EXHIBIT 10.2
ALPHA INNOTECH CORP.
2006 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT (INCENTIVE STOCK OPTION)
THIS STOCK OPTION AGREEMENT (the "Agreement") dated [GRANT DATE]
("Grant Date") between Alpha Innotech Corp., a Delaware corporation (the
"Company"), and [EMPLOYEE NAME] ("Optionee"), is entered into as follows:
WITNESSETH:
WHEREAS, the Company has established the 2006 Equity Incentive Plan
(the "Plan"); and
WHEREAS, the Compensation Committee of the Board of Directors of the
Company or its delegates (the "Committee") has determined that Optionee shall be
granted an option under the Plan as hereinafter set forth;
The parties hereby agree that the Company grants, effective as of the
Grant Date, Optionee an option (this "Option") to purchase [SHARES] shares of
its $0.01 par value Common Stock (the "Shares") upon the terms and conditions
set forth in this Agreement.
1. PLAN AWARD. This Option is granted under and pursuant to the Plan and
is subject to each and all of the provisions thereof. This Option is intended to
be an Incentive Stock Option as defined in Section 422 of the Internal Revenue
Code of 1986, as amended, and to the extent this Option does not qualify as an
Incentive Stock Option under Applicable Laws, then it is intended to be and will
be treated as a Nonstatutory Stock Option. Notwithstanding the above, in the
event that the Shares subject to this Option (and all other Incentive Stock
Options granted to Optionee by the Company or any Subsidiary, including under
other plans of the Company or any Subsidiary) that first become exercisable in
any calendar year have an aggregate fair market value (determined for each Share
as of the date of grant of the option covering such Share) in excess of
$100,000, the Shares in excess of $100,000 shall be treated as subject to a
Nonstatutory Stock Option, in accordance with Section 9(b) of the Plan.
2. EXERCISE PRICE. The exercise price applicable to this Option (meaning,
the price Optionee must pay in order to purchase any Shares hereunder) shall be
[PRICE] per Share.
3. VESTING AND EXERCISE OF OPTION. Subject to Optionee's not experiencing
a Termination of Employment during the following vesting period, Optionee shall
vest in and earn the right to exercise this Option on the following schedule:
[INSERT VESTING SCHEDULE]
4. EXPIRATION. This Option will expire ten (10) years from the Grant Date,
unless sooner terminated or canceled in accordance with the provisions of the
Plan. This means that (subject to the continuing service requirement set forth
in Section 3 above and subject to earlier termination upon certain other events
as set forth in the Plan) this Option must be exercised, if at all, on or before
[EXPIRATION DATE] (the "Expiration Date"). If this Option expires on a stock
exchange holiday or weekend day, this Option will expire on the last trading day
PRIOR to the holiday or weekend. Optionee shall be solely responsible for
exercising this Option, if at all, prior to its Expiration Date. The Company
shall have no obligation to notify Optionee of this Option's expiration.
5. EXERCISE MECHANICS. This Option may be exercised by delivering to the
Stock Plan Administrator at the Company's head office a written or electronic
notice stating the number of Shares as to which the Option is exercised or by
any other method the Committee has approved. The notice must be accompanied by
the payment of the full Option exercise price of such Shares. Exercise shall not
be deemed to have occurred unless and until Optionee has delivered to the
Company (or its authorized representative) an approved notice of exercise, full
payment of the exercise price for the Shares being exercised and payment of any
applicable withholding taxes in accordance with Section 8 below. Payment of the
Option exercise price may be in cash (including check or wire transfer), through
an approved cashless-brokered exercise program, with shares of the Company's
Common Stock (subject to the Company's discretion to withhold approval for such
payment method at any time) or a combination thereof to the extent permissible
under Applicable Law; provided, however, that any permitted method of payment
shall be in strict compliance with all procedural rules established by the
Committee.
