EXHIBIT 10.1
SRI/SURGICAL EXPRESS,
INC.
2009 STOCK COMPENSATION
PLAN
SRI/Surgical Express, Inc.
establishes the following 2009 Stock Compensation Plan for the
exclusive benefit of its eligible employees and non-employee
Directors:
ARTICLE I
PURPOSE AND
INTERPRETATION
1.1 PURPOSE
. The purpose of this Plan is to
further the interests of the Company, its Subsidiaries (if any),
and its shareholders by providing incentives in the form of Stock
Options and Restricted Stock grants to key employees and
non-employee Directors who contribute materially to the success and
profitability of the Company. The Plan is intended to enable the
Company to attract and retain key employees and non-employee
Directors, to reward outstanding individual contributions, and to
give selected key employees and non-employee Directors an interest
in the Company parallel to that of its shareholders, thus enhancing
their proprietary interest in the Company’s continued success
and progress.
1.2 DEFINITIONS
. As used in this Plan, the
following capitalized terms have the respective definitions
attributed to them:
“ADMINISTRATIVE
COMMITTEE” means
the Board of Directors or any Board Committee to whom the Board of
Directors has delegated the administration of this Plan pursuant to
Section 2.1. However, with respect to any Award granted to a
non-employee Director, “ Administrative Committee
” means the Board of Directors.
“AFFILIATE” means a Subsidiary, a parent corporation of the
Company, or a corporation of which 50% or more of the total
combined voting power of all classes of its stock is owned directly
or indirectly by a parent corporation of the Company.
“AWARD”
means, individually or collectively,
a grant under this Plan of Restricted Stock or Stock
Options.
“BOARD OF
DIRECTORS” means
the Board of Directors of the Company.
“BOARD
COMMITTEE” means a
committee consisting of two or more directors who are appointed by
the Board of Directors of the Company.
“CHANGE IN
CONTROL” means any
of the following: (a) the shareholders of the Company approve
a liquidation of all or substantially all the consolidated assets
of the Company and its Subsidiaries, other than a liquidation of a
Subsidiary into the Company or another Subsidiary (unless the
transaction is subsequently abandoned or otherwise fails to occur);
(b) the shareholders of the Company approve a sale, lease,
exchange, or other transfer to any person, persons or group other
than the Company or a Subsidiary (in a single transaction or
related series of transactions) of all or substantially all of
consolidated assets of the Company and its Subsidiaries, excluding
the creation (but not the foreclosure) of a lien, mortgage,
security interest, or other financing arrangement (unless the
transaction is subsequently abandoned or otherwise fails to occur);
(c) during any period of two consecutive years, individuals
who at the beginning of the period constitute the Board of
Directors, and any new Director whose election by the Board of
Directors or nomination for election by the Company’s
shareholders was approved by a vote of at least two-thirds
(2/3) of the Directors then still in office who either were
Directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any
reason to constitute at least a majority of the Board of Directors;
(d) the shareholders of the Company approve a merger or
a
consolidation of the Company with
any other entity (unless the transaction is subsequently abandoned
or otherwise fails to occur), other than (i) a merger or
consolidation that would result in the voting securities of the
Company outstanding immediately before the transaction continuing
to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50
percent of the combined voting power of the voting securities of
the Company or the surviving entity outstanding immediately after
the merger or consolidation or (ii) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no “person,” as the term is used
in Sections 13(d) and 14(d) of the Exchange Act acquires more than
50 percent of the combined voting power of the Company’s then
outstanding securities; or (e) the occurrence of any event,
transaction, or arrangement that results in any
“person” (as defined above), or group (as determined
for purposes of Section 13(d)(3) of the Exchange Act) becoming
a “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Company representing a majority of the combined voting power of all
the outstanding securities of the Company that are entitled to vote
generally in the election of its directors, unless the beneficial
owner is the Company, a Subsidiary, an employee benefit plan
sponsored by the Company, a person or group who is a record or
beneficial owner of 25% or more of the outstanding Shares on the
Date of Grant, or a person who becomes a beneficial owner of 25% or
more of the outstanding Shares solely by becoming a trustee of an
inter vivos trust created by a person who is the record or
beneficial owner of 25% or more of the outstanding Shares on the
Date of Grant.
