UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-Q
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(Mark One)
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended
October 31, 2007
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OR
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the transition period
from to
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Commission file number
001-33608
lululemon athletica
inc.
(Exact name of registrant as
specified in its charter)
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|
Delaware
(State or other jurisdiction
of
incorporation or organization)
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|
20-3842867
(I.R.S. Employer
Identification No.)
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2285 Clark Drive,
Vancouver, British Columbia
(Address of principal
executive offices)
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V5N 3G9
(Zip Code)
|
Registrants telephone number, including area code:
604-732-6124
Former name, former address and former fiscal year, if
changed since last report: N/A
Indicate by check mark whether the registrant: (1) has
filed all reports required to be filed by Section 13 or
15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past
90 days.
Yes
þ
No
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, or a non-accelerated
filer. See definition of accelerated filer and large
accelerated filer in
Rule 12b-2
of the Exchange Act.
Large Accelerated
filer
o
Accelerated
filer
o
Non-accelerated
filer
þ
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange Act).
Yes
o
No
þ
At November 28, 2007, there were 46,592,145 shares of
the registrants common stock, par value $0.01 per share,
outstanding.
Exchangeable
and Special Voting
Shares
:
At November 28, 2007, there were outstanding 20,935,041
exchangeable shares of Lulu Canadian Holding, Inc., a
wholly-owned subsidiary of the registrant. Exchangeable shares
are exchangeable for an equal number of shares of the
registrants common stock.
In addition, at November 28, 2007, the registrant had
outstanding 20,935,041 shares of special voting stock,
through which the holders of exchangeable shares of Lulu
Canadian Holding, Inc. may exercise their voting rights with
respect to the registrant. The special voting stock and the
registrants common stock generally vote together as a
single class on all matters on which the common stock is
entitled to vote.
PART I
FINANCIAL INFORMATION
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ITEM 1.
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FINANCIAL
STATEMENTS
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lululemon
athletica inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
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October 31,
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January 31,
|
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2007
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|
2007
|
|
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|
(Unaudited)
|
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ASSETS
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Current assets
|
|
|
|
|
|
|
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Cash and cash equivalents
|
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$
|
36,324,627
|
|
|
$
|
16,028,534
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Accounts receivable
|
|
|
4,532,440
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|
|
|
2,482,967
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Inventories
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|
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49,694,303
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26,628,113
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Prepaid expenses, current deferred taxes and other current assets
|
|
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1,827,792
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|
|
|
3,353,129
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|
|
|
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|
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92,379,162
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48,492,743
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Property and equipment, net
|
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|
36,376,624
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18,175,944
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Goodwill
|
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|
1,007,612
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|
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|
811,678
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Intangible assets, net
|
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7,774,194
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|
|
|
2,140,011
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Deferred income taxes
|
|
|
939,237
|
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|
|
588,397
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Other assets
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|
2,698,902
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|
2,084,336
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|
|
|
|
|
|
|
|
|
|
|
$
|
141,175,731
|
|
|
$
|
72,293,109
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|
|
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LIABILITIES AND STOCKHOLDERS EQUITY
|
Current liabilities
|
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Accounts payable
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$
|
12,604,922
|
|
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$
|
4,935,037
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|
Accrued liabilities
|
|
|
15,518,945
|
|
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14,518,556
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Income taxes payable
|
|
|
2,482,683
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|
|
|
9,177,953
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Other current liabilities
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5,334,494
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2,652,491
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|
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|
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35,941,044
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31,284,037
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Deferred income taxes
|
|
|
205,725
|
|
|
|
384,354
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Other liabilities
|
|
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6,968,310
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|
|
|
2,678,221
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|
|
|
|
|
|
|
|
|
|
|
|
|
43,115,079
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34,346,612
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|
|
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|
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Non-controlling interest
|
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|
474,649
|
|
|
|
567,699
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Stockholders equity
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Undesignated preferred stock, $0.01 par value,
5,000,000 shares authorized, none issued and outstanding
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Exchangeable stock, no par value, 30,000,000 shares
authorized, issued and outstanding 20,935,041 and 20,935,041
shares
|
|
|
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|
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|
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|
Special voting stock, $0.00001 par value,
30,000,000 shares authorized, issued and outstanding
20,935,041 and 20,935,041 shares
|
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|
209
|
|
|
|
209
|
|
Common stock, $0.01 par value, 200,000,000 shares
authorized, issued and outstanding 46,592,145 and 44,290,778
shares
|
|
|
465,922
|
|
|
|
442,908
|
|
Additional paid-in capital
|
|
|
134,947,187
|
|
|
|
98,669,641
|
|
Accumulated deficit
|
|
|
(44,443,955
|
)
|
|
|
(60,677,395
|
)
|
Accumulated other comprehensive income
|
|
|
6,616,640
|
|
|
|
(1,056,565
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
97,586,003
|
|
|
|
37,378,798
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|
|
|
|
|
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|
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$
|
141,175,731
|
|
|
$
|
72,293,109
|
|
|
|
|
|
|
|
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|
|
See accompanying notes to the interim consolidated financial
statements
1
lululemon
athletica inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF OPERATIONS
|
|
|
|
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Three Months Ended
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Nine Months Ended
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October 31,
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October 31,
|
|
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|
2007
|
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2006
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2007
|
|
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2006
|
|
|
|
(Unaudited)
|
|
|
Net revenue
|
|
$
|
66,150,280
|
|
|
$
|
35,967,615
|
|
|
$
|
169,620,680
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|
|
$
|
96,668,633
|
|
Cost of goods sold (including stock-based compensation of
$202,936, $76,530, $564,975 and $240,589)
|
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|
30,269,860
|
|
|
|
17,227,413
|
|
|
|
79,682,472
|
|
|
|
47,505,884
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
Gross profit
|
|
|
35,880,420
|
|
|
|
18,740,202
|
|
|
|
89,938,208
|
|
|
|
49,162,749
|
|
Selling, general and administrative expenses (including
stock-based compensation of $1,643,161, $530,310, $4,249,647 and
$1,512,616)
|
|
|
24,050,692
|
|
|
|
14,045,858
|
|
|
|
61,490,822
|
|
|
|
35,118,960
|
|
|
|
|
|
|
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|
|
|
|
|
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Income from operations
|
|
|
11,829,728
|
|
|
|
4,694,344
|
|
|
|
28,447,386
|
|
|
|
14,043,789
|
|
Other expense (income), net
|
|
|
(418,938
|
)
|
|
|
(43,219
|
)
|
|
|
(596,401
|
)
|
|
|
(87,642
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
12,248,666
|
|
|
|
4,737,563
|
|
|
|
29,043,787
|
|
|
|
14,131,431
|
|
Provision for income tax
|
|
|
4,763,446
|
|
|
|
3,131,794
|
|
|
|
13,010,405
|
|
|
|
7,404,892
|
|
Non-controlling interest
|
|
|
(84,157
|
)
|
|
|
(58,138
|
)
|
|
|
(200,058
|
)
|
|
|
(58,138
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
7,569,377
|
|
|
$
|
1,663,907
|
|
|
$
|
16,233,440
|
|
|
$
|
6,784,677
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings per share
|
|
$
|
0.11
|
|
|
$
|
0.03
|
|
|
$
|
0.25
|
|
|
$
|
0.10
|
|
Diluted earnings per share
|
|
$
|
0.11
|
|
|
$
|
0.02
|
|
|
$
|
0.23
|
|
|
$
|
0.10
|
|
Basic weighted average number of shares outstanding
|
|
|
67,476,972
|
|
|
|
65,225,819
|
|
|
|
65,981,081
|
|
|
|
65,168,542
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted average number of shares outstanding
|
|
|
71,683,523
|
|
|
|
67,878,508
|
|
|
|
69,896,384
|
|
|
|
67,821,231
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the interim consolidated financial
statements
2
lululemon
athletica inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF STOCKHOLDERS EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Special Voting
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exchangeable Stock
|
|
|
Stock
|
|
|
Common Stock
|
|
|
Additional
|
|
|
|
|
|
Other
|
|
|
|
|
|
|
|
|
|
Par
|
|
|
|
|
|
Par
|
|
|
|
|
|
Par
|
|
|
Paid-in
|
|
|
Accumulated
|
|
|
Comprehensive
|
|
|
|
|
|
|
Shares
|
|
|
Value
|
|
|
Shares
|
|
|
Value
|
|
|
Shares
|
|
|
Value
|
|
|
Capital
|
|
|
Deficit
|
|
|
Income (Loss)
|
|
|
Total
|
|
|
|
(Unaudited)
|
|
|
Balance at January 31, 2007
|
|
|
20,935,041
|
|
|
$
|
|
|
|
|
20,935,041
|
|
|
$
|
209
|
|
|
|
44,290,778
|
|
|
$
|
442,908
|
|
|
$
|
98,669,641
|
|
|
$
|
(60,677,395
|
)
|
|
$
|
(1,056,565
|
)
|
|
$
|
37,378,798
|
|
Comprehensive income:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,233,440
|
|
|
|
|
|
|
|
16,233,440
|
|
Foreign currency translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7,673,205
|
|
|
|
7,673,205
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,906,645
|
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,814,622
|
|
|
|
|
|
|
|
|
|
|
|
4,814,622
|
|
Common stock issued for cash net of transaction costs
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,290,909
|
|
|
|
22,909
|
|
|
|
31,463,029
|
|
|
|
|
|
|
|
|
|
|
|
31,485,938
|
|
Restricted Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,458
|
|
|
|
105
|
|
|
|
(105
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at October 31, 2007
|
|
|
20,935,041
|
|
|
$
|
|
|
|
|
20,935,041
|
|
|
$
|
209
|
|
|
|
46,592,145
|
|
|
$
|
465,922
|
|
|
$
|
134,947,187
|
|
|
$
|
(44,443,955
|
)
|
|
$
|
6,616,640
|
|
|
$
|
97,586,003
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the interim consolidated financial
statements
3
lululemon
athletica inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
October 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(Unaudited)
|
|
|
Cash flows from operating activities
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
16,233,440
|
|
|
$
|
6,784,677
|
|
Items not affecting cash
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
5,493,786
|
|
|
|
2,952,803
|
|
Stock-based compensation
|
|
|
4,814,622
|
|
|
|
1,753,205
|
|
Deferred income taxes
|
|
|
1,993,429
|
|
|
|
(2,408,174
|
)
|
Non-controlling interest
|
|
|
(93,050
|
)
|
|
|
641,606
|
|
Other, including net changes in other non-cash balances
|
|
|
(17,958,296
|
)
|
|
|
(892,107
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
10,483,931
|
|
|
|
8,832,010
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities
|
|
|
|
|
|
|
|
|
Purchase of property and equipment
|
|
|
(19,180,993
|
)
|
|
|
(9,596,628
|
)
|
Acquisition of franchises
|
|
|
(5,559,179
|
)
|
|
|
(539,233
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
(24,740,172
|
)
|
|
|
(10,135,861
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities
|
|
|
|
|
|
|
|
|
Proceeds from credit facility
|
|
|
1,454,775
|
|
|
|
188,008
|
|
Repayment of credit facility
|
|
|
(1,454,775
|
)
|
|
|
|
|
Amounts received from related party
|
|
|
520,476
|
|
|
|
|
|
Capital stock issued for cash, net of issuance costs
|
|
|
38,349,817
|
|
|
|
446,419
|
|
Payment of initial public offering costs
|
|
|
(6,863,878
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32,006,415
|
|
|
|
634,427
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate changes on cash
|
|
|
2,545,919
|
|
|
|
275,765
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and cash equivalents
|
|
|
20,296,093
|
|
|
|
(393,659
|
)
|
Cash and cash equivalents, beginning of period
|
|
|
16,028,534
|
|
|
|
3,877,017
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of period
|
|
$
|
36,324,627
|
|
|
$
|
3,483,358
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to the interim consolidated financial
statements
4
lululemon
athletica inc. and Subsidiaries
NOTES TO THE INTERIM CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
|
|
NOTE 1.
|
NATURE OF
OPERATIONS AND BASIS OF PRESENTATION
|
Nature
of operations
lululemon athletica inc., a Delaware corporation
(lululemon and, together with its subsidiaries
unless the context otherwise requires, the Company)
is engaged in the design, manufacture and distribution of
healthy lifestyle inspired athletic apparel, which is sold
through a chain of corporate-owned and operated retail stores,
independent franchises and a network of wholesale accounts. The
Companys primary markets are Canada, the United States,
Japan and Australia, where 36, 22 and 4 and nil corporate-owned
stores were in operation as at October 31, 2007,
respectively.
Basis
of presentation
The unaudited consolidated financial statements are presented
using the United States dollar and are presented in accordance
with United States generally accepted accounting principles
(GAAP) for interim financial information and,
accordingly, do not include all of the information and footnotes
required by generally accepted accounting principles for
complete financial statements.
In conjunction with an initial public offering of common shares,
the Company was reorganized (note 3). This reorganization
was accounted for as a transfer of entities under common
control, and accordingly, the financial statements as at
January 31, 2007 were restated on an as if
pooling basis. The restatement of prior financial statements
effected the stockholders equity, equity incentive
compensation plans, and earnings per share as explained in
notes 3, 4 and 6.
The consolidated balance sheet at January 31, 2007 and the
consolidated statements of operations for the three months ended
October 31, 2006 and the nine months ended October 31,
2006 were combined to include all entities operating under
common control and management.
These unaudited interim condensed consolidated financial
statements should be read in conjunction with the consolidated
financial statements and related notes for the fiscal year ended
January 31, 2007 included in our recently filed
Registration Statement on
Form S-1
(file
no. 333-142477)
relating to the Companys initial public offering of shares
of its common stock completed on August 2, 2007.
