securities convertible or
exchangeable into the Stock) and agrees not to alter or deviate
from the terms of this Sales Plan.
4.
Seller agrees that Seller shall not, directly or indirectly,
communicate any information relating to the Stock or the Issuer to
any employee of Ameriprise Financial Services, Inc. or its
affiliates who are involved, directly or indirectly, in executing
this Sales Plan at any time while this Sales Plan is in effect. Any
notice given to Ameriprise Financial Services, Inc. pursuant to
this Sales Plan shall be given in accordance with paragraph
G.5.
5.
(a) Seller agrees to provide Ameriprise Financial
Services, Inc. with a certificate dated as of the date hereof and
signed by the Issuer substantially in the form of Exhibit A prior
to commencement of the Plan Sales Period (as defined
below).
(b)
Seller agrees to notify Ameriprise Financial Services, Inc. by
telephone at the number set forth in paragraph G.5 below as soon as
practicable if Seller becomes aware of the occurrence of any event
contemplated by paragraph 3 of the certificate set forth as Exhibit
A. Such notice shall indicate the anticipated duration of the
restriction, but shall not include any other information about the
nature of the restriction or its applicability to Seller and shall
not in any way communicate any material nonpublic information about
the Issuer or its securities to Ameriprise Financial Services, Inc.
Such noticeshall be in addition to the notice required to be given
to Ameriprise Financial Services, Inc. by the Issuer pursuant to
the certificate set forth as Exhibit A hereto.
6.
The execution and delivery of this Sales Plan by Seller and
the transactions contemplated by this Sales Plan will not
contravene any provision of applicable law or any agreement or
other instrument binding on Seller or any of Seller's affiliates or
any judgment, order or decree of any governmental body, agency or
court having jurisdiction over Seller or Seller's
affiliates.
7.
Seller has consulted with Seller's own advisors as to the
legal, tax, business, financial and related aspects of, and has not
relied upon Ameriprise Financial Services, Inc. or any person
affiliated with Ameriprise Financial Services, Inc. in connection
with, Seller's adoption and implementation of this Sales Plan.
Seller acknowledges that Ameriprise Financial Services, Inc. is not
acting as a fiduciary or an advisor for Seller.
8.
Seller agrees that until this Sales Plan has been terminated Seller
shall not (i) enter into a binding contract with respect to the
purchase or sale of Stock with another broker, dealer or financial
institution (each, a "Financial Institution"), (ii) instruct
another Financial Institution to purchase or sell Stock or (iii)
adopt a plan for trading with respect to Stock other than this
Sales Plan.
9. (a)
Seller agrees to make all filings, if any, required under Sections
13(d), 13(g) and 16 of the Exchange Act in a timely manner, to the
extent any such filings are applicable to Seller.
(b)
Seller agrees that Seller shall at all times during the Plan Sales
Period (as defined below), in connection with the performance of
this Sales Plan, comply with all applicable laws, including,
without limitation, Section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
Paragraphs 10 and
11 are applicable only to shares restricted by Rule 144 and/or Rule
145.
10.
Seller agrees to complete, execute and deliver to Ameriprise
Financial Services, Inc. a seller representation letter dated as of
the date hereof substantially in the form of Exhibit B hereto prior
to the commencement of the Plan Sales Period.
11. (a)
Seller represents and warrants that the Stock to be sold pursuant
to this Sales Plan is currently eligible for sale under Rule 144 or
145.
(b)
Seller agrees not to take, and agrees to cause any person or entity
with which Seller would be required to aggregate sales of Stock
pursuant to paragraph (a)(2) or (e) of Rule 144 not to take, any
action that would cause the sales hereunder not to meet all
applicable requirements of Rule 144.
(c)
Seller agrees to complete, execute and deliver to Ameriprise
Financial Services, Inc. Forms 144 for the sales to be effected
under this Sales Plan at such times and in such numbers as
Ameriprise Financial Services, Inc. shall request, and Ameriprise
Financial Services, Inc. agrees to file such Forms 144 on behalf of
Seller as required by applicable law. Seller understands and agrees
that Ameriprise Financial Services, Inc. shall make one Form 144
filing at the beginning of each three-month period commencing upon
the first Sale Day under this Sales Plan.
(d)
Seller hereby grants Ameriprise Financial Services, Inc., a power
of attorney to complete and/or file on behalf of Seller any
required Forms 144. Notwithstanding such power of attorney, Seller
acknowledges that Ameriprise Financial Services, Inc. shall have no
obligation to complete or file Forms 144 on behalf of Seller except
as set forth in subparagraph (c).
