ALERE INC. 2010 STOCK OPTION AND INCENTIVE PLAN NON-QUALIFIED STOCK OPTION AGREEMENT FOR NON-EMPLOYEE DIRECTORS
Exhibit 10.2
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
FOR NON-EMPLOYEE DIRECTORS
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
FOR NON-EMPLOYEE DIRECTORS
UNDER THE
Name of Optionee: |
_____________________ | |
Number of Option Shares: |
_____________________ | |
Option Exercise Price Per Share: |
_____________________ | |
Grant Date: |
_____________________ | |
Expiration Date: |
_____________________ |
Pursuant to the Alere Inc. 2010 Stock Option and Incentive Plan (the “Plan”) as amended
through the date hereof, Alere Inc. (the “Company”) hereby grants to the Optionee named above, who
is a member of the Board of Directors of the Company (a “Director”) but is not an employee of the
Company, an option (the “Stock Option”) to purchase, on or prior to the Expiration Date specified
above, all or part of the number of Option Shares of Common Stock, par value $0.001 per share (the
“Stock”) of the Company specified above at the Option Exercise Price per Share specified above
subject to the terms and conditions set forth herein (the “Agreement”) and in the Plan.
1. Exercisability
Schedule. No portion of this Stock Option may be exercised until
such portion shall have become exercisable. Except as set forth below, and subject to the
discretion of the Administrator to accelerate the exercisability schedule hereunder, this Stock
Option shall become exercisable with respect to the following number of Option Shares on the dates
indicated, so long as the Optionee remains a Director of the Company on the Exercisability Date
specified below:
| Number of | Total Number of | |||
| Exercisability | Option Shares First | Option Shares | ||
| Date | Becoming Exercisable | Exercisable | ||
_____________ |
_____________ (___%) | _____________ (___%) | ||
_____________ |
_____________ (___%) | _____________ (___%) | ||
_____________ |
_____________ (___%) | _____________ (100%) |
In the event of the termination of the Optionee’s service as a Director because of death, this
Stock Option shall become immediately exercisable in full, whether or not otherwise exercisable at
such time. Once exercisable, this Stock Option shall continue to be exercisable at
any time or times prior to the close of business on the Expiration Date, subject to the
provisions of this Agreement and of the Plan.
2. Manner of Exercise.
(a) The Optionee may exercise this Stock Option only in the following manner: from time to
time on or prior to the Expiration Date of this Stock Option, the Optionee may give written notice
to the Administrator of his or her election to purchase some or all of the Option Shares
purchasable at the time of such notice. This notice shall specify the number of Option Shares to
be purchased.
Payment of the Option Exercise Price for the Option Shares may be made by one or more of the
following methods: (i) in cash, by certified or bank check or other instrument acceptable to the
Administrator; (ii) through the delivery (or attestation to the ownership) of shares of Stock that
have been purchased by the Optionee on the open market or that have been beneficially owned by the
Optionee for at least six months and are not then subject to restrictions under any Company plan;
(iii) by the Optionee delivering to the Company a properly executed exercise notice together with
irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and
acceptable to the Company to pay the Option Exercise Price, provided that in the event the Optionee
chooses to pay the Option Exercise Price as so provided, the Optionee and the broker shall comply
with such procedures and enter into such agreements of indemnity and other agreements as the
Administrator shall prescribe as a condition of such payment procedure; or (iv) a combination of
(i), (ii) and (iii) above. Payment instruments will be received subject to collection.
The delivery of certificates representing the Option Shares will be contingent upon the
Company’s receipt from the Optionee of full payment for the Option Shares, as set forth above and
any agreement, statement or other evidence that the Company may require to satisfy itself that the
issuance of Stock to be purchased pursuant to the exercise of Stock Options under the Plan and any
subsequent resale of the shares of Stock will be in compliance with applicable laws and
regulations. In the event the Optionee chooses to pay the purchase price by previously-owned
shares of Stock through the attestation method, the number of shares of Stock transferred to the
Optionee upon the exercise of the Option shall be net of the Shares attested to.
(b) Certificates representing the shares of Stock, or their electronic equivalent, purchased
upon exercise of this Stock Option shall be issued and delivered to the Optionee upon compliance,
to the satisfaction of the Administrator, with all requirements under applicable laws or
regulations in connection with such issuance and with the requirements of this Agreement and of the
Plan. The determination of the Administrator as to such compliance shall be final and binding on
the Optionee. The Optionee shall not be deemed to be the holder of, or to have any of the rights
of a holder with respect to, any shares of Stock subject to this Stock Option unless and until this
Stock Option shall have been exercised pursuant to the terms of this Agreement, the Company shall
have issued and delivered the shares to the Optionee, and the Optionee’s name shall have been
entered as the stockholder of record on the books of the Company. Thereupon, the Optionee shall
have full voting, dividend and other ownership rights with respect to such shares of Stock.
