As
filed with the Securities and Exchange Commission on November 30, 2023
Registration No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D. C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
ELECTROMED,
INC.
(Exact
name of registrant as specified in its charter)
| Minnesota |
|
41-1732920 |
| (State
or other jurisdiction of incorporation or organization) |
|
(I.R.S.
Employer Identification No.) |
500
Sixth Avenue NW
New
Prague, Minnesota
|
|
56071 |
| (Address
of Principal Executive Offices) |
|
(Zip
Code) |
ELECTROMED,
INC. 2023 EQUITY INCENTIVE PLAN
(Full
title of the plan)
Bradley
M. Nagel
Chief
Financial Officer
Electromed,
Inc.
500
Sixth Avenue NW
New
Prague, Minnesota 56071
(952)
758-9299
(Name,
address and telephone number, including area code, of agent for service)
Copy
to:
Joshua
L. Colburn and Ryan R. Woessner
Faegre
Drinker Biddle & Reath LLP
2200
Wells Fargo Center
90
South Seventh Street
Minneapolis,
Minnesota 55402
(612)
766-7000
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer ☐
|
|
Accelerated
filer ☐ |
| Non-accelerated
filer ☒ |
|
Smaller
reporting company ☒
Emerging
growth company ☐
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
EXPLANATORY
NOTE
The
shareholders of Electromed, Inc. (the “Registrant”) approved the Registrant’s 2023 Equity Incentive Plan (the
“2023 Plan”) on November 10, 2023 (the “Effective Date”). The following shares of the Registrant’s
common stock, $0.01 par value per share (“Common Stock”), are available for issuance under the 2023 Plan: (a) 850,000
shares of Common Stock (the “New Shares”), (b) up to 192,018 shares of Common Stock that remained available for issuance
under the Electromed, Inc. 2017 Omnibus Incentive Plan (the “2017 Plan”) as of the Effective Date, which shares will
be available for future grants under the 2023 Plan (the “Prior Plan Shares”), and (c) up to 360,856 shares of
Common Stock that were subject to outstanding awards under the 2017 Plan as of the Effective Date, which shares will be available
for future grants under the 2023 Plan to the extent that, on or after the Effective Date, such awards expire, are cancelled, are
forfeited or are settled for cash (the “Outstanding Shares” and, together with the Prior Plan Shares, the “Carryover
Shares”). Upon shareholder approval of the 2023 Plan on the Effective Date, no new awards may be granted under the 2017
Plan.
The
purpose of this Registration Statement is to register the New Shares. A post-effective amendment to the Registrant’s registration
statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on December 4, 2017 (Registration
Statement No. 333-221895) relating to shares Common Stock that were previously authorized for issuance under the 2017 Plan is
being filed contemporaneously with the filing of this Registration Statement.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of
the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof,
taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
| |
(a) |
The
Registrant’s Annual Report on Form 10-K
for the fiscal year ended June 30, 2023, filed with the Commission on August 22, 2023 (the “Annual Report”), including
the portions of the Registrant’s Definitive Proxy Statement on Schedule 14A for its 2023 Annual Meeting of Shareholders, filed with the Commission on September 26, 2023, incorporated by reference into
the Annual Report; |
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|
|
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(b) |
The
Registrant’s Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30, 2023, filed with the Commission on November 7, 2023; |
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|
|
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(c) |
The
Registrant’s Current Report on Form 8-K
filed with the Commission on November 15, 2023; |
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|
|
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(d) |
All
other reports filed by the Registrant with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), since June 30, 2023 (other than information deemed to have been “furnished”
rather than “filed” in accordance with the Commission’s rules); and |
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|
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(e) |
The
description of the Registrant’s capital stock contained in Exhibit
4.1 to the Registrant’s Annual Report
on Form 10-K for the fiscal year ended June 30, 2019, filed with the Commission on August 27, 2019, including any amendment or
report filed for the purpose of updating such description. |
In
addition, all reports and other documents subsequently filed, but not furnished, by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement that
indicates that all of the shares of Common Stock offered hereby have been sold or that deregisters all shares of the Common Stock
then remaining unsold, shall be deemed to be incorporated by reference in and a part of this Registration Statement from the date
of filing of such reports and documents, except as to any document, or portion of or exhibit to a document, that is “furnished”
to (rather than “filed” with) the Commission.
Any
statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall
be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in
this Registration Statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference
in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
302A.521, subd. 2, of the Minnesota Business Corporation Act (the “MBCA”) provides that a corporation shall indemnify
any person made or threatened to be made a party to a proceeding by reason of the former
or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed
against the person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’
fees and disbursements, incurred by the person in connection with the proceeding, if, with respect to the acts or omissions
of the person complained of in the proceeding, the person:
(a)
has not been indemnified by another organization or employee benefit plan for the same expenses with respect to the same acts
or omissions;
(b)
acted in good faith;
(c)
received no improper personal benefit and Section 302A.255 of the MBCA (regarding conflicts of interest), if applicable, has been
satisfied;
(d)
in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and
(e)
in the case of acts or omissions by persons in their official capacity for the corporation, reasonably believed that the conduct
was in the best interests of the corporation, or in the case of acts or omissions by persons in their capacity for other organizations,
reasonably believed that the conduct was not opposed to the best interests of the corporation.
In
addition, Section 302A.521, subd. 3, of the MBCA requires payment or reimbursement by the corporation, upon written request, of
reasonable expenses (including attorneys’ fees) incurred by a person in advance of the final disposition of a proceeding,
(i) upon receipt by the corporation of a written affirmation by the person of a good faith belief that the requirements for indemnification
set forth above have been met as well as a written undertaking by the person to repay all amounts so paid or reimbursed by the
corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied, and (ii) after a determination
that the facts then known to those making the determination would not preclude indemnification under this section.
As
permitted by Section 302A.251 of the MBCA, Article 6 of the Registrant’s Articles of Incorporation (as amended, the “Articles
of Incorporation”) limit its directors’ personal liability for claims of breach of fiduciary duty to the full extent
permitted by the MBCA, and Article 5 of the Registrant’s Amended and Restated Bylaws (the “Bylaws”) provides
that the Registrant shall indemnify such persons for such expenses and liabilities, in such manner, under such circumstances and
to such extent permitted by the MBCA, as now enacted or hereafter amended.
In
addition to the indemnification provisions of the MBCA, and the Articles of Incorporation and the Bylaws, the Registrant has entered
into employment agreements with certain of its employees, including certain directors and officers, which agreements, among other
things, require the Registrant to pay reasonable expenses, including attorneys’ fees and disbursements pertaining to any
threatened, pending, or completed civil, criminal, administrative, arbitration, or investigative proceeding in which the employee
is made or threatened to be made a party. Such payment obligation is contingent, however, upon receipt by the Registrant of (i)
a written affirmation by the employee of a good faith belief that criteria for indemnification set forth in Section 302A.521,
subd. 2, of the MBCA have been satisfied and a written undertaking by the employee to repay all amounts so paid or reimbursed
by the Registrant if it is ultimately determined that the criteria for indemnification have not been satisfied, and (ii) a finding
that the facts then known to those making the determination would not preclude indemnification under the Articles of Incorporation
or the Bylaws or Section 302A.521 of the MBCA, including but not limited to whether the alleged misconduct by the employee that
is the subject of the proceeding is within the course and scope of the employee’s employment. The employment agreements
also provide that the Registrant shall purchase and maintain directors’ and officers’ liability insurance, comprehensive
general liability insurance, and errors and omissions insurance to cover its employees, in accordance with its or their terms,
to the maximum extent of the coverage available for any director or officer of the Registrant.
The
Registrant believes that these agreements are reasonable, prudent, and necessary to attract and retain qualified directors, officers
and employees.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
following are filed as exhibits to this Registration Statement:
Item
9. Undertakings.
| 1. |
The
undersigned Registrant hereby undertakes: |
(a)
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Filing Fee” table in the effective Registration Statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration Statement;
provided,
however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference herein.
(b)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion
of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer, or controlling person of the registrant in the successful defense of any action, suit, or proceeding)
is asserted by such director, officer, or controlling person in connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New Prague, State of Minnesota, on November 30, 2023.
