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EXHIBIT 10.2
INVERNESS MEDICAL INNOVATIONS, INC.
2001 EMPLOYEE STOCK PURCHASE PLAN
The purpose of the Inverness Medical Innovations, Inc. 2001 Employee
Stock Purchase Plan ("the Plan") is to provide eligible employees of Inverness
Medical Innovations, Inc. (the "Company") and certain of its subsidiaries with
opportunities to purchase shares of the Company's common stock, par value $0.001
per share (the "Common Stock"). Five hundred thousand (500,000) shares of Common
Stock in the aggregate have been approved and reserved for this purpose. The
Plan is intended to constitute an "employee stock purchase plan" within the
meaning of Section 423(b) of the Internal Revenue Code of 1986, as amended (the
"Code"), and shall be interpreted in accordance with that intent.
1. Administration. The Plan will be administered by the person or
persons (the "Administrator") appointed by the Company's Board of Directors (the
"Board") for such purpose. The Administrator has authority to make rules and
regulations for the administration of the Plan, and its interpretations and
decisions with regard thereto shall be final and conclusive. No member of the
Board or individual exercising administrative authority with respect to the Plan
shall be liable for any action or determination made in good faith with respect
to the Plan or any option granted hereunder.
2. Offerings. The Company will make one or more offerings to
eligible employees to purchase Common Stock under the Plan ("Offerings"). Unless
otherwise determined by the Administrator, the initial Offering will begin on
January 1, 2002 and will end on the following June 30, 2002 (the "Initial
Offering"). Thereafter, unless otherwise determined by the Administrator, an
Offering will begin on the first business day occurring on or after each January
1 and July 1 and will end on the last business day occurring on or before the
following June 30
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and December 31, respectively. The Administrator may, in its discretion,
designate a different period for any Offering, provided that no Offering shall
exceed one year in duration or overlap any other Offering.
3. Eligibility. All employees of the Company (including employees
who are also directors of the Company) and all employees of each Designated
Subsidiary (as defined in Section 11) are eligible to participate in any one or
more of the Offerings under the Plan, provided that as of the first day of the
applicable Offering (the "Offering Date") they are customarily employed by the
Company or a Designated Subsidiary for more than 20 hours a week and have
completed at least three (3) months of employment. For purposes of eligibility
for this Plan, employment with Inverness Medical Technologies, Inc. or any of
its subsidiaries shall be counted as employment with the Company.
4. Participation. An employee eligible on any Offering Date may
participate in such Offering by submitting an enrollment form to his appropriate
payroll location at least 10 business days before the Offering Date (or by such
other deadline as shall be established for the Offering). The form will (a)
state a whole percentage to be deducted from his Compensation (as defined in
Section 11) per pay period, (b) authorize the purchase of Common Stock for him
in each Offering in accordance with the terms of the Plan and (c) specify the
exact name or names in which shares of Common Stock purchased for him are to be
issued pursuant to Section 10. An employee who does not enroll in accordance
with these procedures will be deemed to have waived his right to participate.
Unless an employee files a new enrollment form or withdraws from the Plan, his
deductions and purchases will continue at the same percentage of Compensation
for future Offerings, provided he remains eligible. Notwithstanding the
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foregoing, participation in the Plan will neither be permitted nor be denied
contrary to the requirements of the Code.
5. Employee Contributions. Each eligible employee may authorize
payroll deductions at a minimum of two percent (2%) up to a maximum of ten
percent (10%) of his Compensation for each pay period. The Company will maintain
book accounts showing the amount of payroll deductions made by each
participating employee for each Offering. No interest will accrue or be paid on
payroll deductions.
6. Deduction Changes. An employee may not increase his payroll
deduction during any Offering. An employee generally may not decrease his
payroll deduction during an Offering, but may terminate his payroll deduction
for the remainder of the Offering, either with or without withdrawing from the
Offering under Section 7. To terminate his payroll deduction without withdrawing
from the Offering, an employee must submit written notice at least ten (10)
business days (or such shorter period as shall be established) before the
payroll date on which the change becomes effective. Subject to the requirements
of Sections 4 and 5, an employee may either increase or decrease his payroll
deduction with respect to the next Offering by filing a new enrollment form at
least ten (10) business days before the next Offering Date (or by such other
deadline as shall be established for the Offering). An employee who has
terminated his payroll deduction during an Offering must submit a new enrollment
form in order to participate in a subsequent Offering.
7. Withdrawal. An employee may withdraw from participation in an
Offering by delivering a written notice of withdrawal to his appropriate payroll
location no later than two (2) business days prior to the Exercise Date (as
defined below) of such Offering. The employee's withdrawal will be effective as
of the next business day. Following an employee's withdrawal,
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the Company will promptly refund to him his entire account balance under the
Plan (after payment for any Common Stock purchased before the effective date of
withdrawal). Partial withdrawals are not permitted. The employee may not begin
participation again during the remainder of the Offering and is deemed to have
withdrawn from the Plan. The employee may enroll in a subsequent Offering in
accordance with Section 4.