“COMMON
STOCK” means the
common stock, $.001 par value, of the Company.
“COMPANY”
means SRI/Surgical Express, Inc., a
Florida corporation and the sponsor of this Plan.
“COVERED
EMPLOYEE” means a
“covered employee” within the meaning of
Section 162(m)(3) of the Internal Revenue Code, or any
successor provision thereto.
“DATE OF
GRANT” means the
date as of which an Award is granted to a Participant by the
Administrative Committee.
“DIRECTOR”
means a member of the Board of
Directors or a member of the board of directors of any
Subsidiary.
“EMPLOYEE”
means a person who is employed by
the Company or a Subsidiary on a full-time, salaried basis for at
least 30 hours each week.
“EXCHANGE
ACT” means the
United States Securities Exchange Act of 1934, as amended, and
includes all rules and regulations of the Securities and Exchange
Commission promulgated under that act.
“INCENTIVE
OPTION” means a
Stock Option granted under this Plan that is intended to qualify as
an “incentive stock option,” as defined in section 422
of the Internal Revenue Code, as in effect on the Date of Grant of
the Stock Option.
“INTERNAL REVENUE
CODE” means the
United States Internal Revenue Code of 1986, as amended from time
to time, or any United States income tax law subsequently enacted
in substitution for that code.
“MARKET
VALUE” means, as of
any particular day, the closing sales price of the Shares on such
day (or if such day is not a business day, on the preceding
business day) as reported on the Nasdaq National Market
(“Nasdaq”), or if not reported on Nasdaq, as reported
on the principal national securities exchange or other market on
which the Shares are listed or admitted to trading (the
“Exchange”). If no regular sale of the Shares was
reported on such day, Market Value shall mean the closing sales
price of the Shares on the preceding business day on which there
were sales, as reported on Nasdaq or, if not reported on Nasdaq, on
the Exchange.
“NONQUALIFIED
OPTION” means a
Stock Option granted under this Plan that is not designated as an
Incentive Option.
“OPTION
AGREEMENT” means an
agreement between the Company and a Participant that sets forth the
terms, conditions, limitations, and restrictions applicable to the
Participant’s Stock Option.
2
“OPTION
YEAR” means, with
respect to a Stock Option granted under this Plan, a period of 12
consecutive months beginning on its Date of Grant or an anniversary
of its Date of Grant.
“PARTICIPANT”
means an Employee who is selected by
the Administrative Committee, or a non-employee Director who is
selected by the Board of Directors, to receive an Award pursuant to
this Plan, in the person’s capacity as a participant under
the Plan.
“PERIOD OF
RESTRICTION” means
the period during which the transfer of Shares of Restricted Stock
is restricted, pursuant to Article V.
“PLAN”
means this 2009 Stock Compensation
Plan of the Company, as originally adopted and as subsequently
amended, modified, restated or supplemented in accordance with its
terms.
“RESTRICTED
STOCK” means Common
Stock granted to a Participant pursuant to Article V of this
Plan.
“SECURITIES
ACT” means the
United States Securities Act of 1933, as amended, and includes all
rules and regulations of the Securities and Exchange Commission
promulgated under that Act.
“SHARES”
means shares of the Common Stock or
any securities issued in exchange or substitution for those shares
pursuant to a transaction described in Section 6.1.
“STOCK
OPTION” means an
option to purchase Shares from the Company that is granted to a
Participant pursuant to this Plan, whether as an Incentive Option
or a Nonqualified Option.