Our business is affected by the pattern of seasonality common to
most retail apparel businesses. The results for the periods
presented are not necessarily indicative of future financial
results.
|
|
NOTE 2.
|
SUMMARY
OF SIGNIFICANT ACCOUNTING POLICIES
|
Principles
of consolidation
The unaudited consolidated financial statements include the
accounts of lululemon athletica inc., its wholly owned
subsidiaries and Lululemon Japan Inc., a 60% controlled joint
venture entity. All inter-company balances and transactions have
been eliminated. In the opinion of management, all adjustments,
consisting primarily of normal recurring accruals, considered
necessary for a fair presentation of the Companys results
of operations for the interim periods reported and of its
financial condition as of the date of the interim balance sheet
have been included.
Prior to July 26, 2007, the financial statements of the
Company reflected the combined financial position and results of
operations of the entities under common control as described in
note 3.
Cash
and cash equivalents
Cash and cash equivalents consist of cash on hand, bank balances
and short-term deposits with original maturities of less than
three months.
5
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Accounts
receivable
Accounts receivable primarily arise out of sales to wholesale
accounts, sales of material, royalties on sales owed to the
Company by its franchisees and landlord tenant inducements. The
allowance for doubtful accounts represents managements
best estimate of probable credit losses in accounts receivable
and is reviewed monthly. Receivables are written off against the
allowance when management believes that the amount receivable
will not be recovered.
Inventories
Inventories, consisting of finished goods, raw materials and
work in process, are stated at the lower of cost and market
value. Cost is determined using standard costs, which
approximate average costs. For finished goods and work in
process, market is defined as net realizable value, and for raw
materials, market is defined as replacement cost. Cost of
inventories includes acquisition and production costs including
raw material, labor and an allocation of overhead, as
applicable, and all costs incurred to deliver inventory to the
Companys distribution centers including freight,
non-refundable taxes, duty and other landing costs.
The Company periodically reviews its inventories and makes
provisions as necessary to appropriately value obsolete or
damaged goods. The amount of the provision is equal to the
difference between the cost of the inventory and its estimated
net realizable value based upon assumptions about future demand,
selling prices and market conditions.
Property
and equipment
Property and equipment are recorded at cost less accumulated
amortization. Costs related to software used for internal
purposes are capitalized in accordance with the provisions of
the Statement of Position
98-1,
Accounting for Costs of Computer Software Developed or
Obtained for Internal Use
, whereby direct internal and
external costs incurred during the application development stage
or for upgrades that add functionality are capitalized. All
other costs related to internal use software are expensed as
incurred. Amortization commences when an asset is put
into use.
Leasehold improvements are amortized on a straight-line basis
over the lesser of the length of the lease, without
consideration of option renewal periods, and the estimated
useful life of the assets, to a maximum of five years. All other
property and equipment are amortized using the declining balance
method as follows:
|
|
|
|
|
Furniture and fixtures
|
|
|
20
|
%
|
Computer hardware and software
|
|
|
30
|
%
|
Equipment
|
|
|
30
|
%
|
Vehicles
|
|
|
30
|
%
|
Deferred
revenue
Payments received from franchisees for goods not shipped as well
as receipts from the sale of gift cards are accounted for as
deferred revenue. Franchise inventory deposits are included in
other current liabilities and recognized as sales when the goods
are shipped. Amounts received in respect of gift cards are
recorded as deferred revenue. When gift cards are redeemed for
apparel, the Company recognizes the related revenue.
Based on historical experience, the Company estimates the value
of gift cards not expected to be redeemed and, to the extent
allowed by local laws, amortizes these amounts into income.
6
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Revenue
recognition
Sales revenue includes sales of apparel to customers through
corporate-owned and operated retail stores, phone sales, sales
through a network of wholesale accounts, initial license and
franchise fees, royalties from franchisees and sales of apparel
to franchisees.
Sales to customers through corporate-owned retail stores and
phone sales are recognized at the point of sale, net of an
estimated allowance for sales returns.
Initial license and franchise fees are recognized when all
material services or conditions relating to the sale of a
franchise right have been substantially performed or satisfied
by the Company, provided collection is reasonably assured.
Substantial performance is considered to occur when the
franchisee commences operations. Franchise royalties are
calculated as a percentage of franchise sales and are recognized
in the month that the franchisee makes the sale.
Sales of apparel to franchisees and wholesale accounts are
recognized when goods are shipped and collection is reasonably
assured.
All revenues are reported net of sales taxes collected for
various governmental agencies.
Store
pre-opening costs
Operating costs incurred prior to the opening of new stores are
expensed as incurred.
Use of
estimates
The preparation of financial statements in conformity with
generally accepted accounting principles in the United States
requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and the
disclosure of contingent assets and liabilities at the date of
the financial statements as well as the reported amounts of
revenues and expenses during the reporting period. Significant
areas requiring the use of management estimates relate to the
determination of inventory valuation, depreciation and
amortization, impairment of long-lived assets and goodwill and
recognition of breakage on gift cards. Actual amounts could
differ materially from those estimates.
Stock-based
compensation
The Company accounts for stock-based compensation using the fair
value method as required by Statement of Financial Accounting
Standards No. 123R,
Share Based Payment
(SFAS 123R). The fair value of awards granted is
estimated at the date of grant and recognized as employee
compensation expense on a straight-line basis over the requisite
service period with the offsetting credit to additional paid-in
capital. For awards with service
and/or
performance conditions, the total amount of compensation cost to
be recognized is based on the number of awards expected to vest
and is adjusted to reflect those awards that do ultimately vest.
For awards with performance conditions, the Company recognizes
the compensation cost if and when the Company concludes that it
is probable that the performance condition will be achieved. The
Company reassesses the probability of achieving the performance
condition at each reporting date. For awards with market
conditions, all compensation cost is recognized irrespective of
whether such conditions are met.
Certain employees are entitled to share-based awards from a
principal stockholder of the Company. These awards are accounted
for by the Company as employee compensation expense in
accordance with the above-noted policies.
The Company commenced applying SFAS 123R when it introduced
stock-based awards for its employees during the year ended
January 31, 2006.
7
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Income
taxes
The Company follows the liability method with respect to
accounting for income taxes. Deferred tax assets and liabilities
are determined based on temporary differences between the
carrying amounts and the tax basis of assets and liabilities.
Deferred income tax assets and liabilities are measured using
enacted tax rates that will be in effect when these differences
are expected to reverse. Deferred income tax assets are reduced
by a valuation allowance, if based on the weight of available
evidence, it is more likely than not that some portion or all of
the deferred tax assets will not be realized.
In July 2006, the Financial Accounting Standards Board (the
FASB) issued Financial Interpretation No. 48,
Accounting for Uncertainty in Income Taxes
, or
FIN 48, which clarifies the accounting for
uncertainty in income taxes recognized in a companys
financial statements in accordance with Statement of Financial
Accounting Standards No. 109,
Accounting for Income
Taxes
. FIN 48 prescribes a recognition threshold and
measurement process for recording in the financial statements
uncertain tax positions taken or expected to be taken in a tax
return. Additionally, FIN 48 provides guidance on the
de-recognition, classification, interest and penalties,
accounting in interim periods, and disclosure requirements for
uncertain tax positions. The Company adopted the provisions of
FIN 48 beginning February 1, 2007.
We file income tax returns in the U.S., Canada and various
foreign and state jurisdictions. We are subject to income tax
examination by tax authorities in all jurisdictions from our
inception to date. Our policy is to recognize interest expense
and penalties related to income tax matters as tax expense. At
October 31, 2007, we do not have any significant accruals
for interest related to unrecognized tax benefits or tax
penalties. Based on the Companys evaluation, there are no
significant uncertain tax positions requiring recognition in
accordance with FIN 48.
Recently
issued accounting standards
In February 2007, the FASB issued Statement of Financial
Accounting Standard No. 159,
The Fair Value Option
for Financial Assets and Financial Liabilities
(SFAS 159). This Statement permits entities to choose
to measure various financial assets and financial liabilities at
fair value. Unrealized gains and losses on items for which the
fair value option has been elected are reported in earnings.
SFAS 159 is effective for the Company beginning
January 1, 2008. The Company is currently evaluating the
impact that adopting SFAS 159 will have on its financial
position and results of operations.
In September 2006, the FASB issued Statement of Financial
Accounting Standard No. 157,
Fair Value
Measurements
(SFAS 157). SFAS 157 defines
fair value, establishes a framework for measuring fair value in
accordance with generally accepted accounting principles, and
expands disclosures about fair value measurements. SFAS 157
applies under other accounting pronouncements that require or
permit fair value measurements and accordingly does not require
any new fair value measurements. The provisions of SFAS 157
are to be applied prospectively as of the beginning of the
fiscal year in which it is initially applied, with any
transition adjustment recognized as a cumulative-effect
adjustment to the opening balance of retained earnings. The
provisions of SFAS 157 are effective for fiscal years
beginning after November 15, 2007. The Company is currently
evaluating the impact that the adoption of SFAS 157 will
have on its financial position and results of operations.
Comparability
Certain comparative amounts have been reclassified to conform to
the presentation adopted in the current period.
8
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
NOTE 3.
|
STOCKHOLDERS
EQUITY
|
Reorganization
in connection with initial public offering
On August 2, 2007 the Company completed an initial public
offering. In connection with the initial public offering, the
Company entered into an Agreement and Plan of Reorganization
dated April 26, 2007 (Reorganization Agreement), with all
of its shareholders, lululemon usa inc. (Lulu USA), lululemon
athletica canada inc. (LACI), Lulu Canadian Holding, Inc.
(LCHI), LIPO Investments (Canada) Inc. (LIPO), LIPO Investments
(USA), Inc. (LIPO USA) and Slinky Financial ULC: an
entity owned by a principal stockholder of the Company. The
parties executed a corporate reorganization of the Company on
July 26, 2007, immediately following the execution of the
underwriting agreement entered into in connection with the
initial public offering. In the reorganization, all outstanding
shares of the Company (which consisted of Series A shares
and Series TS shares) and all outstanding shares of LIPO,
which was combined with the Company prior to the reorganization,
were exchanged for common shares of the Company or exchangeable
shares issued by LCHI. Upon completion of the reorganization,
Lulu USA and LACI became direct or indirect wholly-owned
subsidiaries of the Company.
As part of the reorganization, a 2.38267841 for one stock split
was effected for all authorized, issued, and outstanding shares
of common stock of the Company issued in exchange for the
preferred shares. All common shares presented in the
consolidated financial statements and the notes to the
consolidated financial statements have been restated to reflect
the July 26, 2007 stock split. The reorganization and the
stock split resulted in the holders of
108,495 Series A shares held prior to the
reorganization of the Company receiving 31,380,425 common
shares of the Company and the holders of 117,000,361 LIPO
shares and 116,994 Series TS shares receiving
12,910,353 common shares and 20,935,041 special voting
stock of the Company and 20,935,041 exchangeable shares of
LCHI. Lulu US repurchased all outstanding shares of its
non-participating preferred stock for a purchase price of $1.00
per share.
The exchangeable shares of LCHI and the special voting shares of
the Company, when taken together, are the economic equivalent of
the corresponding common shares of the Company and entitle the
holder to one vote on the same basis and in the same
circumstances as one corresponding share of the common shares of
the Company. The exchangeable shares are exchangeable at any
time, at the option of the holder on a one-for-one basis with
the corresponding common shares of the Company.
Prior to the reorganization, LIPO and LIPO USA had created
stock-based compensation plans for eligible employees of LACI
and Lulu USA. The eligible employees were granted options to
acquire shares of LIPO and LIPO USA. The outstanding unvested
stock options of LIPO were modified and exchanged for options of
LIPO USA which allow the holder to acquire shares of LIPO USA.
Vested LIPO options were immediately exercised for shares in
LIPO and then exchanged for a fraction of an exchangeable share
or common share in the Company. The exercise price and the
number of common shares of the Company subject to the new
Company stock options (note 4) were set to preserve
the terms and conditions of the LIPO and LIPO USA stock options
being exchanged.
LACI and Lulu US also had share option plans to purchase common
shares of LACI and Lulu US. These options were exchanged for
4,479,176 options of the Company (note 4).
For accounting purposes, the corporate reorganization has been
reflected as if it had occurred for all periods presented.
Authorized
share capital
As part of the reorganization in connection with the initial
public offering, the Companys stockholders approved an
amended and restated charter that provides for the issuance of
up to 200,000,000 shares of common stock,
5,000,000 shares of undesignated preferred stock and
30,000,000 shares of special voting stock. Upon completion
of the reorganization there were 44,290,778 shares of
common stock, 20,935,041 shares of exchangeable stock and
20,935,041 shares of special voting stock outstanding.
Additionally, 10,000,000 shares of common
9
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
stock are reserved for issuance under the Companys 2007
Equity and Incentive Plan (the 2007 Plan). The
holders of common stock and special voting stock are entitled to
one vote for each common share held.
|
|
NOTE 4.
|
STOCK
BASED COMPENSATION
|
As described in note 3, a reorganization and stock split
resulted in changes to the capital structure of the Company.
Information in this note has been presented to reflect the
combination of the stockholder sponsored plans. The number of
options and exercise prices for options issued under the
predecessor plans prior to the corporate reorganization have
been presented to reflect the replacement options of the Company
that have been issued as if the replacement options had always
been issued.
In July 2007, the Board adopted, and the Companys
stockholders approved, in conjunction with the reorganization of
the Company, the 2007 Equity Incentive Plan (note 3). Upon
completion of the reorganization of the Company, outstanding
awards under the Companys predecessor plan were exchanged
for awards under the 2007 Plan in such a way that no incremental
compensation cost resulted from the exchange. The 2007 Plan
provides for the grants of stock options, stock appreciation
rights, restricted stock or restricted stock units to employees
(including officers and directors who are also employees) of the
Company or of a parent or subsidiary of the Company. Stock
options granted to date have a
4-year
vesting period and vest at a rate of 25% per each year on the
anniversary date of the grant. Restricted stock issued under the
2007 Plan vest one year from the grant date and has no exercise
price. To date, 10,458 shares of restricted stock have been
issued under the 2007 Plan to certain directors of the Company.
The restricted common stock vests one year after the grant date.
Once granted, the restricted common stock is included in total
shares outstanding but is not included in the weighted average
number of common shares outstanding in each period used to
calculate basic earnings per share until the shares vest. There
have been no stock appreciation rights issued under the 2007
Plan to date.
