exv10w5





Exhibit 10.5


ALERE INC.

2010 STOCK OPTION AND INCENTIVE PLAN




NON-QUALIFIED STOCK OPTION AGREEMENT

FOR U.S. EXECUTIVES



 








 







NON-QUALIFIED STOCK OPTION AGREEMENT

FOR U.S. EXECUTIVES


UNDER THE


ALERE INC.

2010 STOCK OPTION AND INCENTIVE PLAN



	 	 	 

	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 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 in employment with the Company or a Subsidiary on the
Exercisability Date specified below:



	 	 	 	 	 
	 	 	Number of	 	Total Number of
	Exercisability	 	Option Shares First	 	Option Shares
	Date	 	Becoming Exercisable	 	Exercisable
	_____________
	 	_____________ (25%)	 	_____________   (25%)
	_____________
	 	_____________ (25%)	 	_____________   (50%)
	_____________
	 	_____________ (25%)	 	_____________   (75%)
	_____________
	 	_____________ (25%)	 	_____________  (100%)






     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 the Plan.



1








 





     2. Manner of Exercise



          (a) The Optionee may exercise this Stock Option only in the following manners: from time to
time, on or prior to the Expiration Date of this Stock Option, the Optionee may give notice of his
or her election to purchase some or all of the Option Shares purchasable by means of (i) a written
notice to the Administrator or (ii) an electronic notice to the Administrator or other authorized
representative of the Company (including a third-party administrator or broker designated by the
Company). Whether written or electronic, such notice shall specify the number of Option Shares to
be purchased and shall be in a form approved by the Administrator.




     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 “paid for” and
beneficially owned by the Optionee for at least six months and are not then subject to any
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, or their electronic equivalent, 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 Option Exercise
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 Stock 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.




2









 





          (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 Employment. If the Optionee’s employment by the Company or a
Subsidiary is terminated, no additional Option Shares shall become exercisable following the date
of termination and the period within which to exercise the exercisable portion of the Stock Option
may be subject to earlier termination as set forth below.



          (a) Termination Due to Death. If the Optionee’s employment terminates by reason of
death, any Stock Option held by the Optionee shall become fully exercisable and may thereafter be
exercised by the Optionee’s legal representative or legatee for a period of twelve months from the
date of death or until the Expiration Date, if earlier.




          (b) Termination Due to Disability. If the Optionee’s employment terminates by reason
of disability (as determined by the Administrator), any Stock Option held by the Optionee shall
become fully exercisable and may thereafter be exercised by the Optionee for a period of twelve
months from the date of termination or until the Expiration Date, if earlier. The death of the
Optionee during the twelve-month period provided in this Section 3(b) shall extend such period for
another twelve months from the date of death or until the Expiration Date, if earlier.




          (c) Termination for Cause. If the Optionee’s employment terminates for Cause, any
Stock Option held by the Optionee shall terminate immediately and be of no further force and
effect. For purposes of this Agreement, “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 a plea of nolo contendere by the Optionee to a felony 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 employment could have been terminated for Cause but such information
was not known by the Company, the date of termination of employment 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 take
action to recover the Option Shares and any gains made by the Optionee in respect of such Option
Shares.




          (d) Other Termination. If the Optionee’s employment terminates for any reason other
than death, disability or Cause, and unless otherwise determined by the Administrator, any Stock
Option held by the Optionee may be exercised, to the extent exercisable on the date of termination,
for a period of three months from the date of termination or until the Expiration Date, if earlier;
provided that if the Optionee’s employment terminates 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




3









 




months from the date of termination or until the Expiration Date, if earlier. Any Stock
Option that is not exercisable at such time shall terminate immediately and be of no further force
or effect.




     The Administrator’s determination of the reason for termination of the Optionee’s employment
shall be conclusive and binding on the Optionee and his or her representatives or legatees.



     The applicable period of post-service exercisability in effect pursuant to the foregoing
provisions of this Section 3 shall automatically be extended by an additional period of time equal
in duration to any interval within such post-service exercise period during which the exercise of
this Stock Option cannot be effected solely because of the condition set forth in Section 5 below,
but in no event shall such an extension result in the continuation of this Stock Option beyond the
Expiration Date.



     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. Securities Law Compliance. Notwithstanding anything to the contrary contained
herein, the Stock Option may not be exercised unless the shares of Stock issuable upon exercise of
the Stock Option are then registered under the United States Securities Act of 1933, as amended
(the “Act”) or, if such shares are not then registered, the Company has determined that such
exercise and issuance would be exempt from the registration requirements of the Act.



     6. 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, 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.



     7. Tax Withholding.



          (a) Regardless of any action the Company or the Optionee’s employer (the “Employer”) 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 the Employer. The Optionee further acknowledges that
the Company and/or the Employer (i) make no representations or




4









 




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
the Employer (or former employer, as applicable) 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 the Employer to satisfy all
Tax-Related Items. In this regard, the Optionee authorizes the Company and/or the Employer, 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 the Optionee’s
wages or other cash compensation paid to the Optionee by the Company and/or the Employer; 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 the Employer any amount of Tax-Related
Items that the Company or the Employer 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.




     8. 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 employment by the Employer, the Company or any
Subsidiary, and shall not interfere with the ability of the Employer to terminate the Optionee’s
employment relationship at any time.




5









 





          (c) This Stock Option is not intended to be an incentive stock option as defined in Section
422 of the Code.




     9. Code Section 409A. It is the intent that the grant, vesting and exercise of this
Stock Option shall be exempt from the requirements of Section 409A of the Code, and any ambiguities
herein will be interpreted to so comply. The Company reserves the right, to the extent the Company
deems necessary or advisable in its sole discretion, to unilaterally amend or modify this Agreement
as may be necessary to ensure that this Stock Option qualifies for the exemption from, or complies
with the requirements of, Section 409A of the Code; provided, however, that the Company makes no
representation that this Stock Option will be exempt from or will comply with Section 409A of the
Code, and makes no undertaking to preclude Section 409A of the Code from applying to this Stock
Option or to ensure that it complies with Section 409A of the Code.



     10. 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 acquisition or sale of the underlying shares of Stock. The
Optionee is hereby 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.



     11. 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.



     12. 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.



     13. 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.



     14. 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




6









 




United States for the District of Massachusetts, where this Agreement is made and/or to be
performed.




—Signature page follows—






7









 








	 	 	 	 	 	 	 

	 

	 	For:
	 	ALERE INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

Title: Treasurer
	 	 





The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by
the undersigned.




	 	 	 	 	 

	 
	 

	 	 

Optionee’s Signature	 	 
	 
	 	 	 	 
	 

	 	Optionee’s name and address:	 	 
	 
	 	 	 	 
	 
	 	 
 
	 	 
	 
	 	 	 	 
	 
	 	 
 

	 	 
	 
	 	 	 	 
	 
	 	 
 

	 	 







8