(c) The minimum number of shares with respect to which this Stock Option may be exercised at
any one time shall be 10 shares, unless the number of shares with respect to which this Stock
Option is being exercised is the total number of shares subject to exercise under this Stock Option
at the time.
(d) Notwithstanding any other provision of this Agreement or of the Plan, no portion of this
Stock Option shall be exercisable after the Expiration Date.
3. Termination of Service to the Company. If the Optionee ceases to provide services
to the Company as a Director or an employee, the period within which to exercise the Stock Option
may be subject to earlier termination as set forth below.
(a) Termination For Cause. If the Optionee ceases to be a Director for Cause, any
Stock Option held by the Optionee shall immediately terminate and be of no further force and
effect. For purposes hereof, “Cause” shall mean: (i) any material breach by the Optionee of any
agreement between the Optionee and the Company or a Subsidiary; (ii) the conviction of or plea of
nolo contendere by the Optionee to a felony or a crime involving moral turpitude or a crime
involving moral turpitude; or (iii) any material misconduct or willful and deliberate
non-performance (other than by reason of disability) by the Optionee of the Optionee’s duties to
the Company or a Subsidiary. If it is discovered that an Optionee’s service could have been
terminated for Cause but such information was not known by the Company, the date of termination of
service shall be deemed to be the date on which the act constituting Cause took place. In the
event that an Optionee has exercised a Stock Option after he or she has committed an act
constituting Cause, the Administrator may, in his or her sole discretion and to the extent
permitted by law or applicable regulations, take action to recover the Option Shares and any gains
made by the Optionee in respect of such Option Shares.
(b) Termination by Reason of Death. If the Optionee ceases to be a Director or
employee by reason of death, any Stock Option granted to the Optionee as a Director and held by the
Optionee at the date of death may be exercised by his or her legal representative or legatee for a
period of twelve months from the date of death or until the Expiration Date, if earlier.
(c) Other Termination. If the Optionee ceases to be a Director or employee for any
reason other than Cause or death, any Stock Option granted to the Optionee as a Director and held
by the Optionee on the date of termination or service may be exercised for a period of six months
from the date of termination or until the Expiration Date, if earlier; provided that, to
the extent permitted by law or applicable regulations (as determined by the Administrator), if the
Optionee ceases to be a Director or employee by reason of voluntary retirement (as determined by
the Administrator) after the age of 58 then Stock Options exercisable on the date of termination
may be exercised for a period of twelve months from the date of termination or until the Expiration
Date, if earlier.
The Administrator’s determination of the reason for termination of the Optionee’s service
shall be conclusive and binding on the Optionee and his or her representatives or legatees.
4. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Stock
Option shall be subject to and governed by all the terms and conditions of the Plan.
Capitalized terms in this Agreement shall have the meaning specified in the Plan, unless a
different meaning is specified herein.
5. Transferability. This Agreement is personal to the Optionee, is non-assignable and
is not transferable in any manner, by operation of law or otherwise, other than by will or the laws
of descent and distribution. This Stock Option is exercisable, during the Optionee’s lifetime,
only by the Optionee, and thereafter, only by the Optionee’s legal representative or legatee.
Notwithstanding the foregoing, this Stock Option may be transferred, upon approval of the
Administrator following submission of a petition for such transfer from the Optionee to the
Administrator and the written agreement of the proposed transferee to be bound by the terms of the
Plan and this Agreement, to the Optionee’s spouse, children (natural or adopted) or stepchildren, a
trust for the sole benefit of one or more such family members of which the Optionee is the settlor,
or a family limited partnership or family limited liability company of which the limited partners
or members, as the case may be, consist solely of one or more such family members.
6. Tax Withholding.
(a) Regardless of any action the Company takes with respect to any or all income tax, social
insurance contributions, payroll tax, payment on account or other tax-related items related to the
Optionee’s participation in the Plan and legally applicable to the Optionee (“Tax-Related Items”),
the Optionee acknowledges that the ultimate liability for all Tax-Related Items is and remains the
Optionee’s responsibility and may exceed the amount actually withheld by the Company or any
Subsidiary. The Optionee further acknowledges that the Company and/or any Subsidiary (i) make no
representations or undertakings regarding the treatment of any Tax-Related Items in connection with
any aspect of this Stock Option, including, but not limited to, the grant, vesting or exercise of
this Stock Option, the subsequent sale of shares of Stock acquired pursuant to such exercise and
the receipt of any dividends; and (ii) do not commit to and are under no obligation to structure
the terms of the grant or any aspect of this Stock Option to reduce or eliminate the Optionee’s
liability for Tax-Related Items or achieve any particular tax result. Further, if the Optionee has
become subject to tax in more than one jurisdiction between the Grant Date and the date of any
relevant taxable or tax withholding event, as applicable, the Optionee acknowledges that the
Company and/or any Subsidiary may be required to withhold or account for Tax-Related Items in more
than one jurisdiction.
