UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934
[X] Filed by the Registrant
[ ] Filed by a Party other than the Registrant
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material under Rule 14a-12
BIOMERICA, INC.
--------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
--------------------------------------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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number, or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
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BIOMERICA, INC.
17571 VON KARMAN AVENUE
IRVINE, CA 92614
--------------------------
NOTICE OF 2009 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON DECEMBER 10, 2009
--------------------------
To Our Stockholders:
NOTICE IS HEREBY GIVEN that the annual meeting of the stockholders of
BIOMERICA, INC., a Delaware corporation (herein called the "Company"), will be
held at the new offices of the Company, 17571 Von Karman Avenue, Irvine,
California 92614 on December 10, 2009 at 10:00 a.m.
At the meeting, you will be asked to consider and vote upon the following
matters:
1. The election of five directors, each to serve until the next annual
meeting of stockholders and until his or her successor has been
elected and qualified or until his or her earlier resignation, death
or removal. The Proxy Statement which accompanies this Notice
includes the names of the nominees to be presented by the Board of
Directors for election; and
2. To consider and act upon a proposal to ratify and approve the
Company's 2009 Stock Incentive Plan; and
3. Transaction of such other business which may properly come before
the annual meeting and any adjournment thereof.
In accordance with the provisions of the Company's Bylaws, the Board of
Directors has fixed the close of business on October 19, 2009, as the record
date for the determination of the holders of the Company's common stock, $0.08
par value entitled to notice of and to vote at said Annual Meeting. To assure
that your shares will be represented at the Annual Meeting, please complete,
sign, date and promptly return the accompanying proxy card in the enclosed
envelope. You may revoke your proxy at any time before it is voted.
By Order of the Board of Directors,
/s/ Zackary S. Irani
-------------------------------------------
ZACKARY S. IRANI, Chairman of the Board and
Chief Executive Officer
Newport Beach, California
September 29, 2009
BIOMERICA, INC.
17571 VON KARMAN AVENUE
IRVINE, CA 92614
PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
--------------------------
GENERAL INFORMATION
This Proxy Statement is furnished by the Board of Directors of BIOMERICA,
INC., a Delaware corporation (the "Company"), in connection with the
solicitation of proxies for use at the Company's Annual Meeting of Stockholders
to be held on December 10, 2009, at the offices of the Company, 17571 Von Karman
Avenue, Irvine, California 92614 at 10:00 a.m., and at any and all adjournments
thereof (the "Annual Meeting"). The Annual Meeting has been called for the
purposes set forth in the accompanying Notice of the Annual Meeting of
Stockholders (the "Notice"). This Proxy Statement, and the Annual Report of the
Company for the year ended May 31, 2009, will be mailed on or about October 27,
2009, to each stockholder of record as of the close of business on October 19,
2009.
RECORD DATE AND OUTSTANDING SHARES
The close of business on October 19, 2009, has been set as the record date
for the determination of stockholders entitled to notice of and to vote at the
Annual Meeting (the "Record Date"). As of September 19, 2009, there was
outstanding and entitled to vote an aggregate of approximately 6,631,039 shares
of the Company's common stock, $0.08 par value per share (the "Common Stock"),
held of record by approximately 884 stockholders. However, brokers and other
institutions hold many shares on behalf of other beneficial owners of the
Company's stock.
QUORUM
The presence at the Annual Meeting, in person or by proxy, of the holders
of a majority of the outstanding shares of Common Stock held of record on the
Record Date is necessary to constitute a quorum for the purposes of electing
directors and each other item of business. The holder of each share of Common
Stock held of record on the Record Date is entitled to vote on each matter to be
considered at the Annual Meeting.
VOTES REQUIRED
Directors shall be elected by a plurality of the votes cast at the meeting
of stockholders. The affirmative vote of a majority of the votes properly cast
is required to approve the Company's 2009 Stock Incentive Plan.
VOTING RIGHTS
Holders of our Common Stock are entitled to one vote for each share held
as of the Record Date.
EFFECT OF ABSTENTIONS AND BROKER NON-VOTES
If the stockholder or his, her or its broker marks "Abstain" on a duly
submitted proxy card representing such stockholder's shares, or if the
stockholders attend the Annual Meeting in person, but elect not to vote on a
particular proposal or proposals, then such shares will be considered present at
the meeting for purposes of determining the required quorums and will not be
taken into account in determining the outcome of the election of directors or
approval of the Company's 2009 Stock Incentive Plan.
Brokers holding shares of record for customers generally are not entitled
to vote on some matters unless they receive voting instructions from their
customers. "Broker non-votes" are votes that could have been cast on the matter
in question if the brokers had received their customers' instructions, and as to
which the broker has notified the Company on a proxy form in accordance with
industry practice or has otherwise advised us that it lacks voting authority.
Shares represented by brokers' non-votes (i) will be considered present at the
meeting for purposes of determining the required quorums and (ii) will not be
taken into account in determining the outcome of the election of directors or
the approval of the Company's 2009 Stock Incentive Plan.
-1-
All votes will be tabulated by the inspector of elections appointed for
the meeting, who will separately tabulate, for the proposal, affirmative and
negative votes, abstentions and broker non-votes.
APPRAISAL RIGHTS
Under Delaware law, stockholders are not entitled to any appraisal rights
with respect to the approval of any of the proposals described in this Proxy
Statement.
PERSONS MAKING THE SOLICITATION
The Proxy accompanying this Proxy Statement is solicited on behalf of the
Board of Directors of the Company for use at the Annual Meeting. The
solicitation of proxies is being made only by use of the mails and the cost of
preparing, assembling and mailing these proxy materials will be paid by the
Company. Following the mailing of this Proxy Statement, directors, officers and
employees of the Company may solicit proxies by mail, telephone, telegraph or
personal interview. Such persons will receive no additional compensation for
such services. Brokerage houses and other nominees, fiduciaries and custodians
nominally holding shares of the Company's common stock, $0.08 par value (the
"Common Stock"), of record will be requested to forward proxy soliciting
material to the beneficial owners of such shares. The Company will, upon
request, reimburse such parties for their reasonable expenses in forwarding
proxy materials to the beneficial owners.
TERMS OF THE PROXY
The enclosed Proxy indicates the matters to be acted upon at the Annual
Meeting and provides boxes to be marked to indicate the manner in which the
stockholder's shares are to be voted with respect to such matters. By
appropriately marking the boxes, a stockholder may specify whether the proxy
shall vote for or against or shall be without authority to vote the shares
represented by the Proxy. The Proxy also confers upon the proxy discretionary
voting authority with respect to such other business as may properly come before
the Annual Meeting.
If the Proxy is executed properly and is received by the Company prior to
the Annual Meeting, the shares represented by the Proxy will be voted. Where a
stockholder specifies a choice with respect to the matter to be acted upon, the
shares will be voted in accordance with such specification. Any proxy which is
executed in such a manner as not to withhold authority to vote for the election
of the specified nominees as directors shall be deemed to confer such authority.
A Proxy may be revoked at any time prior to its exercise (i) by giving written
notice of the revocation thereof to Ms. Janet Moore, Secretary, Biomerica, Inc.,
17571 Von Karman Avenue, Irvine, California 92614, (ii) by attending the meeting
and electing to vote in person, or (iii) by delivering a duly executed Proxy
bearing a later date.
COMMON STOCK OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of September 29, 2009 certain
information as to shares of Common Stock owned by (i) each person known to
beneficially own more than 5% of the outstanding Common Stock, (ii) each
director, including nominees for director, and each named executive officer of
the Company, and (iii) all executive officers and directors of the Company as a
group. Unless otherwise indicated, each person listed has sole voting and
investment power over the shares beneficially owned by him or her. Unless
otherwise indicated, the address of each named beneficial owner is the same as
that of the Company's principal executive offices located at 17571 Von Karman
Avenue, Irvine, California 92614.
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SHARES PERCENTAGE
BENEFICIALLY BENEFICIALLY
NAME OF BENEFICIAL OWNER (1) OWNED OWNED
-------------------------------------------- ---------------- ----------------
Janet Moore (2) 832,527 12.4%
Zackary Irani (3) 868,359 12.4%
Francis Capitanio (4) 189,250 2.8%
Allen Barbieri (5) 150,389 2.2%
Francis R. Cano, Ph.D. (6) 134,500 2.0%
Jane Emerson, M.D., Ph.D. (7) 37,500 *
Joseph L. Rink (8) 371,556 5.6%
Keith A. Cannon (9) 423,275 6.4%
RKC Capital 541,000 8.2%
All executive officers and directors 2,212,525 29.4%
as a group (six persons) (10)
* Less than one percent.
