EXHIBIT 10.4
AEQUITRON MEDICAL, INC.
1995 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I - ESTABLISHMENT OF PLAN
1.01 Adoption by Board of Directors. By action of the Board of Directors of
Aequitron Medical, Inc. (the "Corporation") on June 19, 1995, subject to
approval by its shareholders, the Corporation has adopted an employee stock
purchase plan pursuant to which eligible employees of the Corporation and
certain of its Subsidiaries may be offered the opportunity to purchase
shares of Stock of the Corporation. The terms and conditions of this Plan
are set forth in this plan document, as amended from time to time as
provided herein. The Corporation intends that the Plan shall qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue
Code of 1986, as amended from time to time, (the "Code") and shall be
construed in a manner consistent with the requirements of Code Section 423
and the regulations thereunder.
1.02 Shareholder Approval and Term. This Plan shall become effective November 1,
1995, and shall terminate October 31, 2005; provided, however, that the
Plan shall be subject to approval by the shareholders of the Corporation
within twelve (12) months after the Plan is adopted by the Board or, if
earlier, at the next annual meeting of the shareholders, in the manner
provided under Code Section 423 and the regulations thereunder; and
provided, further that the Board of Directors may extend the term of the
Plan for such period as the Board, in its sole discretion, deems advisable.
In the event that the shareholders fail to approve the Plan at such annual
shareholders' meeting, this Plan shall not become effective and shall have
no force or effect.
ARTICLE II - PURPOSE
2.01 Purpose. The primary purpose of the Plan is to provide an opportunity for
Eligible Employees of the Corporation to become shareholders of the
Corporation, thereby providing them with an incentive to remain in the
Corporation's employ, to improve operations, to increase profits and to
contribute more significantly to the Corporation's success.
ARTICLE III - DEFINITIONS
3.01 "Administrator" means the Compensation Committee appointed by the Board of
Directors. The Compensation Committee may, in its sole discretion,
authorize the officers of the Corporation to carry out the day-to-day
operation of the Plan. In its sole discretion, the Board may take such
actions as may be taken by the Administrator, in addition to those powers
expressly reserved to the Board under this Plan.
3.02 "Board of Directors" or "Board" means the Board of Directors of Aequitron
Medical, Inc.
3.03 "Compensation" means the Participant's regular compensation excluding
overtime and all bonuses, including but not limited to bonuses payable
under the Employee Profit Sharing Plan.
3.04 "Corporation" means Aequitron Medical, Inc., a Minnesota corporation.
3.05 "Eligible Employee" means any employee who, as determined on or immediately
prior to an Enrollment Period, is a United States full-time or part-time
employee of the Corporation or one of its Subsidiaries and who has been
employed by the Corporation or the Subsidiary at least six (6) consecutive
months prior to the commencement date of a phase.
3.06 "Enrollment Period" means the period determined by the Administrator for
purposes of accepting elections to participate during a Phase from Eligible
Employees.
3.07 "Fiscal Year" means the fiscal year of the Corporation, which is the
twelve-month period beginning May 1 and ending April 30 each year.
3.08 "Participant" means an Eligible Employee who has been granted an option and
is participating during a Phase through payroll deductions, but shall
exclude those employees subject to the limitations described in Section
9.03 below.
3.09 "Phase" means the period beginning on the date that the option was granted,
otherwise referred to as the commencement date of the Phase, and ending on
the date that the option was exercised, otherwise referred to as the
termination date of the Phase.
3.10 "Plan" means the Aequitron Medical, Inc. 1995 Employee Stock Purchase Plan.
3.11 "Stock" means the voting common stock of the Corporation.
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3.12 "Subsidiary" means any corporation defined as a subsidiary of the
Corporation in Code Section 424(f) as of the effective date of the Plan,
and such other corporations that qualify as subsidiaries of the Corporation
under Code Section 424(f) as the Board approves to participate in this Plan
from time to time.