(b) Prior to the relevant taxable or tax withholding event, as applicable, the Optionee will
pay or make adequate arrangements satisfactory to the Company and/or any Subsidiary to satisfy all
Tax-Related Items. In this regard, the Optionee authorizes the Company and/or any Subsidiary, or
their respective agents, at their discretion, to satisfy the obligations with regard to all
Tax-Related Items by one or a combination of the following: (i) withholding from cash compensation
paid to the Optionee by the Company and/or any Subsidiary; or (ii) withholding from proceeds of the
sale of shares of Stock issued at exercise of this Stock Option either through a voluntary sale or
through a mandatory sale arranged by the Company (on the Optionee’s behalf pursuant to this
authorization); or (iii) withholding in Stock to be issued at exercise of this Stock Option.
(c) To avoid any negative accounting treatment, the Company may withhold or account for
Tax-Related Items by considering applicable minimum statutory withholding amounts or other
applicable withholding rates. If the obligation for Tax-Related Items is satisfied by withholding
in shares of Stock, for tax purposes, the Optionee is deemed to have been issued the full number of
shares of Stock subject to the exercised Stock Options, notwithstanding that a number of shares of
Stock are held back solely for the purpose of paying the Tax-Related Items due as a result of any
aspect of the Optionee’s participation in the Plan.
(d) Finally, the Optionee shall pay to the Company or a Subsidiary any amount of Tax-Related
Items that the Company or any Subsidiary may be required to withhold or account for as a result of
the Optionee’s participation in the Plan that cannot be satisfied by the means previously
described. The Company may refuse to issue or deliver the shares or the proceeds of the sale of
Stock, if the Optionee fails to comply with the Optionee’s obligations in connection with the
Tax-Related Items.
7. Miscellaneous.
(a) Notice hereunder shall be given to the Company at its principal place of business, and
shall be given to the Optionee at the address set forth below, or in either case at such other
address as one party may subsequently furnish to the other party in writing.
(b) This Stock Option and the Optionee’s participation in the Plan do not confer upon the
Optionee any rights with respect to continuance of service by the Company or any Subsidiary.
8. No Advice Regarding Grant. The Company is not providing any tax, legal or
financial advice, nor is the Company making any recommendations regarding the Optionee’s
participation in the Plan, or the Optionee’s acquisition or sale of the underlying shares of Stock.
The Optionee is xxxxxx advised to consult with his or her own personal tax, legal and financial
advisors regarding the Optionee’s participation in the Plan before taking any action related to the
Plan.
9. Electronic Delivery and Acceptance. The Company may, in its sole discretion,
decide to deliver any documents related to current or future participation in the Plan by
electronic means or request the Optionee’s consent to participate in the Plan by electronic means.
The Optionee hereby consents to receive such documents by electronic delivery and agrees to
participate in the Plan through an on-line or electronic system established and maintained by the
Company or a third party designated by the Company.
10. Severability. The provisions of this Agreement are severable and if any one or
more provisions are determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable.
11. Imposition of Other Requirements. The Company reserves the right to impose other
requirements on this Stock Option and any shares of Stock acquired under the Plan, to the extent
the Company determines it is necessary or advisable in order to comply with local law or facilitate
the administration of the Plan, and to require the Optionee to sign any additional agreements or
undertakings that may be necessary to accomplish the foregoing.
12. Governing Law and Venue.
(a) The Stock Option granted hereunder and the provisions of this Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware, applied without regard to
conflict of law principles, as provided in Section 21 of the Plan.
(b) For purposes of litigating any dispute that may arise from the Stock Option granted
hereunder or this Agreement, the parties hereby submit and consent to the jurisdiction of the
Commonwealth of Massachusetts, and agree that any such litigation shall be conducted only in the
courts of Middlesex County, Massachusetts, or the federal courts for the United States for the
District of Massachusetts, where this Agreement is made and/or to be performed.
—Signature page follows—
| For: | ALERE INC. | ||||
| By: | |||||
| Title: Treasurer |
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by
the undersigned.
Dated: |
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| Optionee’s Signature | ||||
| Optionee’s name and address: | ||||