(1) Beneficial ownership is determined in accordance with Rule 13d-3 of the
Securities Exchange Act of 1934. Any shares of Common Stock that each named
person and group has the right to acquire within 60 days pursuant to options,
warrants, conversion privileges or other rights, are deemed outstanding for
purposes of computing shares beneficially owned by and the percentage ownership
of each such person and group. However, such shares are not deemed outstanding
for purposes of computing the shares beneficially owned by or percentage
ownership of any other person or group. Percentage ownership for each named
beneficial owner, and the ownership of the directors and executive officers as a
group, is based on 6,631,039 shares outstanding as of the date of the Proxy plus
the shares the named person and group has a right to acquire within 60 days
thereafter pursuant to options, warrants, conversion privileges or other rights
and privileges.
(2) Includes 107,750 shares underlying options exercisable by Ms. Moore at or
within 60 days after the date of the Proxy; 633,777 shares owned by The Janet
Moore Trust of which Janet Moore is the sole trustee; at or within 60 days after
the date of the Proxy.
(3) Includes 354,833 shares underlying options and warrants exercisable by Mr.
Irani at or within 60 days after the date of the Proxy.
(4) Includes 189,250 shares underlying options exercisable by Mr. Capitanio at
or within 60 days after the date of the Proxy.
(5) Includes 97,500 shares underlying options and warrants exercisable by Mr.
Barbieri at or within 60 days after the date of the Proxy.
(6) Includes 97,500 shares underlying options exercisable by Dr. Cano at or
within 60 days after the date of the Proxy.
(7) Includes 37,500 shares underlying options exercisable by Dr. Emerson at or
within 60 days after the date of the Proxy.
-3-
(8) Includes 9,000 shares underlying options/warrants exercisable by Mr. Rink at
or within 60 days after the date of the Proxy. Mr. Rink's address is 1533
Monrovia Avenue, Newport Beach, CA 92663.
(9) Includes 17,333 shares underlying warrants exercisable by Mr. Cannon at or
within 60 days after the date of the Proxy. Mr. Cannon's address is 3333 Tripoli
Way, Oceanside, CA 92056.
(10) Includes all information set forth in footnotes (2) through (7), above.
PROPOSAL NO. 1: ELECTION OF DIRECTORS
DIRECTORS
The Company's Bylaws give the Board of Directors ("the Board") the power
to set the number of directors at no less than three (3) or more than nine (9).
The size of the Company's Board is currently set at six (6) and five (5)
directors are to be elected at the Annual Meeting to be held on December 10,
2009. Each director of the Company is elected annually and holds office for the
ensuing year and until his successor has been elected and qualified. In the
event that any of them should become unavailable prior to the Annual Meeting,
the Proxy will be voted for a substitute nominee or nominees designated by the
Board or the number of directors may be reduced accordingly.
The following table sets forth the name and current age of each nominee
for director, the year he or she was first elected a director and his or her
position(s) with the Company. The Company does not pay a fee to any third party
to identify potential nominees. The Board has not received recommended nominees
from a stockholder.
NAME AGE DIRECTOR SINCE POSITIONS HELD
---- --- -------------- --------------
Zackary Irani 43 1997 Chairman of the Board and
Chief Executive Officer
Janet Moore 58 1997 Secretary, Chief Financial Officer,
Treasurer, Director
Allen Barbieri 51 1999 Director, Audit Committee Chairman,
Member of Compensation Committee
Francis R. Cano, Ph.D. 62 1999 Director, Member of Audit Committee,
Member of Compensation Committee
Jane Emerson, M.D., Ph.D. 55 2007 Director
Mr. Zackary Irani has been a Director of the Company, and has been serving
as the Company's Chairman of the Board and Chief Executive Officer since April
29, 1997. Prior to that time, Mr. Irani served as the Company's Vice President
of Business Development. He has been an employee of the Company since 1986.
During fiscal 2008 and 2009, Mr. Irani also served as Chairman of the Board of
Lancer Orthodontics, Inc. and served as Lancer's Chief Executive Officer from
April 1997 until April 2004.
Ms. Janet Moore has been a Director of the Company since April 29, 1997,
and has been serving as the Company's Secretary and Treasurer since 1985. She
has served as the Company's Chief Financial Officer since 1999 and has been an
employee of the Company since 1976. During fiscal 2008 and through September 29,
2008, Ms. Moore also served as a director and Secretary of Lancer Orthodontics,
Inc.
Francis R. Cano, Ph.D., has served as a Director of the Company since June
1999. Dr. Cano is currently the managing director of a biotechnology consulting
business, which he founded, and which is focused on vaccines and
immunotherapeutics. He co-founded Aviron in 1993 and served as the President and
Chief Operating Officer. The Company developed an intranasal flu vaccine and was
acquired by MedImmune in 2002 for $1.2 billion. From 1972-1993 Dr. Cano held
various scientific/management positions with American Cyanamid, the last of
which was as Vice President-General Manager of the Lederle-Praxis Biological
Division. During fiscal 2008 and through September 29, 2008, Dr. Cano also
served on the board of Lancer Orthodontics, Inc., and currently serves on the
board of Arbor Vita Corporation.
-4-
Mr. Allen Barbieri has served as a Director of the Company since October
1999. Since April 2004 Mr. Barbieri has served as part-time, Chief Executive
Officer of Lancer Orthodontics, Inc. and from 1999 until the present time, Mr.
Barbieri has also worked as a private investor. From 1998 to 1999, he served as
President and Chief Financial Officer of Buy.com. From 1994 until 1998 Mr.
Barbieri was President and Chief Executive Officer of Pacific National Bank.
During fiscal 2008 and 2009 Mr. Barbieri served, and is currently serving as a
director of Lancer Orthodontics, Inc.
Dr. Emerson has served as a director of the Company since April 2007.
Since July 1, 2009 Dr. Emerson has served as Chief of Clinical Pathology at the
USC Keck School of Medicine, Los Angeles, California. From 1994 to 2009 Dr.
Emerson served as Chief, Division of Chemical Pathology for the University of
California, Irvine. From 2000 to 2009 she also served as the Chief of Clinical
Pathology and from 2004 to 2009 as a Clinical Professor for the University of
California, Irvine. From 2005 to 2009 Dr. Emerson served as Vice Chair for
Clinical Programs, Department of Pathology and Laboratory Medicine for the
University of California, Irvine.
THE BOARD RECOMMENDS A VOTE FOR THE ELECTION OF EACH OF THE NOMINATED DIRECTORS.
The Board of Directors regularly assesses the appropriate size of the
Board of Directors and whether any vacancies on the Board of Directors are
expected due to retirement or otherwise. In the event that vacancies are
anticipated or otherwise arise, the Board utilizes a variety of methods for
identifying and evaluating director candidates. Candidates may come to the
attention of the Committee through current directors, professional search firms,
stockholders or other persons.
Once the Board has identified a prospective nominee, the Board will
evaluate the prospective nominee in the context of the then current composition
of the Board of Directors and will consider a variety of other factors,
including the prospective nominee's business, technology and industry, finance
and financial reporting experience, and other attributes that would be expected
to contribute to an effective Board of Directors. The Board seeks to identify
nominees who possess a diligent range of experience, skills, areas of expertise,
industry knowledge and business judgment. Successful nominees should have a
history of superior performance or accomplishments in their professional
undertakings and should have the highest personal and professional ethics and
values. The Board does not evaluate stockholder nominees differently than any
other nominee.
Our Board will consider stockholder nominations for directors if we
receive timely written notice, in proper form, of the intent to make a
nomination at a meeting of stockholders. To be timely, the notice must be
received within the time frame discussed below in this Proxy Statement under the
heading "Stockholder Proposals." To be in proper form, the notice must, among
other matters, include each nominee's written consent to serve as a director if
elected, a description of all arrangements or understandings between the
nominating stockholder and each nominee and information about the nominating
stockholder and each nominee.
EXECUTIVE OFFICERS
Mr. Francis Capitanio, age 65, has served as the President of the
diagnostics division of Biomerica since July 10, 2000. Mr. Capitanio was
President and Chief Executive Officer of Kalisto Biologicals, Inc. from 1997
until 2000. From 1980 until 1996, he was President and Chief Executive Officer
of Diatech Diagnostics.