“STOCK RESTRICTION
AGREEMENT” means an
agreement between the Company and a Participant that sets forth the
terms, conditions, limitations, and restrictions applicable to the
Participant’s Restricted Stock.
“SUBSIDIARY” means a corporation of which 80% of its voting
securities are owned directly or indirectly by the Company and
includes any corporation that qualifies as a “subsidiary
corporation” as defined in section 424(f) of the Internal
Revenue Code.
1.3 OTHER WORDS
. As used in this Plan, (a) the
word “or” is not exclusive, (b) the words
“consent” and “approval” are synonymous,
(c) the word “including” is always without
limitation, (d) words in the singular number include words in
the plural number and vice versa, and (e) the following
uncapitalized words and terms have the respective meanings ascribed
to them:
“AFFILIATE” has the meaning attributed to it in Rule 12b-2
under the Exchange Act.
“BENEFICIAL
OWNER” has the
meaning attributed to it under Rule 13d-3 under the Exchange Act,
and the terms “BENEFICIALLY OWNED” and
“BENEFICIAL OWNERSHIP” have the same meaning as
“BENEFICIAL OWNER . ”
“BUSINESS
DAY” has the
meaning attributed to it in Rule 14d-1(c)(6) under the Exchange
Act.
“DISABILITY” means a total and permanent disability as
defined in section 22(e)(3) of the Internal Revenue
Code.
“GROUP”
has the meaning attributed to that
term in Rule 13d-5(b)(1) under the Exchange Act and includes two or
more persons who agree to act in concert for the purpose of voting,
acquiring, or holding any securities of the Company or any
Subsidiary.
“PARENT
CORPORATION” has
the meaning attributed to that term in section 424(e) of the
Internal Revenue Code.
1.4 HEADINGS AND
REFERENCES . The titles
and headings preceding the text of the articles and sections of
this Plan are solely for convenient reference and neither
constitute a part of this Plan nor affect its meaning,
interpretation, or effect. Unless otherwise expressly stated, a
reference in this Plan to a Section refers to a section of this
Plan and a reference in this Plan to an Article refers to an
article of this Plan.
3
1.5 LIMITATION OF
RIGHTS . Nothing in this
Plan, whether express or implied, is intended or should be
construed to confer upon, or to grant to, any person (other than
the Participants and their respective heirs, guardians, and
personal representatives) any claim, right, remedy, or privilege
under or because of this Plan or any provision of it, except that
every member of the Administrative Committee is a third-party
beneficiary of the provisions of Sections 2.2 and 2.4. An employee
or non-employee Director of the Company or any Subsidiary does not
have any claim or right to participate in this Plan, and the grant
of an Award to a Participant does not create or extend any right of
the Participant to continue to serve as an employee or non-employee
Director of the Company or any Subsidiary, to participate in any
other stock option or employee benefit plan of the Company or any
Subsidiary, or to receive the same employee benefits as any other
employee of the Company or any Subsidiary. Furthermore, an
employee’s selection as a Participant does not restrict in
any way the right of the Company or a Subsidiary to terminate at
any time the Participant’s employment with it either at will
or as provided in any written employment agreement between it and
the Participant.
1.6 GOVERNING LAW.
The validity, construction,
enforcement, and interpretation of this Plan are governed by the
laws of the United States of America and the State of Florida,
excluding the laws of those jurisdictions relating to resolution of
conflicts with laws of other jurisdictions.
