Unassociated Document


    Exhibit 10.1

    


    LIBERATOR MEDICAL HOLDINGS, INC.

    2009 EMPLOYEE STOCK PURCHASE
PLAN

    


    1.           Purpose. The purpose of the Liberator Medical Holdings, Inc., 2009
Employee Stock Purchase Plan (the “Plan”) is to promote the interest
of Liberator Medical Holdings,
Inc., a Nevada corporation (the “Company”) and its stockholders by providing employees of
the Company and its Designated Subsidiaries with an opportunity to
purchase Common Stock of the Company through accumulated payroll deductions. By
encouraging stock ownership, the Company seeks to attract, retain and motivate
employees and to encourage them to devote their best efforts to the business and
financial success of the Company. It is the intention of the Company to have the Plan qualify as an
“Employee Stock Purchase Plan” under Section 423 of the Code. The
provisions of the Plan, accordingly, shall be construed in a
manner consistent with the requirements of that section of the
Code.

    


    2.           Definitions. For purposes of the Plan, the
following capitalized terms shall have the following
meanings:

    


    2.1           “Account” means an account referred to in Section
6.2 of the Plan.

    


    2.1           “Board of Directors” or “Board” means the Board of Directors
of the Company.

    


    2.2           “Code” means the Internal Revenue Code of
1986, as amended.

    


    2.3           “Committee” means a committee of one or more members to be
selected by the Board.
If the Board does not designate a Committee, the Board shall be considered
the Committee and may take any action under the Plan that would otherwise be the
responsibility of the
Committee.

    


    2.4           “Common Stock” means the common stock,
$0.001 par value, of the Company.

    


    2.5           “Company” means Liberator Medical Holdings,
Inc., and any Designated Subsidiary of the
Company.

    


    2.6           “Compensation” means all cash compensation paid to an Employee, including base
salary, commissions, bonuses and incentive payments, but excluding severance and non-cash compensation.  Any pre-tax contributions
made to a Company 401(k) plan shall be treated as Compensation for purposes of
the Plan.

    


    2.7           “Designated Subsidiary” means any Subsidiary that has
been designated by the Board from time to
time in its sole discretion as eligible to participate in the
Plan.

    


    2.8           “Employee” means any individual who is an employee
of the Employer; PROVIDED, HOWEVER, EMPLOYEES WHO HAVE BEEN
EMPLOYED LESS THAN NINETY DAYS BY THE EMPLOYER, EMPLOYEES WHOSE CUSTOMARY EMPLOYMENT
WITH THE COMPANY IS TWENTY (20) HOURS OR LESS PER WEEK, AND EMPLOYEES
WHOSE CUSTOMARY EMPLOYMENT WITH THE COMPANY IS
FOR NOT MORE THAN FIVE (5)
MONTHS IN ANY CALENDAR YEAR SHALL NOT BE DEEMED EMPLOYEES FOR THE PURPOSES OF
THIS PLAN. For purposes of the Plan, the
employment relationship shall be treated as continuing intact while the
individual is on sick leave or other leave of absence approved by the Company. Where the period of
leave exceeds 90 days and the individual's right to
reemployment is not guaranteed either by statute or by contract, the employment
relationship shall be deemed to have terminated on the 91st day of such
leave.

     

    
      
        
        

      

      
         

        
          

        

      

      
        
        

      

    

    


    2.9           “Employer” means the Company and any Designated
Subsidiary.

    


    2.9           “Enrollment Date” means the first Trading Day of each
Offering Period.

    


    2.10           “Exercise Date” means the last Trading Day of each
Offering Period.

    


    2.11           “Fair Market Value” means, as of any date, the value of
Common Stock determined as
follows:

    


    2.11.1  If the principal market for the Common
Stock is a national securities exchange or the NASDAQ stock
market, then the “Fair Market Value” as of that date shall be the mean
between the lowest
and highest reported sale prices of the
Common Stock on that date on the principal exchange or market on which
the Stock is then listed or admitted to trading.

    


    2.11.2  If sale prices are not available or if
the principal market for the Stock is not a national securities exchange and
the Common Stock is not quoted on the NASDAQ
stock market, the average between the highest bid and lowest asked prices for
the Common Stock on such day as reported on the NASDAQ
OTC Bulletin Board Service or by the National Quotation Bureau, Incorporated or a
comparable service.