6. TERMINATION OF EMPLOYMENT. All rights of Optionee in this Option, to
the extent that it has not previously become vested and been exercised, shall
terminate upon Optionee's Termination of Employment except as set forth in this
Section 6. The portion of the Option that relates to any Shares that were
unvested and unexercisable as of the date of Optionee's Termination of
Employment shall terminate and expire effective immediately upon such date. With
respect to the vested and exercisable portion of the Option, and subject to the
final sentence of this Section 6:
(i) In the event of Termination of Employment other than as a
result of Optionee's death or disability, Optionee shall have 90 days to
exercise the Option as to the Shares subject to the Option that were vested and
exercisable as of the date of Termination of Employment; provided that if during
any part of such 90 day period, the Option is not exercisable because the
issuance of the Shares would violate the registration requirements under the
Securities Act, the Option shall not expire until the Option shall have been
exercisable for an aggregate of 90 days after the date of Termination of
Employment; provided further that if during any part of such 90 day period, the
Shares issued upon exercise of the Option may not be sold because Optionee has
material nonpublic information regarding the Company or is otherwise subject to
a trading blackout period under the Company's Xxxxxxx Xxxxxxx Policy, the Option
shall not expire until Optionee shall have had an aggregate of 90 days after the
date of Termination of Employment during which Optionee can sell the Shares
without being subject to such restrictions arising under xxxxxxx xxxxxxx laws or
Company policy; and provided further that notwithstanding the foregoing, in no
event may this Option be exercised more than one year after the date of
Termination of Employment;
(ii) In the event of Termination of Employment as a result of
Optionee's death or disability (including a Total and Permanent Disability),
Optionee shall have one year to exercise
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the Option as to the Shares subject to the Option that were vested and
exercisable as of the date of Termination of Employment; and
(iii) In the event of Termination of Employment for Cause, the
Option shall immediately terminate in its entirety upon first notification to
Optionee of Optionee's Termination of Employment. If Optionee's employment with
the Company is suspended pending an investigation of whether Optionee shall be
terminated for Cause, all of Optionee's rights under the Option likewise shall
be suspended during the investigation period and Optionee shall have no right to
exercise the Option.
Notwithstanding the above, in no event may an Option be exercised, even as to
vested and otherwise exercisable Shares, after the Expiration Date set forth in
Section 4 above.
7. TRANSFERABILITY. This Option generally is not transferable by Optionee
otherwise than by will or the laws of descent and distribution, and is
exercisable only by Optionee during Optionee's lifetime; provided however that
this Option may be transferred by instrument to an inter vivos or testamentary
trust in which the Option is to be passed to beneficiaries upon the death of the
trustor (settlor) or by gift or pursuant to domestic relations orders to
"Immediate Family Members" (as defined below) of the Optionee. "Immediate
Family" means any child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law (including
adoptive relationships), a trust in which these persons have more than fifty
percent of the beneficial interest, a foundation in which these persons (or the
Optionee) control the management of assets, and any other entity in which these
persons (or the Optionee) own more than fifty percent of the voting interests.
8. TAX MATTERS. Regardless of any action the Company or Optionee's
employer (the "Employer") takes with respect to any or all income tax, social
security, payroll tax, payment on account or other tax-related withholding
("Tax-Related Items"), Optionee acknowledges and agrees that the ultimate
liability for all Tax-Related Items legally due by him or her is and remains
Optionee's responsibility and that the Company and/or the Employer (i) make no
representations nor undertakings regarding the treatment of any Tax-Related
Items in connection with any aspect of this Option, including the grant, vesting
or exercise of this Option, the subsequent sale of Shares acquired pursuant to
such exercise and receipt of any dividends; and (ii) do not commit to structure
the terms or the grant or any aspect of this Option to reduce or eliminate
Optionee's liability for Tax-Related Items. Prior to the exercise of this
Option, Optionee shall pay or make adequate arrangements satisfactory to the
Company and/or the Employer to withhold all applicable Tax-Related Items legally
payable by Optionee from Optionee's wages or other cash compensation paid to
Optionee by the Company and/or the Employer or from proceeds of the sale of
Shares. Alternatively, or in addition, if permissible under Applicable Laws, the
Company may (but shall not be obligated to): (1) sell or arrange for the sale of
Shares that Optionee acquires to meet any withholding obligation for Tax-Related
Items, and/or (2) withhold in Shares, provided that the Company only withholds
the amount of Shares necessary to satisfy any minimum withholding amount. In
addition, Optionee shall pay the Company or the Employer any amount of
Tax-Related Items that the Company or the
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Employer may be required to withhold as a result of Optionee's participation in
the Plan or Optionee's purchase of Shares that cannot be satisfied by the means
previously described, and if Optionee does not otherwise so pay the Company or
the Employer, then the Company or the Employer may withhold amounts from
Optionee's cash compensation to satisfy such withholding obligation. The Company
may refuse to honor the exercise and refuse to deliver the Shares if Optionee
fails to comply with Optionee's obligations in connection with the Tax-Related
Items (including if Optionee's cash compensation is not sufficient to satisfy
such obligations). Although Optionee is being provided in the Plan prospectus a
description of certain tax consequences of transactions related to the Option,
Optionee remains responsible for all such tax consequences and the Company shall
not be deemed to provide any individual tax advice with respect thereto.
9. DISQUALIFYING DISPOSITIONS OF INCENTIVE STOCK OPTION STOCK. Optionee
acknowledges that if the Shares acquired by exercise of this Option are disposed
of within two years after the Grant Date or within one year after exercise,
immediately prior to the disposition Optionee will promptly notify the Company
in writing of the date and terms of the disposition and will provide such other
information regarding the disposition as the Company may reasonably require.
