Exhibit 10.1
PROUROCARE MEDICAL
INC.
2009 STOCK PLAN
Adopted February 26, 2009
and amended June 4, 2009
1.
Purpose.
The purpose of the 2009 Stock Plan (the
“Plan”) of ProUroCare Medical Inc. (the
“Company”), a Nevada corporation, is to increase
shareholder value and to advance the interests of the Company by
furnishing a variety of economic incentives (variously referred to
hereinafter as the “Incentives”) designed to attract,
retain and motivate employees, directors and consultants.
Incentives may consist of opportunities to purchase or receive
shares of the Company’s $0.00001 par value common stock, (the
“Common Stock”), monetary payments, or both, on terms
and conditions determined under this Plan.
2.
Administration.
2.1
The Plan shall be administered by a committee of the
Company’s board of directors (the
“Committee”). The Committee shall consist of not
less than two directors of the Company who shall be appointed from
time to time by the Company’s board of directors. Each
member of the Committee shall qualify both as a “non-employee
director” within the meaning of Rule 16b-3 of the
Securities Exchange Act of 1934, as amended (together with the
rules and regulations promulgated thereunder, the
“Exchange Act”), and as an “outside
director” as defined in Section 162(m) of the
Internal Revenue Code of 1986, as amended (the
“Code”). The Committee shall have complete
discretion and authority to determine all provisions of all
Incentives awarded under the Plan (consistent with the terms of the
Plan), interpret the Plan, and make any other determination which
it believes necessary and advisable for the proper administration
of the Plan. The Committee’s decisions and matters
relating to the Plan shall be final and conclusive for the Company
and its participants. No member of the Committee will be
liable for any action or determination made in good faith with
respect to the Plan or any Incentives granted under the Plan.
The Committee will also have the authority under the Plan to amend
or modify the terms of any outstanding Incentives in any manner;
provided, however , that any such amended or modified terms
are permitted by the Plan as then in effect, and any recipient of
an Incentive adversely affected by such amended or modified terms
has consented to such amendment or modification. No amendment
or modification to an Incentive, however, whether pursuant to this
Section 2 or any other provisions of the Plan, will be deemed
to be a re-grant of such Incentive for purposes of this Plan.
If at any time there is no Committee, then for purposes of the Plan
the term “Committee” shall mean the Company’s
board of directors.
2.2
In the event of (i) any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend,
stock split, combination of shares, rights offering, extraordinary
dividend or divestiture, including a spinoff, or any other similar
change in corporate structure or shares, (ii) any purchase,
acquisition, sale or disposition of a significant amount of assets
or a significant business, (iii) any change in accounting
principles or practices, or (iv) any other similar change, in
each case with respect to the Company or any other entity whose
performance is relevant to the grant or vesting of an Incentive,
the Committee (or, if the Company is not the surviving corporation
in any such transaction, the board of directors of the surviving
corporation) may, without the consent of any affected recipient of
an Incentive, amend or modify the vesting criteria of any
outstanding Incentive based, in whole or in part, on the financial
performance of the Company (or any subsidiary or division thereof)
or such other entity so as
equitably to
reflect such event, with the desired result that the criteria for
evaluating such financial performance of the Company or such other
entity will be substantially the same (in the sole discretion of
the Committee or the board of directors of the surviving
corporation) following such event as prior to such event;
provided, however , that the amended or modified terms are
permitted by the Plan as then in effect.
3.
Eligible Participants.
Employees of the Company or its subsidiaries,
including officers and employees of the Company or its
subsidiaries), directors and consultants, advisors or other
independent contractors who provide services to the Company or its
subsidiaries, including members of any advisory board, shall become
eligible to receive Incentives under the Plan when designated by
the Committee. Participants may be designated individually or
by groups or categories (for example, by pay grade) as the
Committee deems appropriate. Participation by Company
officers or its subsidiaries and any performance objectives
relating to such officers must be approved by the Committee.
Participation by others and any performance objectives relating to
others may be approved by groups or categories (for example,
by pay grade) and authority to designate participants who are not
officers and to set or modify such performance objectives may be
delegated.
4. Types
of Incentives.
Incentives under the Plan may be granted in any
combination of the following forms: (a) incentive stock
options and non-statutory stock options under Section 6;
(b) stock-appreciation rights (“SARs”) under
Section 7; (c) stock awards under Section 8;
(d) restricted stock under Section 8; and
(e) performance shares under Section 9.
5. Shares
Subject to the Plan.
5.1
Number of Shares. Subject to adjustment as provided
in Section 11.5, the number of shares of Common Stock which
may be issued under the Plan shall not exceed 1,200,000 shares of
Common Stock. Shares of Common Stock issued under the Plan or
that are currently subject to outstanding Incentives will be
applied to reduce the maximum number of shares of Common Stock
remaining available for issuance under the Plan.