BOARD OF DIRECTORS MEETINGS AND COMMITTEES
The Board of Directors has a standing Audit and Compensation Committee.
The Board of Directors held 2 meetings during the year ended May 31, 2009 and
acted by unanimous written consent 6 times. All directors attended 75% or more
of the aggregate of all meetings of the Board of Directors and the committees,
if any, upon which the directors served during the year ended May 31, 2009.
-5-
COMPENSATION COMMITTEE
The Compensation Committee is responsible for assisting the Board of
Directors in discharging its responsibilities regarding the compensation of our
employees and directors. The specific duties of the Compensation Committee
include, among other matters: reviewing and approving executive compensation;
evaluating our executive officers' performance; setting the compensation levels
of our executive officers; setting our incentive compensation plans, including
our equity-based incentive plans; and making recommendations to our Board of
Directors regarding our overall compensation structure, policies and programs.
During fiscal 2009 the compensation committee was comprised of Mr. Allen
Barbieri and Dr. Francis Cano. One compensation committee meeting was held
during the fiscal year ended May 31, 2009.
AUDIT COMMITTEE
The Audit Committee is responsible for overseeing our accounting and
financial reporting processes and the audits of our financial statements. In
addition, the Audit Committee assists the Board of Directors in its oversight of
our compliance with legal and regulatory requirements. The specific duties of
the Audit Committee include, among others: monitoring the integrity of our
financial process and systems of internal controls regarding finance, accounting
and legal compliance; selecting our independent auditor; monitoring the
independence and performance of our independent auditor; and providing an avenue
of communication among the independent auditor, our management and our Board of
Directors. The Audit Committee has the authority to conduct any investigation
appropriate to fulfilling its responsibilities, and it has direct access to all
of our employees and to the independent auditor. The Audit Committee also has
the ability to retain, at the Company's expense and without further approval of
the Board of Directors, special legal, accounting or other consultants or
experts that it deems necessary in the performance of its duties.
The Audit Committee met one time during fiscal 2009. The members of the
Audit Committee are Mr. Barbieri and Dr. Cano. The Board of Directors determined
that Mr. Barbieri qualifies as an "audit committee financial expert" and that
each member of the Audit Committee is financially literate.
DIRECTOR INDEPENDENCE
The Board reviews the independence of each director when he/she is elected
to the board and monitors such on a continual basis. The Board considers the
transactions and relationships between each member and the Company in
determining independence. The Board judges independence based on the definition
of Director Independence as defined by FINRA Rule 4200(a)(15). Based upon that
review the Board affirmatively determined that Allen Barbieri, Dr. Cano and Dr.
Emerson are considered "independent" with respect to FINRA'S definition of such.
REPORT OF THE AUDIT COMMITTEE
The information in this Report of the Audit Committee Report is not deemed
"soliciting material" or to be "filed" with the Securities and Exchange
Commission.
The Audit Committee oversees the Company's financial reporting process on
behalf of the Board of Directors. Management has the primary responsibility for
the financial statements and the reporting process including the systems of
internal controls. In fulfilling its oversight responsibilities, the Committee
reviewed the audited financial statements in the Annual Report with management
including a discussion of the quality, not just the acceptability, of the
accounting principles, the reasonableness of significant judgments, and the
clarity of disclosures in the financial statements.
The Committee reviewed with the independent auditors, who are responsible
for expressing an opinion on the conformity of those audited financial
statements with generally accepted accounting principles, their judgments as to
the quality, not just the acceptability, of the Company's accounting principles
and such other matters as are required to be discussed with the Committee. The
Committee has discussed with the independent auditors the auditors' independence
from management and the Company including the matters in the written disclosures
required by the Independence Standards Board and considered the compatibility of
non-audit services with the auditors' independence.
-6-
The Committee discussed with the Company's independent auditors the
overall scope and plans for their audit. The Committee meets with the
independent auditors, with and without management present, to discuss the
results of their examinations, their understanding of the Company's internal
controls, and the overall quality of the Company's financial reporting.
In reliance on the reviews and discussions referred to above, the
Committee recommended to the Board of Directors (and the Board has approved)
that the audited financial statements be included in the Annual Report on Form
10-K for the year ended May 31, 2009 for filing with the Securities and Exchange
Commission. The Committee and the Board have also recommended the selection of
the Company's independent auditors, PKF, Certified Public Accountants, a
Professional Corporation.
/s/ Francis R. Cano /s/ Allen Barbieri
------------------------ ------------------------
EXECUTIVE COMPENSATION
The following table sets forth the total compensation earned by all
executive officers of the company for the fiscal years ended May 31, 2009 and
2008.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
------------------------ ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
Name and Principal Year Salary ($) Bonus ($) Stock Option Non Equity Non- All Other Total ($)
Position Awards Awards Incentive qualified Compen-
($) ($)(4) Plan Deferred sation
Compen- Compen- ($)
sation sation
($) Earnings
------------------------ ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
Zackary Irani Chairman 2009 105,000 -0- -0- 7,832 -0- -0- -0- 112,832(1)
& Chief Executive ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
Officer 2008 105,000 28,821 -0- 6,083 -0- -0- -0- 139,904
------------------------ ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
Francis Capitanio 2009 124,957 10,000 -0- 4,540 -0- -0- -0- 139,497(2)
President ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
2008 124,989 3,821 -0- 4,055 -0- -0- -0- 132,865
------------------------ ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
Janet Moore 2009 85,836 12,189 -0- 4,556 -0- -0- -0- 102,581(3)
Chief Financial ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
Officer, Treasurer & 2008 84,410 3,821 -0- 2,757 -0- -0- -0- 90,988
Secretary
------------------------ ------ ----------- ---------- -------- ----------- ------------ -------------- ------------ ---------------
Not included in the above amounts were the following:
(1) In fiscal 2009 Zackary Irani was paid $33,822 for payment toward his accrued
wages payable. In fiscal 2009 Mr. Irani's portion of the Management Incentive
bonus was $2,189, which he declined to accept.
(2) Mr. Capitanio's portion of the Management Incentive for fiscal 2009 was
$2,189, which he declined to accept.
(3) In fiscal 2009 Janet Moore was paid $34,846 for payment toward her accrued
wages payable.
(4) For additional information as to the assumptions made in valuation, see Note
14 to the Company's audited financial statements filed with the SEC in the
Company's Annual Report on Form 10-K for the fiscal year ended May 31, 2009.
-7-
OUTSTANDING EQUITY AWARDS AT FISCAL YEAR-END
------------------- ------------------------------------------------------------------ ---------------------------------------------
Name Option Awards Stock Awards
------------------- ------------------------------------------------------------------ ---------------------------------------------
Number of Number of Equity Option Option Number Market Equity Equity
Securities Securities Incentive Exercise Expiration of Value Incentive Incentive
Underlying Underlying Plan Awards: Price Date Shares of Plan Plan
Unexercised Unexercised Number of ($) or Shares Awards: Awards:
Options (#) Options (#) Securities Units or Number of Market or
Exercisable Unexercisable Underlying of Units Unearned Payout
Unexercised Stock of Shares, Value of
Unearned That Stock Units or Unearned
Options Have That Other Shares,
Not Have Rights Units or
Vested Not That Have Other
(#) Vested Not Vested Rights That
($) (#) Have Not
Vested ($)
------------------- ------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
50,000 -0- -0- .53 6-3-10 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
200,000 -0- -0- .40 5-31-11 -0- -0- -0- -0-
Zackary Irani ------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
75,000 -0- -0- .80 5-31-12 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
12,500 37,500 -0- .60 3-30-14 -0- -0- -0- -0-
------------------- ------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
25,000 -0- -0- .28 4-5-10 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
36,000 -0- -0- .53 6-3-10 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
Francis Capitanio 72,000 -0- -0- .40 5-31-11 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
50,000 -0- -0- .80 5-31-12 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
6,250 18,750 -0- .60 3-30-14 -0- -0- -0- -0-
------------------- ------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
25,000 -0- -0- .53 6-3-10 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
40,000 -0- -0- .40 5-31-11 -0- -0- -0- -0-
Janet Moore ------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
34,000 -0- -0- .80 5-31-12 -0- -0- -0- -0-
------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
8,750 26,250 -0- .60 3-30-14 -0- -0- -0- -0-
------------------- ------------- --------------- ------------- --------- ------------ --------- --------- ----------- -------------
COMPENSATION OF DIRECTORS
Although not prohibited by the Company's Bylaws, directors receive no
direct payment for their services as directors, but they have been, and may in
the future be, granted options to purchase the Company's securities. The
compensation of directors is subject to review and adjustment from time to time
by the Board of Directors.