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ELECTROMED,
INC. |
| |
By: |
/s/
James L. Cunniff |
| |
|
James
L. Cunniff |
| |
|
President
and Chief Executive Officer |
POWER
OF ATTORNEY
Each
person whose signature to this Registration Statement appears below hereby constitutes and appoints James L. Cunniff and Bradley
M. Nagel, and each of them, his, her or their true and lawful attorney-in-fact and agent, each with full power of substitution
and resubstitution, for him, her or their and in his, her or their name, place and stead, in any and all capacities, to sign any
and all amendments, including post-effective amendments, to this Registration Statement, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, in connection with the registration
under the Securities Act of common stock of said Registrant to be issued pursuant to the Electromed, Inc. 2023 Equity Incentive
Plan, granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and perform each and every
act and thing requisite and necessary to be done, as fully to all intents and purposes as he, she or they might or could do in
person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
| Signature |
|
Title |
Date |
| |
|
|
|
| /s/ James
L. Cunniff |
|
President and Chief
Executive Officer and Director |
November 30, 2023 |
| James L. Cunniff |
|
(Principal Executive
Officer) |
|
| |
|
|
|
| /s/
Bradley M. Nagel |
|
Chief
Financial Officer (Principal Financial Officer |
November
30, 2023 |
| Bradley M. Nagel |
|
and Principal Accounting
Officer) |
|
| |
|
|
|
| /s/ Stan
K. Erickson |
|
Director |
November 30, 2023 |
| Stan K. Erickson |
|
|
|
| |
|
|
|
| /s/ Gregory
J. Fluet |
|
Director |
November 30, 2023 |
| Gregory J. Fluet |
|
|
|
| |
|
|
|
| /s/ Joseph
L. Galatowitsch |
|
Director |
November 30, 2023 |
| Joseph L. Galatowitsch |
|
|
|
| |
|
|
|
| /s/ Kathleen
S. Skarvan |
|
Director |
November 30, 2023 |
| Kathleen S. Skarvan |
|
|
|
| |
|
|
|
| /s/ Andrew
J. Summers |
|
Director |
November 30, 2023 |
| Andrew J. Summers |
|
|
|
| |
|
|
|
| /s/ Kathleen
A. Tune |
|
Director |
November 30, 2023 |
| Kathleen A. Tune |
|
|
|
| |
|
|
|
| /s/ Andrea
M. Walsh |
|
Director |
November 30, 2023 |
| Andrea M. Walsh |
|
|
|
Exhibit
4.3
ELECTROMED,
INC.
2023
EQUITY INCENTIVE PLAN
1. Purpose.
The purpose of the Electromed, Inc. 2023 Equity Incentive Plan (the “Plan”) is to attract and retain the best
available personnel for positions of responsibility with the Company, to provide additional incentives to them and align their
interests with those of the Company’s shareholders, and to thereby promote the Company’s long-term business success.
2. Definitions.
In this Plan, the following definitions will apply.
(a) “Affiliate”
means any entity that is a Subsidiary of the Company.
(b) “Agreement”
means the written or electronic agreement or notice containing the terms and conditions applicable to each Award granted under
the Plan, including all amendments thereto. An Agreement is subject to the terms and conditions of the Plan.
(c) “Award”
means a grant made under the Plan in the form of Options, Stock Appreciation Rights, Restricted Stock, Stock Units or an Other
Stock-Based Award.
(d) “Board”
means the Board of Directors of the Company.
(e) “Cause”
means what the term is expressly defined to mean in a then-effective written agreement (including an Agreement) between a Participant
and the Company or any Affiliate, or in the absence of any such then-effective agreement or definition a Participant’s (i)
material failure to perform Participant’s job duties competently as reasonably determined by the Committee (other than by
reason of Disability); (ii) gross misconduct by participant, which the Committee determines is (or will be if continued) demonstrably
and materially damaging to the Company; (iii) fraud, misappropriation, or embezzlement by Employee; (iv) conviction of a felony
crime or crime of moral turpitude; and (v) material breach of the Company’s business conduct or ethics code or of any fiduciary
duty or nondisclosure, non-solicitation, non-competition or similar obligation owed to the Company or any Affiliate.
(f) “Change
in Control” means, unless otherwise defined in a then-effective written agreement (including an Agreement) between a Participant
and the Company or any Affiliate, one of the following:
(1) An
Exchange Act Person or Group becomes the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of securities
of the Company representing 50% or more of the combined voting power of the Company’s then outstanding Voting Securities,
except that the following will not constitute a Change in Control:
(A) any
acquisition of securities of the Company by an Exchange Act Person from the Company for the purpose of providing financing to
the Company;
(B) any
formation of a Group consisting solely of beneficial owners of the Company’s Voting Securities as of the effective date
of this Plan;
(C) any
repurchase or other acquisition by the Company of its Voting Securities that causes any Exchange Act Person to become the beneficial
owner of 50% or more of the Company’s Voting Securities; or
(D) with
respect to any particular Participant, any acquisition of securities of the Company by the Participant, any Group including the
Participant, or any entity controlled by the Participant or a Group including the Participant.
If,
however, an Exchange Act Person or Group referenced in clause (A), (B), (C), or D above acquires beneficial ownership of additional
Company Voting Securities after initially becoming the beneficial owner of 50% or more of the combined voting power of the Company’s
Voting Securities by one of the means described in those clauses, then a Change in Control will be deemed to have occurred. Furthermore,
a Change in Control will occur if a Person becomes the beneficial owner of more than 50% of the Company’s Voting Securities
as the result of a Corporate Transaction only if the Corporate Transaction is itself a Change in Control pursuant to Section 2(f)((3).
(2) Individuals
who are Continuing Directors cease for any reason to constitute a majority of the members of the Board.
(3) A
Corporate Transaction is consummated, unless, immediately following such Corporate Transaction, all or substantially all of the
individuals and entities who were the beneficial owners of the Company’s Voting Securities immediately prior to such Corporate
Transaction beneficially own, directly or indirectly, 50% or more of the combined voting power of the then outstanding Voting
Securities of the surviving or acquiring entity resulting from such Corporate Transaction (including beneficial ownership through
any Parent of such entity) in substantially the same proportions as their ownership, immediately prior to such Corporate Transaction,
of the Company’s Voting Securities.
Notwithstanding
the foregoing, no Change in Control shall be deemed to have occurred upon an event described in this Section 2(f) unless the event
would also constitute a change in ownership or effective control of, or a change in the ownership of a substantial portion of
the assets of, the Company under Code Section 409A.
(g) “Code”
means the Internal Revenue Code of 1986, as amended and in effect from time to time. For purposes of the Plan, references to sections
of the Code shall be deemed to include any applicable treasury regulations and guidance promulgated thereunder and any successor
or similar statutory provisions.
(h) “Committee”
means two or more Non-Employee Directors designated by the Board to administer the Plan under Section 3, each member of which
shall be (i) an independent director within the meaning of applicable stock exchange rules and regulations and (ii) a non-employee
director within the meaning of Exchange Act Rule 16b-3. The Committee shall be the Compensation Committee of the Board unless
otherwise specified by the Board.
(i) “Company”
means Electromed, Inc., a Minnesota corporation, and any successor thereto.
(j) “Consultant”
means any consultant or advisor who is a natural person (other than an Employee or a Non-Employee Director) who provides services
(other than in connection with (i) a capital-raising transaction or (ii) promoting or maintaining a market in Company securities)
to the Company or an Affiliate.
(k) “Continuing
Director” means an individual (i) who is, as of the effective date of the Plan, a director of the Company, or (ii) who becomes
a director of the Company after the effective date hereof and whose initial election, or nomination for election by the Company’s
shareholders, was approved by at least a majority of the then Continuing Directors , but excluding, for purposes of this clause
(ii), an individual whose initial assumption of office occurs as the result of an actual or threatened proxy contest involving
the solicitation of proxies or consents by a person or Group other than the Board, or by reason of an agreement intended to avoid
or settle an actual or threatened proxy contest involving the solicitation of proxies or consents by a person or Group other than the Board, or by reason of an agreement intended to
avoid or settle an actual or threatened proxy contest.
(l) “Continuous
Service” means that the provision of services by a Participant to the Company or any Affiliate in any Service Provider capacity
is not interrupted or terminated. In jurisdictions requiring notice in advance of an effective termination as an Employee, Director,
or Consultant, Continuous Service shall be deemed terminated upon the actual cessation of providing services to the Company or
an Affiliate notwithstanding any required notice period that must be fulfilled before a termination as an Employee, Director,
or Consultant can be effective under applicable laws. A Service Provider’s Continuous Service shall be deemed to have terminated
upon a Separation from Service from the Company and its Affiliates. Except as otherwise provided in this Plan or any Agreement,
Service shall not be deemed terminated in the case of (i) any approved leave of absence of up to three (3) months; (ii) transfers
among the Company and any Affiliates in any Service Provider capacity; or (iii) any change in status so long as the individual
remains in the service of the Company or any Affiliate in any Service Provider capacity. Notwithstanding the foregoing, except
as otherwise determined by the Committee, in the event of any sale or spin-off of an Affiliate, service as a Service Provider
for such Affiliate following such spin-off shall be deemed to be Continuous Service for purposes of the Plan and any Award under
the Plan.