    


    2.11.3  If the day is not a business day, and as
a result, paragraphs 2.11.1 and 2.11.2 above are
inapplicable, the “Fair Market Value” of the Stock shall be determined as of
the next earlier business day. If paragraphs 2.11.1 and
2.11.2 above are otherwise inapplicable, then the "Fair Market
Value" of the Stock shall be as determined in good faith by the
Committee.

    


    2.12           “Highly Compensated Employee” has the same meaning as the term
is used in Section 414(q) of the
Code.

    


    2.13           “Offering Periods” means the period of approximately
six (6) months during which an Option shall be granted and may be
exercised pursuant to the Plan, commencing on the first Trading Day
on or after June 1st and November 30th of each year and terminating on the last Trading Day
before the commencement of
the next Offering Period; provided, however, that the first Offering Period shall
commence on June 10, 2009
and end on November
30, 2009. The duration and timing of
Offering Periods may be
changed pursuant to Section 4 of this Plan.

    
       

      
        
          
          

        

        
           

          
            

          

        

        
          
          

        

      

       

    

    2.15           “Option” means an Option to be purchase shares
of Common Stock under the Plan, as set forth in Section 7 of the Plan.

    


    2.16           “Participant” means an eligible employee who becomes
a participant of the Plan in accordance with
Section 5.1 of the Plan.

    


    2.14           “Plan” means this Liberator Medical Holdings,
Inc. 2009 Employee Stock Purchase
Plan.

    


    2.15           “Purchase Price” for each Offering Period means 85% of the Fair Market Value of a
share of Common Stock on the Enrollment
Date of such Offering
Period or on the Exercise
Date of such Offering Period, whichever is lower;
provided, however, that the Purchase Price may be adjusted by the Board
pursuant to Section 20.

    


    2.16           “Reserves” means the number of shares of Common Stock covered
by each Option under the Plan that have not yet been
exercised and the number of shares of Common Stock that have been
authorized for issuance under the Plan but not yet placed under
Option.

    


    2.17          
“Subsidiary” has the meaning set forth for
"subsidiary corporation" in Section 424(f) of the
Code, whereby a Subsidiary means any corporation (other than the employer
corporation) in an unbroken chain of corporations beginning with the employer
corporation if, at the time
of the granting of the Option, each of the corporations other than
the last corporation in the unbroken chain owns
stock possessing 50 percent or more of the total combined voting power of
all classes of stock in one of the other corporations in such
chain.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

     

    2.18           “Trading Day” means a day on which national stock
exchanges and the NASDAQ System are open for
trading.

    


    3.           Eligibility.

    


    3.1           Any Employee who shall be employed by
the Company on a given Enrollment Date shall be eligible to
participate in the
Plan.

    


    3.2           Notwithstanding any provision of the
Plan to the contrary, no Employee shall be granted an
Option under the Plan: (i) to the extent
that, immediately after the grant, such
Employee (or any other person whose stock would be attributed to such Employee pursuant to section 424(d) of
the Code) would own stock of the Company
and/or hold outstanding Options to purchase such stock possessing five
percent (5%) or more of the total combined voting power or value of all
classes of the stock of the Company or of any Subsidiary; or (ii) to the
extent that his or her rights to purchase stock under all employee stock
purchase plans of the Company and its Subsidiaries accrues at a rate which
exceeds Twenty-Five Thousand Dollars ($25,000) of fair market value
of such stock (determined
at the time such Option is granted) for each calendar year in
which such Option is outstanding at any
time.

    


    4.           Offering
Periods.  The Plan shall be implemented by
consecutive Offering Periods with a new Offering
Period commencing and
ending as set forth in Section 2.13, or on such other date
as the Board shall determine, and continuing thereafter until terminated
in accordance with Section
20 hereof.  The Board shall have the power to change
the duration of Offering Periods
(including the commencement
dates thereof) with respect to future offerings without
shareholder approval if such change is announced at least five (5) days prior
to the scheduled beginning of the first Offering Period to be affected
thereafter.