(e)
Ameriprise Financial Services, Inc. agrees to conduct all sales
pursuant to this Sales Plan in accordance with the manner of sale
requirement of Rule 144 of the Securities Act and in no event shall
Ameriprise Financial Services, Inc. effect any sale if such sale
would exceed the then-applicable amount limitation under Rule 144,
assuming Ameriprise Financial Services, Inc.'s sales pursuant to
this Sales Plan are the only sales subject to that
limitation.
12.
Seller acknowledges and agrees that Seller does not have, and shall
not attempt to exercise, any influence over how, when or whether to
effect sales of Stock pursuant to this Sales Plan.
C.
Implementation of the Plan
1.
Seller hereby appoints Ameriprise Financial Services, Inc. to sell
shares of Stock pursuant to the terms and conditions set forth
below. Subject to such terms and conditions, Ameriprise Financial
Services, Inc. hereby accepts such appointment.
2.
Ameriprise Financial Services, Inc. is authorized to begin
selling Stock pursuant to this Sales Plan on
August 17, 2009 and shall
cease selling Stock on the earliest to occur of (i) the date on
which Ameriprise Financial Services, Inc.is required to suspend or
terminate sales under the Sales Plan pursuant to
paragraph D.1
below, (ii) the date on which Ameriprise Financial Services, Inc.
receives notice of the death of Seller, (iii) the date on which the
Issuer or any other person publicly announces a tender or
exchange
offer with respect to the Stock or a merger, acquisition,
reorganization, recapitalization or comparable transaction
affecting the securities of the Issuer as a result of which the
Stock is to be exchanged or converted into shares of another
company, (iv) the date on which Ameriprise Financial Services, Inc.
receives notice of the commencement or impending commencement of
any proceedings in respect of or triggered by Seller's bankruptcy
or insolvency and (v) (specify one or more occurrences that will
mark the last day on which sales may occur): October 31,
2009, and/or the date that the aggregate number of shares of Stock
sold pursuant to this Sales Plan reaches 170,000 shares.
3.
(a) Establishing Your Plan Price — During the
Plan Sales Period, Ameriprise Financial Services, Inc. shall sell
the Daily Sale Amount (as defined below) for the account of Seller
on each Sale Day (as defined below), subject to the following
restrictions, if desired: Ameriprise Financial Services, Inc.
shall sell shares of Stock pursuant to this Sales Plan at a price
at or above $ 0.28 per share (before deducting any
commission, commission equivalent, mark-up or differential and
other expenses of sale) (the "Minimum Sale Price").
(b)
Establishing a Plan Time Schedule— A "Sale Day" is "each
Trading Day" during the Plan Sales Period, provided
that if any Sale Day is not a Trading Day, such Sale Day shall be
deemed to fall on the next succeeding Trading Day. A "Trading Day"
is any day during the Plan Sales Period that the principal market
or exchange for the Stock (the "Principal Market") is open for
business and the Stock trades regular way on the Principal Market.
Orders placed with Ameriprise Financial are good for 90 calendar
days. In the event an Ameriprise financial advisor is submitting
this contract on behalf of the client, it is the sole
responsibility of the financial advisor to promptly renew orders
that may expire under the Sales Plan. Ameriprise Financial
Services, Inc. assumes no liability for trades not placed due to
expiration of any sales order initially placed by an Ameriprise
financial advisor.
(c)
Establishing Plan Quantity— The "Daily Sale Amount" for any
Sale Day shall be 5,000 (Five thousand) Shares per Sale
Day.
(d)
Subject to the restrictions set forth in paragraph C.3(a) above,
Ameriprise Financial Services, Inc. shall sell the Daily Sale
Amount on each Sale Day under ordinary principles of best execution
at the then-prevailing market price.
(e)
If, consistent with ordinary principles of best execution or
for any other reason, Ameriprise Financial Services, Inc. cannot
sell the Daily Sale Amount on any Sale Day, then Brokerage Firm's
obligation to sell Stock on such Sale Day pursuant to this Sales
Plan shall be deemed to have been satisfied. Nevertheless, if any
such shortfall exists after the close of trading on the last
Trading Day of the Plan Sales Period, Ameriprise Financial
Services, Inc.'s authority to sell such shares for the account of
Seller under this Sales Plan shall terminate.
(f)
The Daily Sale Amount or the Minimum Sale Price, if
applicable, shall be adjusted automatically on a proportionate
basis to take into account any stock split, reverse stock split or
stock dividend with respect to the Stock or any change in
capitalization with respect to the Issuer that occurs during the
Plan Sales Period.
4.
Ameriprise Financial Services, Inc. shall not
sell Stock hereunder at any time when:
(i)
Ameriprise Financial Services, Inc., in its sole
discretion, has determined that it is prohibited from doing so by a
legal, contractual or regulatory restriction applicable to it or
its affiliates or to Seller or Seller's affiliates (other than any
such restriction relating to Seller's possession or alleged
possession of material nonpublic information about the Issuer or
the Stock); or