The following table presents the compensation of Non-Employee Directors
for the fiscal year ended May 31, 2009. As indicated below, during fiscal 2009
the Non-Employee Directors' compensation consisted of a stock option award.
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DIRECTOR COMPENSATION
----------------------------- ---------- ---------- ----------- ----------------- --------------- ------------------ -----------
Name Fees Stock Option Non-Equity Change in All Other Total
Earned Awards Awards Incentive Plan Pension Value Compensation ($)
or Paid ($) ($) Compensation and ($)
in Cash (1) ($) Nonqualified
($) Deferred
Compensation
Earnings
----------------------------- ---------- ---------- ----------- ----------------- --------------- ------------------ -----------
Allen Barbieri -0- -0- 4,901 -0- -0- -0- -0-
----------------------------- ---------- ---------- ----------- ----------------- --------------- ------------------ -----------
Francis Cano, Ph.D -0- -0- 4,901 -0- -0- -0- -0-
----------------------------- ---------- ---------- ----------- ----------------- --------------- ------------------ -----------
Jane Emerson, M.D., Ph.D. -0- -0- 4,819 -0- -0- -0- -0-
----------------------------- ---------- ---------- ----------- ----------------- --------------- ------------------ -----------
John Roehm -0- -0- 6,312 -0- -0- -0- -0-
----------------------------- ---------- ---------- ----------- ----------------- --------------- ------------------ -----------
(1) Represents the amount expensed in fiscal 2009 for options that vested in
fiscal 2009. In fiscal 2009 each outside director received a stock option to
purchase 25,000 shares which vest over a three year period.
SECTION 16(A) - BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's executive officers, directors and persons who beneficially own more
than 10% of the Company's stock, to file initial reports of ownership and
reports of changes in ownership with the Securities and Exchange Commission.
Executive officers, directors and greater than 10% beneficial owners are
required by applicable regulations to furnish the Company with copies of all
Section 16(a) forms they file.
Based solely upon a review of the copies of such forms furnished to the
Company and information involving securities transactions of which the Company
is aware, the Company believes that during the fiscal year ended May 31, 2009,
all Section 16(a) filing requirements applicable to its executive officers,
directors and greater than 10% beneficial stockholders were complied with.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
NOTES PAYABLE - SHAREHOLDER
In March 2004 the Company signed a note payable for the principal and
interest due at that time of $313,318 and agreed to a forbearance of any
payments for the length of the agreement. The note payable was secured by all
the Company's assets except for the Lancer common stock owned by Biomerica. The
note was due September 1, 2004. On March 9, 2007 the Company entered into an
additional agreement entitled "Second Amendment of the Note, Loan and
Modification Agreement" which was filed as an exhibit to a Form 10-QSB on April
16, 2007. The agreement called for payment of overdue principal by August 31,
2007, agreement by Janet Moore to enter into a Commercial Subordination
Agreement, pledge of additional collateral to Janet Moore (all of which is
subordinate to the Commercial Bank of California) and the reduction of the
shareholder note through payments of $3,500 or (depending on certain quarterly
results of the Company) $2,000 per month. As of May 31, 2009 and 2008 there were
$0 and $95,936 payable on the shareholder note.
During 2009 and 2008, the Company incurred $1,227 and $10,973,
respectively, in interest expense related to the shareholder note.
-9-
RENT EXPENSE
The Company was operating on a month-to-month agreement during fiscal 2009
while it explored various leasing options. (On June 18, 2009, the Company
entered into an agreement to lease a building from an unrelated party in Irvine,
California, commencing September 1, 2009 and ending August 31, 2016.) The
facilities are leased from the trusts of Mrs. Ilse Sultanian, Ms. Janet Moore
(an officer and director of the Company), Ms. Jennifer Irani and Ms. Susan
Irani, some of whom are shareholders of the Company. Management believes there
would be no significant difference in the terms of the property rental if the
Company was renting from a third party. Total gross rent expense for this
facility was approximately $168,000 during the years ended May 31, 2009 and
2008, respectively.
ACCRUED COMPENSATION
During fiscal 2002-2005, two officers, Janet Moore and Zackary Irani, who
are also directors and shareholders of the Company, agreed to defer payment of
all or a portion of their salaries. At May 31, 2009 and May 31, 2008
approximately $166,768 and $240,118, respectively, of deferred officer's salary
is included in accrued compensation in the accompanying consolidated financial
statements. As of March 1, 2007 the Company began accruing interest at the rate
of 8% per year. During October 2008 the interest rate was reduced to 4%. For the
years ended May 31, 2009 and 2008, $20,187 and $20,299 in interest expense was
incurred, respectively.
Included in accrued compensation as of May 31, 2009 is vacation accrual of
$189,916 and $171,998, respectively. Of this, approximately $121,000 is due to
the former chief executive officer's estate. The Company is disputing the
validity of this claim.
POLICIES AND PROCEDURES FOR RELATED PARTY TRANSACTIONS
The Board of Directors reviews, approves and/or ratifies all transactions
involving related persons. The purpose of the review is to determine that such
transactions are conducted on terms not materially less favorable to the Company
than what would be usual and customary in transactions between unrelated persons
and, in the case of transactions involving Directors, to determine whether such
transactions affect the independence of a Director in accordance with the
relevant rules and standards issued by the Securities and Exchange Commission.
PROPOSAL NO. 2: APPROVAL OF THE COMPANY'S 2009 STOCK INCENTIVE PLAN
On September 23, 2009, the Board of Directors of the Company adopted the
Company's 2009 Stock Incentive Plan (the "Plan") for 500,000 options, subject to
stockholder approval. The Board of Directors believes that the interests of the
Company and its stockholders will be best served by approving the Plan. The
Company's 1999 Stock Incentive Plan expired in August 2009 and therefore no
additional options may be granted under that plan (existing options may,
however, still be exercised). The Board believes the Plan will enhance the
Company's ability to recruit and maintain qualified management and personnel by
including stock options as part of compensation packages. Options provide an
incentive to employees to contribute to the success of the Company which would
provide a benefit to employees as well as to the shareholders. In addition, it
conserves cash flow by having part of an employee's compensation in the form of
options. The following summary description of the Plan is qualified in its
entirety by reference to the Plan, a copy of which is attached hereto as Exhibit
A.
PURPOSE. The Plan is intended to provide incentive to employees, officers,
directors and others expected to provide significant services to the Company, to
encourage proprietary interest in the Company, to encourage such employees to
remain in the employ of the Company, to attract new employees with outstanding
qualifications, and to afford additional incentive to others to increase their
efforts in providing significant services to the Company.
ADMINISTRATION. The Plan will be administered by the Company's Board of
Directors or a committee of the Board of Directors (the "Stock Option
Committee") which may be established by the Board. Any such Stock Option
Committee will at all times be composed of "non-employee directors".
No member of the Stock Option Committee will vote on any matter affecting
his or her own compensation with respect to awards under the Plan.
-10-
TYPES OF AWARDS. The Company's Plan provides for the grant of (i)
incentive stock options ("ISOs") within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code") and (ii) stock options
that are not intended to qualify under Section 422 of the Code ("NQSOs";
collectively with ISOs, "Options"). The Plan also authorizes the award of shares
of restricted Common Stock ("Restricted Stock").
TERMS AND CONDITIONS OF AWARDS. Options granted under the Plan will vest
and become exercisable as determined by the Stock Option Committee or the Board
of Directors. Awards will be subject to the terms and restrictions of the awards
made by the Stock Option Committee or the Board of Directors. Option and award
recipients shall enter into a written stock option agreement with the Company.
The Stock Option Committee or the Board of Directors has discretionary authority
to select participants from among eligible persons and to determine, at the time
an Option or award is granted, when and in what increments shares covered by the
Option or award will vest and may be purchased. In the case of an Option, the
Stock Option Committee or the Board of Directors also has the discretionary
authority to determine, at the time such Option is granted, whether the Option
is intended to be an ISO or a NQSO, provided, however, that certain restrictions
applicable to ISOs are mandatory, including a requirement that ISOs not be
issued for less than 100% of the then fair market value of the Common Stock
(110% in the case of a grantee who holds more than 10% of the outstanding Common
Stock) and a maximum exercise period of ten (10) years (five (5) years in the
case of a grantee who holds more than 10% of the outstanding Common Stock). Fair
market value is determined by the Board of Directors or the Stock Option
Committee in good faith, for which the Board or Committee may refer to the price
at which the shares traded at the close of business on the date of valuation as
quoted on Yahoo.Finance.com Such determination will be conclusive and binding on
all persons.