    


    5.           Participation.

    


    5.1           An eligible Employee may become a
Participant in the Plan by completing a Subscription Agreement
authorizing payroll deductions in the form of Exhibit A to this Plan and
filing it with the Company's payroll office prior to the applicable
Enrollment
Date.

    


    5.2           Payroll deductions for a Participant shall commence on the first payroll date following the Enrollment Date
(provided that the Company has received the Participant's Subscription Agreement) and shall end on the last payroll
in the Offering Period to which such Subscription
Agreement is applicable, unless sooner terminated by the
Participant as provided in Section 10 hereof.

    


    6.           Payroll
Deductions.

    


    6.1           At the time a Participant files his or her Subscription
Agreement, he or she shall elect to have payroll deductions made on
each payday during the Offering Period in an amount
equal to any whole
percentage (not exceeding
fifteen percent
(15%)) of the Compensation that he or she receives on
each payday during the Offering Period.

    


    6.2           All payroll deductions made for a
Participant shall be credited to his or her Account under the Plan.  A Participant may not make any additional payments
into such Account. Accounts shall be mere
bookkeeping entries on the Company’s books and records.  Amounts
credited to Accounts shall not be trust funds and may be commingled with the
Company’s general assets and applied to general corporate
purposes.  No interest or other earnings shall be paid or credited
with respect to payroll deductions or any amounts accumulated in or credited to
a Participant’s Account.

    


    6.3           A Participant may discontinue his or her
participation in the Plan as provided in Section 10 hereof, or may
increase or decrease the rate of his or her payroll deductions during the
Offering Period by
completing or filing with the Company a new
Subscription Agreement authorizing a change in payroll deduction rate.  The Committee may, in its discretion, limit
the number of participation rate changes
during any Offering Period.  The change in rate shall be effective with the first full
payroll period following five (5) business days after the
Company’s receipt of the new
Subscription Agreement.  A Participant’s Subscription Agreement
shall remain in effect for successive Offering
Periods unless a
new Subscription Agreement is filed by the Participant prior to
the commencement of such Offering Period or the then existing Subscription Agreement is terminated as provided in Section 10
hereof.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    6.4           Notwithstanding the foregoing, to the
extent necessary to
comply with Section 423(b)(8) of the Code and Section 3.2 hereof, a
Participant's payroll deductions may be decreased to
zero percent (0%) at any time during an Offering Period. Payroll deductions
shall recommence at the rate provided in such Participant's Subscription Agreement at the
beginning of the first Offering Period which is
scheduled to end in the following calendar year, unless terminated by the
Participant as provided in Section 10 hereof.

    


    6.5           At the time the Option is exercised, in whole or in part, or at the time some or all of the Company's
Common Stock issued under the Plan is disposed of, the Participant must make adequate provision for the
Company's federal, state, or other tax withholding
obligations, if any, which arise upon the exercise of the Option or the disposition of the Common Stock.
At any time, the Company may, but shall not
be obligated to, withhold from the Participant's Compensation or other remuneration payable to the
Participant the amount
necessary for the Company to meet applicable withholding obligations,
including any withholding required to make available to the Company any tax
deductions or benefits attributable to sale or early disposition of Common
Stock by the Employee.

    


    7.           Grant of
Option. On the Enrollment
Date of each Offering
Period, each eligible Employee participating in
such Offering Period shall be granted an Option to purchase on the Exercise Date during
such Offering Period (at the applicable Purchase Price) up to a
number of shares of the
Company’s Common Stock determined by dividing such
Participant’s Account as of the Exercise Date by the applicable Purchase
Price; provided that such purchase shall be subject to the limitations set
forth in Sections 3.2 and 13 hereof.  No fractional shares shall be
purchased; any
payroll deductions accumulated in a Participant’s Account which are not
sufficient to purchase a full share shall be
retained in the Participant’s Account for the subsequent Offering Period, subject
to earlier withdrawal by the Participant as provided in Section 10 hereof.
Exercise of the
Option shall occur as provided in Section 8
hereof, unless the Participant has withdrawn pursuant to Section 10
hereof.  The Option shall expire on the last day of the Offering
Period.

