Exhibit
10.1
STEREOTAXIS, INC.
2009 EMPLOYEE STOCK PURCHASE
PLAN
As amended and restated effective
June 10, 2009
1.
Purpose . The purpose of the Plan is to provide employees of
the Company and its Designated Subsidiaries with an opportunity to
purchase Common Stock through accumulated payroll deductions. It is
the intention of the Company to have the Plan qualify as an
“Employee Stock Purchase Plan” under Section 423
of the Internal Revenue Code of 1986, as amended. The provisions of
the Plan, accordingly, shall be construed so as to extend and limit
participation in a manner consistent with the requirements of that
section of the Code.
2.
Definitions .
(a) “
Board ” shall mean the Board of Directors of the
Company.
(b) “
Code ” shall mean the Internal Revenue Code of 1986,
as amended.
(c) “
Common Stock ” shall mean the common stock of the
Company.
(d) “
Company ” shall mean Stereotaxis, Inc. and any
Designated Subsidiary of the Company.
(e) “
Compensation ” shall mean all cash compensation
reportable on Form W-2, including without limitation base straight
time gross earnings, sales commissions, payments for overtime,
shift premiums, incentive compensation, incentive payments and
bonuses, plus any amounts contributed by the Participant to any
Company 401(k) Plan from compensation paid to the Participant by
the Company, but excluding compensatory fringe benefit payments and
special award or bonus payments classified by the Company as
excludable from Compensation.
(f) “
Designated Subsidiary ” shall mean any Subsidiary that
has been designated by the Board from time to time in its sole
discretion as eligible to participate in the Plan.
(g) “
Employee ” shall mean any individual who is an
Employee of the Company for tax purposes whose customary employment
with the Company is at least twenty (20) hours per week and
more than five (5) months in any calendar year. For purposes
of the Plan, the employment relationship shall be treated as
continuing intact while the individual is on sick leave or other
leave of absence approved by the Company or Designated Subsidiary
and meeting the requirements of Treasury Regulation
Section 1.421-1(h)(2). Where the period of leave exceeds three
months and the individual’s right to reemployment is not
guaranteed either by statute or by contract, the employment
relationship shall be deemed to have terminated after the third
month of such leave. An individual who performs services as an
employee for the Company shall not be considered an Employee if the
laws of the country in which the services are performed prohibits
his or her participation in the Plan.
(h) “
Enrollment Date ” shall mean the first Trading Day of
each Offering Period.
(i) “
Exercise Date ” shall mean the last Trading Day of
each Offering Period.
(j) “
Fair Market Value ” shall mean, as of any date, the
value of Common Stock determined as follows:
(i) If the
Common Stock is listed on any established stock exchange or a
national market system, including without limitation the Nasdaq
Global Market or The Nasdaq Capital Market of The Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as
quoted on such exchange or system for the last market trading day
prior to the date of determination, as reported in The Wall
Street Journal or such other source as the Board deems
reliable;
(ii) If the
Common Stock is regularly quoted by a recognized securities dealer
but selling prices are not reported, its Fair Market Value shall be
the mean of the closing bid and asked prices for the Common Stock
prior to the date of determination, as reported in The Wall
Street Journal or such other source as the Board deems
reliable; or
(iii) In the
absence of an established market for the Common Stock, the Fair
Market Value thereof shall be determined in good faith by the
Board.
(k) “
Offering Periods ” shall mean a period of three months
commencing on the first day of each calendar quarter.
(l) “
Participant ” shall mean an Employee who participates
in the Plan.
(m) “
Plan ” shall mean this Stereotaxis, Inc. 2009 Employee
Stock Purchase Plan.
(n) “
Purchase Price ” shall mean 95% of the Fair Market
Value of a share of Common Stock on the Exercise Date.
(o) “
Reserves ” shall mean the number of shares of Common
Stock covered by each option under the Plan which have not yet been
exercised and the number of shares of Common Stock which have been
authorized for issuance under the Plan but not yet placed under
option.
(p) “
Subsidiary ” shall mean any corporation other than the
Company, in an unbroken chain of corporations beginning with the
Company if, at the time of granting an option under the Plan, each
of the corporations other than the last corporation in the unbroken
chain owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other
corporations in such chain.
(q) “Trading
Day” shall mean a day on which national stock exchanges and
the Nasdaq System are open for trading.
3.
Eligibility .
(a) Any
Employee who shall be employed by the Company on a given Enrollment
Date shall be eligible to participate in the Plan.
(b) Any
provisions of the Plan to the contrary notwithstanding, no
participant shall be granted an option under the Plan (i) to
the extent that, immediately after the grant, such participant (or
any other person whose stock would be attributed to such
participant pursuant to Section 424(d) of the Code) would own
capital stock of the Company and/or hold outstanding options to
purchase such stock possessing five percent (5%) or more of
the total combined voting power or value of all classes of the
capital stock of the Company or of any Subsidiary, or (ii) to
the extent that his or her rights to purchase stock under all
employee stock purchase plans of the Company and its Subsidiaries
accrues at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) worth of stock (determined at the fair market value of
the shares at the time such option is granted) for each calendar
year in which such option is outstanding at any time. The Board of
Directors may set a maximum number of shares of capital stock which
any participant may purchase during any Offering Period.