ARTICLE II
PLAN
ADMINISTRATION
2.1 ADMINISTRATIVE
COMMITTEE . This Plan
will be administered by the Board of Directors, or, at its
election, the Board of Directors may delegate administration of
this Plan (other than with respect to non-employee Directors) to an
Administrative Committee consisting of two or more directors who
are appointed by the Board of Directors and satisfy the criteria
described below. The members of the Administrative Committee will
serve for unspecified terms at the discretion of the Board of
Directors. The Board of Directors has the exclusive power to
increase or decrease the size of the Administrative Committee,
appoint additional members of the Administrative Committee, remove
a member of the Administrative Committee (as such) at any time,
with or without cause, and appoint a successor to fill any vacancy
on the Administrative Committee. The Board of Directors shall not
appoint as a member of the Administrative Committee any director
who (a) is an officer or employee of the Company, any
Subsidiary, or any parent corporation of the Company or who does
not qualify as an “outside director” for purposes of
section 162(m) of the Internal Revenue Code, (b) receives
directly or indirectly from the Company, any Subsidiary, or any
parent corporation of the Company a dollar amount of compensation
for services rendered as a consultant or in any capacity other than
as a director for which disclosure would be required pursuant to
Item 404(a) of Regulation S-K under the Exchange Act and the
Securities Act, (c) possesses an interest in any other
transaction to which the Company or any Subsidiary was or will be a
party and for which disclosure would be required pursuant to
Item 404(a) of Regulation S-K under the Exchange Act and the
Securities Act, or (d) has a business relationship for which
disclosure would be required pursuant to Item 404(b) of
Regulation S-K under the Exchange Act and the Securities Act. If
the Board of Directors is unable to appoint an Administrative
Committee comprising two or more directors who satisfy the
foregoing criteria, or if the Administrative Committee ceases at
any time to comprise directors who satisfy those criteria, the
Board of Directors shall serve as the Administrative Committee for
this Plan, and all Awards granted under this Plan must be approved
by the Board of Directors.
2.2 POWER AND
AUTHORITY . Subject to
compliance with all applicable rules and regulations of any
relevant authorities, including stock exchanges and the Securities
and Exchange Commission, the Administrative Committee has the
exclusive power and authority, and the sole and absolute
discretion, to do the following: (a) construe and interpret
this Plan; (b) select the Employees and non-employee Directors
who will be Participants in this Plan; (c) adopt, amend, and
rescind forms, rules, procedures, and regulations relating to this
Plan (all of which must be approved by the Board of Directors if a
Board Committee serves as the Administrative Committee);
(d) grant Awards under the Plan, either conditionally or
unconditionally; (e) determine when
4
Awards will be granted under the Plan;
(f) determine the number of Shares subject to each Award;
(g) determine the Market Value of a Share in accordance with
the provisions of this Plan; (h) determine the terms and
conditions of each Award, including, in the case of Restricted
Stock, the duration of the restriction period, the conditions under
which the Restricted Stock will vest, and any limitations,
restrictions, performance criteria, or forfeiture conditions
applicable to the Restricted Stock, and in the case of a Stock
Option, the exercise price (which must comply with
Section 4.2), the methods of exercising the Stock Option, the
methods for payment of the exercise price, the time or times when
the Stock Option will become exercisable and the duration of the
exercise period (which must not exceed the limitations specified in
Section 4.2), the conditions under which the Stock Option will
vest and become exercisable, and any limitations, restrictions,
performance criteria, or forfeiture conditions applicable to the
Stock Option or any Shares purchased pursuant to it;
(i) determine the consideration for the granting of an Award
and the consideration to be paid for Shares purchased pursuant to a
Stock Option (subject to Section 4.5); (j) to approve and
recommend amendments to the Plan for adoption by the Board of
Directors and (if necessary or desirable) the shareholders of the
Company; (k) authorize any officer or director of the Company
to execute in the name and on behalf of the Company any agreement,
certificate, instrument, or other document required to carry out
the purposes of this Plan; (l) engage the services of any
agent, expert, or professional advisor in furtherance of the
Plan’s purposes; (m) amend any outstanding Stock
Restriction Agreement or Option Agreement, subject to complying
with applicable legal restrictions and obtaining the approval of
the Participant who is a party to such agreement;
(n) determine whether, to what extent, and under what
circumstances payment of cash, Shares, other property and other
amounts payable with respect to an Award made under the Plan shall
be deferred either automatically or at the election of the
Participant; and (o) take all other actions, and make all
other determinations, that are advisable or necessary for the
Plan’s administration. Except as provided in
Section 6.9, the Administrative Committee shall be authorized
to make adjustments in Award criteria or in the terms and
conditions of Awards in recognition of unusual or nonrecurring
events affecting the Company or its financial statements or changes
in applicable laws, regulations or accounting principles. The
Administrative Committee may correct any defect, supply any
omission or reconcile any inconsistency in the Plan or any Award in
the manner and to the extent it shall deem desirable to carry it
into effect. In the absence of fraud or mistake, any action,
decision, interpretation, or determination by the Administrative
Committee, including constructions of disputed or doubtful Award or
Plan provisions, will be final and binding on all
persons.