ARTICLE IV - ADMINISTRATION
4.01 Administration. Except for those matters expressly reserved to the Board
pursuant to any provisions of the Plan, the Administrator shall have full
responsibility for administration of the Plan, which responsibility shall
include, but shall not be limited to, the following:
(a) The Administrator shall, subject to the provisions of the Plan,
establish, adopt and revise such rules and procedures for
administering the Plan, and shall make all other determinations
as it may deem necessary or advisable for the administration of
the Plan;
(b) The Administrator shall, subject to the provisions of the Plan,
determine all terms and conditions that shall apply to the grant
and exercise of options under this Plan, including, but not
limited to, the number of shares of Stock that may be granted,
the date of grant, the exercise price and the manner of exercise
of an option. The Administrator may, in its discretion, consider
the recommendations of the management of the Corporation when
determining such terms and conditions;
(c) The Administrator shall have the exclusive authority to interpret
the provisions of the Plan, and each such interpretation or
determination shall be conclusive and binding for all purposes
and on all persons, including, but not limited to, the
Corporation and its Subsidiaries, the shareholders of the
Corporation and its Subsidiaries, the Administrator, the
directors, officers and employees of the Corporation and its
Subsidiaries, and the Participants and the respective
successors-in-interest of all of the foregoing; and
(d) The Administrator shall keep minutes of its meetings or other
written records of its decisions regarding the Plan and shall,
upon requests, provide copies to the Board.
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ARTICLE V - PHASES OF THE PLAN
5.01 Phases. The Plan shall be carried out in one or more Phases of six (6)
months each. Unless otherwise determined by the Administrator, in its
discretion, Phases shall commence on May 1 and November 1 of each fiscal
year during the term of the Plan; provided, however, that there shall be
only one phase for the 1996 fiscal year commencing on November 1, 1995. No
two Phases shall run concurrently.
5.02 Limitations. The Administrator may, in its discretion, limit the number of
shares available for option grants during any Phase as it deems
appropriate. Without limiting the foregoing, in the event all of the shares
of Stock reserved for the grant of options under Section 12.01 is issued
pursuant to the terms hereof prior to the commencement of one or more
Phases or the number of shares of Stock remaining is so small, in the
opinion of the Administrator, as to render administration of any succeeding
Phase impracticable, such Phase or Phases may be cancelled or the number of
shares of Stock limited as provided herein. In addition, if, based on the
payroll deductions authorized by Participants at the beginning of a Phase,
the Administrator determines that the number of shares of Stock which would
be purchased at the end of a Phase exceeds the number of shares of Stock
remaining reserved under Section 12.01 hereof for issuance under the Plan,
or if the number of shares of Stock for which options are to be granted
exceeds the number of shares designated for option grants by the
Administrator for such Phase, then the Administrator shall make a pro rata
allocation of the shares of Stock remaining available in as nearly uniform
and equitable a manner as the Administrator shall consider practicable as
of the commencement date of the Phase or, if the Administrator so elects,
as of the termination date of the Phase. In the event such allocation is
made as of the commencement date of a Phase, the payroll deductions which
otherwise would have been made on behalf of Participants shall be reduced
accordingly.
ARTICLE VI - ELIGIBILITY
6.01 Eligibility. Each employee who is an Eligible Employee on or immediately
prior to the commencement of a Phase shall be eligible to participate in
such Phase.
ARTICLE VII - PARTICIPATION
7.01 Participation. Participation in the Plan is voluntary. An Eligible Employee
who desires to participate in any Phase of the Plan must complete the Plan
enrollment form provided by the Administrator and deliver such form to the
Administrator or its designated representative during the Enrollment Period
established by the Administrator prior to the commencement date of the
Phase.
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7.02 Subsequent Phases. An Eligible Employee who elects to participate in a
Phase of a fiscal year shall be deemed to have elected to participate in
each subsequent Phase during that fiscal year and all subsequent fiscal
years unless such Participant elects to discontinue payroll deductions
during a Phase or exercises his or her right to withdraw amounts previously
withheld, as provided under Article 10 hereof. In such event, such
Participant must complete a change of election form or a new Plan
enrollment form and file such form with the Administrator during the
Enrollment Period prior to the next Phase with respect to which the
Eligible Employee wishes to participate.
ARTICLE VIII - PAYMENT: PAYROLL DEDUCTIONS
8.01 Enrollment. Each Eligible Employee electing to participate shall indicate
such election on the Plan enrollment form and designate therein a
percentage of such Participant's Compensation to be paid during the Phase.
