EXHIBIT 10.16
BOSTON BIOMEDICA, INC.
EMPLOYEE STOCK OPTION PLAN
1. Purpose. The purpose of this Boston Biomedica, Inc. Employee Stock
Option Plan (the "Plan") is to provide increased incentives to employees of
Boston Biomedica, Inc. and its Parent and Subsidiaries, if any (referred to,
unless the context otherwise requires, as the "Corporation") to remain
affiliated with the Corporation, to promote the success of the Corporation's
business, to encourage new employees to become affiliated with the Corporation
and to associate more closely the interests of such persons with those of the
Corporation through the granting of options to acquire the capital stock of the
Corporation.
2. Definitions. As used herein, the following terms will have the
indicated meaning:
"Board" means the "Board of Directors" of the Corporation.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time.
"Committee" means the Committee of the Board as described in Section 4.
"Corporation" means Boston Biomedica, Inc.
"Fair Market Value" means, on the date for which the Fair Market Value
is to be determined, the closing price of the Corporation's Stock on the New
York Stock Exchange, American Stock Exchange or such other national securities
exchange or the National Association of Securities Dealers Automated Quotation
System on which the Stock is then traded, or if no such price is available or if
the Stock is not then so traded, the fair market value reasonably determined by
the Committee in good faith.
"Incentive Stock Option" means any Option issued hereunder which is
treated as an Incentive Stock Option under Section 422 of the Code.
"Option" means the contractual right to purchase shares of Stock upon
specified terms pursuant to this Plan.
"Parent" has the meaning specified for "Parent Corporation" in Section
424(e) of the Code.
"Permanent and Total Disability" has the meaning specified for permanent
and total disability in Section 22(e)(3) of the Code.
"Plan" means this Boston Biomedica, Inc. Employee Stock Option Plan.
"Employees" means all those persons who are employed by the Corporation
for a minimum of 20 hours per week.
"Stock" means the Common Stock, $.01 par value, of the Corporation.
"Subsidiary" has the meaning specified for "Subsidiary Corporation" in
Section 424(f) of the Code.
"Ten Percent Stockholder" means an individual who directly or indirectly
owns capital stock possessing more than 10% of the total combined voting power
of all classes of capital stock of the Corporation or any Parent or Subsidiary
at the time an Incentive Stock Option is granted under this Plan.
3. Stock Subject to the Plan. The aggregate number of shares of the
Corporation's Stock that may be issued and sold under the Plan shall be
1,500,000 shares. The shares of Stock to be issued upon exercise of Options
granted under this Plan shall be made available, at the discretion of the Board
of Directors, from (i) authorized but unissued shares, (ii) shares previously
reserved for issuance upon exercise of Options which have expired or been
terminated, or (iii) treasury shares and shares reacquired by the Corporation
for this purpose, including shares purchased in the open market. If any Option
granted under this Plan shall expire or terminate for any reason without having
been exercised in full, the unpurchased shares covered thereby shall become
available for grant under additional Options under the Plan so long as it shall
remain in effect.
4. Administration of the Plan.
(a) The Plan shall be administered by the Committee. The Committee shall
consist of at least one member appointed by the Board, and such member shall
serve at the pleasure of the Board. The Board may from time to time appoint
additional members of the Committee or remove members and appoint new members in
substitution for those previously appointed and fill vacancies however caused. A
majority of the Committee shall constitute a quorum and the acts of a majority
of the members present at any meeting at which a quorum is present shall be
deemed the action of the Committee. At such time as any class of equity security
of the Corporation is registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Act"), (i) the Committee shall consist of
at least two members of the Board and (ii) no member of the Committee while a
member thereof shall be eligible to participate in the Plan, nor may any person
be appointed to the Committee unless he or she was not eligible to participate
in the Plan or any other plan of the Corporation at any time within the one-year
period immediately prior to such appointment as provided in Rule 16b-3
promulgated under the Act.
(b) Subject to the express provisions of this Plan and provided that all
actions taken shall be consistent with the purposes of the Plan, the Committee
shall have full and complete authority and the sole discretion to: (i) determine
those Employees of the Corporation to whom Options shall be granted under the
Plan; (ii) determine the number of shares of Stock subject to and the form of
Options to be granted to such Employees; (iii) amend the number of shares
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covered by and the form of the Options to be granted; (iv) determine the time or
times when Options shall be granted; (v) establish the terms and conditions upon
which Options may be exercised and/or transferred; (vi) establish the terms and
conditions, if any, upon which the shares of Stock issuable upon exercise of
Options may be transferred, including, but not limited to the return of such
shares to the Corporation upon the occurrence of certain events; (vii) alter any
restrictions or conditions upon Options and/or the shares of Stock issuable upon
exercise of Options; and (viii) adopt rules and regulations, establish, define
and/or interpret any other terms and conditions, and make all other
determinations (which may be on a case-by-case basis) deemed necessary or
desirable for the administration of the Plan.