The Board of Directors may reserve
to itself any of the power and authority conferred on the
Administrative Committee, provided that any Awards to executive
officers of the Company are approved or recommended by the
Compensation Committee of the Company. All references in this Plan
to the Administrative Committee include the Board of Directors
whenever it is exercising the power and authority of the
Administrative Committee.
2.3 APPROVAL
PROCEDURES . All actions
and determinations of the Administrative Committee must be
unanimous, unless the Board of Directors is exercising the power
and authority of the Administrative Committee. All actions and
determinations of the Board of Directors with respect to this Plan
must be approved in the manner provided by the Company’s
Bylaws and applicable law. Every action or determination of the
Administrative Committee that is expressly required or permitted
under this Plan will be valid only if undertaken pursuant to a
vote, consent, or approval that is evidenced by either (a) a
resolution adopted by the affirmative vote of the requisite number
of members of the Administrative Committee at a meeting, or
(b) a written consent signed by the requisite number of
members of the Administrative Committee. The members of the
Administrative Committee may execute a written consent in
counterparts. Each executed counterpart will constitute an original
document, and all of them, together, will constitute the same
document. A properly executed written consent will be effective as
of the date specified in it or, if an effective date is not so
specified, on the date when it is signed by the last director whose
signature is necessary to validate it, and will be valid if it is
executed before, after, or concurrently with the action or
determination to which it applies.
2.4 INDEMNIFICATION
. A member of the Administrative
Committee is not liable for, and the Company and each Participant
releases each member of the Administrative Committee from all
liability for, any punitive, incidental, compensatory,
consequential, or other damages or obligation to the Company or any
Employee,
5
Participant, or other person for any act or
omission by the member of the Administrative Committee (including
the person’s own negligence), or by any agent, employee,
professional advisor, or other expert used or engaged by the
Administrative Committee, if the act or omission does not
constitute gross negligence or willful misconduct and is done or
omitted in good faith, on behalf of the Company, and in a manner
reasonably believed by the member of the Administrative Committee
to be both in the best interests of the Company and within the
scope of the authority granted to the Administrative Committee by
this Plan. The Company shall indemnify each member of the
Administrative Committee, and shall reimburse the member from the
Company’s assets, for any cost, loss, damage, expense, or
liability (including fines, amounts paid in settlement, and legal
fees and expenses) incurred by the member by reason of any act or
omission for which the member is released from liability pursuant
to this Section 2.4.
ARTICLE III
PARTICIPANTS AND BENEFIT
LIMITATIONS
3.1 PARTICIPANTS
. Every Employee and non-employee
Director is eligible to be selected to participate in this Plan;
provided, however, that Incentive Options shall only be awarded to
employees within the meaning of Section 422 of the Internal
Revenue Code. Notwithstanding any provision in this Plan to the
contrary, the Board of Directors shall have the authority, in its
sole and absolute discretion, to select non-employee Directors as
Participants who are eligible to receive Awards other than
Incentive Options under the Plan. The Board of Directors shall set
the terms of any such Awards in its sole and absolute discretion,
and the Board of Directors shall be responsible for
administering