The following is a summary of the total number of outstanding
stock options and restricted common stock issued under the plan:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding Non
|
|
|
|
|
|
|
Outstanding
|
|
|
Weighted Average
|
|
|
Vested Restricted
|
|
|
Weighted Average
|
|
|
|
Options
|
|
|
Exercise Price
|
|
|
Common Stock
|
|
|
Exercise price
|
|
|
Balance at January 31, 2007
|
|
|
4,523,839
|
|
|
$
|
0.58
|
|
|
|
|
|
|
$
|
|
|
Granted
|
|
|
291,698
|
|
|
$
|
19.38
|
|
|
|
10,458
|
|
|
|
|
|
Exercised
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cancelled
|
|
|
46,663
|
|
|
$
|
1.58
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at October 31, 2007
|
|
|
4,768,874
|
|
|
$
|
1.89
|
|
|
|
10,458
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholder
sponsored awards
During the year ended January 31, 2006, LIPO and LIPO USA,
entities controlled by a principal stockholder of the Company
created stock-based compensation plans (the LIPO Plans) for
certain eligible employees of the Company in order to provide
incentive to increase stockholder value. Under the provisions of
the LIPO Plans, the eligible employees were granted options to
acquire shares of LIPO and LIPO USA respectively. The board of
directors of LIPO and LIPO USA would exchange the LIPO and LIPO
USA shares held in trust for an equivalent number of shares of
the Company to be held by LIPO and LIPO USA, respectively, on
the exchange date.
On December 1, 2005, LIPO and LIPO USA each granted
5,295,952 Series A options with an exercise price of
CA$0.00001 and an expiry date of December 1, 2009 and
11,062,179 Series B options with an expiry date of
December 1, 2010, respectively. The LIPO and LIPO USA
Series B options had exercise prices of CA$0.99 and $0.01,
respectively. Each Series A option and each Series B
option entitled the holder to acquire one share of common stock
of the respective companies.
10
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
While all of the Series A options of both companies vested
on December 5, 2005 and were immediately exercised,
3,549,444 of the common shares of LIPO and LIPO USA issued were
designated as forfeitable. These forfeitable shares are
considered to be non-vested for accounting purposes and were
considered not to be earned as of December 5, 2005. These
non-vested shares became non-forfeitable over a
4-year
requisite service period ending on December 5, 2009. In
addition, on December 5, 2005, 2,239,395 of the
Series B options vested, with the remaining options vesting
over a
5-year
period ending December 5, 2010.
In connection with the reorganization of the Company, the LIPO
Series A awards and vested LIPO Series B awards were
exchanged for exchangeable shares of the Company through a
series of transactions. The LIPO Series B unvested options
were cancelled and new LIPO USA Series B stock options with
an exercise price of $0.01 were issued using a conversion factor
set out in the reorganization agreement. The cancellation of the
LIPO Series B unvested options and the issuance of the new
LIPO USA Series B stock options occurred with the terms and
conditions being preserved through the number and terms of new
options being granted.
The summary of activity related to forfeitable shares formerly
issued under the LIPO Series A options and LIPO
Series B options which were vested on July 27, 2007
and were converted to exchangeable shares pursuant to the
reorganization agreement (note 3), is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
Average
|
|
|
|
Number of
|
|
|
Grant Date
|
|
|
|
Shares
|
|
|
Fair Value
|
|
|
Balance at January 31, 2007
|
|
|
541,394
|
|
|
$
|
1.26
|
|
Granted
|
|
|
|
|
|
|
|
|
Vested
|
|
|
|
|
|
|
|
|
Forfeited
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at October 31, 2007
|
|
|
541,394
|
|
|
$
|
1.26
|
|
|
|
|
|
|
|
|
|
|
The Company records compensation expense for forfeitable shares
issued under LIPO Series A over the requisite service
period of 5 years. Under the fair value method,
compensation expenses were $196,589 and $216,141 for the three
month periods ended October 31, 2006 and 2007, and $579,230
and $606,306 for the nine month periods ended October 31,
2006 and 2007, respectively
The summary of option grants, forfeitures, vesting and exercises
under the LIPO USA Series B Plan since inception is as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
|
|
|
|
Average
|
|
|
|
|
|
|
Exercise
|
|
|
|
Number of
|
|
|
Price
|
|
|
|
Options
|
|
|
CA$
|
|
|
Balance at January 31, 2007
|
|
|
33,303,016
|
|
|
$
|
0.01
|
|
Exercisable at January 31, 2007
|
|
|
4,110,511
|
|
|
|
0.01
|
|
Granted
|
|
|
|
|
|
|
|
|
Exercised
|
|
|
|
|
|
|
|
|
Cancelled
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at October 31, 2007
|
|
|
33,303,016
|
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
Exercisable at October 31, 2007
|
|
|
4,110,511
|
|
|
$
|
0.01
|
|
The Company records compensation expense for shares issued under
the LIPO Series B options, over the requisite service
period of 5 years. Under the fair value method,
compensation expenses were $154,759 and
11
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
$170,153 for the three month periods ended October 31, 2006
and 2007, and $455,984 and $477,301 for the nine month periods
ended October 31, 2006 and 2007, respectively.
The LIPO USA Series B stock options allow the holder to
receive common shares upon exercise at a conversion factor as
set out in the Reorganization Agreement. If all of the LIPO USA
Series B options were to vest and be exercised at
October 31, 2007, they would result in the delivery of
1,474,925 common shares.
Class B LIPO USA Options and LIPO USA Forfeitable Shares
issued on exercise of Class A LIPO USA Options vest as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class B
|
|
|
Forfeitable
|
|
|
|
|
Date
|
|
Options
|
|
|
Shares
|
|
|
Total
|
|
|
December 5, 2005
|
|
|
2,141,116
|
|
|
|
1,744,816
|
|
|
|
3,885,932
|
|
December 5, 2006
|
|
|
1,969,395
|
|
|
|
1,195,821
|
|
|
|
3,165,216
|
|
December 5, 2007
|
|
|
9,032,783
|
|
|
|
1,195,822
|
|
|
|
10,228,605
|
|
December 5, 2008
|
|
|
8,809,836
|
|
|
|
861,389
|
|
|
|
9,671,225
|
|
December 5, 2009
|
|
|
7,204,148
|
|
|
|
287,706
|
|
|
|
7,491,854
|
|
December 5, 2010
|
|
|
4,145,738
|
|
|
|
|
|
|
|
4,145,738
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
33,303,016
|
|
|
|
5,285,554
|
|
|
|
38,588,570
|
|
|
|
NOTE 5.
|
LEGAL
PROCEEDINGS
|
On March 14, 2007, a former executive officer filed suit
against the Company for breach of contract, wrongful dismissal
and negligent misrepresentation seeking damages plus costs and
interest. The Company believes the claim is without merit and is
vigorously defending against it.
The Company is, from time to time, involved in routine legal
matters incidental to its business. Management believes that the
ultimate resolution of any such current proceedings will not
have a material adverse effect on the Companys continued
financial position, results of operations or cash flows.
|
|
NOTE 6.
|
EARNINGS
PER SHARE
|
In conjunction with the initial public offering of the Company
as explained in note 3, the Companys capital
structure was reorganized such that LIPO became an indirect,
wholly-owned subsidiary of the Company, and the holders of
preferred shares of the Company acquired common shares of the
Company in exchange for their preferred shares, while the
holders of LIPO shares acquired either common shares of the
Company or a combination of exchangeable shares of LCHI plus
shares of special voting stock of the Company, in exchange for
their LIPO shares. In connection with the reorganization, each
outstanding share of the Companys common stock was split
into 2.38267841 shares of common stock, with a
corresponding effect on outstanding options and exercise prices.
Earnings per share has been computed based on the post
reorganization capital structure as if the common shares had
been outstanding for all periods presented or since the
respective share transaction occurred. For diluted earnings per
share the equivalent potential common stock issued on a post
reorganization basis has been used. The common stock and options
outstanding as of the completion of the reorganization was
65,225,819 shares and 4,479,176 options, respectively. In
addition, the outstanding stock options of Lulu Canada and Lulu
US were exchanged for options to acquire common shares of the
Company at an adjusted exercise price. The exercise of options
under the LIPO Plans have been excluded as any shares of LAI
ultimately issued on exercise of these options have already been
included in the exchangeable shares.
12
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The detail of the computation of basic and diluted earnings per
share is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
October 31,
|
|
|
October 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
2007
|
|
|
2006
|
|
|
Net income
|
|
$
|
7,569,377
|
|
|
$
|
1,663,907
|
|
|
$
|
16,233,440
|
|
|
$
|
6,784,677
|
|
Basic weighted average number of shares outstanding
|
|
|
67,476,972
|
|
|
|
65,225,819
|
|
|
|
65,981,081
|
|
|
|
65,168,542
|
|
Basic earnings per share
|
|
$
|
0.11
|
|
|
$
|
0.03
|
|
|
$
|
0.25
|
|
|
$
|
0.10
|
|
Basic weighted average number of shares outstanding
|
|
|
67,476,972
|
|
|
|
65,225,819
|
|
|
|
65,981,081
|
|
|
|
65,168,542
|
|
Effect of stock options assume exercised
|
|
|
4,206,551
|
|
|
|
2,652,689
|
|
|
|
3,915,303
|
|
|
|
2,652,689
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted weighted average number of shares outstanding
|
|
|
71,683,523
|
|
|
|
67,878,508
|
|
|
|
69,896,384
|
|
|
|
67,821,231
|
|
Diluted earnings per share
|
|
$
|
0.11
|
|
|
$
|
0.02
|
|
|
$
|
0.23
|
|
|
$
|
0.10
|
|
Our calculation of weighted average shares include the common
stock of the Company as well as the exchangeable shares of LCHI.
Exchangeable shares are the equivalent of common shares in all
respects. All classes of stock have in effect the same rights
and share equally in undistributed net income. For the three and
nine months ended October 31, 2007, 42,250 stock
options were anti-dilutive to earnings and therefore have been
excluded from the computation of diluted earnings per share.
|
|
NOTE 7.
|
SUPPLEMENTARY
FINANCIAL INFORMATION
|
A summary of certain balance sheet accounts is as follows:
|
|
|
|
|
|
|
|
|
|
|
October 31,
|
|
|
January 31,
|
|
|
|
2007
|
|
|
2007
|
|
|
Accounts receivable:
|
|
|
|
|
|
|
|
|
Trade accounts receivable
|
|
$
|
1,862,711
|
|
|
$
|
1,751,857
|
|
Other accounts receivable
|
|
|
2,634,602
|
|
|
|
538,808
|
|
Due from related parties
|
|
|
35,127
|
|
|
|
192,302
|
|
Allowance for doubtful accounts
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
4,532,440
|
|
|
$
|
2,482,967
|
|
|
|
|
|
|
|
|
|
|
Inventories:
|
|
|
|
|
|
|
|
|
Finished goods
|
|
$
|
48,421,351
|
|
|
$
|
21,310,791
|
|
Work in process
|
|
|
232,036
|
|
|
|
1,634,196
|
|
Raw materials
|
|
|
2,871,539
|
|
|
|
4,644,620
|
|
Provision to reduce inventory to market value
|
|
|
(1,830,623
|
)
|
|
|
(961,494
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
49,694,303
|
|
|
$
|
26,628,113
|
|
|
|
|
|
|
|
|
|
|
13
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
October 31,
|
|
|
January 31,
|
|
|
|
2007
|
|
|
2007
|
|
|
Property and equipment:
|
|
|
|
|
|
|
|
|
Leasehold improvements
|
|
$
|
29,705,877
|
|
|
$
|
16,393,457
|
|
Furniture and fixtures
|
|
|
11,801,921
|
|
|
|
5,287,109
|
|
Computer hardware
|
|
|
3,229,160
|
|
|
|
1,941,252
|
|
Computer software
|
|
|
5,241,953
|
|
|
|
1,591,572
|
|
Equipment
|
|
|
130,328
|
|
|
|
90,808
|
|
Vehicles
|
|
|
103,529
|
|
|
|
83,398
|
|
Accumulated amortization
|
|
|
(13,836,144
|
)
|
|
|
(7,211,652
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
36,376,624
|
|
|
$
|
18,175,944
|
|
|
|
|
|
|
|
|
|
|
Intangible assets:
|
|
|
|
|
|
|
|
|
Reacquired franchise rights
|
|
$
|
9,473,229
|
|
|
$
|
2,835,441
|
|
Non-competition agreements
|
|
|
947,468
|
|
|
|
769,252
|
|
Accumulated amortization
|
|
|
(2,646,503
|
)
|
|
|
(1,464,682
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
7,774,194
|
|
|
$
|
2,140,011
|
|
|
|
|
|
|
|
|
|
|
Accrued liabilities:
|
|
|
|
|
|
|
|
|
Settlement of lawsuit
|
|
$
|
|
|
|
$
|
7,228,310
|
|
Inventory in transit
|
|
|
5,693,984
|
|
|
|
1,877,065
|
|
Wages and vacation payable
|
|
|
5,513,832
|
|
|
|
2,816,751
|
|
Sales tax collected
|
|
|
1,332,322
|
|
|
|
927,555
|
|
Accrued rent
|
|
|
949,992
|
|
|
|
459,249
|
|
Other
|
|
|
2,028,815
|
|
|
|
1,209,626
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
15,518,945
|
|
|
$
|
14,518,556
|
|
|
|
|
|
|
|
|
|
|
Other liabilities:
|
|
|
|
|
|
|
|
|
Deferred lease liability
|
|
$
|
3,140,029
|
|
|
$
|
1,585,097
|
|
Tenant inducements
|
|
|
2,949,989
|
|
|
|
438,571
|
|
Deferred revenue
|
|
|
5,343,890
|
|
|
|
3,307,044
|
|
Less: Current portion
|
|
|
(4,465,598
|
)
|
|
|
(2,652,491
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
6,968,310
|
|
|
$
|
2,678,221
|
|
|
|
|
|
|
|
|
|
|
14
lululemon
athletica inc. and Subsidiaries
NOTES TO
THE INTERIM CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
NOTE 8.