10. OPTIONEE ACKNOWLEDGEMENTS. By accepting the grant of this Option,
Optionee acknowledges and agrees that the Plan is established voluntarily by the
Company, it is discretionary in nature and may be modified, amended, suspended
or terminated by the Company at any time unless otherwise provided in the Plan
or this Agreement. Optionee acknowledges that all decisions with respect to
future grants, if any, will be at the sole discretion of the Company. Optionee's
participation in the Plan shall not create a right to further employment with
Employer and shall not interfere with the ability of Employer to terminate
Optionee's employment relationship at any time with or without cause and it is
expressly agreed and understood that employment is terminable at the will of
either party, insofar as permitted by law. Optionee agrees that this Option is
an extraordinary item that does not constitute compensation of any kind for
services of any kind rendered to the Company or the Employer, and is outside the
scope of Optionee's employment contract, if any. This Option is not part of
normal or expected compensation or salary for any purposes, including, but not
limited to calculating any severance, resignation, termination, redundancy,
end-of-service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments insofar as permitted by law. In the event that
Optionee is not an employee of the Company, this Option grant will not be
interpreted to form an employment contract or relationship with the Company, the
Employer or any Subsidiary or Affiliate of the Company. Optionee acknowledges
that the future value of the underlying Shares is unknown, may increase or
decrease in the future, and cannot be predicted with certainty. In consideration
of the grant of this Option, no claim or entitlement to compensation or damages
shall arise from termination of this Option or diminution in value of this
Option or Shares purchased through exercise of this Option resulting from
Optionee's Termination of Employment by the Company or the Employer (for any
reason whatsoever and whether or not in breach of Applicable Laws).
11. DATA TRANSFER. Optionee explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of Optionee's
personal data as described in this
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document by and among, as applicable, the Employer, and the Company and its
Subsidiaries and Affiliates for the exclusive purpose of implementing,
administering and managing Optionee's participation in the Plan. Optionee
understands that the Company, its Affiliates, its Subsidiaries and the Employer
hold certain personal information about Optionee, including, but not limited to,
name, home address and telephone number, date of birth, social security number
(or other identification number), salary, nationality, job title, any shares of
stock or directorships held in the Company, details of all options or any other
entitlement to shares of stock awarded, canceled, purchased, exercised, vested,
unvested or outstanding in Optionee's favor for the purpose of implementing,
managing and administering the Plan ("Data"). Optionee understands that the Data
may be transferred to any third parties assisting in the implementation,
administration and management of the Plan, that these recipients may be located
in Optionee's country or elsewhere and that the recipient country may have
different data privacy laws and protections than Optionee's country. Optionee
may request a list with the names and addresses of any potential recipients of
the Data by contacting the Stock Plan Administrator. Optionee authorizes the
recipients to receive, possess, use, retain and transfer the Data, in electronic
or other form, for the purposes of implementing, administering and managing
Optionee's participation in the Plan, including any requisite transfer of such
Data, as may be required to a broker or other third party with whom Optionee may
elect to deposit any Shares acquired upon the exercise of this Option. Optionee
understands that Data will be held only as long as is necessary to implement,
administer and manage participation in the Plan. Optionee may, at any time, view
Data, request additional information about the storage and processing of the
Data, require any necessary amendments to the Data or refuse or withdraw the
consents herein, in any case without cost, by contacting the Stock Plan
Administrator in writing. Optionee understands that refusing or withdrawing
consent may affect Optionee's ability to participate in the Plan. For more
information on the consequences of refusing to consent or withdrawing consent,
Optionee may contact the Stock Plan Administrator at the Company.
12. COPIES OF PLAN MATERIALS. Optionee acknowledges that Optionee has
received copies of the Plan and the Plan prospectus from the Company and agrees
to receive stockholder information, including copies of any annual report, proxy
statement and periodic report, from the Company's website at
xxxx://xxx.xxxxxxxxxxxxx.xxx/xxxxxxxxxxxxxx/XXX.xxx. Optionee acknowledges that
copies of the Plan, Plan prospectus, Plan information and stockholder
information are also available upon written or telephonic request to the Stock
Plan Administrator.
13. ENTIRE AGREEMENT; PLAN CONTROLS. The Plan is incorporated herein by
reference. The Plan and this Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof, and may not be modified adversely to
Optionee's interest except by means of a writing signed by the Company and
Optionee. This Agreement is governed by the laws of the state of Delaware. In
the event of any conflict between the terms and provisions of the Plan and this
Agreement, the Plan terms and provisions shall govern. Capitalized terms used
but not defined in this Agreement have the meanings assigned to them in the
Plan. Certain other important terms governing this Agreement are contained in
the Plan.
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Accepted by Optionee: ALPHA INNOTECH CORP.
By: __________________________________
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[Optionee Name] Name:_________________________________
Title: _______________________________
RETAIN THIS AGREEMENT FOR YOUR RECORDS
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