(m) “Corporate
Transaction” means (i) a sale or other disposition of all or substantially all of the assets of the Company, or (ii) a merger,
consolidation, share exchange, or similar transaction involving the Company, regardless of whether the Company is the surviving
entity.
(n) “Disability”
means (i) any permanent and total disability under any long-term disability plan or policy of the Company or its Affiliates that
covers the Participant, or (ii) if there is no such long-term disability plan or policy, “total and permanent disability”
within the meaning of Code Section 22(e)(3).
(o) “Employee”
means an employee of the Company or an Affiliate.
(p) “Exchange
Act” means the Securities Exchange Act of 1934, as amended and in effect from time to time.
(q) “Exchange
Act Person” means any natural person, entity, or Group other than (i) the Company or any Affiliate; (ii) any employee benefit
plan (or related trust) sponsored or maintained by the Company or any Affiliate; (iii) an underwriter temporarily holding securities
in connection with a registered public offering of such securities; or (iv) an entity whose Voting Securities are beneficially
owned by the beneficial owners of the Company’s Voting Securities in substantially the same proportions as their beneficial
ownership of the Company’s Voting Securities.
(r) “Fair
Market Value” means the fair market value of a Share determined as follows:
(1) If
the Shares are readily tradable on an established securities market (as determined under Code Section 409A), then Fair Market
Value will be the closing or last sales price for a Share on the principal securities market on which it trades on the date for
which it is being determined, or if no sale of Shares occurred on that date, on the next preceding date on which a sale of Shares
occurred, as reported in The Wall Street Journal or such other source as the Committee deems reliable; or
(2) If
the Shares are not then readily tradable on an established securities market (as determined under Code Section 409A), then Fair
Market Value will be determined by the Committee as the result of a reasonable application of a reasonable valuation method that
satisfies the requirements of Code Section 409A.
(s) “Full
Value Award” means an Award other than an Option Award or Stock Appreciation Right Award.
(t) “Global
Service Provider” means a Service Provider who is located outside of the United States, who is not compensated from a payroll
maintained in the United States, or who is otherwise subject to (or could cause the Company to be subject to) legal, tax, or regulatory
requirements of countries outside of the United States.
(u) “Grant
Date” means the date on which the Committee approves the grant of an Award under the Plan, or such later date as may be
specified by the Committee on the date the Committee approves the Award.
(v) “Group”
means two or more persons who act, or agree to act together, as a partnership, limited partnership, syndicate, or other group
for the purpose of acquiring, holding, voting, or disposing of securities of the Company.
(w) “Non-Employee
Director” means a member of the Board who is not an Employee.
(x) “Option”
means a right granted under the Plan to purchase a specified number of Shares at a specified price. An “Incentive Stock
Option” or “ISO” means any Option designated as such and granted in accordance with the requirements of Code
Section 422. A “Non-Qualified Stock Option” or “NQSO” means an Option other than an Incentive Stock Option.
(y) “Other
Stock-Based Award” means an Award described in Section 11 of this Plan.
(z) “Parent”
means a “parent corporation,” as defined in Code Section 424(e).
(aa) “Participant”
means a Service Provider to whom a then-outstanding Award has been granted under the Plan.
(bb) “Performance-Based
Award” means an Award that is conditioned on the achievement of specified performance goals.
(cc) “Plan”
means this Electromed, Inc. 2023 Equity Incentive Plan, as amended and in effect from time to time.
(dd) “Prior
Plan” means the Electromed, Inc. 2017 Omnibus Incentive Plan.
(ee) “Restricted
Stock” means Shares issued to a Participant that are subject to such restrictions on transfer, vesting conditions, and other
restrictions or limitations as may be set forth in this Plan and the applicable Agreement.
(ff) “Retirement”
means any termination of a Participant’s Service, other than for Cause, occurring at or after age 65, or at or after age
55 with 10 years or more of continuous service to the Company and its Affiliates.
(gg) “Separation
from Service” means a “separation from service” as such term is defined for purposes of Code Section 409A.
(hh) “Service”
means the provision of services by a Participant to the Company or any Affiliate in any Service Provider capacity.
(ii) “Service
Provider” means an Employee, a Non-Employee Director, or a Consultant to the Company or any Affiliate.
(jj) “Share”
means a share of Stock.
(kk) “Stock”
means the common stock, $0.01 par value per Share, of the Company.
(ll) “Stock
Appreciation Right” or “SAR” means the right to receive, in cash and/or Shares as determined by the Committee,
an amount equal to the appreciation in value of a specified number of Shares between the Grant Date of the SAR and its exercise
date.
(mm) “Stock
Unit” means a right to receive, in cash and/or Shares as determined by the Committee, the Fair Market Value of a Share,
subject to such restrictions on transfer, vesting conditions, and other restrictions or limitations as may be set forth in this
Plan and the applicable Agreement.
(nn) “Subsidiary”
means a “subsidiary corporation,” as defined in Code Section 424(f), of the Company.
(oo) “Substitute
Award” means an Award granted upon the assumption of, or in substitution or exchange for, outstanding awards granted by
a company or other entity acquired by the Company or any Affiliate or with which the Company or any Affiliate combines. The terms
and conditions of a Substitute Award may vary from the terms and conditions set forth in the Plan to the extent that the Committee
at the time of the grant may deem appropriate to conform, in whole or in part, to the provisions of the award in substitution
for which it has been granted.
(pp) “Voting
Securities” of an entity means the outstanding equity securities (or comparable equity interests) entitled to vote generally
in the election of directors of such entity.
| 3. | Administration
of the Plan. |
(a) Administration.
The authority to control and manage the operations and administration of the Plan shall be vested in the Committee in accordance
with this Section 3.
(b) Scope
of Authority. Subject to the terms of the Plan, the Committee shall have the authority, in its discretion, to take such actions
as it deems necessary or advisable to administer the Plan, including:
(1) determining
the Service Providers to whom Awards will be granted, the timing of each such Award, the type of Award and the number of Shares
covered by each Award, the terms, conditions, performance criteria, restrictions, and other provisions of Awards, and the manner
in which Awards are paid or settled;
(2) cancelling
or suspending an Award, accelerating the vesting in the case of death or Disability, extending the exercise period of an Award,
or otherwise amending the terms and conditions of any outstanding Award, subject to the requirements of Sections 15(d) and 15(e);
(3) adopting
sub-plans or special provisions applicable to Awards, establishing, amending, or rescinding rules to administer the Plan, interpreting
the Plan and any Award or Agreement, reconciling any inconsistency, correcting any defect, or supplying an omission or reconciling
any inconsistency in the Plan or any Agreement, and making all other determinations necessary or desirable for the administration
of the Plan;
(4) granting
Substitute Awards under the Plan;
(5) taking
such actions as are provided in Section 3(c) with respect to Awards to Global Service Providers; and
(6) requiring
or permitting the deferral of the settlement of an Award, and establishing the terms and conditions of any such deferral.
(c) Awards
to Global Service Providers. The Committee may grant Awards to Global Service Providers, on such terms and conditions different
from those specified in the Plan as may, in the judgment of the Committee, be necessary or desirable to comply with applicable
foreign laws and regulatory requirements and to promote achievement of the purposes of the Plan. In connection therewith, the
Committee may establish such subplans or annexes to Award Agreements and modify exercise procedures and other Plan rules and procedures
to the extent such actions are deemed necessary or desirable, and may take any other action that it deems advisable to obtain
local regulatory approvals or to comply with any necessary local governmental regulatory exemptions.
(d) Acts
of the Committee; Delegation. A majority of the members of the Committee shall constitute a quorum for any meeting of the
Committee, and any act of a majority of the members present at any meeting at which a quorum is present or any act unanimously
approved in writing by all members of the Committee shall be the act of the Committee. Any such action of the Committee shall
be valid and effective even if one or more members of the Committee at the time of such action are later determined not to have
satisfied all of the criteria for membership in clauses (i) and (ii) of Section 2(h). To the extent not inconsistent with applicable
law or stock exchange rules, the Committee may delegate all or any portion of its authority under the Plan to any one or more
of its members or, as to Awards to Participants who are not subject to Section 16 of the Exchange Act, to one or more directors
or executive officers of the Company or to a committee of the Board comprised of one or more directors of the Company. The Committee
may also delegate non-discretionary administrative responsibilities in connection with the Plan to such other persons as it deems
advisable.