    


    8.           Exercise of
Option.

    


    8.1           Unless a Participant withdraws from the Plan as provided
in Section 10 hereof, his or her
Option with respect to an Offering Period
shall be exercised automatically on the Exercise
Date of such Offering
Period, and the maximum
number of full shares subject to Option shall be purchased for such
Participant at the applicable Purchase Price with the
accumulated payroll deductions credited to his or her Account.  No fractional shares shall be purchased;
any payroll deductions accumulated in a Participant’s Account which are not
sufficient to purchase a full share shall be
retained in the Participant’s Account for the subsequent Offering Period, subject
to earlier withdrawal by the Participant as provided in Section 10 hereof. Any
monies left over in a Participant’s Account after the Exercise Date shall be
returned to the Participant.  During a Participant’s lifetime, a Participant’s Option to purchase shares hereunder is exercisable
only by him or her.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    8.2           If the Board or the Committee determines that, on a given Exercise Date, the
number of shares with respect to which
Options are to be exercised may exceed:
(i) the number of shares of Common Stock
that were available for sale under the Plan on the Enrollment Date of the
applicable Offering Period; or (ii) the number of shares available for sale
under the Plan on such Exercise Date, the Board may in its sole discretion:
(x) provide that the Company shall make a pro rata allocation of the shares
of Common Stock available for purchase on such Enrollment Date or Exercise Date, as applicable,
in as uniform a manner as shall be practicable
and as it shall determine in its sole discretion to be equitable among
all Participants, and continue all Offering Periods then in effect; or (y) provide
that the Company shall make
a pro rata allocation of the shares available
for purchase on such Enrollment Date or Exercise Date, as applicable, in
as uniform a manner as shall be practicable and as it shall determine in
its sole discretion to be equitable among all Participants, and terminate any or all Offering
Periods then in effect pursuant to Section 20 hereof.  The Company may make a pro rata allocation of the
shares available on the Enrollment Date of any
applicable Offering Period pursuant to the preceding sentence, notwithstanding any authorization of
additional shares for issuance under the Plan by
the Company's shareholders subsequent to such Enrollment
Date.

    


    9.           Delivery. As promptly as practicable after each
Exercise Date on which a purchase of shares
occurs, the Company shall
arrange the delivery to each Participant, as appropriate, of a certificate
representing the shares purchased upon exercise of his or her
Option.  Notwithstanding the
foregoing, the Company may hold stock certificates on behalf of a
Participant until such time
as a Participant requests delivery of such certificates.

    


    10.           Withdrawal.

    


    10.1           A Participant may withdraw all but not less than all
the payroll deductions credited to his or her
Account and not yet used to
exercise his or her Option under the Plan at any time by giving
written notice to the Company in the form of Exhibit B to this
Plan or in such other
manner prescribed by the Committee.  All of the Participant’s payroll deductions credited to his or her
Account shall be paid to
such Participant promptly after receipt of notice of
withdrawal and such Participant's Option for the Offering Period shall be
automatically terminated, and no further payroll
deductions for the purchase of shares shall be made for such Offering
Period by such Participant.  If a Participant withdraws from an Offering Period, payroll deductions
shall not resume at the beginning of the succeeding Offering Period unless
the Participant delivers to the Company a new Subscription
Agreement.

    


    10.2           A Participant's withdrawal from an Offering Period
shall not have any effect upon his or her eligibility
to participate in any similar plan which may hereafter be adopted by the
Company or in succeeding Offering Periods which commence after the
termination of the Offering
Period from which the Participant withdraws.

    


    11.           Termination
of Employment. Upon a
Participant's ceasing to be an Employee, for any reason, he or she
shall be deemed to have elected to withdraw from the Plan and the payroll
deductions credited to such Participant’s Account during the Offering Period but
not yet used to exercise the Option shall be returned to such Participant or, in the case of his or her death, to
the person or persons entitled thereto under
Section 15 hereof, and such Participant's Option shall be automatically
terminated.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    12.           Interest. No interest or other earnings shall accrue on the payroll deductions
of a Participant in the Plan.

    


    13.           Stock.

    


    13.1           Subject to adjustment upon changes in
capitalization of the Company as provided in Section 19 hereof, the maximum
number of shares of the Company’s Common Stock which shall be made
available for sale under the Plan shall be Five Hundred Thousand (500,000) shares.