Such percentage shall be at least one percent (1%) but not more than ten
percent (10%) of such Participant's Compensation to be paid during such
Phase, or such other maximum percentage as the Administrator may establish
from time to time; provided, however, that the payroll deduction authorized
by the Participant must equal or exceed $10. In order to be effective, such
Plan enrollment form must be properly completed and received by the
Administrator by the due date indicated on such form, or by such other date
established by the Administrator.
8.02 Payroll Deductions. Payroll deductions for a Participant shall commence on
the first paycheck issued for the payroll period which begins on or
immediately after the commencement date of the Phase and shall terminate on
the last paycheck issued for the payroll period which begins on or
immediately prior to the termination date of that Phase, unless the
Participant elects to discontinue payroll deductions or exercises his or
her right to withdraw all accumulated payroll deductions previously
withheld during the Phase as provided in Article 10 hereof. The authorized
payroll deductions shall be made over the pay periods of such Phase by
deducting from the Participant's Compensation for each such pay period that
percentage specified by the Participant in the Plan enrollment form.
Unless the Participant elected to discontinue payroll deductions or
exercised his or her right to withdraw all accumulated payroll deductions
previously withheld during the preceding Phase (in which event the
Participant must complete a change of election form or a new Plan
enrollment form, as the case may be, to continue participation for any
subsequent Phase), the Corporation shall continue to withhold from such
Participant's Compensation the same designated percentage specified by the
Participant in the most recent Plan enrollment form previously completed by
the Participant for all subsequent Phases; provided, however, that the
Participant may, if he or she so chooses, increase, decrease or discontinue
payroll deductions for any or all such subsequent Phases by properly
completing a new enrollment form during the Enrollment Period for such
subsequent Phase and delivering such form to the Administrator by the due
date for receipt of such forms for that Phase.
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8.03 Increases or Decreases During a Phase. In addition to the right to
discontinue or withdraw payroll deductions during a Phase as provided in
Article 10 and the right to increase or decrease or discontinue payroll
deductions for subsequent Phases as provided in Section 8.02, a Participant
may increase or decrease the percentage of Compensation designated to be
deducted during a Phase by completing a change of election form and filing
such form with the Administrator on or before the date that is fifteen (15)
days prior to the date of the last paycheck during that Phase, or on or
before such other date established by the Corporation; provided, however,
that the Participant may exercise the right to increase or decrease his or
her payroll deductions only once during each Phase.
8.04 Change in Compensation During a Phase. In the event that the Participant's
Compensation is discontinued or reduced during a Phase for any reason so
that the amount actually withheld on behalf of the Participant as of the
termination date of the Phase is less than the amount anticipated to be
withheld as determined on the commencement date of the Phase, then the
extent to which the Participant may exercise his or her option shall be
based on the amounts actually withheld on his or her behalf. In the event
of a change in the pay period of any Participant, such as from biweekly to
monthly, an appropriate adjustment shall be made to the deduction in each
new pay period so as to insure the deduction of the proper amount
authorized by the Participant.
ARTICLE IX - OPTIONS
9.01 Grant of Option. Subject to Article 10, a Participant who has elected to
participate in the manner described in Article VIII and who is employed by
the Corporation or a Subsidiary as of the commencement date of a Phase
shall be granted an option as of such date to purchase that number of whole
shares of Stock determined by dividing the total amount to be credited to
the Participant's account by the option price per share set forth in
Section 9.02(a) below. The option price per share for such Stock shall be
determined under Section 9.02 hereof, and the number of shares exercisable
shall be determined under Section 9.03 hereof.
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9.02 Option Price. Subject to the limitations hereinbelow, the option price for
such Stock shall be the lower of the amounts determined under paragraphs
(a) and (b) below:
(a) Eighty-five percent (85%) of the closing price for a share of the
Corporation's Stock as reported on the NASDAQ National Market or on an
established securities exchange as of the commencement date of the
Phase; or
(b) Eighty-five percent (85%) of the closing price for a share of the
Corporation's Stock as reported on the NASDAQ National Market or on an
established securities exchange as of the termination date of the
Phase.
In the event that the commencement or termination date of a Phase is a
Saturday, Sunday or holiday, the amounts determined under the foregoing
subsections shall be determined using the price as of the last preceding
trading day.