|
SEGMENT
REPORTING
|
The Companys reportable segments are comprised of
corporate-owned stores, franchises and other. Phone sales,
warehouse sales and showrooms sales have been combined into
other. Information for these segments is detailed in the table
below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
October 31,
|
|
|
October 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
2007
|
|
|
2006
|
|
|
Net revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate-owned stores
|
|
$
|
59,935,203
|
|
|
$
|
29,144,531
|
|
|
$
|
151,034,626
|
|
|
$
|
78,121,223
|
|
Franchises
|
|
|
4,222,730
|
|
|
|
5,338,879
|
|
|
|
12,541,274
|
|
|
|
14,184,513
|
|
Other
|
|
|
1,992,347
|
|
|
|
1,484,205
|
|
|
|
6,044,780
|
|
|
|
4,362,897
|
|
Income from operations before general corporate expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate-owned stores
|
|
$
|
19,283,680
|
|
|
$
|
8,831,635
|
|
|
$
|
48,728,067
|
|
|
$
|
23,992,424
|
|
Franchises
|
|
|
2,041,352
|
|
|
|
2,716,048
|
|
|
|
6,066,621
|
|
|
|
6,985,075
|
|
Other
|
|
|
915,781
|
|
|
|
815,688
|
|
|
|
2,787,928
|
|
|
|
2,069,367
|
|
General corporate expense
|
|
|
10,411,085
|
|
|
|
7,669,027
|
|
|
|
29,135,230
|
|
|
|
19,003,077
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net operating income
|
|
|
11,829,728
|
|
|
|
4,694,344
|
|
|
|
28,447,386
|
|
|
|
14,043,789
|
|
Other expense (income), net
|
|
|
(418,938
|
)
|
|
|
(43,219
|
)
|
|
|
(596,401
|
)
|
|
|
(87,642
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
$
|
12,248,666
|
|
|
$
|
4,737,563
|
|
|
$
|
29,043,787
|
|
|
$
|
14,131,431
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital expenditures:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate-owned Stores
|
|
$
|
7,095,157
|
|
|
$
|
2,597,980
|
|
|
$
|
14,624,617
|
|
|
$
|
8,482,214
|
|
Corporate
|
|
|
1,753,890
|
|
|
|
463,549
|
|
|
|
4,556,376
|
|
|
|
1,114,414
|
|
Depreciation:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Corporate-owned stores
|
|
$
|
1,580,855
|
|
|
$
|
483,939
|
|
|
$
|
4,067,900
|
|
|
$
|
2,026,515
|
|
Corporate
|
|
|
277,265
|
|
|
|
288,779
|
|
|
|
680,528
|
|
|
|
806,744
|
|
15
|
|
ITEM 2.
|
MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
Some of the statements contained in this
Form 10-Q
and any documents incorporated herein by reference constitute
forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and the Private
Securities Litigation Reform Act of 1995. All statements, other
than statements of historical facts, included or incorporated in
this
Form 10-Q
are forward-looking statements, particularly statements which
relate to expectations, beliefs, projections, future plans and
strategies, anticipated events or trends and similar expressions
concerning matters that are not historical facts, such as
statements regarding our future financial condition or results
of operations, our prospects and strategies for future growth,
the development and introduction of new products, and the
implementation of our marketing and branding strategies. In many
cases, you can identify forward-looking statements by terms such
as may, will, should,
expects, plans, anticipates,
believes, estimates,
intends, predicts, potential
or the negative of these terms or other comparable terminology.
The forward-looking statements contained in this
Form 10-Q
and any documents incorporated herein by reference reflect our
current views about future events and are subject to risks,
uncertainties, assumptions and changes in circumstances that may
cause events or our actual activities or results to differ
significantly from those expressed in any forward-looking
statement. Although we believe that the expectations reflected
in the forward-looking statements are reasonable, we cannot
guarantee future events, results, actions, levels of activity,
performance or achievements. Readers are cautioned not to place
undue reliance on these forward-looking statements. A number of
important factors could cause actual results to differ
materially from those indicated by the forward-looking
statements, including, but not limited to, those factors
described in Risk Factors and
Managements Discussion and Analysis of Financial
Condition and Results of Operations. These factors include
without limitation:
|
|
|
|
|
our ability to manage operations at our current size or manage
growth effectively;
|
|
|
|
our ability to locate suitable locations to open new stores and
to attract customers to our stores;
|
|
|
|
our ability to successfully expand in the United States and
other new markets;
|
|
|
|
our ability to finance our growth and maintain sufficient levels
of cash flow;
|
|
|
|
increased competition causing us to reduce the prices of our
products or to increase significantly our marketing efforts in
order to avoid losing market share;
|
|
|
|
our ability to effectively market and maintain a positive brand
image;
|
|
|
|
our ability to maintain recent levels of comparable store sales
or average sales per square foot;
|
|
|
|
our ability to continually innovate and provide our consumers
with improved products;
|
|
|
|
the ability of our suppliers or manufacturers to produce or
deliver our products in a timely or cost-effective manner;
|
|
|
|
our lack of long-term supplier contracts;
|
|
|
|
our lack of patents or exclusive intellectual property rights in
our fabrics and manufacturing technology;
|
|
|
|
our ability to attract and maintain the services of our senior
management and key employees;
|
|
|
|
the availability and effective operation of management
information systems and other technology;
|
|
|
|
changes in consumer preferences or changes in demand for
technical athletic apparel and other products;
|
|
|
|
our ability to accurately forecast consumer demand for our
products;
|
|
|
|
our ability to accurately anticipate and respond to seasonal or
quarterly fluctuations in our operating results;
|
|
|
|
our ability to find suitable joint venture partners and expand
successfully outside North America;
|
16
|
|
|
|
|
our ability to maintain effective internal controls; and
|
|
|
|
changes in general economic or market conditions, including as a
result of political or military unrest or terrorist attacks.
|
Although we believe that the assumptions inherent in the
forward-looking statements contained in this
Form 10-Q
are reasonable, undue reliance should not be placed on these
statements, which only apply as of the date hereof. In addition
to the assumptions specifically identified herein, assumptions
have been made regarding, among other things:
|
|
|
|
|
the continued and growing demand for our products;
|
|
|
|
the impact of competition;
|
|
|
|
the ability to obtain and maintain existing financing on
acceptable terms; and
|
|
|
|
currency exchange and interest rates.
|
The forward-looking statements contained in this
Form 10-Q
reflect our views and assumptions only as of the date of this
Form 10-Q
and are expressly qualified in their entirety by the cautionary
statements included in this
Form 10-Q.
The following discussion should be read in conjunction with our
unaudited condensed interim financial statements and this
Managements Discussion and Analysis of Financial Condition
and Results of Operations should be read in conjunction with the
financial statements and notes thereto for the year ended
January 31, 2007 and the related Managements
Discussion and Analysis of Financial Condition and Results of
Operations, both of which are contained in our Prospectus filed
pursuant to Rule 424(b) under the Securities Act with the
Securities and Exchange Commission on July 27, 2007, and
the unaudited condensed consolidated financial statements and
notes thereto included elsewhere in this Quarterly Report on
Form 10-Q.
Except as required by applicable securities law, we undertake no
obligation to update any forward-looking statement to reflect
events or circumstances after the date on which the statement is
made or to reflect the occurrence of unanticipated events.
Overview
We believe lululemon is one of the fastest growing designers and
retailers of technical athletic apparel in North America.
Our yoga-inspired apparel is marketed under the lululemon
athletica brand name. We offer a comprehensive line of apparel
and accessories including fitness pants, shorts, tops and
jackets designed for athletic pursuits such as yoga, dance,
running and general fitness. As of October 31, 2007, our
branded apparel was principally sold through 70 corporate-owned
and franchise stores that are primarily located in Canada and
the United States. We believe our vertical retail strategy
allows us to interact more directly with and gain insights from
our customers while providing us with greater control of our
brand. For the first nine months of fiscal 2007, 81.5% of our
net revenue was derived from sales of our products in Canada,
17.2% of our net revenue was derived from the sales of our
products in the United States and 1.3% of our net revenue was
derived from sales of our products in Australia and Japan.
Our net revenue has grown from $40.7 million for fiscal
2004 to $148.9 million for fiscal 2006. This represents a
compound annual growth rate of 91.1%. Our net revenue also
increased from $36.0 million for the third quarter of
fiscal 2006 to $66.2 million for the third quarter of
fiscal 2007, representing a 83.9% increase. By the end of fiscal
2004, we operated 20 stores including 14 corporate-owned stores
and six franchise stores in Canada, the United States and
Australia. The majority of our stores were located in Canada,
with only three corporate-owned stores in the United States and
one franchise store in Australia. Our increase in net revenue
from fiscal 2004 to fiscal 2006 resulted from the addition of 17
retail locations in fiscal 2005 and 14 retail locations in
fiscal 2006 and strong comparable store sales growth of 19% and
25% in fiscal 2005 and fiscal 2006, respectively. Our ability to
open new stores and grow sales in existing stores has been
driven by increasing demand for our technical athletic apparel
and a growing recognition of the lululemon athletica brand. We
believe our superior products, strategic store locations,
inviting store environment, grassroots marketing approach and
distinctive corporate culture are responsible for our strong
financial performance.
The two most important determinants of our future net revenue,
earnings and cash flow growth are the successful expansion of
our corporate-owned store base and increases in comparable store
sales. Though we expect
17
continued growth in net revenues, we expect our growth rate to
decline in the future relative to the rate of growth we have
experienced in historical periods as incremental revenue is
measured against a larger revenue base. Moreover, we expect a
significant portion of our new store growth to be concentrated
in the United States. While we believe there is a significant
opportunity to expand our store base in the United States, our
brand is still relatively new in the United States and,
therefore, our success is uncertain. To help manage our growth
in the United States, we have hired senior-level employees over
the last eighteen months with experience in the United States
retail environment. Additionally, we are focused on continuing
to grow our comparable store sales by increasing brand awareness
through our community-based marketing efforts, developing
innovative technical athletic apparel that our customers demand
and offering a distinctive retail experience. Future comparable
store sales growth will depend on our ability to continue to
attract and retain motivated corporate and store-level employees
that are passionate about the lululemon athletica vision. Other
external factors that could affect our net revenue, earnings and
cash flows, though to a lesser degree than the factors above,
include fluctuations in currency exchange rates and general
economic conditions in our target markets.
lululemon was founded in 1998 by Dennis Chip Wilson
in Vancouver, Canada. lululemon athletica inc. (formerly known
as Lululemon Corp. and before that as Lulu Holding, Inc.) is the
holding company for all our related entities, including our two
primary operating companies lululemon usa inc. and lululemon
athletica canada inc. On August 2, 2007 lululemon athletica
inc. completed an initial public offering.
We have three reportable segments: corporate-owned stores,
franchises and other. We report our segments based on the
financial information we use in managing our businesses. While
we receive financial information for each corporate-owned store,
we have aggregated all of the corporate-owned stores into one
reportable segment due to the similarities in the economic and
other characteristics of these stores. Our franchises segment
accounted for more than 10% of our net revenues for each of
fiscal 2005 and fiscal 2006 and 7.4% of our net revenues for the
first nine months of fiscal 2007. Opening new franchise stores
is not a significant part of our near-term store growth
strategy, and we therefore expect that if the revenue derived
from our franchise stores continues to comprise less than 10% of
the net revenue we report in future fiscal years. Our other
operations accounted for less than 10% of our revenues in each
of fiscal 2005 and fiscal 2006 and 3.6% of our revenues for the
first nine months of fiscal 2007.
As of October 31, 2007, we sold our products through 62
corporate-owned stores located in Canada, the United States
and Japan. Most of our corporate-owned stores are located in
North America, with only four corporate-owned stores located in
Japan. We plan to increase our net revenue in North America by
opening additional corporate-owned stores in new and existing
markets. Corporate-owned stores net revenue accounted for 81.1%
of total net revenue for fiscal 2006 and 89.0% of total net
revenue for the first nine months of fiscal 2007.
As of October 31, 2007, we also had 6 franchise stores
located in North America and 2 franchise stores located in
Australia. In the past, we have entered into franchise
agreements to distribute lululemon athletica branded products to
more quickly disseminate our brand name and increase our net
revenue and net income. In exchange for the use of our brand
name and the ability to operate lululemon athletica stores in
certain regions, our franchisees generally pay us a one-time
franchise fee and ongoing royalties based on their gross
revenue. Additionally, unless otherwise approved by us, our
franchisees are required to sell only lululemon athletica
branded products, which are purchased from us at a discount to
the suggested retail price. Pursuing new franchise partnerships
or opening new franchise stores is not a significant part of our
near-term store growth strategy. In some cases, we may exercise
our contractual rights to purchase franchises where it is
attractive to us. Franchises net revenue accounted for 14.3% of
total net revenue for fiscal 2006 and 7.4% of total net revenue
for the first nine months of fiscal 2007.
We believe that our athletic apparel has and will continue to
appeal to consumers outside of North America who value its
technical attributes as well as its function and style. In 2004,
we opened our first franchise store in Australia. In the second
quarter of fiscal 2007 we opened our second franchise store in
Australia. We intend to convert the Australian franchise
operations into a joint venture partnership. In 2005, we opened
a franchise store in Japan. In 2006, we terminated our franchise
arrangement and entered into a joint venture agreement with
Descente Ltd, or Descente, a global leader in fabric technology,
to operate our stores in Japan. This joint venture company is
named Lululemon Japan Inc. As of October 31, 2007, we
operated four stores through Lululemon Japan Inc. Because we own
60% of the joint venture and maintain control over it, the
financial results of Lululemon Japan Inc. are consolidated and
included in our corporate-owned stores segment. We plan to
increase net revenue in markets
18
outside of North America primarily by opening additional stores
with joint venture partners in existing markets as well as
opening stores in new markets with new joint venture partners.