ELIGIBLE PERSONS. Officers, directors and employees of the Company and
other persons expected to provide bona fide services to the Company are eligible
to participate in the Plan. ISOs may be granted to the officers and employees of
the Company. NQSOs and other awards may be granted to the directors, officers,
employees, agents and consultants of the Company or any of its subsidiaries.
Under current law, ISOs may not be granted to any director or consultant
of the Company who is not an employee.
SHARES SUBJECT TO THE PLAN. Subject to anti-dilution provisions for stock
splits, stock dividends and similar events, the Plan authorizes the grant of
Options to purchase up to Five Hundred Thousand (500,000) shares of the
Company's Common Stock.
TERM OF THE PLAN. Unless previously terminated by the Board of Directors,
the Plan will terminate on September 23, 2019, and no options may be granted
under the Plan thereafter, but existing options will remain in effect until the
options are exercised or terminated by their terms.
TERM OF OPTIONS. Each stock option must terminate no more than ten (10)
years from the date it is granted (or five (5) years in the case of ISOs granted
to an employee who is deemed to own in excess of ten percent (10%) of the
combined voting power of the Company's outstanding equity stock). Stock options
may be granted on terms providing for exercise either in whole or in part at any
time or times during their restrictive terms, or only in specified percentages
at the stated time periods or intervals during the term of the stock option.
OPTION EXERCISE. The exercise price of any stock option granted under the
Plan is payable in full in cash. The Company may provide for other payment
mechanisms, including making loans available to option holders to exercise stock
options evidenced by a promissory note executed by the option holder, which
notes may, but are not required to be secured by a pledge of Common Stock issued
upon exercise of the option.
AMENDMENT AND TERMINATION OF THE PLAN. The Board of Directors may, without
affecting any outstanding stock options, from time to time revise or amend the
Plan, and may suspend or discontinue it at any time. However, no such revision
or amendment may, without stockholder approval, increase the number of shares
subject to the Plan
COMMON STOCK. The Common Stock reserved for issuance under the Plan is
currently traded Over-the-Counter under the symbol BMRA.OB. The closing per
share market value of the Common Stock on September 23, 2009 (the date of the
adoption of the Plan by the Board of Directors) was $0.41. Based on this
valuation, the Five Hundred Thousand (500,000) shares reserved for issuance
under the Plan have an aggregate market value of two hundred five thousand
dollars ($205,000).
-11-
CERTAIN FEDERAL INCOME TAX CONSEQUENCES. Following is a brief summary of
the principal federal income tax consequences of awards under the Plan. This
summary is not an exhaustive description and does not describe all applicable
federal, state or local tax laws.
INCENTIVE STOCK OPTIONS. A Plan participant is not subject to federal
income tax at the time of either the grant or the exercise of an ISO. In the
year in which an ISO is exercised, however, the amount by which the fair market
value of the shares of Common Stock received upon the exercise of an ISO exceeds
the exercise price will constitute an adjustment to the option holder's income
in computing alternative minimum taxable income. Such adjustment could result in
the imposition of, or increase the amount of, the option holder's "alternative
minimum tax" under the Internal Revenue Code of 1986, as amended (the "Code").
If an option holder does not dispose of such shares of Common Stock within
two (2) years after the ISO was granted or one (1) year after the ISO was
exercised, whichever is later (any such disposition, a "disqualifying event"),
then any gain or loss recognized upon such disposition generally will be treated
as long-term capital gain or loss. In such event, the Company will not receive a
tax deduction on either the exercise of the ISO or on the sale of the underlying
Common Stock.
If an option holder makes a "disqualifying disposition," the option holder
will realize ordinary income in an amount equal to the lesser of (i) the fair
market value of the Common Stock on the date the ISO is exercised minus the
exercise price, or (ii) the sales price received by the option holder on the
disposition of such Common Stock minus the exercise price. In such event, the
Company will be entitled to a deduction in an amount equal to the ordinary
income recognized by the option holder. If a sale is a disqualifying
disposition, the option holder also may realize short-term or long-term capital
gain or loss, if such shares constitute capital assets in an option holder's
hands. The gain or loss will be measured by the difference between the fair
market value of the shares on the date of exercise of the ISO and the sales
price of the shares.
NON-QUALIFIED STOCK OPTIONS. No income is realized by an option holder
upon the grant of an NQSO with an exercise price equal to at least the fair
market value of the underlying common stock on the date of the grant. Upon the
exercise of an NQSO, however, the amount by which the fair market value of the
Common Stock on the date of exercise exceeds the exercise price will be taxed as
ordinary income to an option holder and the Company will be entitled to a
deduction in an equal amount. Upon subsequent sales of Common Stock received
upon exercise of NQSO's, an option holder may realize short-term or long-term
capital gain or loss, depending upon the holding period of the shares, if such
shares constitute capital assets in the option holder's hands. The gain or loss
will be measured by the difference between the sales price and the tax basis of
the shares sold. The tax basis for this purpose will be the sum of the exercise
price and the amount of ordinary income realized by the option holder as a
result of such exercise.
RESTRICTED STOCK. Generally, a participant who has been awarded Restricted
Stock will not realize taxable income at the time of the award, and the Company
will not be entitled to a deduction at that time; provided, however, that the
participant may elect to treat the value of the shares as income at the time of
receipt (without regard to restrictions) by filing with the IRS (with a copy to
the Company) an election under Section 83(b) of the Code no later than thirty
(30) days after the issuance date. When the restrictions on the Restricted Stock
lapse, the participant will have ordinary income and the Company will have a
corresponding deduction. The measure of such income and deduction will be the
fair market value of the shares at the time the restrictions lapse.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR THE PROPOSAL TO
APPROVE THE 2009 STOCK INCENTIVE PLAN.
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
It is expected that a representative of the independent registered public
accounting firm of PKF, Certified Public Accountants, a Professional
Corporation, the Company's auditor for the fiscal years ended May 31, 2009 and
2008, and for the current fiscal year, will be present at the Annual Meeting to
respond to appropriate questions or to make a statement if he or she so desires.
-12-
AUDIT FEES
The aggregate fees billed for professional services by PKF in 2009 and 2008 were
as follows:
2009 2008
---- ----
Audit fees $72,182(1) $58,198(2)
Audit related fees -- --
Tax fees 6,043 9,874
ALL OTHER FEES 784 3,792
-------------------------------------------------------------
Total $79,009 $71,864
(1) Also includes fees to be billed in fiscal 2010 for fiscal 2009.
(2) Also includes fees to be billed in fiscal 2009 for fiscal 2008.
Audit Fees consist of the aggregate fees billed for professional services
rendered for the audit of our annual financial statements, the audit of our
subsidiary's financial statements, the reviews of the financial statements
included in our Forms 10-Q and for any other services that are normally provided
by PKF in connection with our statutory and regulatory filings or engagements.
Audit Related Fees consist of the aggregate fees billed for professional
services rendered for assurance and related services that were reasonably
related to the performance of the audit or review of our financial statements
and the financial statements of our subsidiary that were not otherwise included
in Audit Fees.
Tax Fees consist of the aggregate fees billed for professional services
rendered for tax compliance, tax advice and tax planning. Included in such Tax
Fees were fees for preparation of our tax returns and consultancy and advice on
other tax planning matters.
All Other Fees consist of the aggregate fees billed for products and
services provided by PKF and not otherwise included in Audit Fees, Audit Related
fees or Tax Fees.
The audit committee has considered that the provision of the above
services has not impaired the principal accountant's ability to maintain
independence.
OTHER BUSINESS
Management is not aware of any matters to come before the Annual Meeting
other than those stated in this Proxy Statement. However, inasmuch as matters of
which management is not now aware may come before the meeting or any adjournment
thereof, the Proxy confers discretionary authority with respect to acting
thereon, and the persons named in such Proxy intend to vote, act, and consent in
accordance with their best judgment with respect thereto.
DIRECTOR ATTENDANCE AT ANNUAL MEETINGS
Our Board of Directors has adopted a policy that encourages our directors
to attend our annual stockholder meetings. The annual meeting of stockholders
held on December 3, 2008 was attended by all of our incumbent directors.