    


    13.2           A Participant shall have no ownership interest or voting right in shares covered by his or her Option until such Option has been exercised and the shares purchased as a result
thereof have been delivered.

    


    13.3           Shares to be delivered to a Participant under the Plan shall be registered in the name of the Participant or in the name of the Pa rticipant and his or her spouse jointly with the
right or survivorship.

    


    14.           Administration. The Board or the Committee, as
determined in the sole discretion of the Board, shall
administer the Plan.  The Board or the Committee shall have full and exclusive discretionary
authority to construe, interpret and apply the terms of the
Plan, to determine eligibility and to adjudicate all disputed claims filed
under the Plan.  Every finding, decision and determination made by the Board or
the Committee shall, to the
full extent permitted by law, be final and binding
upon all parties.

    


    15.           Designation
of Beneficiary.

    


    15.1           A Participant, in its Subscription Agreement, may
designate a beneficiary who is to receive any shares
and cash, if any, from
the Participant’s Account under the Plan in the event of
such Participant's death subsequent to an Exercise Date on
which the Option is exercised but prior to delivery to such Participant of such shares and cash.  In addition, a Participant may file a written designation of a beneficiary
who is to receive any cash from the Participant’s Account under the Plan in the
event of such Participant's death prior to exercise of the
Option.  If a Participant is married and the designated
beneficiary is not the
spouse, spousal consent shall be required for
such designation to be effective.

    


    15.2           Such designation of beneficiary may be
changed by the Participant at any time by written notice. In the
event of the death of a Participant and in the absence of a beneficiary validly designated under the
Plan who is living at the time of such
Participant's death, the Company shall deliver such shares and/or cash to the
executor or administrator of the estate of the Participant, or if no such executor or
administrator has
been appointed (to the knowledge of the
Company), the Company, in its discretion, may deliver such shares
and/or cash to the spouse or to any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known to
the Company, then to such
other person as the Company may
designate.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    16.           Transferability. Neither payroll deductions credited to
a Participant’s Account nor any rights with regard to the
exercise of an Option or to receive shares under the Plan may be
assigned, transferred,
pledged or otherwise disposed of in any way (other
than by will, the laws of descent and distribution or as provided in Section
15 hereof) by the Participant.  Any such attempt at assignment, transfer, pledge
or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds from an Offering Period in
accordance with Section 10 hereof.

    


    17.           Use of
Funds. All payroll
deductions received or held by the Company under the Plan may be
used by the Company for any
corporate purpose, and the Company shall not be obligated to
segregate such payroll deductions.

    


    18.           Reports. Individual accounts shall be
maintained for each Participant in the Plan. Statements of account shall be given to
Participants at least annually, which statements
shall set forth the amounts of payroll deductions, the Purchase Price,
the number of shares purchased and the remaining cash balance, if
any.

    


    19.           Adjustments
Upon Changes in Capitalization, Dissolution, Liquidation, Merger
or Asset Sale.

    


    19.1           Changes in
Capitalization. Subject to
any required action by the shareholders of the Company, the
Reserves, the maximum number of shares each Participant may purchase each Purchase Period
(pursuant to Section 7), as well as the price per share and the number of
shares of Common Stock covered by each Option under the Plan which has not yet been
exercised shall be proportionately adjusted for
any increase or decrease in the number of issued shares of Common Stock
resulting from a stock
split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been
“effected without receipt
of consideration”.  Such adjustment shall be made by the
Board, whose determination in that respect shall be
final, binding and conclusive. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock
subject to an Option.

    


    19.2           Dissolution
or Liquidation.
Unless provided otherwise by the Board, in the event of the proposed dissolution or liquidation of the
Company, the Offering Period then in progress shall terminate immediately prior to the
consummation of such proposed dissolution or
liquidation and a cash
amount shall be paid to each Participant that is equal to the amount of his or
her Account.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    19.3           Merger or
Asset Sale. In the event of
a proposed sale of all
or substantially all of the assets of the
Company, or the merger of the Company with or into another
corporation, each outstanding Option shall be assumed or an equivalent Option substituted by the successor
corporation or a Parent or Subsidiary of the
successor corporation. In
the event that the successor corporation refuses to assume
or substitute for the Option, the Board may terminate any Offering Period then in progress by setting a
new Exercise Date (the “New Exercise Date”).  The New Exercise Date shall be before the date of the Company’s proposed sale or merger.  T he Board shall notify each Participant in writing, at least ten (10) business
days prior to the New Exercise Date, that the Exercise Date
for the Participant's Option has been changed to the New Exercise Date and that the
Participant’s Option shall be exercised automatically on the New
Exercise Date, unless prior to such date the Participant has withdrawn from the Offering Period
as provided in Section 10 hereof.