In addition to deriving revenue from sales through our
corporate-owned stores and our franchises, we also derive other
net revenue, which includes the sale of our products directly to
wholesale customers, telephone sales to retail customers,
including related shipping and handling charges, warehouse sales
and sales through a limited number of company operated
showrooms. Wholesale customers include select premium yoga
studios, health clubs and fitness centers. Telephone sales are
taken directly from retail customers through our call center.
Warehouse sales are typically held at one or more times a year
to sell slow moving inventory or inventory from prior seasons to
retail customers at discounted prices. Our showrooms are
typically small locations that we open from time to time when we
enter new markets and feature a limited selection of our product
offering during select hours. Other net revenue accounted for
4.6% of total net revenue for fiscal 2006 and 3.6% of total net
revenue for the first nine months of fiscal 2007.
We believe that a number of trends relevant to our industry have
affected our results and may continue to do so. Specifically, we
believe that there is an increasing appreciation for the health
benefits of yoga and related fitness activities in our markets
and that women, our primary customers, are increasingly
embracing an active healthy lifestyle. As such, we believe that
participation in yoga and related fitness activities will
continue to grow. There is also an increasing demand for
technical athletic apparel relative to traditional athletic
apparel, and we believe that more people are wearing technical
apparel in casual environments to create a healthy lifestyle
perception. The duration and extent of these trends, however, is
unknown, and adverse changes in these trends may negatively
impact our net revenue, earnings or cash flows.
For fiscal years through fiscal 2006, our fiscal year ends on
January 31st in the year following the year mentioned.
Commencing with fiscal 2007, our fiscal year will end on the
first Sunday following January 30th in the year following the
year mentioned.
Results
of Operations
Three
months ended October 31, 2007 compared to three months
ended October 31, 2006
The following table summarizes key components of our results of
operations for the three months ended October 31, 2007 and
October 31, 2006. The operating results are expressed in
dollar amounts as well as relevant percentages, presented as a
percentage of net revenue.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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Three Months Ended October 31
|
|
|
|
2007
|
|
|
2006
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
(Percentages)
|
|
|
Net revenue
|
|
$
|
66,150
|
|
|
$
|
35,967
|
|
|
|
100.0
|
|
|
|
100.0
|
|
Cost of goods sold (including stock-based compensation expense
of $203 and $77)
|
|
|
30,270
|
|
|
|
17,227
|
|
|
|
45.8
|
|
|
|
47.9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
35,880
|
|
|
|
18,740
|
|
|
|
54.2
|
|
|
|
52.1
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses (including
stock-based compensation expense of $1,643 and $530)
|
|
|
24,051
|
|
|
|
14,046
|
|
|
|
36.4
|
|
|
|
39.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
|
11,829
|
|
|
|
4,694
|
|
|
|
17.9
|
|
|
|
13.1
|
|
Other expenses (income)
|
|
|
(419
|
)
|
|
|
(43
|
)
|
|
|
(0.6
|
)
|
|
|
(0.1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
12,248
|
|
|
|
4,737
|
|
|
|
18.5
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|
|
|
13.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes
|
|
|
4,763
|
|
|
|
3,131
|
|
|
|
7.2
|
|
|
|
8.7
|
|
Non-controlling interest
|
|
|
(84
|
)
|
|
|
(58
|
)
|
|
|
(0.1
|
)
|
|
|
(0.2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
7,569
|
|
|
$
|
1,664
|
|
|
|
11.4
|
|
|
|
4.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19
Net
Revenue
Net revenue increased $30.2 million, or 83.9%, to
$66.2 million for the third quarter of fiscal 2007 from
$36.0 million for the third quarter of fiscal 2006. This
increase was the result of increased comparable store sales, and
sales from new stores opened. Assuming the average exchange rate
between the Canadian and United States dollars for the third
quarter of fiscal 2006 remained constant, our net revenue would
have increased $25.5 million or 70.9% for the third quarter
of fiscal 2007.
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|
|
|
|
|
|
|
|
|
Three Months Ended October 31,
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Net revenue by segment:
|
|
|
|
|
|
|
|
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Corporate-owned stores
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|
$
|
59,935
|
|
|
$
|
29,144
|
|
Franchises
|
|
|
4,223
|
|
|
|
5,339
|
|
Other
|
|
|
1,992
|
|
|
|
1,484
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
66,150
|
|
|
$
|
35,967
|
|
Corporate-Owned Stores.
Net revenue from our
corporate-owned stores segment increased $30.8 million, or
105.6%, to $59.9 million for the third quarter of fiscal
2007 from $29.1 million for the third quarter of fiscal
2006. The following contributed to the $30.8 million
increase in net revenue from our corporate-owned stores segment.
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|
|
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Net revenue from corporate-owned stores we opened during the
third quarter, and therefore not included in the comparable
store sales growth, and corporate-owed stores we opened
subsequent to October 31, 2006 contributed
$14.2 million or 46.1% of the increase. New store openings
from the third quarter of fiscal 2006 included 6 stores in
Canada, 16 stores in the United States and 2 stores in
Japan.
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|
Comparable store sales growth of 36% in the third quarter of
fiscal 2007 contributed $10.4 million, or 33.8%, of the
increase. Assuming the average exchange rate between the
Canadian and the United States dollars for the third quarter of
fiscal 2006 remained constant our comparable store sales would
have increased 26% for the third quarter of fiscal 2007 and
contributed $7.4 million, or 23.9% of the increase. The
increase in comparable store sales was driven primarily by the
strength of our existing product lines, successful introduction
of new products and increasing recognition of the lululemon
athletica brand name.
|
|
|
|
The acquisition of three Calgary franchise stores in April 2007
contributed $6.2 million, or 20.1% of the increase.
|
Franchises.
Net revenue from our franchises
segment decreased $1.1 million, or 20.9%, to
$4.2 million for the third quarter of fiscal 2007 from
$5.3 million for the third quarter of fiscal 2006. The
decrease in net revenue from our franchises segment consisted
primarily of franchises net revenue of $2.7 million that
shifted to corporate-owned stores net revenue when we acquired
three franchise stores in Calgary offset by increased franchise
revenue of $1.6 million from our remaining franchise
locations.
Other.
Net revenue from our other segment
increased $0.5 million, or 34.2%, to $2.0 million for
the third quarter of fiscal 2007 from $1.5 million for the
third quarter of fiscal 2006. The $0.5 million increase was
primarily the result of increased wholesale, phone and showroom
sales.
Gross
Profit
Gross profit increased $17.1 million, or 91.5%, to
$35.9 million for the third quarter of fiscal 2007 from
$18.7 million for the third quarter of fiscal 2006. The
increase in gross profit was driven principally by:
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|
|
an increase of $30.8 million in net revenue from our
corporate-owned stores segment; and
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|
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an increase of $0.5 million in net revenue from our other
segment; and
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|
|
a decrease of $0.3 million in expenses related to
distribution costs.
|
20
This amount was partially offset by:
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|
|
|
an increase in product costs of $9.0 million associated
with our sale of goods through corporate-owned stores,
franchises and other segments;
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|
|
an increase in occupancy costs of $2.3 million related to
an increase in corporate-owned stores;
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|
|
an increase in depreciation of $1.1 million primarily
related to an increase in corporate-owned stores; and
|
|
|
|
a net increase in the raw materials provision of
$0.1 million and the finished goods provision of
$0.1 million recorded in current period from the
comparative period.
|
Gross profit as a percentage of net revenue, or gross margin,
increased 2.1% to 54.2% for the third quarter of fiscal 2007
from 52.1% for the third quarter of fiscal 2006. The increase in
gross margin resulted from:
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|
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a reduction in product costs as a percentage of net revenue that
contributed to an increase in gross margin of 1.6%; and
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|
|
a decrease in expenses related to our production, design,
merchandising and distribution departments (including
stock-based compensation expense) as a percentage of net revenue
from fiscal 2006 to fiscal 2007 which contributed to an increase
in gross margin of 1.6%.
|
This amount was partially offset by:
|
|
|
|
|
an increase in depreciation costs as a percentage of revenue
contributed to a decrease in gross margin of 1.0%.
|
Our costs of goods sold in the third quarter of fiscal 2007 and
the third quarter of fiscal 2006 included $0.2 million and
$0.1 million, respectively, of stock-based compensation
expense.
Selling,
General and Administrative Expenses
Selling, general and administrative expenses increased
$10.0 million, or 71.2%, to $24.1 million for the
third quarter of fiscal 2007 from $14.0 million for the
third quarter of fiscal 2006. As a percentage of net revenue;
selling, general and administrative expenses decreased 2.7% to
36.4% from 39.1%. The $10.0 million increase in selling,
general and administrative expenses was principally comprised of:
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|
|
|
|
an increase in store employee compensation of $4.4 million
or 103.4% related to opening additional corporate-owned stores;
|
|
|
|
an increase in other store operating expenses of
$2.8 million or 135.6% primarily related to packaging,
distribution, marketing and supplies;
|
|
|
|
an increase in corporate compensation of $2.6 million or
99.4% principally due to hiring of additional employees to
support our growth; and
|
|
|
|
an increase in other corporate expenses such as stock based
compensation, travel expenses and rent associated with corporate
facilities of $1.9 million or 81.9%.
|
This amount was partially offset by:
|
|
|
|
|
a decrease in professional fees of $0.3 million or 17.5%.
|
Our selling, general and administrative expenses in the third
quarter of fiscal 2007 and the third quarter of fiscal 2006
included $1.6 million and $0.5 million, respectively,
of stock-based compensation expense.
Income
from Operations
The increase of $7.1 million in income from operations for
the third quarter of fiscal 2007 was primarily due to a
$17.1 million increase in gross profit resulting from
increased comparable store sales and additional sales from
corporate-owned stores opened, partially offset by an increase
of $10.0 million in selling, general and administrative
expenses.
21
On a segment basis, we determine income from operations without
taking into account our general corporate expenses such as
corporate employee costs, travel expenses and corporate rent.
For purposes of our managements analysis of our financial
results, we have allocated some general product expenses to our
corporate-owned stores segment. For example, all expenses
related to our production, design and distribution departments
have been allocated to this segment.
Income from operations (before general corporate expenses) from:
|
|
|
|
|
our corporate-owned stores segment increased $10.5 million,
or 118.3%, to $19.3 million for the third quarter of fiscal
2007 from $8.8 million for the third quarter of fiscal 2006
primarily due to an increase in corporate-owned stores gross
profit of $17.7 million, offset by an increase of
$4.4 million in store employee expenses and an increase of
$2.8 million in other store expenses;
|
|
|
|
our franchises segment decreased $0.7 million, or 24.8%, to
$2.0 million for the third quarter of fiscal 2007 from
$2.7 million for the third quarter of fiscal 2006 primarily
from franchises income from operations of $1.3 million
included in the comparative period that shifted to
corporate-owned stores income from operations when we acquired
three franchise stores in Calgary which was partially offset by
an increase of $0.6 million in franchise income from
operations from our remaining franchise locations and new
locations; and
|
|
|
|
our other segment increased $0.1 million, or 12.3%, to
$0.9 million for the third quarter of fiscal 2007 from
$0.8 million for the third quarter of fiscal 2006 primarily
due to an increase in revenue of $0.5 million and an
increase of $0.4 million in product costs.
|
Other income, net increased $0.3 million to
$0.4 million for the third quarter of fiscal 2007 from
$0.1 million for the third quarter of fiscal 2006. The
increase was primarily due to interest income earned on higher
cash balances.
Provision
for Income Taxes
Provision for income taxes increased $1.6 million to
$4.8 million for the third quarter of fiscal 2007 from
$3.1 million for the third quarter of fiscal 2006. Our
effective tax rate was 38.9% compared to 66.1% for the third
quarter of fiscal 2006. In the third quarter of fiscal 2006, we
generated losses in the United States which we were unable to
offset against our income in Canada for tax purposes. In the
third quarter of fiscal 2006 and the third quarter of fiscal
2007, we also incurred stock-based compensation expenses of
$0.6 million and $1.8 million, respectively, which
were not deductible for tax purposes during these periods as
there were no option exercises.
Net
Income
Net income increased $5.9 million to $7.6 million for
the third quarter of fiscal 2007 from $1.7 million for the
third quarter of fiscal 2006. The increase in net income of
$5.9 million for the third quarter of fiscal 2007 was a
result of an increase in gross profit of $17.1 million
resulting from increased comparable store sales and additional
sales from corporate-owned stores opened, offset by increases in
selling, general and administrative expenses of
$10.0 million and an increase of $1.6 million in
provision for income taxes.
22
Nine
months ended October 31, 2007 compared to nine months ended
October 31, 2006
The following table summarizes key components of our results of
operations for the nine months ended October 31, 2007 and
October 31, 2006. The operating results are expressed in
dollar amounts as well as relevant percentages, presented as a
percentage of net revenue.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended October 31
|
|
|
|
2007
|
|
|
2006
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
(Percentages)
|
|
|
Net revenue
|
|
$
|
169,621
|
|
|
$
|
96,669
|
|
|
|
100.0
|
|
|
|
100.0
|
|
Cost of goods sold (including stock-based compensation expense
of $565 and $241)
|
|
|
79,682
|
|
|
|
47,506
|
|
|
|
47.0
|
|
|
|
49.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
89,939
|
|
|
|
49,163
|
|
|
|
53.0
|
|
|
|
50.9
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expenses (including
stock-based compensation expense of $4,250 and $1,513)
|
|
|
61,491
|
|
|
|
35,119
|
|
|
|
36.3
|
|
|
|
36.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations
|
|
|
28,448
|
|
|
|
14,044
|
|
|
|
16.8
|
|
|
|
14.5
|
|
Other expense (income), net
|
|
|
(596
|
)
|
|
|
(88
|
)
|
|
|
(0.4
|
)
|
|
|
(0.1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
29,044
|
|
|
|
14,132
|
|
|
|
17.1
|
|
|
|
14.6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes
|
|
|
13,010
|
|
|
|
7,405
|
|
|
|
7.7
|
|
|
|
7.7
|
|
Non-controlling interest
|
|
|
(200
|
)
|
|
|
(58
|
)
|
|
|
(0.1
|
)
|
|
|
(0.1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
16,234
|
|
|
$
|
6,785
|
|
|
|
9.6
|
|
|
|
7.0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
Revenue
Net revenue increased $73.0 million, or 75.5%, to
$169.6 million for the first nine months of fiscal 2007
from $96.7 million for the first nine months of fiscal
2006. This increase was the result of increased comparable store
sales and sales from new stores opened. Assuming the average
exchange rate between the Canadian and United States
dollars for the first nine months of fiscal 2006 remained
constant, our net revenue would have increased
$66.5 million or 68.8% for the first nine months of fiscal
2007.