(e) Finality
of Decisions. The Committee’s interpretation of the Plan and of any Award or Agreement made under the Plan and all related
decisions or resolutions of the Board or Committee shall be final and binding on all parties with an interest therein.
(f) Indemnification.
Each person who is or has been a member of the Committee or of the Board, and any other person to whom the Committee delegates
authority under the Plan, shall be indemnified by the Company, to the maximum extent permitted by law, against liabilities and
expenses imposed upon or reasonably incurred by such person in connection with or resulting from any claims against such person
by reason of the performance of the individual’s duties under the Plan. This right to indemnification is conditioned upon
such person providing the Company an opportunity, at the Company’s expense, to handle and defend the claims before such
person undertakes to handle and defend them on such person’s own behalf. The Company will not be required to indemnify any
person for any amount paid in settlement of a claim unless the Company has first consented in writing to the settlement. The foregoing
right of indemnification shall not be exclusive of any other rights of indemnification to which such person or persons may be
entitled under the Company’s Certificate of Incorporation or Bylaws, as a matter of law, or otherwise.
| 4. | Shares
Available Under the Plan. |
(a) Maximum
Shares Available. Subject to Section 4(b) and to adjustment as provided in Section 12(a), the number of Shares that may be
the subject of Awards and issued under the Plan shall be 850,000, plus any Shares remaining available for future grants or subject
to outstanding awards under the Prior Plan on the effective date of this Plan. No further awards may be made under the Prior Plan
after the effective date of this Plan. Shares issued under the Plan may come from authorized and unissued shares. In determining
the number of Shares to be counted against this share reserve in connection with any Award, the following rules shall apply:
(1) Where
the number of Shares subject to an Award is variable on the Grant Date, the number of Shares to be counted against the share reserve
shall be the maximum number of Shares that could be received under that particular Award, until such time as it can be determined
that only a lesser number of shares could be received.
(2) Where
two or more types of Awards are granted to a Participant in tandem with each other, such that the exercise of one type of Award
with respect to a number of Shares cancels at least an equal number of Shares of the other, the number of Shares to be counted
against the share reserve shall be the largest number of Shares that would be counted against the share reserve under either of
the Awards.
(3) Shares
subject to Substitute Awards shall not be counted against the share reserve, nor shall they reduce the Shares authorized for grant
to a Participant in any calendar year.
(4) Awards
that will be settled solely in cash shall not be counted against the share reserve, nor shall they reduce the Shares authorized
for grant to a Participant in any calendar year.
(b) Effect
of Forfeitures and Other Actions. Any Shares subject to an Award, or to an award granted under a Prior Plan that is outstanding
on the effective date of this Plan (a “Prior Plan Award”), that expires, is cancelled or forfeited or is settled for
cash shall, to the extent of such cancellation, forfeiture, expiration, or cash settlement, again become available for Awards
under this Plan, and the share reserve under Section 4(a) shall be correspondingly replenished as provided in Section 4(c) below.
The following Shares shall not, however, again become available for Awards or replenish the share reserve under Section 4(a):
(i) Shares tendered (either actually or by attestation) by the Participant or withheld by the Company in payment of the exercise
price of a stock option issued under this Plan or a Prior Plan, (ii) Shares tendered (either actually or by attestation) by the
Participant or withheld by the Company to satisfy any tax withholding obligation with respect to an award under this Plan or a
Prior Plan, (iii) Shares repurchased by the Company with proceeds received from the exercise of a stock option issued under this
Plan or a Prior Plan, and (iv) Shares subject to a stock appreciation right award issued under this Plan or a Prior Plan that
are not issued in connection with the stock settlement of that award upon its exercise.
(c) Counting
Shares Again Available. Each Share that again becomes available for Awards as provided in Section 4(b) shall correspondingly
increase the share reserve under Section 4(a).
(d) Effect
of Plans Operated by Acquired Companies. If a company acquired by the Company or any Subsidiary or with which the Company
or any Subsidiary combines has shares available under a pre-existing plan approved by shareholders and not adopted in contemplation
of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted,
to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition
or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition
or combination) may be used for Awards under the Plan and shall supplement the Share reserve under Section 4(a). Awards using
such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing
plan absent the acquisition or combination, and shall only be made to individuals who were not Employees or Non-Employee Directors
prior to such acquisition or combination.
(e) No
Fractional Shares. Unless otherwise determined by the Committee, the number of Shares subject to an Award shall always be
a whole number. No fractional Shares may be issued under the Plan, but the Committee may, in its discretion, adopt any rounding
convention it deems suitable or pay cash in lieu of any fractional Share in settlement of an Award.
(f) Limits
on Awards to Non-Employee Directors. The aggregate grant date fair value (as determined in accordance with generally accepted
accounting principles applicable in the United States) of all Awards granted during any calendar year to any Non-Employee Director
(excluding any Awards granted at the election of a Non-Employee Director in lieu of all or any portion of retainers or fees otherwise
payable to Non-Employee Directors in cash) with respect to such individual’s Service as a Non-Employee Director shall not
exceed $500,000.
5. Eligibility.
Participation in the Plan is limited to Service Providers. Incentive Stock Options may only be granted to Employees who are
not Global Service Providers.
| 6. | General
Terms of Awards. |
(a) Award
Agreement. Each Award shall be evidenced by an Agreement setting forth the amount of the Award together with such other terms
and conditions applicable to the Award (and not inconsistent with the Plan) as determined by the Committee. If an Agreement calls
for acceptance by the Participant, the Award evidenced by the Agreement will not become effective unless acceptance of the Agreement
in a manner permitted by the Committee is received by the Company within 60 days of the date the Agreement is delivered to the
Participant. An Award to a Participant may be made singly or in combination with any form of Award. Two types of Awards may be
made in tandem with each other such that the exercise of one type of Award with respect to a number of Shares reduces the number
of Shares subject to the related Award by at least an equal amount.
(b) Vesting
and Term. Each Agreement shall set forth the period until the applicable Award is scheduled to vest and, if applicable, expire
(which shall not be more than ten years from the Grant Date), and, consistent with the requirements of this Section 6, the applicable
vesting conditions and any applicable performance period.
(c) Transferability.
Except as provided in this Section 6(c), (i) during the lifetime of a Participant, only the Participant or the Participant’s
guardian or legal representative may exercise an Option or SAR, or receive payment with respect to any other Award; and (ii) no
Award may be sold, assigned, transferred, exchanged, or encumbered, voluntarily or involuntarily, other than by will or the laws
of descent and distribution. Any attempted transfer in violation of this Section 6(c) shall be of no effect. The Committee may,
however, provide in an Agreement or otherwise that an Award (other than an Incentive Stock Option) may be transferred pursuant
to a domestic relations order or may be transferable by gift to any “family member” (as defined in General Instruction
A.1(a)(5) to Form S-8 under the Securities Act of 1933) of the Participant. Any Award held by a transferee shall continue to be
subject to the same terms and conditions that were applicable to that Award immediately before the transfer thereof. For purposes
of any provision of the Plan relating to notice to a Participant or to acceleration or termination of an Award upon the death
or Separation from Service of a Participant, the references to “Participant” shall mean the original grantee of an
Award and not any transferee.
(d) Designation
of Beneficiary. To the extent permitted by the Committee, a Participant may designate a beneficiary or beneficiaries to exercise
any Award or receive a payment under any Award that is exercisable or payable on or after the Participant’s death. Any such
designation shall be on a form approved by the Company and shall be effective upon its receipt by the Company.
(e) Separation
from Service. Unless otherwise provided in an applicable Agreement or another then-effective written agreement between a Participant
and the Company, and subject to Section 12 of this Plan, if a Participant’s Continuous Service with the Company and all
of its Affiliates terminates, the following provisions shall apply (in all cases subject to the scheduled expiration of an Option
or SAR Award, as applicable):
(1) Upon
Separation from Service for Cause, or upon conduct during a post-termination exercise period that would constitute Cause, all
unexercised Option and SAR Awards and all unvested portions of any other outstanding Awards shall be immediately forfeited without
consideration.
(2) Upon
Separation from Service for any other reason, all unvested and unexercisable portions of any outstanding Awards shall be immediately
forfeited without consideration.