5.2
Cancellation. To the extent that cash in lieu of
shares of Common Stock is delivered upon the exercise of an SAR
pursuant to Section 7.4, the Company shall be deemed, for
purposes of applying the limitation on the number of shares, to
have issued the greater of the number of shares of Common Stock
which it was entitled to issue upon such exercise or upon the
exercise of any related option. In the event that a stock
option or SAR granted hereunder expires or is terminated or
canceled unexercised or unvested as to any shares of Common Stock,
such shares may again be issued under the Plan either pursuant to
stock options, SARs or otherwise. In the event that shares of
Common Stock are issued hereunder as restricted stock or pursuant
to a stock award and thereafter are forfeited or reacquired by the
Company pursuant to rights reserved upon issuance thereof, such
forfeited and reacquired shares may again be issued under the Plan,
either as restricted stock, pursuant to stock awards or
otherwise. The Committee may also determine to cancel, and
agree to the cancellation of, stock options in order to make a
participant eligible for the grant of a stock option at a lower
price than the option to be canceled.
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6. Stock
Options.
A stock option is a right to purchase shares of
Common Stock from the Company. The Committee may designate
whether an option is to be considered an incentive stock option or
a non-statutory stock option. To the extent that any
incentive stock option granted under the Plan ceases for any reason
to qualify as an “incentive stock option” for purposes
of Section 422 of the Code, such incentive stock option will
continue to be outstanding for purposes of the Plan but will
thereafter be deemed to be a non-statutory stock option. Each
stock option granted by the Committee under this Plan shall be
subject to the following terms and conditions:
6.1
Price . The option price per share shall be determined
by the Committee, subject to adjustment under
Section 11.5.
6.2
Number . The number of shares of Common Stock subject
to the option shall be determined by the Committee, subject to
adjustment as provided in Section 11.5. The number of
shares of Common Stock subject to a stock option shall be reduced
in the same proportion that the holder thereof exercises a SAR if
any SAR is granted in conjunction with or related to the stock
option. To the extent required by Section 162(m) of
the Code, as amended (the “Code”), and the
rules and regulations thereunder, no individual may receive
options to purchase more than 200,000 shares (subject to adjustment
as provided in Section 11.5) in any year.
6.3
Term and Time for Exercise . Subject to earlier
termination as provided in Section 11.4, the term of each
stock option shall be determined by the Committee but shall not
exceed ten (10) years and one day from the date of
grant. Each stock option shall become exercisable at such
time or times during its term as shall be determined by the
Committee at the time of grant. The Committee may in its
discretion accelerate the exercisability of any stock option.
Subject to the foregoing and with the approval of the Committee,
all or any part of the shares of Common Stock with respect to which
the right to purchase has accrued may be purchased by the Company
at the time of such accrual or at any time or times thereafter
during the term of the option.
6.4
Manner of Exercise . Subject to the conditions
contained in this Plan and in the agreement with the recipient
evidencing such option, a stock option may be exercised, in whole
or in part, by giving written notice to the Company, specifying the
number of shares of Common Stock to be purchased and accompanied by
the full purchase price for such shares. The exercise price
shall be payable (a) in United States dollars upon exercise of
the option and may be paid by cash; uncertified or certified check;
or bank draft; (b) at the discretion of the Committee, by
delivery of shares of Common Stock already owned by the participant
in payment of all or any part of the exercise price, which shares
shall be valued for this purpose at the Fair Market Value (as
defined in Section 11.12 below) on the date such option is
exercised; or (c) at the discretion of the Committee, by
instructing the Company to withhold from the shares of Common Stock
issuable upon exercise of the stock option shares of Common Stock
in payment of all or any part of the exercise price and/or any
related withholding-tax obligations, which shares shall be valued
for this purpose at the Fair Market Value or in such other manner
as may be authorized from time to time by the Committee. Any
shares of Common Stock delivered by a participant pursuant to
clause (b) above must have been held by the participant for a
period of not less than six (6) months prior to the exercise
of the option, unless otherwise determined by the Committee.
Prior to the issuance of shares of Common Stock upon the exercise
of a stock option, a participant shall have no rights as a
shareholder with respect to shares of Common Stock issuable under
such stock option. Except as otherwise provided in the Plan,
no adjustment will be made for dividends or distributions declared
as of a record date preceding the date on which a participant
becomes the
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holder of record
of shares of Common Stock acquired upon exercise of a stock option,
except as the Committee may determine in its sole
discretion.
6.5
Incentive Stock Options . Notwithstanding anything in
the Plan to the contrary, the following additional provisions shall
apply to the grant of stock options which are intended to qualify
as incentive stock options (as such term is defined in
Section 422 of the Code):
(a)
The aggregate Fair Market Value (determined as of the time the
option is granted) of the shares of Common Stock with respect to
which incentive stock options are exercisable for the first time by
any participant during any calendar year (under the Plan and any
other incentive stock-option plans of the Company or any subsidiary
or parent corporation of the Company) shall not exceed
$100,000. The determination will be made by taking incentive
stock options into account in the order in which they were
granted.