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended October 31
|
|
|
|
2007
|
|
|
2006
|
|
|
|
(In thousands)
|
|
|
Net revenue by segment:
|
|
|
|
|
|
|
|
|
Corporate-owned stores
|
|
$
|
151,035
|
|
|
$
|
78,121
|
|
Franchises
|
|
|
12,541
|
|
|
|
14,185
|
|
Other
|
|
|
6,045
|
|
|
|
4,363
|
|
|
|
|
|
|
|
|
|
|
Net revenue
|
|
$
|
169,621
|
|
|
$
|
96,669
|
|
Corporate-Owned Stores.
Net revenue from our
corporate-owned stores segment increased $72.9 million, or
93.3%, to $151.0 million for the first nine months of
fiscal 2007 from $78.1 million for the first nine months of
fiscal 2006. The following contributed to the $72.9 million
increase in net revenue from our corporate-owned stores segment.
|
|
|
|
|
Net revenue from corporate-owned stores we opened during the
third quarter, and therefore not included in the comparable
store sales growth, and corporate-owed stores we opened
subsequent to October 31, 2006 contributed
$36.2 million or 46.1% of the increase. This consisted of
11 stores in Canada, 18 stores in the United States and 2 stores
in Japan.
|
23
|
|
|
|
|
Comparable store sales growth of 30% in the first nine months of
fiscal 2007 contributed $22.7 million, or 31.2%, of the
increase. Assuming the average exchange rate between the
Canadian and the United States dollars for the first nine months
of fiscal 2006 remained constant our comparable store sales
would have increased 24% for the first nine months of fiscal
2007 and contributed $18.5 million, or 25.4% of the
increase. The increase in comparable store sales was driven
primarily by the strength of our existing product lines,
successful introduction of new products and increasing
recognition of the lululemon athletica brand name.
|
|
|
|
The acquisition of three Calgary franchise stores in April 2007
contributed $14.0 million, or 19.2% of the increase.
|
Franchises.
Net revenue from our franchises
segment decreased $1.6 million, or 11.6%, to
$12.5 million for the first nine months of fiscal 2007 from
$14.2 million for the first nine months of fiscal 2006. The
decrease in net revenue from our franchises segment consisted
primarily of franchises net revenue of $5.6 million that
shifted to corporate-owned stores net revenue when we acquired
three franchise stores in Calgary offset by increased franchise
revenue of $4.0 million from our remaining franchise
locations.
Other.
Net revenue from our other segment
increased $1.7 million, or 38.5%, to $6.0 million for
the first nine months of fiscal 2007 from $4.4 million for
the first nine months of fiscal 2006. The $1.7 million
increase was primarily the result of increased wholesale, phone
and showroom sales.
Gross
Profit
Gross profit increased $40.8 million, or 82.9%, to
$89.9 million for the first nine months of fiscal 2007 from
$49.2 million for the first nine months of fiscal 2006. The
increase in gross profit was driven principally by:
|
|
|
|
|
an increase of $72.9 million in net revenue from our
corporate-owned stores segment; and
|
|
|
|
an increase of $1.7 million in net revenue from our other
segment.
|
This amount was partially offset by:
|
|
|
|
|
an increase in product costs of $22.8 million associated
with our sale of goods through corporate-owned stores,
franchises and other segments;
|
|
|
|
an increase in occupancy costs of $5.2 million related to
an increase in corporate-owned stores;
|
|
|
|
an increase in depreciation of $2.0 million primarily
related to an increase in corporate-owned stores;
|
|
|
|
a net increase in the raw materials provision of
$0.7 million and an increase of $0.2 million in
finished goods provision recorded in current period from the
comparative period; and
|
|
|
|
an increase of $0.5 million in expenses related to
distribution costs to support our growth.
|
Gross profit as a percentage of net revenue, or gross margin,
increased 2.1% to 53.0% for the first nine months of fiscal 2007
from 50.9% for the first nine months of fiscal 2006. The
increase in gross margin resulted from:
|
|
|
|
|
a reduction in product costs as a percentage of net revenue that
contributed to an increase in gross margin of 1.4%; and
|
|
|
|
a decrease in expenses related to our production, design,
merchandising and distribution departments (including
stock-based compensation expense) as a percentage of net revenue
from the first nine months of fiscal 2007 compared to the first
nine months of fiscal 2006 which contributed to an increase in
gross margin of 1.1%.
|
This amount was partially offset by:
|
|
|
|
|
an increase in store depreciation as a percentage of net revenue
from the first nine months of fiscal 2007 compared to the first
nine months of fiscal 2006 which contributed to a decrease in
gross margin of 0.3%.
|
Our costs of goods sold in the first nine months of fiscal 2007
and the first nine months of fiscal 2006 included
$0.6 million and $0.2 million, respectively, of
stock-based compensation expense.
24
Selling,
General and Administrative Expenses
Selling, general and administrative expenses increased
$26.4 million, or 75.1%, to $61.5 million for the
first nine months of fiscal 2007 from $35.1 million for the
first nine months of fiscal 2006. As a percentage of net
revenue, selling, general and administrative expenses remained
consistent at 36.3%. The $26.4 million increase in selling,
general and administrative expenses was principally comprised of:
|
|
|
|
|
an increase in store employee compensation of $10.3 million
or 88.5% related to opening additional corporate-owned stores;
|
|
|
|
an increase in corporate compensation of $8.0 million or
128.3% principally due to hiring of additional employees to
support our growth;
|
|
|
|
an increase in other store operating expenses of
$5.9 million or 133.0% primarily related to packaging,
distribution, marketing and supplies;
|
|
|
|
an increase in stock-based compensation expense of
$2.7 million or 181.0%; and
|
|
|
|
an increase in other corporate expenses such as travel expenses
and rent associated with corporate facilities of
$2.6 million or 59.0%.
|
This amount was partially offset by:
|
|
|
|
|
a decrease in professional fees of $1.9 million or 38.0%;
and
|
|
|
|
a foreign exchange gain of $0.9 million or 632.4%.
|
Our selling, general and administrative expenses in the first
nine months of fiscal 2007 and the first nine months of fiscal
2006 included $4.2 million and $1.5 million,
respectively, of stock-based compensation expense.
Income
from Operations
The increase of $14.4 million in income from operations for
the first nine months of fiscal 2007 was primarily due to a
$40.8 million increase in gross profit resulting from
increased comparable store sales and additional sales from
corporate-owned stores opened during fiscal 2006 and the first
nine months of fiscal 2007, partially offset by an increase of
$26.4 million in selling, general and administrative
expenses.
On a segment basis, we determine income from operations without
taking into account our general corporate expenses such as
corporate employee costs, travel expenses and corporate rent.
For purposes of our managements analysis of our financial
results, we have allocated some general product expenses to our
corporate-owned stores segment. For example, all expenses
related to our production, design and distribution departments
have been allocated to this segment.
Income from operations (before general corporate expenses) from:
|
|
|
|
|
our corporate-owned stores segment increased $24.7 million,
or 103.1%, to $48.7 million for the first nine months of
fiscal 2007 from $24.0 million for the first nine months of
fiscal 2006 primarily due to an increase in corporate-owned
stores gross profit of $41.0 million, offset by an increase
of $10.3 million in store employee expenses and an increase
of $5.9 million in other store expenses;
|
|
|
|
our franchises segment decreased $0.9 million, or 13.1%, to
$6.1 million for the first nine months of fiscal 2007 from
$7.0 million for the first nine months of fiscal 2006
primarily from franchises income from operations of
$2.6 million included in the comparative period that
shifted to corporate-owned stores income from operations when we
acquired three franchise stores in Calgary which was partially
offset by $1.6 million of increased franchise income from
operations from our remaining franchise locations; and
|
|
|
|
our other segment increased $0.7 million, or 34.7%, to
$2.8 million for the first nine months of fiscal 2007 from
$2.1 million for the first nine months of fiscal 2006
primarily due to an increase in revenue of $1.7 million and
an increase of $1.0 million in product costs.
|
Other income, net increased $0.4 million to
$0.5 million for the first nine months of fiscal 2007 from
$0.1 million for the first nine months of fiscal 2006. The
increase was primarily due to interest income earned on higher
cash balances.
25
Provision
for Income Taxes
Provision for income taxes increased $5.6 million to
$13.0 million for the first nine months of fiscal 2007 from
$7.4 million for the first nine months of fiscal 2006. For
the first nine months of fiscal 2007, our effective tax rate was
44.8% compared to 52.4% for the first nine months of fiscal
2006. In both the first nine months of fiscal 2006 and the first
nine months of fiscal 2007, we generated losses in the United
States which we were unable to offset against our income in
Canada for tax purposes. In the first nine months of fiscal 2006
and the first nine months of fiscal 2007, we also incurred
stock-based compensation expenses of $1.8 million and
$4.8 million, respectively, which were not deductible for
tax purposes during these periods.
Net
Income
Net income increased $9.4 million to $16.2 million for
the first nine months of fiscal 2007 from $6.8 million for
the first nine months of fiscal 2006. The increase in net income
of $9.4 million for the first nine months of fiscal 2007
was a result of an increase in gross profit of
$40.8 million resulting from increased comparable store
sales and additional sales from corporate-owned stores opened,
offset by increases in selling, general and administrative
expenses of $26.4 million and an increase of
$5.6 million in provision for income taxes.
Liquidity
and Capital Resources
Our cash requirements are principally for working capital and
capital expenditures, principally the build out cost of new
stores, renovations of existing stores, and improvements to our
distribution facility and corporate infrastructure. Our need for
working capital is seasonal, with the greatest requirements from
August through the end of November each year as a result of our
inventory
build-up
and
concentration of new store openings during this period for our
holiday selling season. Historically, our main sources of
liquidity have been cash flow from operating activities and
borrowings under our existing and previous revolving credit
facilities, and our initial public offering on August 2,
2007.
At October 31, 2007, our working capital (excluding cash
and cash equivalents) was $20.1 million and our cash and
cash equivalents were $36.3 million.
The following presents the major components of net cash flows
provided by and used in operating, investing and financing
activities for the periods indicated.
Operating
Activities
Operating Activities
consist primarily of net income
adjusted for certain non-cash items, including depreciation and
amortization, deferred income taxes, stock-based compensation
expense and the effect of the changes in non-cash working
capital items, principally accounts receivable, inventories,
accounts payable and accrued expenses.
For the nine months ended October 31, 2007, cash provided
by operating activities increased $1.7 million to
$10.5 million compared to cash provided by operating
activities of $8.8 million in the nine months ended
October 31, 2006. The $1.7 million increase was
primarily a result of:
|
|
|
|
|
an increase in net income of $9.4 million; and
|
|
|
|
an increase in items not affecting cash of $9.3 million.
|
This amount was partially offset by a net decrease in other
working capital balances of $17.1 million primarily due to
an increase in inventories of $16.2 million, an increase in
income taxes payable of $14.8 million and an increase of
$2.2 million in tenant inducement receivable offset by an
increase in trade accounts payable of $8.9 million, an
increase in other
non-cash
balances of $2.6 million, an increase in other current
liabilities of $3.1 million and an increase in accrued
liabilities of $0.7 million.
Investing
Activities
Investing Activities
relate entirely to capital
expenditures and acquisitions of franchises. Cash used in
investing activities increased $14.6 million to
$24.7 million for the nine months ended October 31,
2007 from $10.1 million
26
for the nine months ended October 31, 2006. The
$14.6 million increase was a result of our
$5.6 million acquisition of three franchise stores in
Calgary compared to our acquisition of one franchise store in
Portland for $0.5 million during the comparative period and
an increase in the purchase of property and equipment resulting
primarily from new store openings and IT capital expenditures of
$9.6 million.
Financing
Activities
Financing Activities
consist primarily of proceeds
received from out initial public offering on August 2,
2007. Cash provided by financing activities increased to
$32.0 million for the nine months ended October 31,
2007 from $0.6 million for the nine months ended
October 31, 2006.
We believe that our cash from operations, proceeds from our
initial public offering and borrowings available to us under our
revolving credit facility, will be adequate to meet our
liquidity needs and capital expenditure requirements for at
least the next 24 months. Our cash from operations may be
negatively impacted by a decrease in demand for our products as
well as the other factors described in Risk Factors.
In addition, we may make discretionary capital improvements with
respect to our stores, distribution facility, headquarters, or
other systems, which we would expect to fund through the
issuance of debt or equity securities or other external
financing sources to the extent we were unable to fund such
capital expenditures out of our cash from operations.
Seasonality
In fiscal 2005 and fiscal 2006, we recognized over 35% of our
net revenue in the fourth quarter due to significant increases
in sales during the holiday season. We recognized 48.8% and
11.5% of our net income in the fourth quarter in fiscal 2005 and
fiscal 2006, respectively. The amount of net income attributable
to the fourth quarter in fiscal 2006 was substantially impacted
by a lawsuit expense of $7.2 million that was accrued for
in the fourth quarter of fiscal 2006. Despite the fact that we
have experienced a significant amount of our net revenue and net
income in the fourth quarter of our fiscal year, we believe that
the true extent of the seasonality or cyclical nature of our
business may have been overshadowed by our rapid growth to date.
The level of our working capital reflects the seasonality of our
business. We expect inventory, accounts payable and accrued
expenses to be higher in the third and fourth quarters in
preparation for the holiday selling season. Because our products
are sold primarily through our stores, order backlog is not
material to our business.