8. Grant of Options. On each Offering Date, the Company will
grant to each eligible employee who is then a participant in the Plan an option
("Option") to purchase on the last day of such Offering (the "Exercise Date"),
at the Option Price hereinafter provided for, (a) a number of shares of Common
Stock, which number shall be the number of shares (rounded down to the nearest
whole share) which is obtained by (i) multiplying $25,000 by the quotient
obtained by dividing the number of months in the Offering by 12, and (ii)
dividing that product by the Fair Market Value of the Common Stock on the
Offering Date, or (b) such other lesser maximum number of shares as shall have
been established by the Administrator in advance of the Offering; provided,
however, that such Option shall be subject to the limitations set forth below.
The purchase price for each share purchased under each Option (the "Option
Price") will be 85% of the Fair Market Value of the Common Stock on the Offering
Date or the Exercise Date, whichever is less. Each employee's Option shall be
exercisable only to the extent of such employee's accumulated payroll deductions
on the relevant Exercise Date.
Notwithstanding the foregoing, no employee may be granted an option
hereunder if such employee, immediately after the option was granted, would be
treated as owning stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or any
Parent or Subsidiary (as defined in Section 11). For purposes of the preceding
sentence, the attribution rules of Section 424(d) of the Code shall apply in
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determining the stock ownership of an employee, and all stock which the employee
has a contractual right to purchase shall be treated as stock owned by the
employee. In addition, no employee may be granted an Option which permits his
rights to purchase stock under the Plan, and any other employee stock purchase
plan of the Company and its Parents and Subsidiaries, to accrue at a rate which
exceeds $25,000 of the fair market value of such stock (determined on the option
grant date or dates) for each calendar year in which the Option is outstanding
at any time. The purpose of the limitation in the preceding sentence is to
comply with Section 423(b)(8) of the Code and shall be applied taking Options
into account in the order in which they were granted.
9. Exercise of Option and Purchase of Shares. Each employee who
continues to be a participant in the Plan on the Exercise Date shall be deemed
to have exercised his Option on such date and shall acquire from the Company
such number of whole shares of Common Stock reserved for the purpose of the Plan
as his accumulated payroll deductions on such date will purchase at the Option
Price, subject to any other limitations contained in the Plan. Any amount
remaining in an employee's account at the end of an Offering solely by reason of
the inability to purchase a fractional share will be carried forward to the next
Offering; any other balance remaining in an employee's account at the end of an
Offering will be refunded to the employee promptly.
10. Issuance of Certificates. Certificates representing shares of
Common Stock purchased under the Plan may be issued only in the name of the
employee, in the name of the employee and another person of legal age as joint
tenants with rights of survivorship, or in the name of a broker authorized by
the employee to be his, or their, nominee for such purpose.
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11. Definitions.
The term "Compensation" means the amount of gross base pay and
commissions, prior to salary reduction pursuant to Sections 125, 132(f) or
401(k) of the Code, but excluding overtime, incentive or bonus awards,
allowances and reimbursements for expenses such as relocation allowances or
travel expenses, income or gains on the exercise of Company stock options, and
similar items.
The term "Designated Subsidiary" means any present or future Subsidiary
(as defined below) that has been designated by the Board to participate in the
Plan. The Board may so designate any Subsidiary, or revoke any such designation,
at any time and from time to time, either before or after the Plan is approved
by the stockholders.
The term "Fair Market Value of the Common Stock" on any given date
means the fair market value of the Common Stock determined in good faith by the
Administrator; provided, however, that if the Common Stock is admitted to
quotation on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or national securities exchange, the determination shall be
made by reference to market quotations. If there are no market quotations for
such date, the determination shall be made by reference to the last date
preceding such date for which there are market quotations.
The term "Parent" means a "parent corporation" with respect to the
Company, as defined in Section 424(e) of the Code.
The term "Subsidiary" means a "subsidiary corporation" with respect to
the Company, as defined in Section 424(f) of the Code.
12. Rights on Termination of Employment. If a participating
employee's employment terminates for any reason before the Exercise Date for any
Offering, no payroll
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deduction will be taken from any pay due and owing to the employee and the
balance in his account will be paid to him or, in the case of his death, to his
designated beneficiary as if he had withdrawn from the Plan under Section 7. An
employee will be deemed to have terminated employment, for this purpose, if the
corporation that employs him, having been a Designated Subsidiary, ceases to be
a Subsidiary, or if the employee is transferred to any corporation other than
the Company or a Designated Subsidiary. An employee will not be deemed to have
terminated employment, for this purpose, if the employee is on an approved leave
of absence for military service or sickness, or for any other purpose approved
by the Company, if the employee's right to reemployment is guaranteed either by
a statute or by contract or under the policy pursuant to which the leave of
absence was granted or if the Administrator otherwise provides in writing.