    


    20.           Amendment or
Termination.

    


    20.1           The Board may at any time and for
any reason terminate or amend the Plan.
 Except as provided in Section
19 hereof, no such termination can affect
Options previously granted,
provided that an Offering Period may be
terminated by the Board on
any Exercise Date if the Board determines
that the termination of the Offering Period or the Plan is in the best
interests of the Company and its shareholders.  Except as provided in Section 19 and
this Section 20 hereof, no amendment may make any change
in any Option theretofore granted which adversely affects the rights of any
Participant.  To the extent necessary to comply with Section 423 of the Code (or
any successor rule or provision or any other applicable law, regulation or
stock exchange rule), the
Company shall obtain shareholder approval in
such a manner and to such a degree as required.

    


    20.2           Without shareholder consent and without
regard to whether any Participant rights may be considered to have been
“adversely
affected,” the Board (or the Committee) shall be entitled to change
the Offering Periods, limit the frequency and/or number of
changes in the amount withheld during an Offering Period, establish the
exchange ratio applicable to amounts withheld in a currency other than U.S.
dollars, permit payroll
withholding in excess of the amount designated by a
Participant in order to adjust for delays or mistakes in the
Company’s processing of properly
completed withholding elections, establish
reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure
that amounts applied toward the purchase of Common Stock for
each Participant properly correspond with amounts withheld from
the Participant’s Compensation, and establish such other limitations or
procedures as the Board (or
its Committee) determines in its sole
discretion advisable which are consistent with the Plan.

    


    20.3           In the event the Board determines that
the ongoing operation of the Plan may result in unfavorable
financial accounting consequences, the Board may, in its discretion and, to the
extent necessary or desirable, modify or amend the Plan to reduce or
eliminate such accounting consequence including, but not limited
to:

     

    20.3.1      
Altering the Purchase Price for any Offering
Period including an Offering Period underway at the time of the
change in Purchase Price;

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    20.3.2  Shortening any Offering Period so that
Offering Period ends on a new Exercise Date, including
an Offering Period underway at the time of the Board action;
and

    


    20.3.3 Allocating shares.

    


    Such modifications or amendments shall
not require stockholder approval or the consent of any Plan Participants.

    


    21.           Conditions
Upon Issuance of Shares.
Shares shall not be issued with respect to an Option unless the exercise of such
Option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or foreign,
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the
shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.

    


    As a condition to the exercise of an Option, the Company may require
the person exercising such Option to represent and warrant at the time of
any such exercise that the shares are being
purchased only for investment and without any present intention to sell or distribute
such shares if, in the
opinion of counsel for the Company, such a
representation is required by any of the aforementioned applicable provisions of
law.

    


    22.           Term of
Plan. The Plan shall become
effective upon the earlier to occur of its adoption by the Board or its approval by the shareholders of the Company.
 It shall continue in effect for a term
of ten (10) years unless sooner terminated under
Section 20 hereof.

    


    23.           No Employment
Rights.  The Plan does not, directly or indirectly, create any
right for the benefit of any employee or class of employees to purchase any
shares of Common Stock under the Plan, or create in any employee or class of
employees any right with respect to continuation of employment by the Company,
and it shall not be deemed to interfere in any way with the Company’s right to
terminate, or otherwise modify, an employee’s employment at any
time.

    


    24.           No Effect Upon
Benefits.  Neither
the grant nor the exercise of any Option hereunder will affect the benefits
under any benefit plan of the Employer, and no amount or benefit granted or
received hereunder shall be considered compensation for any purposes of any
other benefit plan or program of the Employer.