Revolving
Credit Facility
In April 2007, the Company executed a new credit facility with
the Royal Bank that provided for a CA$20,000,000 uncommitted
demand revolving credit facilities to fund the working capital
requirements of the Company. This agreement cancels the previous
CA$8,000,000 credit facility. Borrowings under the uncommitted
credit facilities are made on a
when-and-as-needed
basis at the discretion of the Company.
Borrowings under the credit facility can be made either as
i)
Revolving Loans
Revolving loan
borrowings will bear interest at a rate equal to the Banks
CA$ or US$ annual base rate (defined as zero% plus the
lenders annual prime rate) per annum, ii)
Offshore
Loans
Offshore rate loan borrowings will bear
interest at a rate equal to a base rate based upon LIBOR for the
applicable interest period, plus 1.125 percent per annum,
iii)
Bankers Acceptances
Bankers
acceptance borrowings will bear interest at the bankers
acceptance rate plus 1.125 percent per annum and
iv)
Letters of Credit and Letters of
Guarantee
Borrowings drawn down under letters of
credit or guarantee issued by the banks will bear a
1.125 percent per annum fee.
At October 31, 2007, there were $nil USD of borrowings
outstanding under this credit facility.
Off-Balance
Sheet Arrangements
We enter into documentary letters of credit to facilitate the
international purchase of merchandise. We also enter into
standby letters of credit to secure certain of our obligations,
including insurance programs and duties related to import
purchases. As of October 31, 2007, letters of credit and
letters of guaranty totaling $0.8 million have been issued.
Other than these standby letters of credit, we do not have any
off-balance sheet arrangements, investments in special purpose
entities or undisclosed borrowings or debt. In addition, we have
not entered into any derivative contracts or synthetic leases.
27
Critical
Accounting Policies
The preparation of financial statements in conformity with
U.S. generally accepted accounting principles requires
management to make estimates and assumptions. Predicting future
events is inherently an imprecise activity and, as such,
requires the use of judgment. Actual results may vary from
estimates in amounts that may be material to the financial
statements. An accounting policy is deemed to be critical if it
requires an accounting estimate to be made based on assumptions
about matters that are highly uncertain at the time the estimate
is made, and if different estimates that reasonably could have
been used, or changes in the accounting estimates that are
reasonably likely to occur periodically, could materially impact
our consolidated financial statements. Our critical accounting
policies and estimates are discussed in our recently filed
Registration Statement on
Form S-1
(file
no. 333-142477)
and in Note 2 included in Item 1 of Part I of
this Quarterly Report on
Form 10-Q.
We believe that there have been no other significant changes
during the three months ended October 31, 2007 to our
critical accounting policies.
Operating
Locations
Our operating locations by country, state and province as of
October 31, 2007, and the overall totals as of
October 31, 2007, are summarized in the table below.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of Operating
|
|
|
|
|
|
|
Locations
|
|
|
|
|
Country, Province/State
|
|
Corporate
|
|
|
Franchise
|
|
|
Total
|
|
|
Canada
|
|
|
|
|
|
|
|
|
|
|
|
|
Alberta
|
|
|
7
|
|
|
|
|
|
|
|
7
|
|
British Columbia
|
|
|
9
|
|
|
|
2
|
|
|
|
11
|
|
Manitoba
|
|
|
1
|
|
|
|
|
|
|
|
1
|
|
Ontario
|
|
|
15
|
|
|
|
|
|
|
|
15
|
|
Quebec
|
|
|
4
|
|
|
|
|
|
|
|
4
|
|
Saskatchewan
|
|
|
|
|
|
|
1
|
|
|
|
1
|
|
Total Canadian
|
|
|
36
|
|
|
|
3
|
|
|
|
39
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
United States
|
|
|
|
|
|
|
|
|
|
|
|
|
California
|
|
|
11
|
|
|
|
1
|
|
|
|
12
|
|
Colorado
|
|
|
|
|
|
|
1
|
|
|
|
1
|
|
Florida
|
|
|
2
|
|
|
|
|
|
|
|
2
|
|
Illinois
|
|
|
2
|
|
|
|
|
|
|
|
2
|
|
Massachusetts
|
|
|
2
|
|
|
|
|
|
|
|
2
|
|
New York
|
|
|
1
|
|
|
|
|
|
|
|
1
|
|
Oregon
|
|
|
1
|
|
|
|
|
|
|
|
1
|
|
Texas
|
|
|
1
|
|
|
|
|
|
|
|
1
|
|
Virginia
|
|
|
2
|
|
|
|
|
|
|
|
2
|
|
Washington
|
|
|
|
|
|
|
1
|
|
|
|
1
|
|
Total United States
|
|
|
22
|
|
|
|
3
|
|
|
|
25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
International
|
|
|
|
|
|
|
|
|
|
|
|
|
Australia
|
|
|
|
|
|
|
2
|
|
|
|
2
|
|
Japan
|
|
|
4
|
|
|
|
|
|
|
|
4
|
|
Total International
|
|
|
4
|
|
|
|
2
|
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Overall total, as of October 31, 2007
|
|
|
62
|
|
|
|
8
|
|
|
|
70
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Overall total, as of January 31, 2007
|
|
|
41
|
|
|
|
10
|
|
|
|
51
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28
|
|
ITEM 3.
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
Market risk represents the risk of loss that may impact our
financial position due to adverse changes in financial market
prices and rates. Our market risk exposure is primarily a result
of fluctuations in interest rates and foreign currency exchange
rates. We do not hold or issue financial instruments for trading
purposes.
Foreign Currency Exchange Risk.
We currently
generate a majority of our net revenue in Canada. The reporting
currency for our consolidated financial statements is the
U.S. dollar. Historically, our operations were based
largely in Canada. As of October 31, 2007, we operated 36
stores in Canada and 4 stores in Japan. As a result, we have
been impacted by changes in exchange rates and may be impacted
materially for the foreseeable future. For example, because we
recognize net revenue from sales in Canada in Canadian dollars,
if the U.S. dollar strengthens it would have a negative
impact on our Canadian operating results upon translation of
those results into U.S. dollars for the purposes of
consolidation. The exchange rate of the Canadian dollar against
the U.S. dollar is currently near a multi-year high. Any
hypothetical loss in net revenue could be partially or
completely offset by lower cost of sales and lower selling,
general and administrative expenses that are generated in
Canadian dollars. A 10% appreciation in the relative value of
the U.S. dollar compared to the Canadian dollar would have
resulted in lost income from operations of approximately
$3.3 million for the first nine months of fiscal 2007. To
the extent the ratio between our net revenue generated in
Canadian dollars increases as compared to our expenses generated
in Canadian dollars, we expect that our results of operations
will be further impacted by changes in exchange rates. We do not
currently hedge foreign currency fluctuations. However, in the
future, in an effort to mitigate losses associated with these
risks, we may at times enter into derivative financial
instruments, although we have not historically done so. These
may take the form of forward sales contracts and option
contracts. We do not, and do not intend to, engage in the
practice of trading derivative securities for profit.
Interest Rate Risk.
In April 2007, we entered
into an uncommitted senior secured demand revolving credit
facility with Royal Bank of Canada which replaces our existing
credit facility. Because our revolving credit facility bears
interest at a variable rate, we will be exposed to market risks
relating to changes in interest rates, if we have a meaningful
outstanding balance. At October 31, 2007, we had no
outstanding borrowings on our revolving facility. We do not
believe we are significantly exposed to changes in interest rate
risk. We currently do not engage in any interest rate hedging
activity and currently have no intention to do so in the
foreseeable future. However, in the future, if we have a
meaningful outstanding balance, in an effort to mitigate losses
associated with these risks, we may at times enter into
derivative financial instruments, although we have not
historically done so. These may take the form of forward sales
contracts, option contracts, and interest rate swaps. We do not,
and do not intend to, engage in the practice of trading
derivative securities for profit.
|
|
ITEM 4.
|
CONTROLS
AND PROCEDURES
|
Disclosure
Controls and Procedures
(a) Evaluation of Disclosure Controls and Procedures
We carried out an evaluation, under the supervision and with the
participation of our management, including our principal
executive officer and principal financial officer, of the
effectiveness of the design and operation of our disclosure
controls and procedures as such term is defined under
Rule 13a-15(e)
promulgated under the Securities Exchange Act of 1934, as
amended (Exchange Act), as of the end of the period covered by
this report. Based on that evaluation, our management with the
participation of our principal executive officer and principal
financial officer concluded that these controls and procedures
are effective as of the end of the period covered by this report
to ensure that information required to be disclosed by us in
reports that we file or submit under the Exchange Act is
recorded, processed, summarized and reported within the time
periods specified in SEC rules and forms and that information
required to be disclosed is accumulated and communicated to our
management, including our principal executive officer and
principal financial officer, as appropriate to allow timely
decisions regarding required disclosure.
(b) Changes in Internal Control Over Financial Reporting
There was no change in our internal control over financial
reporting that occurred during our last fiscal quarter that has
materially affected, or is reasonably likely to materially
affect, our internal control over financial reporting.
29
PART II
OTHER INFORMATION
|
|
ITEM 1.
|
LEGAL
PROCEEDINGS
|
The Company is, from time to time, involved in routine legal
matters incidental to its business. Management believes that the
ultimate resolution of any such current proceedings will not
have a material adverse effect on the Companys continued
financial position, results of operations or cash flows. Refer
to note 5 of the interim consolidated financial statements
for information regarding specific legal proceedings.
In addition to other information set forth in this report, you
should carefully consider the risk factors discussed in our
Registration Statement on
Form S-1
(file
no. 333-142477).
There have been no material changes to the risk factors
previously disclosed in our Registration Statement on
Form S-1
(file
no. 333-142477),
except as noted below.
Our stock
price has been volatile and your investment in our common stock
could suffer a decline in value.
The market price of our common stock has been subject to
significant fluctuations and may continue to fluctuate or
decline. Since our initial public offering in August 2007, the
price of our common stock has ranged from a low of $24.92 to a
high of $60.70 on the Nasdaq Global Select Market and from a low
of CDN $26.40 to a high of CDN $58.77 on the Toronto Stock
Exchange. More recently, from October 22, 2007 to
November 26, 2007, our common stock has been particularly
volatile as the price of our common stock has ranged from a low
of $33.80 to a high of $60.70 on the Nasdaq Global Select Market
and from a low of CDN $33.36 to a high of CDN $58.77 on the
Toronto Stock Exchange. Broad market and industry factors may
harm the price of our common stock, regardless of our actual
operating performance. Factors that could cause fluctuation in
the price of our common stock may include, among other things:
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|
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|
actual or anticipated fluctuations in quarterly operating
results or other operating metrics, such as comparable store
sales, that may be used by the investment community;
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|
|
|
changes in financial estimates by us or by any securities
analysts who might cover our stock;
|
|
|
|
speculation about our business in the press or the investment
community;
|
|
|
|
conditions or trends affecting our industry or the economy
generally, including fluctuations in foreign currency exchange
rates;
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|
|
|
stock market price and volume fluctuations of other publicly
traded companies and, in particular, those that are in the
technical athletic apparel industry;
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|
|
|
announcements by us or our competitors of new products,
significant acquisitions, strategic partnerships or divestitures;
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|
|
changes in product mix between high and low margin products;
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|
capital commitments;
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|
our entry into new markets;
|
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|
|
timing of new store openings;
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|
|
percentage of sales from new stores versus established stores;
|
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|
|
additions or departures of key personnel;
|
|
|
|
actual or anticipated sales of our common stock, including sales
by our directors, officers or significant stockholders;
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|
|
significant developments relating to our manufacturing,
distribution, joint venture or franchise relationships;
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30
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|
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|
|
customer purchases of new products from us and our competitors;
|
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|
|
investor perceptions of the apparel industry in general and our
company in particular;
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|
|
major catastrophic events;
|
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|
|
volatility in our stock price, which may lead to higher
stock-based compensation expense under applicable accounting
standards;
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|
changes in accounting standards, policies, guidance,
interpretation or principles; and
|
|
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|
speculative trading of our common stock in the investment
community.
|
In the past, securities class action litigation has often been
instituted against companies following periods of volatility in
their stock price. This type of litigation, even if it does not
result in liability for us, could result in substantial costs to
us and divert managements attention and resources.
Failure
to comply with trade and other regulations could lead to
investigations or actions by government regulators and negative
publicity.
The labeling, distribution, importation and sale of our products
are subject to extensive regulation by various federal agencies,
including the Federal Trade Commission, or FTC, state attorneys
general in the U.S., the Competition Bureau and Health Canada in
Canada as well as by various other federal, state, provincial,
local and international regulatory authorities in the countries
in which our products are distributed or sold. If we fail to
comply with those regulations, we could become subject to
significant penalties or claims, which could harm our results of
operations or our ability to conduct our business. In addition,
the adoption of new regulations or changes in the interpretation
of existing regulations may result in significant compliance
costs or discontinuation of product sales and may impair the
marketing of our products, resulting in significant loss of net
sales.
In addition, our failure to comply with FTC or state
regulations, or with regulations in foreign markets that cover
our product claims and advertising, including direct claims and
advertising by us, may result in enforcement actions and
imposition of penalties or otherwise harm the distribution and
sale of our products.
Our business depends on a strong brand, and if we are not
able to maintain and enhance our brand we may be unable to sell
our products, which would harm our business and cause the
results of our operations to suffer.
We believe that the brand image we have developed has
significantly contributed to the success of our business. We
also believe that maintaining and enhancing the lululemon
athletica brand is critical to maintaining and expanding our
customer base. Maintaining and enhancing our brand may require
us to make substantial investments in areas such as research and
development, store operations, community relations and employee
training, and these investments may not be successful. As of
October 31, 2007, our brand is sold in only 19 cities
in Canada, 23 cities in the United States, 2 metropolitan
areas in Australia and 2 metropolitan areas in Japan. A primary
component of our strategy involves expanding into other
geographic markets, particularly within the United States. As we
expand into new geographic markets, consumers in these markets
may not accept our brand image and may not be willing to pay a
premium to purchase our technical athletic apparel as compared
to traditional athletic apparel. We anticipate that, as our
business expands into new markets and as the market becomes
increasingly competitive, maintaining and enhancing our brand
may become increasingly difficult and expensive. Conversely, as
we penetrate these markets and our brand becomes more widely
available, it could potentially detract from the appeal stemming
from the scarcity of our brand. Our brand may also be adversely
affected if our public image or reputation is tarnished by
negative publicity. Maintaining and enhancing our brand will
depend largely on our ability to be a leader in the athletic
apparel industry, to offer a unique store experience to our
customers and to continue to provide high quality products and
services, which we may not do successfully. If we are unable to
maintain or enhance our brand image our results of operations
may suffer and our business may be harmed.