(3) Upon
Separation from Service for any reason other than Cause, death, or Disability, the currently vested and exercisable portions of
Option and SAR Awards may be exercised for a period of three months after the date of such termination. However, if a Participant
thereafter dies during such three-month period, the vested and exercisable portions of the Option and SAR Awards may be exercised
for a period of one year after the date of such termination.
(4) Upon
Separation from Service due to death, Disability or Retirement, the currently vested and exercisable portions of Option and SAR
Awards may be exercised for a period of one year after the date of such termination.
(f) Rights
as Shareholder. No Participant shall have any rights as a shareholder with respect to any Shares covered by an Award unless
and until the date the Participant becomes the holder of record of the Shares, if any, to which the Award relates.
(g) Performance-Based
Awards. Any Award may be granted as a Performance-Based Award if the Committee establishes one or more measures of corporate,
business unit or individual performance which must be attained, and the performance period over which the specified performance
is to be attained, as a condition to the grant, vesting, exercisability, lapse of restrictions, and/or settlement in cash or Shares
of such Award. In connection with any such Award, the Committee shall determine the extent to which performance measures have
been attained and other applicable terms and conditions have been satisfied, and the degree to which the grant, vesting, exercisability,
lapse of restrictions, and/or settlement of such Award has been earned. The Committee shall also have the authority to provide,
in an Agreement or otherwise, for the modification of a performance period and/or adjustments to or waivers of the achievement
of performance goals.
(h) Dividends
and Dividend Equivalents. No dividends, dividend equivalents, or distributions will be paid with respect to Shares subject
to an Option or SAR Award. Any dividends or distributions payable with respect to Shares that are subject to the unvested portion
of a Restricted Stock Award will be subject to the same restrictions and risk of forfeiture as the Shares to which such dividends
or distributions relate. In its discretion, the Committee may provide in an Award Agreement for a Stock Unit Award or an Other
Stock-Based Award that the Participant will be entitled to receive dividend equivalents, based on dividends actually declared
and paid on outstanding Shares, on the units or other Share equivalents subject to the Stock Unit Award or Other Stock-Based Award,
and such dividend equivalents will be subject to the same restrictions and risk of forfeiture as the units or other Share equivalents
to which such dividend equivalents relate. The additional terms of any such dividend equivalents will be as set forth in the applicable
Agreement, including the time and form of payment and whether such dividend equivalents will be credited with interest or deemed
to be reinvested in additional units or Share equivalents. Dividends and dividend equivalents on Performance-Based Awards will
be subject to the same terms and conditions, including vesting conditions and the achievement of any applicable performance goals,
as the original Award. Any Shares issued or issuable during the term of this Plan as the result of the reinvestment of dividends
or the deemed reinvestment of dividend equivalents in connection with an Award or a Prior Plan Award shall be counted against,
and replenish upon any subsequent forfeiture, the Plan’s share reserve as provided in Section 4.
(a) Type
and Exercise Price. The Agreement pursuant to which an Option Award is granted shall specify whether the Option is an Incentive
Stock Option or a Non-Qualified Stock Option. The exercise price at which each Share subject to an Option Award may be purchased
shall be determined by the Committee and set forth in the Agreement, and shall not be less than the Fair Market Value of a Share
on the Grant Date, except in the case of Substitute Awards (to the extent consistent with Code Section 409A and, in the case of
Incentive Stock Options, Code Section 424).
(b) Payment
of Exercise Price. The purchase price of the Shares with respect to which an Option Award is exercised shall be payable in
full at the time of exercise. The purchase price may be paid in cash or in such other manner as the Committee may permit, including
by payment under a broker-assisted sale and remittance program, by withholding Shares otherwise issuable to the Participant upon
exercise of the Option or by delivery to the Company of Shares (by actual delivery or attestation) already owned by the Participant
(in either case, such Shares having a Fair Market Value as of the date the Option is exercised equal to the purchase price of
the Shares being purchased).
(c) Exercisability
and Expiration. Each Option Award shall be exercisable in whole or in part on the terms provided in the Agreement. No Option
Award shall be exercisable at any time after its scheduled expiration. When an Option Award is no longer exercisable, it shall
be deemed to have terminated.
(d) Incentive
Stock Options.
(1) An
Option Award will constitute an Incentive Stock Option Award only if the Participant receiving the Option Award is an Employee
who is not a Global Service Provider, and only to the extent that (i) it is so designated in the applicable Agreement and (ii)
the aggregate Fair Market Value (determined as of the Option Award’s Grant Date) of the Shares with respect to which Incentive
Stock Option Awards held by the Participant first become exercisable in any calendar year (under the Plan and all other plans
of the Company and its Affiliates) does not exceed $100,000 or such other amount specified by the Code. To the extent an Option
Award granted to a Participant exceeds this limit, the Option Award shall be treated as a Non-Qualified Stock Option Award. The
maximum number of Shares that may be issued upon the exercise of Incentive Stock Option Awards under the Plan shall be the total
number of Shares in the Plan’s share reserve as specified in the first sentence of Section 4(a), subject to adjustment as
provided in Section 12(a).
(2) No
Participant may receive an Incentive Stock Option Award under the Plan if, immediately after the grant of such Award, the Participant
would own (after application of the rules contained in Code Section 424(d)) Shares possessing more than 10% of the total combined
voting power of all classes of stock of the Company or an Affiliate, unless (i) the per Share exercise price for such Award is
at least 110% of the Fair Market Value of a Share on the Grant Date and (ii) such Award will expire no later than five years after
its Grant Date.
(3) For
purposes of Continuous Service by a Participant who has been granted an Incentive Stock Option Award, no approved leave of absence
may exceed three months unless reemployment upon expiration of such leave is provided by statute or contract. If reemployment
is not so provided, then on the date six months following the first day of such leave, any Incentive Stock Option held by the
Participant shall cease to be treated as an Incentive Stock Option and shall be treated for tax purposes as a Non-Qualified Stock
Option.
(4) If
an Incentive Stock Option Award is exercised after the expiration of the exercise periods that apply for purposes of Code Section
422, or otherwise fails to qualify as an Incentive Stock Option, such Option shall thereafter be treated as a Non-Qualified Stock
Option.
| 8. | Stock
Appreciation Right Awards. |
(a) Nature
of Award. An Award of Stock Appreciation Rights shall be subject to such terms and conditions as are determined by the Committee,
and shall provide a Participant the right to receive upon exercise of the SAR Award all or a portion of the excess of (i) the
Fair Market Value as of the date of exercise of the SAR Award of the number of Shares as to which the SAR Award is being exercised,
over (ii) the aggregate exercise price for such number of Shares. The per Share exercise price for any SAR Award shall be determined
by the Committee and set forth in the applicable Agreement, and shall not be less than the Fair Market Value of a Share on the
Grant Date, except in the case of Substitute Awards (to the extent consistent with Code Section 409A).
(b) Exercise
of SAR. Each SAR Award may be exercisable in whole or in part at the times, on the terms and in the manner provided in the
Agreement. No SAR Award shall be exercisable at any time after its scheduled expiration. When a SAR Award is no longer exercisable,
it shall be deemed to have terminated. Upon exercise of a SAR Award, payment to the Participant shall be made at such time or
times as shall be provided in the Agreement in the form of cash, Shares, or a combination of cash and Shares as determined by
the Committee. The Agreement may provide for a limitation upon the amount or percentage of the total appreciation on which payment
(whether in cash and/or Shares) may be made in the event of the exercise of a SAR Award.
| 9. | Restricted
Stock Awards. |
(a) Vesting
and Consideration. Shares subject to a Restricted Stock Award shall be subject to vesting and the lapse of applicable restrictions
based on such conditions or factors and occurring over such period of time as the Committee may determine in its discretion, subject
to the requirements of Section 6(b). The Committee may provide whether any consideration other than Services must be received
by the Company or any Affiliate as a condition precedent to the grant of a Restricted Stock Award, and may correspondingly provide
for Company reacquisition or repurchase rights if such additional consideration has been required and some or all of a Restricted
Stock Award does not vest.
(b) Shares
Subject to Restricted Stock Awards. Unvested Shares subject to a Restricted Stock Award shall be evidenced by a book-entry
in the name of the Participant with the Company’s transfer agent or by one or more Stock certificates issued in the name
of the Participant. Any such Stock certificate shall be deposited with the Company or its designee, together with an assignment
separate from the certificate, in blank, signed by the Participant, and bear an appropriate legend referring to the restricted
nature of the Restricted Stock evidenced thereby. Any book-entry shall be subject to comparable restrictions and corresponding
stop transfer instructions. Upon the vesting of Shares of Restricted Stock, and the Company’s determination that any necessary
conditions precedent to the release of vested Shares (such as satisfaction of tax withholding obligations and compliance with
applicable legal requirements) have been satisfied, such vested Shares shall be made available to the Participant in such manner
as may be prescribed or permitted by the Committee. Except as otherwise provided in the Plan or an applicable Agreement, a Participant
with a Restricted Stock Award shall have all the rights of a shareholder, including the right to vote the Shares of Restricted
Stock.