    


    25.           Trading Policy
Restrictions.  Option
exercises under the Plan shall be subject to the terms and conditions of any
insider trading policy established by the Company.

    


    26.            Notices. All notices or other communications by
a Participant to the Company under or in connection
with the Plan shall be deemed to have been duly given when received in the form specified by the Company
at the location, or by the person, designated by the
Company for the receipt thereof.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    27.           Equal Rights and
Privileges.  All
eligible employees shall have equal rights and privileges with respect to the
Plan so that the Plan qualifies as an “employee stock purchase plan” within the
meaning of Section 423 or any successor provision of the Code and the related
regulations.  Any provision of the Plan which is inconsistent with
Section 423 or any successor provision of the Code shall, without further act or
amendment by the Company or the Committee, be reformed to comply with the
requirements of Section 423.  This Section 27 shall take precedence
over all other provisions in the Plan.

    


    28.           Governing Law.  Without
regard to conflict of law principles, the laws of the State of Nevada will
govern all matters relating to this Plan except to the extent it is superseded
by the laws of the United States.

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

    


    EXHIBIT
A

    LIBERATOR MEDICAL HOLDINGS, INC.

    2009 EMPLOYEE STOCK PURCHASE
PLAN

    


    SUBSCRIPTION
AGREEMENT

    


    Original Application Enrollment Date:
______________

    


    __________ Change in Payroll Deduction
Rate

    


    __________ Change of
Beneficiary(ies)

    


    
      	
              1.

            	
              I hereby elect to participate in
      the Liberator Medical
      Holdings, Inc.
      2009 Employee Stock Purchase Plan (the “Employee Stock Purchase
      Plan”) and
      subscribe to purchase shares of the
      Company's Common Stock in accordance with this Subscription Agreement and the
      Employee Stock Purchase
Plan.

            


    

    


    
      	
              2.

            	
              I hereby authorize payroll
      deductions from each paycheck in the amount of ____% of my covered cash Compensation on each payday (FROM
      1 TO 15%) during the Offering Period in accordance with
      the Employee Stock Purchase Plan. (Please note that no fractional
      percentages are permitted.)

            


    

    


    
      	
              3.

            	
              I understand that these payroll deductions shall be
      accumulated for the purchase of shares of Common Stock
      at the applicable Purchase Price determined in accordance with the Employee Stock Purchase Plan and
      that all of my payroll deductions received or held by the Company
      under the Plan may be
      used by the Company for any corporate purpose, and the Company shall not
      be obligated to segregate such payroll deductions.  I understand
      that no interest or other earnings will accrue on my payroll
      deductions.

            


    

    


    
      	
              4.

            	
              I understand that if I do not withdraw from an Offering
      Period, any accumulated payroll deductions will be used to automatically exercise my
      Option.

            


    

    


    
      	
              5.

            	
              I have received and read the
      Prospectus for the Plan and am subscribing for the purchase shares of the
      Company's Common Stock after having considered the
      risks associated with an investment in such Common Stock. I have received a copy of the
      complete Employee Stock Purchase Plan. I understand that my participation
      in the Employee Stock Purchase Plan is in all respects subject to the terms of the
      Plan.

            


    

    


    
      	
              6.

            	
              I understand that my ability
      to exercise the Option under this Subscription Agreement
      is subject to shareholder approval of the Employee Stock
      Purchase Plan.

            


    

    


    
      	
              7.

            	
              Shares purchased for me under the
      Employee Stock Purchase Plan should be issued in the name(s) of (Employee
      or Employee and Spouse only):_______________________.

            


    

    


    
      	
              8.