If the Corporation's Stock is not so reported in the NASDAQ National Market
or upon an established securities exchange, the option price shall equal
the lesser of (i) eighty-five percent (85%) of the average of the closing
"bid" and "asked" prices quoted on the NASDAQ SmallCap Market as of the
commencement date of the Phase, or if there are no such quoted "bid" and
"asked" prices on such date, on the next preceding date for which there are
quotes, and (ii) eighty-five percent (85%) of the average of the closing
"bid" and "asked" prices quoted on the NASDAQ SmallCap Market as of the
termination date of the phase, or if there are no such quoted "bid" and
"asked" prices on such date, on the next preceding date for which there are
such quotes.
If the Corporation's Stock is not listed on an established securities
exchange, the NASDAQ National Market or the NASDAQ SmallCap Market, then
the option price shall equal the lesser of (i) eighty-five percent (85%) of
the fair market value of a share of the Corporation's Stock as of the
commencement date of the Phase, and (ii) eighty-five percent (85%) of the
fair market value of such stock as of the termination date of the Phase.
Such "fair market value" shall be determined by the Board.
9.03 Limitations. No employee shall be granted an option hereunder:
(a) Which permits his or her rights to purchase Stock under all
employee stock purchase plans of the Corporation or its Subsidiaries
to accrue at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) of fair market value of such Stock (determined at the time
such option is granted) for each calendar year in which such option is
outstanding at any time;
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(b) If such employee would own and/or hold, immediately after the
grant of the option, Stock possessing five percent (5%) or more of the
total combined voting power or value of all classes of stock of the
Corporation or of any Subsidiary. For purposes of determining stock
ownership under this paragraph, the rules of Section 424(d) of the
Code shall apply.
(c) Which, if exercised, would cause the limits established by the
Administrator under Section 5.02 to be exceeded.
9.04 Exercise of Option. Subject to a Participant's right to withdraw in the
manner provided in Section 10.01, a Participant's option for the purchase
of shares of Stock will be exercised automatically on the termination date
of that Phase. However, in no event shall a Participant be allowed to
exercise an option for more shares of Stock than can be purchased with the
payroll deductions accumulated by the Participant in his or her bookkeeping
account during such Phase, whether or not the accumulated payroll
deductions are less than the full percentage amount that such Participant
anticipated he or she would contribute at the beginning of such Phase.
9.05 Delivery of Shares. As promptly as practicable after the termination of any
Phase, the Corporation's transfer agent or other authorized representative
shall deliver to each Participant herein certificates for that number of
whole shares of Stock purchased upon the exercise of the Participant's
option. Any accumulated payroll deductions remaining after the exercise of
the Participant's option pursuant to Section 9.04 above shall remain
credited to the Participant's bookkeeping account and applied to the
purchase of shares of Stock in the next succeeding Phase, unless the
Participant requests a withdrawal of such amount pursuant to Section 10.01.
The shares of the Corporation's common stock to be delivered to a
Participant pursuant to the exercise of an option under Section 9.04 of the
Plan will be registered in the name of the Participant or, if the
Participant so directs by written notice to the Administrator prior to the
termination date of the Phase, in the names of the Participant and one
other person the Participant may designate as his joint tenant with rights
of survivorship, to the extent permitted by law.
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ARTICLE X - WITHDRAWAL OR
DISCONTINUATION OF PAYROLL WITHHOLDINGS
10.01Withdrawal. A Participant may request a withdrawal of all accumulated
payroll deductions then credited to the Participant's bookkeeping account
by completing a change of election form and filing such form with the
Administrator. The Participant's request shall be effective as of the
beginning of the next payroll period immediately following the date that
the Administrator receives the Participant's properly completed change of
election form. As soon as administratively feasible after the end of that
Phase, all payroll deductions credited to a bookkeeping account for the
Participant will be paid to such Participant and no further payroll
deductions will be made during that Phase or any future Phase unless the
Participant completes a new Plan enrollment form as provided in Section
8.02 above. If the Participant requests a withdrawal, the option granted to
the Participant under that Phase of the Plan shall immediately lapse and
shall not be exercisable. Partial withdrawals of payroll deductions are not
permitted.