(c) In making its determinations hereunder, the Committee shall take
into account the nature of the services rendered or to be rendered by the
Employees, their present and potential contributions to the success of the
Corporation, and such other factors as the Committee, in its discretion, shall
deem relevant in order to accomplish the purposes of the Plan.
5. Eligibility. Options may be granted only to persons who are Employees
as defined in Section 2 of this Plan.
6. Terms of Options and Limitations Thereon.
(a) General. Any Option granted under this Plan shall be evidenced by a
written agreement between the Corporation and the Option holder and shall be
upon such terms and conditions not inconsistent with this Plan as the Committee
may determine. The Committee shall designate, at the time of the grant, whether
the Option is an Incentive Stock Option. If the Option is not intended to be an
Incentive Stock Option, but otherwise qualifies as an Incentive Stock Option
under the Code, such agreement shall include the following, or a similar
statement: "This Stock Option is not intended to be an Incentive Stock Option,
as that term is described in Section 422 of the Internal Revenue Code of 1986,
as amended."
(b) Price. The price at which any shares of Stock may be purchased
pursuant to the exercise of an Option shall be for any lawful consideration
determined by the Committee, but not less than par value, and, in the case of
any Incentive Stock Option, such purchase price shall not be less than the Fair
Market Value of the Stock on the date of the grant of the Option (or, in the
case of Ten Percent Stockholders, 110% of the Fair Market Value on such date),
without regard to any restrictions other than those restrictions which by their
terms will never lapse.
(c) Period of Option. Each Option granted under this Plan shall continue
in effect for such period as the Committee shall determine, provided that no
Incentive Stock Option, or installment thereof, may be exercisable subsequent to
ten years from the date of grant (five years from the date of grant in the case
of Incentive Stock Options issued to Ten Percent Stockholders). No Incentive
Stock Option shall be exercisable beyond three months after the date upon which
the Incentive Stock Option holder ceases to be an employee of the Corporation,
except that the Committee may provide in the Incentive Stock Option that in the
event of termination of employment by reason of death or Permanent and Total
Disability of the holder, the Incentive Stock Option may be exercised by the
holder or his or her estate for a period of up
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to one year after termination of employment. The Committee may provide for the
termination of any Option upon termination of the Option holder's affiliation
with the Corporation.
(d) Non-Assignability. No Option or right or interest in an Option shall
be assignable or transferable by the holder except by will or the laws of
descent and distribution. During the lifetime of the holder, an Option shall be
exercisable only by him or her.
(e) Other Restrictions. At the discretion of the Committee, any Options
granted and the shares of Stock issuable upon exercise of Options may be subject
to restrictions on vesting or transferability or to risk of forfeiture upon the
happening of such events as the Committee may determine, any of which may be
accelerated or waived in the Committee's sole discretion.
7. One Hundred Thousand Dollar Limitation. To the extent that the
aggregate Fair Market Value of Stock with respect to which any incentive stock
options of the Corporation issued under this Plan or any other plan of the
Corporation (determined without regard to this Section) are exercisable for the
first time by any holder during any calendar year exceeds $100,000, such
Incentive Stock Options shall be treated as Options which are not Incentive
Stock Options. For the purpose of this limitation, Options shall be taken into
account in the order granted, and the Committee may designate that portion of
any Incentive Stock Option that shall be treated as not an Incentive Stock
Option in the event that the provisions of this Section apply to a portion of
any Option, unless otherwise required by the Code or regulations of the Internal
Revenue Service. The designation described in the preceding sentence may be made
at such time as the Committee considers appropriate, including after the
issuance of the Option or at the time of its exercise. For the purpose of this
Section, Fair Market Value shall be determined as of the time the Option with
respect to which such Stock is granted.
8. Exercise of Options; Payment.
(a) Options may be exercised in whole or in part at such time and in
such manner as the Committee may determine and as shall be prescribed in the
written agreement with each holder.
(b) The purchase price of shares of Stock upon exercise of an Option
shall be paid by the Option holder in full upon exercise and may be paid (i) in
cash, (ii) by delivery of shares of Stock (valued at Fair Market Value at the
date of purchase of the shares of Stock subject to the Option), or (iii) any
combination of cash and Stock, as the Committee may permit. The Committee also
may allow the cashless exercise of Options, subject to applicable law.
9. Stock Adjustments.
(a) If the Corporation is a party to any merger or consolidation, any
purchase or acquisition of property or stock, or any separation, reorganization
or liquidation, the Board of Directors (or if the Corporation is not the
surviving corporation, the board of directors of the surviving corporation)
shall have the power to make arrangements, which shall be binding upon
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the holders of unexpired Options, for the substitution of new Options for, or
the assumption by another corporation of, any unexpired Options then outstanding
hereunder.
(b) If by reason of recapitalization, reclassification, stock split-up,
combination of shares, separation (including a spin-off) or dividend on the
Stock payable in Stock, the outstanding shares of Stock of the Corporation are
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Corporation, the Board of Directors
shall conclusively determine the appropriate adjustment in the exercise prices
of outstanding Options and in the number and kind of shares as to which
outstanding Options shall be exercisable.