            	
              I understand that if I dispose of
      any shares received by me pursuant to the Plan within 2 years after the
      Enrollment Date (the first day of the Offering Period during which I purchased
      such shares) or one year after the Exercise Date, I will be treated for
      federal income tax purposes as having received ordinary income at the time of
      such disposition in an amount equal to the excess of the amount I
      received in such
      disposition over the price which I paid for the shares. I hereby agree to notify
      the Company in writing within 30 days after the date of any disposition of my
      shares and I will make adequate provision for Federal, state or other tax
      withholding obligations, if any, which arise
      upon the disposition of the Common
      Stock. The Company may, but will not be obligated to, withhold from my compensation
      the amount necessary to meet any applicable withholding obligation including
      any withholding necessary to make available to the Company any
      tax deductions or benefits attributable to sale or early disposition of
      Common Stock by me. If I dispose of such shares at any time after the expiration of
      the 2-year and 1-year holding periods, I understand that I will
      be treated for
      federal income tax purposes as having received income only at the time
      of such disposition, and that such income will be taxed as ordinary income only
      to the extent of an amount equal to the lesser of: (l) the excess of the fair
      market value of the
      shares at the time of such disposition over the purchase
      price which I paid for the shares; or (2) the excess of the fair market value of
      the shares at the time the Enrollment Date (the first day of the Offering
      Period during which I purchased such shares) over the purchase price which I paid for
      the shares. The remainder of the gain, if any, recognized on such
      disposition will be taxed as capital
  gain.

            


    

    
      
        
        

      

      

        
          

        

      

      
        
        

      

    

     

    
      	
              9.

            	
              I hereby agree to be bound by the
      terms of the Employee Stock Purchase Plan. The effectiveness
      of this Subscription
      Agreement is dependent upon my eligibility to participate in the
      Employee Stock Purchase
Plan.

            


    

    


    
      	
              10.

            	
              In the event of my death, I hereby
      designate the following as my beneficiary(ies) to receive all
      payments and shares due me under the Employee Stock Purchase
      Plan:

            


    

    


    NAME: (Please print)

    


    
       

        
          

        

      

    

    (First) (Middle)
(Last)

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      Relationship

                                    	 
      	 	 
	 
      	 
      	 	 
	
                                      Address:

                                    	
                                       

                                    	 	 
	 
      	 
      	 	 
	 
      	
                                       

                                    	 	 
	 	 	 	 


                               

                              	Employee's
      Social Security Number: 	 	 


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    Employee's Address:

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                       

                                    	 
      	 
	 
      	 
      	 
	 	 	 
	 	 	 
	
                                       

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
 

    I UNDERSTAND THAT THIS SUBSCRIPTION
AGREEMENT SHALL REMAIN IN
EFFECT THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS
TERMINATED BY ME.

     

    
      
        
          
            
              
                
                  
                    
                      
                        	
                                Dated:

                              	 	 	
                                 

                              
	 
      	 	 	
                                Spouse's
    Signature

                              
	 	 	 	 
	 	 	 	 
	Dated:
      	 	 	Signature of
    Employee
	 	 	 	
                                (If beneficiary is other than
      spouse)

                              


                      

                      
                        
                          
                          

                        

                        

                          
                            

                          

                        

                        
                          
                          

                        

                      

                       

                    

                  

                

              

            

          

        

      

    

    EXHIBIT
B

    


    LIBERATOR MEDICAL HOLDINGS, INC.

    


    2009 EMPLOYEE STOCK PURCHASE
PLAN

    


    NOTICE OF WITHDRAWAL

    


    The undersigned Participant in the Offering Period of the
Liberator Medical
Holdings, Inc.
2009 Employee Stock Purchase Plan which
began on __________, 2009 (the “Enrollment Date”) hereby notifies the Company that he or
she hereby withdraws from the Offering Period. He
or she hereby directs the Company to pay to the undersigned as promptly as
practicable all the payroll
deductions credited to his or her account with
respect to such Offering Period. The undersigned understands and agrees that
his or her Option for such Offering Period will be automatically terminated.
The undersigned understands further that no further payroll deductions will
be made for the purchase of shares in the current Offering Period and the
undersigned shall be eligible to participate in succeeding Offering Periods only by
delivering to the Company a new Subscription Agreement.

    


    
      
        
          
            
              
                
                  
                    	
                            Name and Address of
      Participant:

                          	 	
                             

                          	 
	 
      	 	 
      	 
	 
      	 	
                             

                          	 
	 
      	 	 
      	 
	 
      	 	
                             

                          	 
	 
      	 	 
      	 
	 
      	 	
                             

                          	 


                  

                

              

            

          

        

      

    

    


    


    
      
        
          
            
              
                
                  
                    
                      	
                               

                            	 	
                              Dated

                            	 	 


                    

                  

                

              

            

          

        

      

    

    Signature