Notwithstanding the foregoing, in order to be effective for a particular
Phase, the Participant's request for withdrawal must be properly completed
and received by the Administrator on or before the date that is fifteen
(15) days before the date of the last paycheck during the Phase, or on or
before such other date established by the Administrator. Requests for
withdrawal that are received after that due date shall not be effective and
no withdrawal shall be made, unless otherwise determined by the
Administrator.
10.02Discontinuation. A Participant may also request that the Administrator
discontinue any further payroll deductions that would otherwise be made
during the remainder of the Phase by completing a change of election form
and filing such form with the Administrator on or before the date that is
fifteen (15) days before the date of the last paycheck during the phase, or
on or before such other date established by the Administrator. The
Participant's request shall be effective as of the beginning of the next
payroll period immediately following the date that the Administrator
receives the Participant's properly completed change of election form. Upon
the effective date of the Participant's request, the Corporation will
discontinue making payroll deductions for such Participant for that Phase,
and all future Phases, unless the Participant completes another change of
election form as provided above.
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ARTICLE XI - TERMINATION OF EMPLOYMENT
11.01If a Participant's employment terminates with the Corporation for any
reason, voluntarily or involuntarily, including by reason of retirement or
death, the payroll deductions credited to such Participant's bookkeeping
account for such Phase, if any, will be returned to the Participant (or, in
the case of death, to the Participant's estate) and any options granted to
such Participant under the Plan shall immediately lapse and shall not be
exercisable. The return of such payroll deductions shall be made to the
Participant (or to the Participant's estate) as soon as administratively
practicable. In the event that such termination occurs near the end of a
Phase and the Corporation is unable to discontinue payroll deductions for
such Participant for his or her final paycheck(s), such deductions shall
still be made but shall be returned to the Participant (or his or her
estate) as provided herein. In no event shall the accumulated payroll
deductions be used to purchase any shares of Stock.
If the option lapses as a result of the Participant's death, any
accumulated payroll deductions credited to the Participant's bookkeeping
account will be paid to the Participant's estate. In the event a
Participant dies after exercise of the Participant's option but prior to
delivery of the Stock to be transferred pursuant to the exercise of the
option under Section 9.04 above, any such Stock and/or accumulated payroll
deductions remaining after such exercise shall be paid by the Corporation
to the Participant's estate.
The Corporation will not be responsible for or be required to give effect
to the disposition of any cash or Stock or the exercise of any option in
accordance with any will or other testamentary disposition made by such
Participant or in accordance with the provisions of any law concerning
intestacy, or otherwise. No person shall, prior to the death of a
Participant, acquire any interest in any Stock, in any option or in the
cash credited to the Participant's bookkeeping account during any Phase of
the Plan.
11.02In the event that any Subsidiary ceases to be a Subsidiary of the
Corporation, the employees of such Subsidiary shall be considered to have
terminated their employment for purposes of Section 11.01 hereof as of the
date the Subsidiary ceased to be a Subsidiary of the Corporation.
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ARTICLE XII - STOCK RESERVED FOR OPTIONS
12.01Two Hundred Fifty Thousand (250,000) shares of Stock, which may be
authorized but unissued shares of the Corporation (or the number and kind
of securities to which said 250,000 shares may be adjusted in accordance
with Section 14.01 hereof) are reserved for issuance upon the exercise of
options to be granted under the Plan. Shares subject to the unexercised
portion of any lapsed or expired option may again be subject to option
under the Plan.
12.02The Participant (or a joint tenant named pursuant to Section 9.05 above)
shall have no rights as a shareholder with respect to any shares of Stock
subject to the Participant's option until the date of the issuance of a
stock certificate evidencing such shares as provided in Section 9.05. No
adjustment shall be made for dividends (ordinary or extraordinary, whether
in cash, securities or other property), distributions or other rights for
which the record date is prior to the date such stock certificate is
actually issued, except as otherwise provided in Section 14.01 hereof.
ARTICLE XIII - ACCOUNTING AND USE OF FUNDS
13.01Payroll deductions for Participants shall be credited to bookkeeping
accounts, established by the Corporation for each such Participant under
the Plan. A Participant may not make any cash payments into such account.
Such account shall be solely for bookkeeping purposes and shall not require
the Corporation to establish any separate fund or trust hereunder. All
funds from payroll deductions received or held by the Corporation under the
Plan may be used, without limitation, for any corporate purpose by the
Corporation, which shall not be obligated to segregate such funds from its
other funds.