(b)
Any certificate for an incentive stock option authorized under the
Plan shall contain such other provisions as the Committee shall
deem advisable, but shall in all events be consistent with and
contain all provisions required in order to qualify the options as
incentive stock options.
(c)
All incentive stock options must be granted within ten
(10) years from the earlier of the date on which this Plan was
adopted by board of directors or the date this Plan was approved by
the Company’s shareholders.
(d)
Unless sooner exercised, all incentive stock options shall expire
no later than ten (10) years after the date of grant. No
incentive stock option may be exercisable after ten (10) years
from its date of grant (or five (5) years from its date of
grant if, at the time of grant, the participant owns, directly or
indirectly, more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or any parent
or subsidiary corporation of the Company).
(e)
The exercise price for a share of Common Stock under an incentive
stock options shall be not less than one hundred percent (100%) of
the Fair Market Value of one share of Common Stock on the date of
grant; provided, however , that the exercise price shall be
one hundred ten percent (110%) of the Fair Market Value if, at the
time the incentive stock option is granted, the participant owns,
directly or indirectly, more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or any
parent or subsidiary corporation of the Company.
7.
Stock-Appreciation Rights.
An SAR is a right to receive, without payment to
the Company, a number of shares of Common Stock, cash, or any
combination thereof, the amount of which is determined pursuant to
the formula set forth in Section 7.4. An SAR may be
granted (a) with respect to any stock option granted under
this Plan, either concurrently with the grant of such stock option
or at such later time as determined by the Committee (as to all or
any portion of the shares of Common Stock subject to the stock
option), or (b) alone, without reference to any related stock
option. Each SAR granted by the Committee under this Plan
shall be subject to the following terms and conditions:
7.1
Number; Exercise Price . Each SAR granted to any
participant shall relate to such number of shares of Common Stock
as shall be determined by the Committee, subject to adjustment as
provided in Section 11.5. In the case of an SAR granted
with respect to a stock
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option, the
number of shares of Common Stock to which the SAR pertains shall be
reduced in the same proportion that the holder of the option
exercises the related stock option. The exercise price of an
SAR will be determined by the Committee, in its discretion, at the
date of grant but may not be less than one hundred percent (100%)
of the Fair Market Value of one share of Common Stock on the date
of grant.
7.2
Duration . Subject to earlier termination as provided
in Section 11.4, the term of each SAR shall be determined by
the Committee but shall not exceed ten (10) years and one day
from the date of grant. Unless otherwise provided by the
Committee, each SAR shall become exercisable at such time or times,
to such extent and upon such conditions as the stock option, if
any, to which it relates is exercisable. The Committee may in
its discretion accelerate the exercisability of any
SAR.
7.3
Exercise . An SAR may be exercised, in whole or in
part, by giving written notice to the Company, specifying the
number of SARs which the holder wishes to exercise. Upon
receipt of such written notice, the Company shall, within ninety
(90) days thereafter, deliver to the exercising holder certificates
for the shares of Common Stock or cash, or both, as determined by
the Committee, to which the holder is entitled pursuant to
Section 7.4.
7.4
Payment . Subject to the right of the Committee to
deliver cash in lieu of shares of Common Stock (which, as it
pertains to Company officers and directors, shall comply with all
requirements of the Exchange Act), the number of shares of Common
Stock which shall be issuable upon the exercise of an SAR shall be
determined by dividing:
(a)
the number of shares of Common Stock as to which the SAR is
exercised multiplied by the amount of the appreciation in such
shares (i.e., the amount by which the Fair Market Value of the
shares of Common Stock subject to the SAR on the exercise date
exceeds (1) in the case of an SAR related to a stock option,
the exercise price of the shares of Common Stock under the stock
option or (2) in the case of an SAR granted alone and without
reference to a related stock option, an amount which shall be
determined by the Committee at the time of grant, subject to
adjustment under Section 11.5); by
(b)
the Fair Market Value of a share of Common Stock on the exercise
date.
In lieu of issuing shares of Common
Stock upon the exercise of a SAR, the Committee may elect to pay
the holder of the SAR cash equal to the Fair Market Value on the
exercise date of any or all of the shares which would otherwise be
issuable. No fractional shares of Common Stock shall be
issued upon the exercise of an SAR; instead, the holder of the SAR
shall be entitled to receive a cash adjustment equal to the same
fraction of the Fair Market Value of a share of Common Stock on the
exercise date or to purchase the portion necessary to make a whole
share at its Fair Market Value on the date of exercise.
8. Stock
Awards and Restricted Stock.
A stock award consists of the transfer by the
Company to a participant of shares of Common Stock, without other
payment therefor, as additional compensation for services rendered
to the Company. The participant receiving a stock award will
have all voting, dividend, liquidation and other rights with
respect to the shares of Common Stock issued to a participant as a
stock award under this Section 8 upon the participant becoming
the holder of record of such shares. A share of restricted
stock consists of shares of Common Stock which are sold or
transferred by the Company to a participant at a price determined
by the
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Committee (which price shall be at least equal
to the minimum price required
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