(a) Vesting
and Consideration. A Stock Unit Award shall be subject to vesting and the lapse of applicable restrictions based on such conditions
or factors and occurring over such period of time as the Committee may determine in its discretion, subject to the requirements
of Section 6(b). If vesting of a Stock Unit Award is conditioned on the achievement of specified performance goals, the extent
to which the goals are achieved over the specified performance period shall determine the number of Stock Units that will be earned
and eligible to vest, which may be greater or less than the target number of Stock Units stated in the Agreement. The Committee
may provide whether any consideration other than Services must be received by the Company or any Affiliate as a condition precedent
to the settlement of a Stock Unit Award.
(b) Settlement
of Award. Following the vesting of a Stock Unit Award, and the Company’s determination that any necessary conditions
precedent to the settlement of the Award (such as satisfaction of tax withholding obligations and compliance with applicable legal
requirements) have been satisfied, settlement of the Award and payment to the Participant shall be made at such time or times
in the form of cash, Shares (which may themselves be considered Restricted Stock under the Plan), or a combination of cash and
Shares as determined by the Committee.
11. Other
Stock-Based Awards. The Committee may from time to time grant Shares and other Awards that are valued by reference to
and/or payable in whole or in part in Shares under the Plan. The Committee shall determine the terms and conditions of such Awards,
which shall be consistent with the terms and purposes of the Plan. The Committee may direct the Company to issue Shares subject
to restrictive legends and/or stop transfer instructions that are consistent with the terms and conditions of the Award to which
the Shares relate.
| 12. | Changes
in Capitalization, Corporate Transactions, Change in Control. |
(a) Adjustments
for Changes in Capitalization. In the event of any equity restructuring (within the meaning of FASB ASC Topic 718) that causes
the per share value of Shares to change, such as a stock dividend, stock split, spinoff, rights offering, or recapitalization
through an extraordinary dividend, the Committee shall make such adjustments as it deems equitable and appropriate to (i) the
aggregate number and kind of Shares or other securities issued or reserved for issuance under the Plan, (ii) the number and kind
of Shares or other securities subject to outstanding Awards, (iii) the exercise price of outstanding Options and SARs, and (iv)
any maximum limitations prescribed by the Plan with respect to certain types of Awards or the grants to individuals of certain
types of Awards. In the event of any other change in corporate capitalization, including a merger, consolidation, reorganization,
or partial or complete liquidation of the Company, such equitable adjustments described in the foregoing sentence may be made
as determined to be appropriate and equitable by the Committee to prevent dilution or enlargement of rights of Participants. In
either case, any such adjustment shall be conclusive and binding for all purposes of the Plan. No adjustment shall be made pursuant
to this Section 12(a) in connection with the conversion of any convertible securities of the Company, or in a manner that would
cause Incentive Stock Options to violate Section 422(b) of the Code or cause an Award to be subject to adverse tax consequences
under Code Section 409A.
(b) Corporate
Transactions. Unless otherwise provided in an applicable Agreement or another written agreement between a Participant and
the Company, the following provisions shall apply to outstanding Awards in the event of a Change in Control that involves a Corporate
Transaction. The Committee will not be required to treat all Awards similarly for purposes of this Section 12(b).
(1) Continuation,
Assumption or Replacement of Awards. In the event of a Corporate Transaction, then the surviving or successor entity (or
its Parent) may continue, assume, or replace Awards outstanding as of the date of the Corporate Transaction (with such adjustments
as may be required or permitted by Section 12(a)), and such Awards or replacements therefor shall remain outstanding and be governed
by their respective terms, subject to Section 12(b)(4) below. A surviving or successor entity may elect to continue, assume, or
replace only some Awards or portions of Awards. For purposes of this Section 12(b)(1), an Award shall be considered assumed or
replaced if, in connection with the Corporate Transaction and in a manner consistent with Code Section 409A (and Code Section
424 if the Award is an ISO), either (i) the contractual obligations represented by the Award are expressly assumed by the surviving
or successor entity (or its Parent) with appropriate adjustments to the number and type of securities subject to the Award and
the exercise price thereof that preserves the intrinsic value of the Award existing at the time of the Corporate Transaction,
or (ii) the Participant has received a comparable equity-based award that preserves the intrinsic value of the Award existing
at the time of the Corporate Transaction and contains terms and conditions that are substantially similar to those of the Award.
(2) Acceleration.
If and to the extent that outstanding Awards under the Plan are not continued, assumed, or replaced in connection with a Corporate
Transaction, then (i) all outstanding Option and SAR Awards shall become fully vested and exercisable for such period of time
prior to the effective time of the Corporate Transaction as is deemed fair and equitable by the Committee, and shall terminate
at the effective time of the Corporate Transaction, (ii) all outstanding Full Value Awards shall fully vest immediately prior
to the effective time of the Corporate Transaction, and (iii) to the extent vesting of any Award is subject to satisfaction of
specified performance goals, such Award shall be deemed “fully vested” for purposes of this Section 12(b)(2) if it
is vested based on actual achievement of any performance-based vesting conditions which have been satisfied upon or prior to the
Corporate Transaction. The Committee shall provide written notice of the period of accelerated exercisability of Option and SAR
Awards to all affected Participants. The exercise of any Option or SAR Award whose exercisability is accelerated as provided in
this Section 12(b)(2) shall be conditioned upon the consummation of the Corporate Transaction and shall be effective only immediately
before such consummation.
(3) Payment
for Awards. If and to the extent that outstanding Awards under the Plan are not continued, assumed, or replaced in connection
with a Corporate Transaction, then the Committee may provide that some or all of such outstanding Awards shall be canceled at
or immediately prior to the effective time of the Corporate Transaction in exchange for payments to the holders as provided in
this Section 12(b)(3). The payment for any Award canceled shall be in an amount equal to the difference, if any, between (i) the
fair market value (as determined in good faith by the Committee) of the consideration that would otherwise be received in the
Corporate Transaction for the number of Shares subject to the Award, and (ii) the aggregate exercise price (if any) for the Shares
subject to such Award. If the amount determined pursuant to the preceding sentence is not a positive number with respect to any
Award, such Award may be canceled pursuant to this Section 12(b)(3) without payment of any kind to the affected Participant. With
respect to an Award whose vesting is subject to the satisfaction of specified performance goals, the number of Shares subject
to such an Award for purposes of this Section 12(b)(3) shall be the number of Shares as to which the Award would have been deemed
“fully vested” for purposes of Section 12(b)(2). Payment of any amount under this Section 12(b)(3) shall be made in
such form, on such terms and subject to such conditions as the Committee determines in its discretion, which may or may not be
the same as the form, terms, and conditions applicable to payments to the Company’s shareholders in connection with the
Corporate Transaction, and may, in the Committee’s discretion, include subjecting such payments to vesting conditions comparable
to those of the Award canceled, subjecting such payments to escrow or holdback terms comparable to those imposed upon the Company’s
shareholders under the Corporate Transaction, or calculating and paying the present value of payments that would otherwise be
subject to escrow or holdback terms.
(4) Termination
After a Corporate Transaction. If and to the extent that Awards are continued, assumed, or replaced under the circumstances
described in Section 12(b)(1), and if within 12 months after the Corporate Transaction a Participant who is an Employee experiences
an involuntary Separation from Service for reasons other than Cause, then (i) outstanding Option and SAR Awards issued to the
Participant that are not yet fully exercisable shall immediately become exercisable in full and shall remain exercisable for one
year following the Participant’s termination of employment, (ii) any Full Value Awards that are not yet fully vested shall
vest in full, and (iii) to the extent vesting of any Award is subject to satisfaction of specified performance goals, such Award
shall be deemed “fully vested” for purposes of this Section 12(b)(2) if it is vested based on actual achievement of
any performance-based vesting conditions as of the date of the Participant’s termination of employment.