4.
Offering Periods . The Plan shall be implemented by a series
of Offering Periods, each with a duration of three (3) months,
with new Offering Periods commencing on the first day of each
calendar quarter (or at such other time or times as may be
determined by the Board or a committee of the Board). The Plan
shall continue until terminated in accordance with Section 20
hereof. The Board (or a committee of the Board) shall have the
power to change the duration and/or the frequency of the Offering
Period with respect to future offerings without stockholder
approval if such change is announced prior to the scheduled
beginning of the first Offering Period to be affected.
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5. Participation
. An eligible Employee may become a participant in the Plan by
enrolling through such procedures as may be provided by the Company
from time to time. An enrollment in effect for a participant for a
particular Offering Period will continue in effect for subsequent
Offering Periods if the participant remains an eligible Employee
and has not withdrawn from participation in the Plan pursuant to
Section 10.
(a) Payroll
deductions for a Participant shall commence on the first payroll
following the Enrollment Date and shall end on the last payroll in
the Offering Period to which such authorization is applicable,
unless sooner terminated by the Participant as provided in
Section 10.
(b) During a
leave of absence approved by the Company or a Designated Subsidiary
and meeting the requirements of Treasury Regulation
Section 1.421-1(h)(2), a Participant may continue to
participate in the Plan by making cash payments to the Company on
each pay day equal to the amount of the Participant’s payroll
deductions under the Plan for the pay day immediately preceding the
first day of such Participant’s leave of absence. If a leave
of absence is unapproved or fails to meet the requirements of
Treasury Regulation Section 1.421-1(h)(2), the Participant
will cease automatically to participate in the Plan. In such event,
the Company will automatically cease to make contributions for such
Participant under the Plan and Company will pay to the Participant
his or her total payroll deductions for the Offering Period, in
cash in one lump sum (without interest), as soon as practicable
after the Participant ceases to participate.
(c) By
enrolling in the Plan, each participant will be deemed to have
authorized the establishment of a brokerage account in his or her
name at a securities brokerage firm, which firm shall serve as
custodial agent for the purpose of holding shares purchased under
the Plan. The account will be governed by, and subject to, the
terms and conditions of a written agreement with the firm approved
by the Board or the committee administering the Plan.
6.
Payroll Deductions . At the time a Participant enrolls in
the Plan, he or she shall elect to have payroll deductions made on
each pay day during the Offering Period in an amount not exceeding
fifteen percent (15%) of the Compensation which he or she
receives on each pay day during the Offering Period. Except for the
foregoing sentence, all eligible Employees shall have the same
rights and privileges under the Plan.
All payroll deductions made for a
Participant shall be credited to his or her account under the Plan
and shall be withheld in whole percentages only. A Participant may
not make any additional payments into such account.
(a) A
Participant’s election shall remain in effect for successive
Offering Periods unless terminated or the Participant withdraws as
provided in Section 10 hereof. During an Offering Period, a
Participant may elect to reduce his or her payroll deductions to
zero percent (0%), but he or she may not otherwise change the
payroll deduction percentage during an Offering Period. Amounts
deducted prior to an election to reduce his or her payroll
deductions to zero shall not be refunded to the Participant unless
he or she specifically withdraws under Section 10. In
accordance with procedures established by the Company from time to
time, a Participant must re-enroll in the Plan if he or she reduces
his or her payroll deductions to zero or withdraws under
Section 10.
(b) Notwithstanding the
foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 3(b) hereof,
the Company may decrease a Participant’s payroll deductions
to zero percent (0%) at any time during an Offering Period. Payroll
deductions shall recommence at the rate provided in such
Participant’s subscription agreement at the beginning of the
first Offering Period which is scheduled to end in the following
calendar year (or such earlier time as permitted under
Section 423(b)(8) of the Code), unless terminated by the
Participant as provided in Section 10 hereof.
(c) At the
time the option is exercised, in whole or in part, or at the time
some or all of the Company’s Common Stock issued under the
Plan is disposed of, the Participant must make adequate provision
for the Company’s federal, state, or other tax withholding
obligations, if any, which arise upon the exercise of the option or
the disposition of the Common Stock. At any time, the Company may,
but shall not be obligated to, withhold from the
Participant’s compensation the
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amount necessary for the Company to
meet applicable withholding obligations, including any withholding
required to make available to the Company any tax deductions or
benefits attributable to sale or early disposition of Common Stock
by the Participant.
7. Grant
of Option . On the Enrollment Date of each Offering Period,
each Participant participating in such Offering Period shall be
granted an option to purchase on each Exercise Date during such
Offering Period (at the applicable Purchase Price) up to a number
of shares of the Company’s Common Stock determined by
dividing such Participant’s payroll deductions accumulated
prior to such Exercise Date and retained in the Participant’s
account as of the Exercise Date by the applicable Purchase Price;
provided that such purchase shall be subject to the limitations set
forth in Sections 3(b) and 12. The Board may, for future
Offering Periods, increase or decrease, in its absolute discretion,
the maximum number of shares of the Company’s Common Stock a
Participant may purchase during each Offering Period. Exercise of
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