(c) In the event of a transaction of the type described in paragraphs
(a) and (b) above, the total number of shares of Stock on which Options may be
granted under this Plan shall be appropriately adjusted by the Board of
Directors.
10. No Rights Other Than Those Expressly Created. No Employee of the
Corporation or other person shall have any claim or right to be granted an
Option hereunder. Neither this Plan nor any action taken hereunder shall be
construed as (i) giving any Option holder any right to be retained in the employ
of the Corporation, (ii) giving any Option holder an equity or interest of any
kind in any assets of the Corporation, or (iii) creating a trust of any kind or
a fiduciary relationship of any kind between the Corporation and any such
person. As to any claim for any unpaid amounts under this Plan, any person
having a claim for payments shall be an unsecured creditor. No Option holder
shall have any of the rights of a stockholder with respect to shares of Stock
covered by an Option until such time as the Option has been exercised and shares
of Stock have been issued to such person.
11. Miscellaneous.
(a) Withholding of Taxes. Pursuant to applicable Federal, state, local
or foreign laws, the Corporation may be required to collect income or other
taxes upon the grant of an Option to, or exercise of an Option by, a holder. The
Corporation may require, as a condition to the exercise of an Option, that the
recipient pay the Corporation, at such time as the Committee or the Corporation
determines, the amount of any taxes which the Committee or the Corporation may
determine is required to be withheld or collected. In its discretion, the
Corporation may withhold shares of Stock to be received upon exercise of an
Option if it deems this an appropriate method for withholding or collecting
taxes.
(b) Legal and Other Requirements. Upon exercise of an Option, the holder
shall be required to make such representations and furnish such information as
may, in the opinion of counsel for the Corporation, be appropriate to permit the
Corporation to issue or transfer the shares of Stock in compliance with the
provisions of applicable Federal or state securities laws. The Corporation, in
its discretion, may postpone the issuance and delivery of shares of Stock upon
any exercise of an Option until completion of such registration or other
qualification of such shares under any Federal or state laws, or stock exchange
listing, as the Corporation may consider appropriate. The Committee may require
that prior to the issuance or transfer of Stock
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upon exercise of an Option, the recipient enter into a written agreement to
comply with any restrictions on subsequent disposition that the Committee or the
Corporation deems necessary or advisable under any applicable law, regulation or
official interpretation thereof. No shares of Stock shall be issued upon
exercise of Options unless and until the Corporation is satisfied, in its sole
discretion, that there has been compliance with all legal requirements
applicable to the issuance of such shares. Certificates of Stock issued
hereunder may be legended to reflect such restrictions.
(c) Indemnity. Neither the Board of Directors nor the Committee, nor any
members of either, nor any employees of the Corporation, shall be liable for any
act, omission, interpretation, construction or determination made in good faith
in connection with their responsibilities with respect to the Plan, and the
Corporation hereby agrees to indemnify the members of the Board of Directors,
the members of the Committee, and the employees of the Corporation in respect of
any claim, loss, damage, or expense (including counsel fees) arising from any
such act, omission, interpretation, construction or determination to the full
extent permitted by law.
12. Effective Date; Amendment; Termination.
(a) The effective date of this Plan shall be the date of adoption by the
Board of Directors; provided, however, that the Plan is subject to the approval
of the stockholders at the next meeting of stockholders of the Corporation and
within twelve months from the effective date of this Plan.
(b) The date of grant of any Option granted hereunder shall be the date
upon which such Option shall be voted by the Committee, unless the vote
expressly otherwise provides.
(c) The Board of Directors of the Corporation may at any time, and from
time to time, amend, suspend or terminate this Plan in whole or in part;
provided, however, that the Board of Directors may not materially increase the
benefits accruing to participants in the Plan, materially increase the number of
shares of Stock reserved for purposes of this Plan other than pursuant to an
adjustment under Section 9, or materially modify the requirements as to
eligibility for participation in this Plan without stockholder approval.
(d) Without amending this Plan, except to the extent required by the
Code in the case of Incentive Stock Options, the Committee may modify grants
made to participants who are foreign nationals or otherwise employed outside the
United States so as to recognize differences in local law, tax policy or custom.
(e) Except as provided herein, no amendment, suspension or termination
of this Plan may affect the rights of any person to whom an Option has been
granted without such person's consent.
(f) Stockholder approval of this Plan or any amendment requiring
stockholder approval under paragraph (c) shall mean the affirmative vote of at
least a majority of the shares of capital stock present and entitled to vote at
a duly held meeting of stockholders unless a
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greater vote is required by state or federal law. Stockholder approval may be
obtained by written consent or other means permitted by applicable state law.
(g) This Plan shall terminate ten (10) years from the earlier of the
date of stockholder approval of the Plan or its effective date, and no Option
shall be granted under this Plan thereafter, but such termination shall not
affect the validity of Options granted prior to the date of termination.
(h) This Plan and all Options granted hereunder shall be governed by the
law of the state in which the Corporation is incorporated.
Date of Board of Director Adoption: March 29, 1994
Date of Stockholder Approval: June 29, 1994
A true copy.
ATTEST:
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Clerk