ARTICLE XIV - ADJUSTMENT PROVISION
14.01Subject to any required action by the shareholders of the Corporation, in
the event of an increase or decrease in the number of outstanding shares of
Stock or in the event the Stock is changed into or exchanged for a
different number or kind of shares of stock or other securities of the
Corporation or another corporation by reason of a reorganization, merger,
consolidation, divestiture (including a spin-off), liquidation,
recapitalization, reclassification, stock dividend, stock split,
combination of shares, rights offering or any other change in the corporate
structure or shares of the Corporation, the Board (or, if the Corporation
is not the surviving corporation in any such transaction, the board of
directors of the surviving corporation), in its sole discretion, shall
adjust the number and kind of securities subject to and reserved under the
Plan and, to prevent the dilution or enlargement of rights of those
Eligible Employees to whom options have been granted, shall adjust the
number and kind of securities subject to such outstanding options and,
where applicable, the exercise price per share for such securities.
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In the event of sale by the Corporation of substantially all of its assets
and the consequent discontinuance of its business, or in the event of a
merger, exchange, consolidation, reorganization, divestiture (including a
spin-off), liquidation, reclassification or extraordinary dividend
(collectively referred to as a "transaction"), after which the Corporation
is not the surviving corporation, the Board may, in its sole discretion, at
the time of adoption of the plan for such transaction, may provide for one
or more of the following:
(a) The acceleration of the exercisability of outstanding options
granted at the commencement of the Phase then in effect, to the
extent of the accumulated payroll deductions made as of the date
of such acceleration pursuant to Article 8 hereof;
(b) The complete termination of this Plan and a refund of amounts
credited to the Participants' bookkeeping accounts hereunder; or
(c) The continuance of the Plan only with respect to completion of
the then current Phase and the exercise of options thereunder. In
the event of such continuance, Participants shall have the right
to exercise their options as to an equivalent number of shares of
stock of the corporation succeeding the Corporation by reason of
such transaction.
In the event of a transaction where the Corporation survives, then the Plan
shall continue in effect, unless the Board takes one or more of the actions
set forth above. The grant of an option pursuant to the Plan shall not
limit in any way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes in its capital or business
structure or to merge, exchange or consolidate or to dissolve, liquidate,
sell or transfer all or any part of its business or assets.
ARTICLE XV - NONTRANSFERABILITY OF OPTIONS
15.01Options granted under any Phase of the Plan shall not be transferable and
shall be exercisable only by the Participant during the Participant's
lifetime.
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15.02Neither payroll deductions granted to a Participant's account, nor any
rights with regard to the exercise of an option or to receive Stock under
any Phase of the Plan may be assigned, transferred, pledged or otherwise
disposed of in any way by the Participant. Any such attempted assignment,
transfer, pledge or other disposition shall be null and void and without
effect, except that the Corporation may, at its option, treat such act as
an election to withdraw in accordance with Section 10.01.
ARTICLE XVI - AMENDMENT AND TERMINATION
16.01The Plan may be terminated at any time by the Board of Directors, provided
that, except as permitted in Section 14.01 hereof, no such termination
shall take effect with respect to any options then outstanding. The Board
may, from time to time, amend the Plan as it may deem proper and in the
best interests of the Corporation or as may be necessary to comply with
Code Section 423 or other applicable laws or regulations; provided,
however, no such amendment shall, without the consent of a Participant,
materially adversely affect or impair the right of a Participant with
respect to any outstanding option; and provided, further, that no such
amendment shall, unless the shareholders of the Corporation have approved
the same, directly or indirectly:
(a) Increase the total number of shares for which options may be
granted under the Plan (except as provided in Section 14.01
herein);
(b) Modify the group of Subsidiaries whose employees may be eligible
to participate in the Plan or materially modify any other
requirements as to eligibility for participation in the Plan; or
(c) Materially increase the benefits accruing to Participants under
the Plan.
ARTICLE XVII - NOTICES
17.01All notices, forms, elections or other communications in connection with
the Plan or any Phase thereof shall be in such form as specified by the
Corporation or the Administrator from time to time, and shall be deemed to
have been duly given when received by the Participant or his or her
personal representative or by the Corporation or its designated
representative, as the case may be.
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