(c) Other
Change in Control. In the event of a Change in Control that does not involve a Corporate Transaction, the Committee may, in
its discretion, take such action as it deems appropriate with respect to outstanding Awards, which may include: (i) providing
for the cancellation of any Award in exchange for payments in a manner similar to that provided in Section 12(b)(3) or (ii) making
such adjustments to the Awards then outstanding as the Committee deems appropriate to reflect such Change in Control, which may
include the acceleration of vesting in full or in part. The Committee will not be required to treat all Awards similarly in such
circumstances, and may include such further provisions and limitations in any Award Agreement as it may deem equitable and in
the best interests of the Company.
(d) Dissolution
or Liquidation. Unless otherwise provided in an applicable Agreement, in the event of a proposed dissolution or liquidation
of the Company, the Committee will notify each Participant as soon as practicable prior to the effective date of such proposed
transaction. An Award will terminate immediately prior to the consummation of such proposed action.
(e) Parachute
Payment Limitation. Notwithstanding any other provision of this Plan or any other plan, arrangement or agreement to the contrary,
if any of the payments or benefits provided or to be provided by the Company or its Affiliates to a Participant or for the Participant’s
benefit pursuant to the terms of this Plan or otherwise (“Covered Payments”) constitute “parachute payments”
within the meaning of Section 280G of the Code, and would, but for this Section 12(e) be subject to the excise tax imposed under
Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law and any interest
or penalties with respect to such taxes (collectively, the “Excise Tax”), then the Covered Payments shall be
reduced (but not below zero) to the minimum extent necessary to ensure that no portion of the Covered Payments is subject to the
Excise Tax.
13. Plan
Participation and Service Provider Status. Status as a Service Provider shall not be construed as a commitment that any
Award will be made under the Plan to that Service Provider or to eligible Service Providers generally. Nothing in the Plan or
in any Agreement or related documents shall confer upon any Service Provider or Participant any right to continued Service with
the Company or any Affiliate, nor shall it interfere with or limit in any way any right of the Company or any Affiliate to terminate
the person’s Service at any time with or without Cause or change such person’s compensation, other benefits, job responsibilities
or title.
14. Tax
Withholding. The Company or any Affiliate, as applicable, shall have the right to (i) withhold from any cash payment under
the Plan or any other compensation owed to a Participant an amount sufficient to cover any required withholding taxes related
to the grant, vesting, exercise or settlement of an Award, and (ii) require a Participant or other person receiving Shares under
the Plan to pay a cash amount sufficient to cover any required withholding taxes before actual receipt of those Shares. In lieu
of all or any part of a cash payment from a person receiving Shares under the Plan, the Committee may permit the Participant to
satisfy all or any part of the required tax withholding obligations (but not to exceed the maximum individual statutory tax rate
in each applicable jurisdiction) by authorizing the Company to withhold a number of the Shares that would otherwise be delivered
to the Participant pursuant to the Award, or by transferring to the Company Shares already owned by the Participant, with the
Shares so withheld or delivered having a Fair Market Value on the date the taxes are required to be withheld equal to the amount
of taxes to be withheld.
| 15. | Effective
Date, Duration, Amendment and Termination of the Plan. |
(a) Effective
Date. The Plan shall become effective on the date it is approved by the Company’s shareholders, which shall be considered
the date of its adoption for purposes of Treasury Regulation Section 1.422-2(b)(2)(i). No Awards shall be made under the Plan
prior to its effective date. If the Company’s shareholders fail to approve the Plan by December 31, 2023, the Plan will
be of no further force or effect.
(b) Duration
of the Plan. The Plan shall remain in effect until all Shares subject to it are distributed, all Awards have expired or terminated,
the Plan is terminated pursuant to Section 15(c), or the tenth anniversary of the effective date of the Plan, whichever occurs
first (the “Termination Date”). Any Awards that are outstanding on the Termination Date shall remain in force according
to the terms of the Plan and the applicable Agreement.
(c) Amendment
and Termination of the Plan. The Board may at any time terminate, suspend or amend the Plan. The Company shall submit any
amendment of the Plan to its shareholders for approval only to the extent required by applicable laws or regulations or the rules
of any securities exchange on which the Shares may then be listed. No termination, suspension, or amendment of the Plan may materially
impair the rights of any Participant under a previously granted Award without the Participant’s consent, unless such action
is necessary to comply with applicable law or stock exchange rules.
(d) Amendment
of Awards. Subject to Section 15(e), the Committee may unilaterally amend the terms of any Agreement evidencing an Award previously
granted, except that no such amendment may materially impair the rights of any Participant under the applicable Award without
the Participant’s consent, unless such amendment is necessary to comply with applicable law or stock exchange rules or any
compensation recovery policy as provided in Section 16(i).Notwithstanding the foregoing, a Participant’s rights with respect
to an Award will not be deemed to have been impaired by any amendment if the Committee, in its sole discretion, determines that
the amendment, taken as a whole, does not materially impair the Participant’s rights.
(e) No
Option or SAR Repricing. Except as provided in Section 12(a), no Option or Stock Appreciation Right Award granted under the
Plan may be (i) amended to decrease the exercise price thereof, (ii) cancelled in conjunction with the grant of any new Option
or Stock Appreciation Right Award with a lower exercise price, (iii) cancelled in exchange for cash, other property, or the grant
of any Full Value Award at a time when the per share exercise price of the Option or Stock Appreciation Right Award is greater
than the current Fair Market Value of a Share, or (iv) otherwise subject to any action that would be treated under accounting
rules as a “repricing” of such Option or Stock Appreciation Right Award, unless such action is first approved by the
Company’s shareholders.
(a) Unfunded
Plan. The Plan shall be unfunded and the Company shall not be required to segregate any assets that may at any time be represented
by Awards under the Plan. Neither the Company, its Affiliates, the Committee, nor the Board shall be deemed to be a trustee of
any amounts to be paid under the Plan nor shall anything contained in the Plan or any action taken pursuant to its provisions
create or be construed to create a fiduciary relationship between the Company and/or its Affiliates, and a Participant. To the
extent any person has or acquires a right to receive a payment in connection with an Award under the Plan, this right shall be
no greater than the right of an unsecured general creditor of the Company.
(b) Limits
of Liability. Except as may be required by law, neither the Company nor any member of the Board or of the Committee, nor any
other person participating (including participation pursuant to a delegation of authority under Section 3(d) of the Plan) in any
determination of any question under the Plan, or in the interpretation, administration, or application of the Plan, shall have
any liability to any party for any action taken, or not taken, in good faith under the Plan.
(c) Compliance
with Applicable Legal Requirements and Company Policies. No Shares distributable pursuant to the Plan shall be issued and
delivered unless and until the issuance of the Shares complies with all applicable legal requirements, including compliance with
the provisions of applicable state and federal securities laws, and the requirements of any securities exchanges on which the
Company’s Shares may, at the time, be listed. During any period in which the offering and issuance of Shares under the Plan
is not registered under federal or state securities laws, Participants shall acknowledge that they are acquiring Shares under
the Plan for investment purposes and not for resale, and that Shares may not be transferred except pursuant to an effective registration
statement under, or an exemption from the registration requirements of, such securities laws. Any stock certificate or book-entry
evidencing Shares issued under the Plan that are subject to securities law restrictions shall bear or be accompanied by an appropriate
restrictive legend or stop transfer instruction. Notwithstanding any other provision of this Plan, the acquisition, holding, or
disposition of Shares acquired pursuant to the Plan shall in all events be subject to compliance with applicable Company policies,
including those relating to insider trading, pledging, or hedging transactions, minimum post-vesting holding periods and stock
ownership guidelines, and to forfeiture or recovery of compensation as provided in Section 16(i).
(d) Other
Benefit and Compensation Programs. Payments and other benefits received by a Participant under an Award made pursuant to the
Plan shall not be deemed a part of a Participant’s regular, recurring compensation for purposes of the termination, indemnity,
or severance pay laws of any country and shall not be included in, nor have any effect on, the determination of benefits under
any other employee benefit plan, contract, or similar arrangement provided by the Company or an Affiliate unless expressly so
provided by such other plan, contract, or arrangement, or unless the Committee expressly determines that an Award or portion of
an Award should be included to accurately reflect competitive compensation practices or to recognize that an Award has been made
in lieu of a portion of competitive cash compensation.
(e) Governing
Law. To the extent that federal laws do not otherwise control, the Plan and all determinations made and actions taken pursuant
to the Plan shall be governed by the laws of the State of Minnesota without regard to its conflicts-of-law principles and shall
be construed accordingly.
(f) Severability.
If any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the
remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision had not been
included.