13. Special Rules. Notwithstanding anything herein to the
contrary, the Administrator may adopt special rules applicable to the employees
of a particular Designated Subsidiary, whenever the Administrator determines
that such rules are necessary or appropriate for the implementation of the Plan
in a jurisdiction where such Designated Subsidiary has employees; provided that
such rules are consistent with the requirements of Section 423(b) of the Code.
Such special rules may include (by way of example, but not by way of limitation)
the establishment of a method for employees of a given Designated Subsidiary to
fund the purchase of shares other than by payroll deduction, if the payroll
deduction method is prohibited by local law or is otherwise impracticable. Any
special rules established pursuant to this Section 13 shall, to the extent
possible, result in the employees subject to such rules having substantially the
same rights as other participants in the Plan. The Administrator may also adopt
sub-plans applicable to particular Designated Subsidiaries or locations, which
sub-plans may be designed to be
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outside the scope of Section 423. The rules of such sub-plans may take
precedence over other provisions of this Plan, with the exception of the number
of shares of Common Stock approved and reserved for use under the Plan, but
unless otherwise superseded by the terms of such sub-plan, the provisions of
this Plan shall govern the operation of such sub-plan.
14. Optionees Not Stockholders. Neither the granting of an Option
to an employee nor the deductions from his pay shall constitute such employee a
holder of the shares of Common Stock covered by an Option under the Plan unless
and until such shares have been purchased by and issued to him.
15. Rights Not Transferable. Rights under the Plan are not
transferable by a participating employee other than by will or the laws of
descent and distribution, and are exercisable during the employee's lifetime
only by the employee.
16. Application of Funds. All funds received or held by the
Company under the Plan may be combined with other corporate funds and may be
used for any corporate purpose.
17. Adjustment in Case of Changes Affecting Common Stock. In the
event of a subdivision of outstanding shares of Common Stock, or the payment of
a dividend in Common Stock, the number of shares approved for the Plan, and the
share limitation set forth in Section 8, shall be increased proportionately, and
such other adjustment shall be made as may be deemed equitable by the
Administrator. In the event of any other change affecting the Common Stock, such
adjustment shall be made as may be deemed equitable by the Administrator to give
proper effect to such event.
18. Amendment of the Plan. The Board may at any time, and from
time to time, amend the Plan in any respect, except that without the approval,
within 12 months of such Board action, by the stockholders, no amendment shall
be made increasing the number of shares
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approved for the Plan or making any other change that would require stockholder
approval in order for the Plan, as amended, to qualify as an "employee stock
purchase plan" under Section 423(b) of the Code.
19. Insufficient Shares. If the total number of shares of Common
Stock that would otherwise be purchased on any Exercise Date plus the number of
shares purchased under previous Offerings under the Plan exceeds the maximum
number of shares issuable under the Plan, the shares then available shall be
apportioned among participants in proportion to the amount of payroll deductions
accumulated on behalf of each participant that would otherwise be available to
be used to purchase Common Stock on such Exercise Date.
20. Termination of the Plan. The Plan may be terminated at any
time by the Board. Upon termination of the Plan, all amounts in the accounts of
participating employees shall be promptly refunded.
21. Governmental Regulations. The Company's obligation to sell and
deliver Common Stock under the Plan is subject to obtaining all governmental
approvals required in connection with the authorization, issuance, or sale of
such stock.
The Plan shall be governed by Delaware law except to the extent that
such law is preempted by federal law.
22. Issuance of Shares. Shares may be issued upon exercise of an
Option from authorized but unissued Common Stock, from shares held in the
treasury of the Company, or from any other proper source.
23. Tax Withholding. Participation in the Plan is subject to any
minimum required tax withholding on income of the participant in connection with
the Plan. Each employee agrees, by entering the Plan, that the Company and its
Subsidiaries shall have the right to deduct any
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such taxes from any payment of any kind otherwise due to the employee, including
shares issuable under the Plan.
24. Notification Upon Sale of Shares. Each employee agrees, by
entering the Plan, to give the Company prompt notice of any disposition of
shares purchased under the Plan where such disposition occurs within two years
after the date of grant of the Option pursuant to which such shares were
purchased.
25. Effective Date and Approval of Shareholders. The Plan shall
take effect on the later of the date it is adopted by the Board and the date it
is approved by the holders of a majority of the votes cast at a meeting of
stockholders at which a quorum is present or by written consent of the
stockholders.
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