-13-
ANNUAL REPORT
The Annual Report to Stockholders and Form 10-K covering the Company's
fiscal year ended May 31, 2009 are being mailed to stockholders with this Proxy
Statement. The Annual Report does not form any part of the material for the
solicitation of the Proxy.
COMMUNICATIONS WITH THE BOARD OF DIRECTORS
Our stockholders may communicate with our Board of Directors, a committee
of our Board of Directors or a director by sending a letter addressed to the
Board, a committee or a director c/o Corporate Secretary, Biomerica Inc., 17571
Von Karman Avenue, Irvine, California 92614. All communications will be compiled
by our corporate Secretary and forwarded to the Board of Directors, the
committee or the director accordingly.
CORPORATE GOVERNANCE
The Company's Corporate Governance Policy, and its Policy on Business
Conduct and Ethics ("Ethics Policy") for all directors, officers and employees
of the Company, including executive officers, are available on the Company's web
site at WWW.BIOMERICA.COM . Stockholders may also obtain free of charge printed
copies of this policy by writing to the Secretary of the Company at the
Company's headquarters.
DATE FOR SUBMISSION OF STOCKHOLDER PROPOSALS FOR NEXT ANNUAL MEETING
Any eligible stockholder who desires to have a proposal considered for
inclusion in our 2010 proxy solicitation materials, including director
nominations, must cause their proposals to be received in writing by our
Secretary at 17571 Von Karman Avenue, Irvine, California 92614 no later than May
30, 2010. The Board of Directors will review new proposals from eligible
stockholders if they are received in writing by May 30, 2010. Proposals must be
submitted in accordance with our bylaws and must comply with Securities and
Exchange Commission regulations promulgated under Rule 14a-8 of the Exchange Act
of 1934, as amended.
Any notice to the Secretary must include as to each matter the stockholder
proposes to bring before the meeting: (a) a brief description of the business
desired to be brought before the meeting and the reason for conducting the
business at the Annual Meeting, (b) the stockholder's name and address, as they
appear on our records, (c) the class and number of shares which the stockholder
beneficially owns, (d) any material interest of the stockholder in the business
requested to be brought before the meeting and (e) any other information that is
required to be provided by the stockholder pursuant to Regulation 14A under the
Securities Exchange Act of 1934 in his or her capacity as a proponent of the
stockholder proposal.
A stockholder's notice to the Secretary regarding a nomination for the
election of directors must set forth: (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the person's
name, age, business address and residence address, (ii) the person's principal
occupation or employment, (iii) the class and number of shares of capital stock
beneficially owned by the person, and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Regulation 14A under the Securities Exchange
Act of 1934; and (b) as to the stockholder giving the notice (i) the name and
address of the stockholder, as they appear on our records, and (ii) the class
and number of shares of stock that are beneficially owned by the stockholder on
the date of the stockholder notice. If the Board of Directors so requests, any
person nominated for election to the Board shall furnish to our Secretary the
information required to be set forth in the notice of nomination pertaining to
the nominee.
Nothing in this section shall be deemed to require us to include in our
proxy solicitation materials relating to any annual meeting any stockholder
proposal or nomination that does not meet all of the requirements for inclusion
established by the Securities and Exchange Commission.
By Order of the Board of Directors,
/s/ ZACKARY S. IRANI,
---------------------
Chairman and Chief Executive Officer
Newport Beach, California
September 29, 2009
-14-
EXHIBIT A
BIOMERICA, INC.
2009 STOCK INCENTIVE PLAN
ARTICLE 1. INTRODUCTION.
The Plan was adopted by the Board effective September 23, 2009. The
purpose of the Plan is to promote the long-term success of the Company and the
creation of stockholder value by (a) encouraging Employees, Outside Directors
and Consultants to focus on critical long-range objectives, (b) encouraging the
attraction and retention of Employees, Outside Directors and Consultants with
exceptional qualifications and (c) linking Employees, Outside Directors and
Consultants directly to stockholder interests through increased stock ownership.
The Plan seeks to achieve this purpose by providing for Awards in the form of
Restricted Shares or Options (which may constitute incentive stock options or
nonstatutory stock options).
The Plan shall be governed by, and construed in accordance with, the laws of the
State of California.
ARTICLE 2. ADMINISTRATION.
2.1 COMMITTEE COMPOSITION. The Plan shall be administered by the Board of
Directors of the Company, provided the Board may delegate administration of the
Plan to a Committee consisting exclusively of two or more Outside Directors of
the Company, who shall be appointed by the Board. In addition, the composition
of the Committee shall satisfy:
(a) Such requirements as the Securities and Exchange Commission
may establish for administrators acting under plans intended
to qualify for exemption under Rule 16b-3 (or its successor) under the Exchange
Act; and
(b) Such requirements as the Internal Revenue Service may
establish for outside directors acting under plans intended to qualify for
exemption under Section 162(m)(4)(C) of the Code.
2.2 COMMITTEE RESPONSIBILITIES. The Board (or the Committee, if
applicable) shall (a) review management's recommendation as to the Employees,
Outside Directors and Consultants who are to receive Awards under the Plan, (b)
determine the type, number, vesting requirements and other features and
conditions of such Awards, (c) interpret the Plan and (d) make all other
decisions relating to the operation of the Plan. The Board and Committee may
adopt such rules or guidelines as it deems appropriate to implement the Plan.
The Board's and Committee's determinations under the Plan shall be final and
binding on all persons.
2.3 COMMITTEE FOR NON-OFFICER GRANTS. The Board may also appoint a
secondary committee of the Board, which shall be composed of one or more
directors of the Company who need not satisfy the requirements of Section 2.1.
Such secondary committee may administer the Plan with respect to Employees and
Consultants who are not considered officers or directors of the Company under
section 16 of the Exchange Act or covered employees under Section 162(m)(3) of
the Code, may grant Awards under the Plan to such Employees and Consultants and
may determine all features and conditions of such Awards. Within the limitations
of this Section 2.3, any reference in the Plan to the Committee shall include
such secondary committee.
ARTICLE 3. SHARES AVAILABLE FOR GRANTS.
3.1 BASIC LIMITATION. Common Shares issued pursuant to the Plan may be
authorized but unissued shares or treasury shares. The aggregate number of
Options and Restricted Shares awarded under the Plan shall not exceed FIVE
HUNDRED THOUSAND (500,000). The limitations of this Section 3.1 and Section 3.2
shall be subject to adjustment pursuant to Article 9.
3.2 ADDITIONAL SHARES. If Options are forfeited or terminate for any other
reason before being exercised, then the corresponding Common Shares shall again
become available for the grant of Options or Restricted Shares under the Plan.
If Restricted Shares or Common Shares issued upon the exercise of Options are
forfeited, then such Common Shares shall again become available for the grant of
NSOs and Restricted Shares under the Plan. The aggregate number of Common Shares
that may be issued under the Plan upon the exercise of ISOs shall not be
increased when Restricted Shares or other Common Shares are forfeited.
A-1
ARTICLE 4. ELIGIBILITY.
4.1 NONSTATUTORY STOCK OPTIONS AND RESTRICTED SHARES. Only Employees,
Outside Directors and Consultants shall be eligible for the grant of NSOs and
Restricted Shares.
4.2 INCENTIVE STOCK OPTIONS. Only Employees who are employees of the
Company, a Parent or a Subsidiary shall be eligible for the grant of ISOs. In
addition, an Employee who owns more than 10% of the total combined voting power
of all classes of outstanding stock of the Company or any of its Parents or
Subsidiaries shall not be eligible for the grant of an ISO unless the
requirements set forth in section 422(c)(5) of the Code are satisfied.
ARTICLE 5. OPTIONS.
5.1 STOCK OPTION AGREEMENT. Each grant of an Option under the Plan shall
be evidenced by a Stock Option Agreement between the Optionee and the Company.
Such Option shall be subject to all applicable terms of the Plan and may be
subject to any other terms that are not inconsistent with the Plan. The
provisions of the various Stock Option Agreements entered into under the Plan
need not be identical. A Stock Option Agreement may provide that a new Option
will be granted automatically to the Optionee when he or she exercises a prior
Option and pays the Exercise Price in the form described in Section 6.2.
5.2 NUMBER OF SHARES. Each Stock Option Agreement shall specify the number
of Common Shares subject to the Option and shall provide for the adjustment of
such number in accordance with Article 9. The limitations set forth in the
preceding sentence shall be subject to adjustment in accordance with Article 9.