(g) Code
Section 409A. It is intended that all Awards under the Plan will be exempt from, or will comply with, Code Section 409A, and
to the maximum extent permitted the Awards the Plan will be interpreted and administered in accordance with this intent. Notwithstanding
anything to the contrary in the Plan or any Agreement, with respect to any Award that constitutes a deferral of compensation subject
to Code Section 409A:
(1) If
any amount is payable under such Award upon a termination of Service, a termination of Service will be deemed to have occurred
only at such time as the Participant has experienced a Separation from Service;
(2) Each
amount to be paid or benefit to be provided under an Award shall be construed as a separate and distinct payment for purposes
of Code Section 409A;
(3) If
any amount shall be payable with respect to any such Award as a result of a Participant’s Separation from Service at such
time as the Participant is a “specified employee” within the meaning of Code Section 409A, then no payment shall be
made, except as permitted under Code Section 409A, prior to the first business day after the earlier of (i) the date that is six
months after the Participant’s Separation from Service or (ii) the Participant’s death. Unless the Committee has adopted
a specified employee identification policy as contemplated by Code Section 409A, specified employees will be identified by the
Board in its discretion in accordance with the default provisions specified under Code Section 409A; and
(4) If
payment under an Award is to be made within a designated period which does not begin and end within one calendar year, the Participant
does not have a right to designate the taxable year of the payment.
None
of the Company, the Board, the Committee, nor any other person involved with the administration of this Plan shall (i) in any
way be responsible for ensuring the exemption of any Award from, or compliance by any Award with, the requirements of Code Section
409A, (ii) have any obligation to design or administer the Plan or Awards granted thereunder in a manner that minimizes a Participant’s
tax liabilities, including the avoidance of any additional tax liabilities under Code Section 409A, or (iii) have any liability
to any Participant for any such tax liabilities.
(h) Rule
16b-3. It is intended that the Plan and all Awards granted pursuant to it shall be administered by the Committee so as to
permit the Plan and Awards to comply with Exchange Act Rule 16b-3. If any provision of the Plan or of any Award would otherwise
frustrate or conflict with the intent expressed in this Section 16(h), that provision to the extent possible shall be interpreted
and deemed amended in the manner determined by the Committee so as to avoid the conflict. To the extent of any remaining irreconcilable
conflict with this intent, the provision shall be deemed void as applied to Participants subject to Section 16 of the Exchange
Act to the extent permitted by law and in the manner deemed advisable by the Committee.
(i) Forfeiture
and Compensation Recovery.
(1) The
Committee may specify in an Agreement that the Participant’s rights, payments, and benefits with respect to an Award will
be subject to reduction, cancellation, forfeiture, or recovery by the Company upon the occurrence of certain specified events,
in addition to any otherwise applicable vesting or performance conditions of an Award. Such events may include termination of
Service for Cause; violation of any material Company or Affiliate policy; breach of noncompetition, non-solicitation, or confidentiality
provisions that apply to the Participant; a determination that the payment of the Award was based on an incorrect determination
that financial or other criteria were met; or other conduct by the Participant that is detrimental to the business or reputation
of the Company or its Affiliates.
(2) Awards
and any compensation associated therewith are subject to forfeiture, recovery by the Company, or other action pursuant to any
compensation recovery policy adopted by the Board or the Committee at any time, as amended from time to time, which includes but
is not limited to any compensation recovery policy adopted by the Board or the Committee including in response to the requirements
of Section 10D of the Exchange Act, the SEC’s final rules thereunder (Listing Standards for Recovery of Erroneously Awarded
Compensation, 87 Fed. Reg. 73076-73142), and any applicable listing rules or other rules and regulations implementing the foregoing
or as otherwise required by law. Any Agreement will be unilaterally amended to comply with any such compensation recovery policy.
Exhibit
5.1
Faegre
Drinker Biddle & Reath LLP
2200
Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402
+1
612 766 7000 main
+1 612 766 1600 fax
November
30, 2023
Electromed,
Inc.
500
Sixth Avenue NW
New
Prague, Minnesota 56071
Re: Registration
Statement on Form S-8
Ladies
and Gentlemen:
We
have acted as counsel to Electromed, Inc., a Minnesota corporation (the “Company”), in connection with the preparation
and filing with the Securities and Exchange Commission (the “Commission”) of the Company’s Registration Statement
on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”),
registering the offer and sale of up to 850,000 shares (the “Shares”) of the Company’s common stock, par value
$0.01 per share (the “Common Stock”) shares of Common Stock issuable pursuant to the Electromed, Inc. 2023 Equity
Incentive Plan (the “2023 Plan”).
For
purposes of this opinion letter, we have examined the 2023 Plan, the Registration Statement, the Company’s articles of incorporation,
as amended and currently in effect, the Company’s amended and restated bylaws, as currently in effect, and the resolutions
of the Company’s board of directors authorizing the issuance of the Shares. We have also examined a certificate of the Secretary
of the Company dated the date hereof (the “Certificate”) and originals, or copies certified or otherwise authenticated
to our satisfaction, of such corporate records and other records, agreements, instruments, certificates of public officials and
documents as we have deemed necessary as a basis for the opinions hereinafter expressed and have made such examination of statutes
as we have deemed relevant and necessary in connection with the opinions hereinafter expressed. As to facts material to this opinion
letter, we have relied upon certificates, statements or representations of public officials, of officers and representatives of
the Company (including the Certificate) and of others, without any independent verification thereof.
In
our examination, we have assumed: (i) the legal capacity of all natural persons; (ii) the genuineness of all signatures,
including electronic signatures; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity
to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies; (v) the
authenticity of the originals of such latter documents; (vi) the truth, accuracy and completeness of the information, representations
and warranties contained in the agreements, documents, instruments, certificates and records we have reviewed; and (vii) the
absence of any undisclosed modifications to the agreements and instruments reviewed by us.
Based
on and subject to the foregoing and to the other qualifications, assumptions and limitations set forth herein, we are of the opinion
that all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Shares
to be issued in accordance with the 2023 Plan and that, when (a) the Shares have been issued and sold as contemplated in the Registration
Statement and related prospectus and in accordance with the 2023 Plan and any applicable award agreement, and (b) where applicable,
the consideration for the Shares specified in the 2023 Plan and any applicable award agreement has been received by the Company,
the Shares will be validly issued, fully paid and nonassessable.
We
are admitted to the practice of law in the State of Minnesota, and the foregoing opinions are limited to the laws of that state.
This
opinion letter speaks only as of the date the Registration Statement becomes effective under the Act, and we assume no obligation
to revise or supplement this opinion letter thereafter. This opinion letter is limited to the specific issues addressed herein,
and no opinion may be inferred or implied beyond that expressly stated herein.
We
hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement. In giving such consent, we do
not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission thereunder.
Yours
very truly,
FAEGRE DRINKER BIDDLE & REATH LLP
/s/ Faegre Drinker Biddle & Reath LLP
Exhibit
23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in this Registration Statement on Form S-8 of Electromed, Inc. of our report dated August
22, 2023, relating to the financial statements of Electromed, Inc., appearing in the Annual Report on Form 10-K for the fiscal
year ended June 30, 2023.
/s/
RSM US LLP
Rochester,
Minnesota
November
30, 2023
Exhibit
107
Calculation
of Filing Fee Tables
Form
S-8
(Form Type)
Electromed,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1—Newly Registered Securities
Security
Type |
Security
Class Title |
Fee
Calculation
Rule |
Amount
Registered
(1)(2)
|
Proposed
Maximum
Offering
Price Per
Unit (3) |
Maximum
Aggregate
Offering Price
(3) |
Fee
Rate |
Amount
of
Registration
Fee |
| Equity |
Common
Stock, par value $0.01 per share |
Other |
850,000 |
$10.50 |
$8,925,000.00 |
0.00014760 |
$1,317.33 |
| Total
Offering Amounts |
|
$8,925,000.00 |
|
$1,317.33 |
| Total
Fee Offsets |
|
|
|
— |
| Net
Fee Due |
|
|
|
$1,317.33 |
| (1) |
The
number of shares of common stock, par value $0.01 per share (“Common Stock”), registered represents an aggregate of
850,000 shares of Common Stock issuable pursuant to the Electromed, Inc. 2023 Equity Incentive Plan (the “Plan”). |
| (2) |
Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of Common Stock that become issuable under the Plan by reason of any stock split, stock dividend
or other similar transaction effected without the receipt of consideration which results in an increase in the number of shares
of outstanding Common Stock. |
| (3) |
Estimated
solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and Rule 457(h) of the Securities Act,
based on the average of the high and low sale prices per share of Common Stock on November 27, 2023, as reported on the NYSE American. |
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