5.3 EXERCISE PRICE. Each Stock Option Agreement shall specify the Exercise
Price; provided that the Exercise Price under an ISO shall in no event be less
than 100% of the Fair Market Value of a Common Share on the date of grant and
the Exercise Price under an NSO shall in no event be less than 85% of the Fair
Market Value of a Common Share on the date of grant. In the case of an NSO, a
Stock Option Agreement may specify an Exercise Price that varies in accordance
with a predetermined formula while the NSO is outstanding.
5.4 VESTING, EXERCISABILITY AND TERM. Unless otherwise provided in the
Stock Option Agreement, an Optionee's right to exercise the Option shall vest
pro rata over a period of three (3) years with 25% of the Option vesting on the
date of grant, and 25% of the Option vesting on each of the first, second and
third anniversaries of the date of grant. The Stock Option Agreement shall also
specify the term of the Option; provided that the term of an ISO shall in no
event exceed 10 years from the date of grant. A Stock Option Agreement may
provide for accelerated exercisability in the event of the Optionee's death,
disability or retirement or other events and may provide for expiration prior to
the end of its term in the event of the termination of the Optionee's service.
5.5 EFFECT OF CHANGE IN CONTROL. Notwithstanding Section 5.4 above, each
Option shall automatically fully vest (e.g., become exercisable) as to all or
part of the Common Shares subject to such Option in the event that a Change in
Control (as defined in Section 14.4 below) occurs with respect to the Company,
subject to the following limitations.
5.6 MODIFICATION OR ASSUMPTION OF OPTIONS. Within the limitations of the
Plan, the Board or the Committee may modify, extend or assume outstanding
options or may accept the cancellation of outstanding options (whether granted
by the Company or by another issuer) in return for the grant of new options for
the same or a different number of shares and at the same or a different exercise
price. The foregoing notwithstanding, no modification of an Option shall,
without the consent of the Optionee, alter or impair his or her rights or
obligations under such Option.
5.7 BUYOUT PROVISIONS. The Committee may at any time (a) offer to buy out
for a payment in cash or cash equivalents an Option previously granted or (b)
authorize an Optionee to elect to cash out the vested portion of an Option
previously granted, in either case at such time and based upon such terms and
conditions as the Board or the Committee shall establish.
A-2
ARTICLE 6. PAYMENT FOR OPTION SHARES.
6.1 GENERAL RULE. The entire Exercise Price of Common Shares issued upon
exercise of Options shall be payable in cash or cash equivalents at the time
when such Common Shares are purchased, except as follows:
(a) In the case of an ISO granted under the Plan, payment shall be
made only pursuant to the express provisions of the applicable Stock Option
Agreement. The Stock Option Agreement may specify that payment may be made in
any form(s) described in this Article 6.
(b) In the case of an NSO, the Committee may at any time accept
payment in any form(s) described in this Article 6.
6.2 EXERCISE/SALE. To the extent that this Section 6.2 is applicable, all
or any part of the Exercise Price and any withholding taxes may be paid by
delivering (on a form prescribed by the Company) an irrevocable direction to a
securities broker approved by the Company to sell all or part of the Common
Shares being purchased under the Plan and to deliver all or part of the sales
proceeds to the Company.
6.3 EXERCISE/PLEDGE. To the extent that this Section 6.3 is applicable,
all or any part of the Exercise Price and any withholding taxes may be paid by
delivering (on a form prescribed by the Company) an irrevocable direction to
pledge all or part of the Common Shares being purchased under the Plan to a
securities broker or lender approved by the Company, as security for a loan, and
to deliver all or part of the loan proceeds to the Company.
6.4 PROMISSORY NOTE. To the extent that this Section 6.4 is applicable,
all or any part of the Exercise Price and any withholding taxes may be paid by
delivering (on a form prescribed by the Company) a full-recourse promissory
note, which may include a security interest in the shares issued under the
Option. However, the par value of the Common Shares being purchased under the
Plan, if newly issued, shall be paid in cash or cash equivalents.
6.5 OTHER FORMS OF PAYMENT. To the extent that this Section 6.5 is
applicable, all or any part of the Exercise Price and any withholding taxes may
be paid in any other form that is consistent with applicable laws, regulations
and rules.
ARTICLE 7.
7.1 ACCELERATED EXERCISABILITY. All NSOs granted to an Outside Director
under this Article 7 shall become exercisable in full in the event of:
(a) the termination of such Outside Director's service because of
death, total and permanent disability or retirement at or after age 70; or
(b) a Change in Control (as defined in Section 15.4 below) with
respect to the Company, except as provided in the next following sentence.
7.2 EXERCISE PRICE. The Exercise Price under all NSOs granted to an
Outside Director under this Article 7 shall be equal to 100% of the Fair Market
Value of a Common Share on the date of grant, payable in one of the forms
described in Sections 6.1, 6.2, 6.3 and 6.4.
7.3 TERM. Unless otherwise provided in the Stock Option Agreement, all
NSOs granted to an Outside Director under this Article 7 shall terminate on the
earliest of (a) the 10th anniversary of the date of grant, (b) the date 3 months
after the termination of such Outside Director's service for any reason other
than death, total and permanent disability or retirement at or after age 70 or
(c) the date 12 months after the termination of such Outside Director's service
because of death, total and permanent disability or retirement at or after age
70.
7.4 AFFILIATES OF OUTSIDE DIRECTORS. The Committee may provide that the
NSOs that otherwise would be granted to an Outside Director under this Article 7
shall instead be granted to an affiliate of such Outside Director. Such
affiliate shall then be deemed to be an Outside Director for purposes of the
Plan, including that the service-related vesting and termination provisions
pertaining to the NSOs shall be applied with regard to the service of the
Outside Director.
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ARTICLE 8. RESTRICTED SHARES.
8.1 RESTRICTED STOCK AGREEMENT. Each grant of Restricted Shares under the
Plan shall be evidenced by a Restricted Stock Agreement between the recipient
and the Company. Such Restricted Shares shall be subject to all applicable terms
of the Plan and may be subject to any other terms that are not inconsistent with
the Plan. The provisions of the various Restricted Stock Agreements entered into
under the Plan need not be identical.
8.2 PAYMENT FOR AWARDS. Subject to the following sentence, Restricted
Shares may be sold or awarded under the Plan for such consideration as the Board
or the Committee may determine, including (without limitation) cash, cash
equivalents, full-recourse promissory notes, past services and future services.
To the extent that an Award consists of newly issued Restricted Shares, the
Award recipient shall furnish consideration with a value not less than the par
value of such Restricted Shares in the form of cash, cash equivalents or past
services rendered to the Company (or a Parent or Subsidiary), as the Committee
may determine.
8.3 VESTING CONDITIONS. Unless otherwise provided in the Restricted Stock
Agreement, the Restricted Shares shall vest pro rata over a period of three (3)
years with 25% of the Restricted Shares vesting on the date of grant, and 25% of
the Restricted Shares vesting on each of the first, second and third
anniversaries of the date of grant. A Restricted Stock Agreement may provide for
accelerated vesting in the event of the Participant's death, disability or
retirement or other events. All Restricted Shares shall become vested in the
event that a Change in Control (as defined in Section 15.4) occurs with respect
to the Company, except as provided in the next following sentence.
8.4 VOTING AND DIVIDEND RIGHTS. The holders of Restricted Shares awarded
under the Plan shall have the same voting, dividend and other rights as the
Company's other stockholders.
ARTICLE 9. PROTECTION AGAINST DILUTION.
9.1 ADJUSTMENTS. In the event of a subdivision of the outstanding Common
Shares, a declaration of a dividend payable in Common Shares, a declaration of a
dividend payable in a form other than Common Shares in an amount that has a
material effect on the price of Common Shares, a combination or consolidation of
the outstanding Common Shares (by reclassification or otherwise) into a lesser
number of Common Shares, a recapitalization, a spin-off or a similar occurrence,
the Board of the Committee shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of (a) the number of Options and
Restricted Shares available for future Awards under Article 3, (b) the
limitations set forth in Section 5.2, (c) the number of Common Shares covered by
each outstanding Option or (d) the Exercise Price under each outstanding Option.
Except as provided in this Article 9, a Participant shall have no rights by
reason of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
9.2 DISSOLUTION OR LIQUIDATION. To the extent not previously exercised,
Options shall terminate immediately prior to the dissolution or liquidation of
the Company.
9.3 REORGANIZATIONS. In the event that the Company is a party to a merger
or other reorganization, outstanding Options and Restricted Shares shall be
subject to the agreement of merger or reorganization. Such agreement may, but is
not required to, provide for one or more of the following: (a) the continuation
of the outstanding Awards by the Company, if the Company is a surviving
corporation, (b) the assumption of the outstanding Awards by the surviving
corporation or its parent or subsidiary, (c) the substitution by the surviving
corporation or its parent or subsidiary of its own awards for the outstanding
Awards, (d) full exercisability or vesting and accelerated expiration of the
outstanding Awards or (e) settlement of the full value of the outstanding Awards
in cash or cash equivalents followed by cancellation of such Awards.
ARTICLE 10. AWARDS UNDER OTHER PLANS.
The Company may grant awards under other plans or programs. Such awards
may be settled in the form of Common Shares issued under this Plan. Such Common
Shares shall be treated for all purposes under the Plan like Restricted Shares
and shall, when issued, reduce the number of Common Shares available under
Article 3.
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ARTICLE 11. LIMITATION ON RIGHTS.
11.1 RETENTION RIGHTS. Neither the Plan nor any Award granted under the
Plan shall be deemed to give any individual a right to remain an Employee,
Outside Director or Consultant. The Company and its Parents, Subsidiaries and
Affiliates reserve the right to terminate the service of any Employee, Outside
Director or Consultant at any time, with or without cause, subject to applicable
laws, the Company's certificate of incorporation and by-laws and a written
employment agreement (if any).
11.2 STOCKHOLDERS' RIGHTS. A Participant shall have no dividend rights,
voting rights or other rights as a stockholder with respect to any Common Shares
covered by his or her Award prior to the time when a stock certificate for such
Common Shares is issued or, in the case of an Option, the time when he or she
becomes entitled to receive such Common Shares by filing a notice of exercise
and paying the Exercise Price. No adjustment shall be made for cash dividends or
other rights for which the record date is prior to such time, except as
expressly provided in the Plan.
11.3 REGULATORY REQUIREMENTS. Any other provision of the Plan
notwithstanding, the obligation of the Company to issue Common Shares under the
Plan shall be subject to all applicable laws, rules and regulations and such
approval by any regulatory body as may be required. The Company reserves the
right to restrict, in whole or in part, the delivery of Common Shares pursuant
to any Award prior to the satisfaction of all legal requirements relating to the
issuance of such Common Shares, to their registration, qualification or listing
or to an exemption from registration, qualification or listing.
ARTICLE 12. WITHHOLDING TAXES.
12.1 GENERAL. To the extent required by applicable federal, state, local
or foreign law, a Participant or his or her successor shall make arrangements
satisfactory to the Company for the satisfaction of any withholding tax
obligations that arise in connection with the Plan. The Company shall not be
required to issue any Common Shares or make any cash payment under the Plan
until such obligations are satisfied.
ARTICLE 13. FUTURE OF THE PLAN.
13.1 TERM OF THE PLAN. The Plan, as set forth herein, shall become
effective upon approval of the Plan by the Company's stockholders (expected to
be obtained on or about December 10, 2009). The Plan shall remain in effect
until September 23, 2019, unless earlier terminated under Section 13.2, except
that no ISOs shall be granted on or after the 10th anniversary of the later of
(a) the date when the Board adopted the Plan or (b) the date when the Board
adopted the most recent increase in the number of Common Shares available under
Article 3 which was approved by the Company's stockholders.
13.2 AMENDMENT OR TERMINATION. The Board may, at any time and for any
reason, amend or terminate the Plan. An amendment of the Plan shall be subject
to the approval of the Company's stockholders only to the extent required by
applicable laws, regulations or rules. No Awards shall be granted under the Plan
after the termination thereof. The termination of the Plan, or any amendment
thereof, shall not affect any Award previously granted under the Plan.
ARTICLE 14. DEFINITIONS.
14.1 "AFFILIATE" means any entity other than a Subsidiary, if the Company
and/or one or more Subsidiaries own not less than 50% of such entity.
14.2 "AWARD" means any award of an Option or a Restricted Share under the
Plan.
14.3 "BOARD" means the Company's Board of Directors, as constituted from
time to time.
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14.4 "CHANGE IN CONTROL" shall mean:
(a) the consummation of a merger or consolidation of the Company
with or into another entity or any other corporate reorganization, if more than
50% of the combined voting power of the continuing or surviving entity's
securities outstanding immediately after such merger, consolidation or other
reorganization is owned by persons who were not stockholders of the Company
immediately prior to such merger, consolidation or other reorganization;
(b) the sale, transfer or other disposition of all or
substantially all of the Company's assets;
(c) a change in the identity of a majority of the members of the
Company's Board of Directors that becomes effective on a single date (provided,
however, that the appointments of new directors upon the deaths or resignations
of directors by the remaining directors then in office shall not constitute a
change in identity with respect to such departed director); or
(d) any transaction as a result of which any person is the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing at least 50% of the
total voting power represented by the Company's then outstanding voting
securities. For purposes of this Subsection (d), the term "person" shall have
the same meaning as when used in sections 13(d) and 14(d) of the Exchange Act
but shall exclude (i) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or of a Parent or Subsidiary and (ii) a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of the common stock of the
Company. A transaction shall not constitute a Change in Control if its sole
purpose is to change the state of the Company's incorporation or to create a
holding company that will be owned in substantially the same proportions by the
persons who held the Company's securities immediately before such transaction.
14.5 "CODE" means the Internal Revenue Code of 1986, as amended.
14.6 "COMMITTEE" means a committee of the Board, as described in Article
2.
14.7 "COMMON SHARE" means one share of the common stock of the Company.
14.8 "COMPANY" means Biomerica, Inc., a Delaware corporation.
14.9 "CONSULTANT" means a consultant or adviser who provides bona fide
services to the Company, a Parent, a Subsidiary or an Affiliate as an
independent contractor. Service as a Consultant shall be considered employment
for all purposes of the Plan, except as provided in Section 4.2.
14.10 "EMPLOYEE" means an employee of the Company, a Parent, a Subsidiary
or an Affiliate.
14.11 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
14.12 "EXERCISE PRICE" means the amount for which one Common Share may be
purchased upon exercise of such Option, as specified in the applicable Stock
Option Agreement.
14.13 "FAIR MARKET VALUE" means the market price of Common Shares,
determined by the Board or the Committee in good faith on such basis as it deems
appropriate. Whenever possible, the determination of Fair Market Value by the
Committee shall be based on the prices reported in The Wall Street Journal. Such
determination shall be conclusive and binding on all persons.
14.14 "ISO" means an incentive stock option described in section 422(b) of
the Code.
14.15 "NSO" means a stock option not described in sections 422 of the
Code.
14.16 "OPTION" means an ISO or NSO granted under the Plan and entitling
the holder to purchase Common Shares.
14.17 "OPTIONEE" means an individual or estate who holds an Option.
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14.18 "OUTSIDE DIRECTOR" shall mean a member of the Board who is not an
Employee. Service as an Outside Director shall be considered employment for all
purposes of the Plan, except as provided in Section 4.2.
14.19 "PARENT" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of the
corporations other than the Company 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. A corporation that attains the status of a Parent on
a date after the adoption of the Plan shall be considered a Parent commencing as
of such date.
14.20 "PARTICIPANT" means an individual or estate who holds an Award.
14.21 "PLAN: means this Biomerica, Inc. 2009 Stock Incentive Plan, as
amended from time to time.
14.22 "RESTRICTED SHARE" means a Common Share awarded under the Plan.
14.23 "RESTRICTED STOCK AGREEMENT" means the agreement between the Company
and the recipient of a Restricted Share that contains the terms, conditions and
restrictions pertaining to such Restricted Share.
14.24 "STOCK OPTION AGREEMENT" means the agreement between the Company and
an Optionee that contains the terms, conditions and restrictions pertaining to
his or her Option.
14.25 "SUBSIDIARY" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if 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. A corporation that attains
the status of a Subsidiary on a date after the adoption of the Plan shall be
considered a Subsidiary commencing as of such date.
ARTICLE 15. EXECUTION.
To record the adoption of the Plan by the Board, the Company has caused
its duly authorized officer to execute this document in the name of the Company.
BIOMERICA, INC.
By:
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Name:
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Title:
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Date approved by Board of Directors: September 23, 2009
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Date Approved by Shareholders:
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