31
We rely
on third-party suppliers to provide fabrics for and to produce
our products, and we have limited control over them and may not
be able to obtain quality products on a timely basis or in
sufficient quantity.
We do not manufacture our products or the raw materials for them
and rely instead on third-party suppliers. Many of the specialty
fabrics used in our products are technically advanced textile
products developed and manufactured by third parties and may be
available, in the short-term, from only one or a very limited
number of sources. For example, our Luon fabric, which is
included in many of our products, is supplied to the mills we
use by a single manufacturer in Taiwan, and the fibers used in
manufacturing our Luon fabric are supplied to our Taiwanese
manufacturer by a single company. In fiscal 2006, approximately
85% of our products were produced by our top ten manufacturing
suppliers.
If we experience significant increased demand, or need to
replace an existing manufacturer, there can be no assurance that
additional supplies of fabrics or raw materials or additional
manufacturing capacity will be available when required on terms
that are acceptable to us, or at all, or that any supplier or
manufacturer would allocate sufficient capacity to us in order
to meet our requirements or fill our orders in a timely manner.
Even if we are able to expand existing or find new manufacturing
or fabric sources, we may encounter delays in production and
added costs as a result of the time it takes to train our
suppliers and manufacturers in our methods, products and quality
control standards. Delays related to supplier changes could also
arise due to an increase in shipping times if new suppliers are
located farther away from our markets or from other participants
in our supply chain. Any delays, interruption or increased costs
in the supply of fabric or manufacture of our products could
have an adverse effect on our ability to meet customer demand
for our products and result in lower net revenue and income from
operations both in the short and long term.
In addition, there can be no assurance that our suppliers and
manufacturers will continue to provide fabrics and raw materials
or manufacture products that comply with our technical
specifications and are consistent with our standards. We have
occasionally received, and may in the future continue to
receive, shipments of products that fail to comply with our
technical specifications or that fail to conform to our quality
control standards. In that event, unless we are able to obtain
replacement products in a timely manner, we risk the loss of net
revenue resulting from the inability to sell those products and
related increased administrative and shipping costs.
Additionally, if defects in the manufacture of our products are
not discovered until after such products are purchased by our
customers, our customers could lose confidence in the technical
attributes of our products and our results of operations could
suffer and our business may be harmed.
32
|
|
ITEM 2.
|
UNREGISTERED
SALES OF EQUITY SECURITIES AND USE OF PROCEEDS.
|
On July 26, 2007 our registration statement on
Form S-1
covering the offering of 18,200,000 shares of our common
stock, par value $0.01 per share, commission file number
333-142477 was declared effective. We sold 2,290,909 shares
of common stock in the offering and the selling stockholders
sold 15,909,091 shares of common stock in the offering, not
including the over-allotment option. The offering closed on
August 2, 2007 and did not terminate before any securities
were sold. As of the date of filing this report the offering has
terminated and all of the securities registered pursuant to the
offering have been sold.
The offering was managed by Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Credit Suisse Securities (USA) LLC, UBS Securities LLC, William
Blair & Company LLC, CIBC World Markets Corp.,
Wachovia Capital Markets LLC and Thomas Weisel Partners LLC, as
representatives of the several underwriters named in the
Registration Statement (the Underwriters).
The Underwriters exercised an over-allotment option to purchase
an additional 2,730,000 shares of our common stock from
certain selling stockholders on August 2, 2007. The total
price to the public for the shares offered and sold in the
offering, including the over-allotment, was $376,740,000.
The amount of expenses (in thousands) incurred for the
Companys account in connection with the offering is as
follows:
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|
|
|
|
|
|
(in thousands)
|
|
|
Underwriting discounts and commissions
|
|
$
|
2,887
|
|
Finders Fees
|
|
|
|
|
Expenses paid to or for our underwriters
|
|
|
|
|
Other expenses
|
|
|
6,864
|
|
Total expenses
|
|
|
9,751
|
|
The foregoing expenses are a reasonable estimate of the expenses
incurred by us in the initial public offering and do not
represent the exact amount of expenses incurred.
The net proceeds of the offering including the over-allotment
option, to us (after deducting the foregoing expenses) were
$31,485,939. Since August 2, 2007, the settlement date of
the offering, we have used approximately $26.9 million of
the net proceeds for capital expenditures, including new store
openings, and inventory purchases. The remainder of the net
proceeds have been utilized as temporary investments in cash and
cash equivalents.
All of the foregoing expenses were direct or indirect payments
to persons other than (i) our directors, officers or any of
their associates; (ii) persons owning ten (10%) or more of
our common stock; or (iii) our affiliates.
There has been no material change in the planned use of proceeds
from our initial public offering as described in our final
prospectus filed with the SEC pursuant to Rule 424(b).
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|
ITEM 3.
|
DEFAULTS
UPON SENIOR SECURITIES
|
Not applicable.
|
|
ITEM 4.
|
SUBMISSION
OF MATTERS TO A VOTE OF SECURITY HOLDERS
|
On September 28, 2007 we held a special meeting of
stockholders.
At the Special Meeting, our Stockholders voted on the adoption
of the lululemon athletica inc. 2007 Employee Share
Purchase Plan as follows:
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|
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|
Votes
|
|
For
|
|
|
57,673,366
|
Against
|
|
|
3,259,907
|
Abstain
|
|
|
2,126
|
Broker Non-Votes
|
|
|
0
|
33
|
|
ITEM 5.
|
OTHER
INFORMATION
|
(a) In fiscal 2005, in connection with the commencement of
his employment, Robert Meers, our Chief Executive Officer, was
granted an option to acquire common stock of each of our
principal operating subsidiaries. In each case, 60% of those
options were subject to time-based vesting, based on
Mr. Meers continued service to us and our affiliates,
and 40% of those options were subject to performance-based
vesting, based on the returns realized by certain of our
institutional investors in connection with a sale of our assets
or a sale of more than 80% of the shares held by those investors
in one transaction or a series of transactions.
In connection with our pre-initial public offering
reorganization, those subsidiary options were replaced by
options to acquire 2,285,422 and 501,802 of our common stock at
an exercise price of $0.60 and $0.49, respectively. This
substitution preserved the aggregate option exercise price,
option spread, vesting conditions, duration and all other
material terms of the original awards.
In November 2007, in recognition of the fact that the original
option agreements were prepared at the time the Company was not
a publicly traded company and contained provisions more suitable
for a private company than a public company, we agreed with
Mr. Meers to modify the replacement options. Consistent
with current best practices in corporate governance applicable
to publicly traded companies, the options were amended to delete
drag-along provisions benefiting our institutional
investors, requiring Mr. Meers to participate in and otherwise
support change of control transactions favored by our
institutional investors. The options were amended to provide
that the return multiples that are the basis for vesting of the
performance-vested portions of the options may be realized in
multiple transactions, so long as the investors ultimately sell
80% of their shares (or realize a return equal to five times
their original investment, regardless of percentage of shares
sold). The remaining terms of those options are unchanged.
Copies of the restated option agreements are filed with this
Quarterly Report as Exhibits 10.1 and 10.2.
(b) In October 2007, the compensation plan for outside
directors was amended to provide pro rata grants of equity
awards for a director appointed or elected to the board of
directors between annual meetings of stockholders. A summary of
the outside director plan is filed with this Quarterly Report as
Exhibit 10.4.
(c) On November 27, 2007, our board of directors
approved a change in our fiscal year from the twelve months
ending on
January 31
st
of each year to a 52/53 week fiscal year ending on the first
Sunday following
January 30
th
of each year. The change in our fiscal year will take effect for
the current fiscal year and, therefore, there will be no
transition period in connection with this change of fiscal year
end. Our 2007 fiscal year will end on February 3, 2008 and
our 2008 fiscal year will end on February 1, 2009. The
remaining quarters in fiscal 2008 will be the thirteen weeks
ended May 4, 2008, the thirteen weeks ended August 3,
2008 and the thirteen weeks ended November 2, 2008.
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description
|
|
|
10
|
.1#
|
|
Non-Qualified Stock Option Award Agreement with Robert Meers to
purchase 2,285,422 shares of common stock under the lululemon
athletica inc. 2007 Equity Incentive Plan
|
|
10
|
.2#
|
|
Non-Qualified Stock Option Award Agreement with Robert Meers to
purchase 501,802 shares of common stock under the lululemon
athletica inc. 2007 Equity Incentive Plan
|
|
10
|
.3#
|
|
lululemon athletica inc. Employee Share Purchase Plan
|
|
10
|
.4
|
|
Outside Director Compensation Plan
|
|
31
|
.1
|
|
Certification by Chief Executive Officer Pursuant to Exchange
Act
Rule 13a-14(a)
|
|
31
|
.2
|
|
Certification by Chief Financial Officer Pursuant to Exchange
Act
Rule 13a-14(a)
|
|
32
|
.1
|
|
Certification of Chief Executive Officer and Chief Financial
Officer Pursuant to 18 U.S.C. Section 1350 as Adopted
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
|
|
#
|
|
Indicates management contract or compensatory plan
|
34
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
|
|
|
|
|
lululemon athletica inc.
|
|
|
|
Dated: November 29, 2007
|
|
By: */s/
John Currie
JOHN
CURRIE
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
|
35
Exhibit Index
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Document
|
|
|
10
|
.1#
|
|
Non-Qualified Stock Option Award Agreement with Robert Meers to
purchase 2,285,422 shares of common stock under the
lululemon athletica inc. 2007 Equity Incentive Plan
|
|
10
|
.2#
|
|
Non-Qualified Stock Option Award Agreement with Robert Meers to
purchase 501,802 shares of common stock under the lululemon
athletica inc. 2007 Equity Incentive Plan
|
|
10
|
.3#
|
|
lululemon athletica inc. Employee Share Purchase Plan
|
|
10
|
.4
|
|
Outside Director Compensation Plan
|
|
31
|
.1
|
|
Certification by Chief Executive Officer Pursuant to Exchange
Act
Rule 13a-14(a)
|
|
31
|
.2
|
|
Certification by Chief Financial Officer Pursuant to Exchange
Act
Rule 13a-14(a)
|
|
32
|
.1
|
|
Certification of Chief Executive Officer and Chief Financial
Officer Pursuant to 18 U.S.C. Section 1350 as Adopted
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
|
|
|
#
|
|
Indicates management contract or compensatory plan
|
36
Exhibit 10.1
Non-Qualified Stock Option Agreement
under the
lululemon athletica inc. 2007 Equity Incentive Plan
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this
Agreement
) is made between lululemon
athletica inc. (the
Company
) and ROBERT MEERS (the
Optionee
).
WHEREAS, the Company maintains the lululemon athletica inc. 2007 Equity Incentive Plan (the
Plan
); and
WHEREAS, the Plan permits the award of Options to purchase Shares, subject to the terms of the
Plan; and
WHEREAS, on January 27, 2006 (the
Original Grant Date
) the Optionee was granted an
option to purchase 1,170,000 shares of common stock of the Companys Canadian operating subsidiary,
lululemon athletica canada inc. (f/k/a Lululemon Athletica Inc.), under the Lululemon Athletica
Inc. 2005 Equity Incentive Plan (such option is hereinafter referred to as the
Original
Option
); and
WHEREAS, on or about July 27, 2007 and in connection with the Companys corporate
reorganization (the
Reorganization
), an option under the Plan (the
Substitute
Option
) was substituted for the Original Option to reflect the effects of the Reorganization;
and
WHEREAS, the Company and the Optionee wish to amend and restate the Substitute Option to
reflect certain negotiated changes.
NOW, THEREFORE, in consideration of these premises and the agreements set forth herein, the
parties intending to be legally bound hereby, agree as follows:
1.
Award of Option
.
This Option constitutes an amendment and restatement of the
Substitute Option. This Option represents the right to purchase 2,285,422 Shares (the
Option
Shares
). In addition to the terms set forth herein, the Option is subject to the terms of the
Plan applicable to non-qualified stock options, which terms are incorporated herein by this
reference. Except as otherwise specified herein, or unless the context requires otherwise, the
terms defined in the Plan will have the same meanings herein.
2.
Nature of the Option
.
This Option is intended to be a nonstatutory stock option
and is not intended to be an Incentive Stock Option within the meaning of Section 422 of the Code,
or to otherwise qualify for any special tax benefits to the Optionee.
3.
Date of Grant; Term
.
The Option is restated pursuant to the authorization of the
Compensation Committee of the Companys Board of Directors on
November 28, 2007 (the
Effective Date
) and may not be exercised later than the tenth anniversary of the Original
Grant Date, subject to earlier termination as provided in the Plan.
4.
Option Exercise Price
.
The total cost to the Optionee to purchase, pursuant to
this Agreement, one Share is $0.60. All dollar amounts reflected in this Agreement are expressed
in U.S. dollars.
5.
Exercise of Option
.
(a)
Right to Exercise
.
This Option will become exercisable as follows
:
i.
Immediately Vested Portion
. The Option will be vested and exercisable with respect
to 15% of the Option Shares immediately upon the Effective Date.
ii.
Time Vested Portion
. The Option will become vested and exercisable with respect
to 15% of the Option Shares on each of the following dates: January 27, 2008, January 27, 2009 and
January 27, 2010 (such 45% of the Option Shares being herein referred to as the
Time Vested
Portion
);
provided
, in each case, that the Optionee remains in continuous service with
the Company through the applicable date. Notwithstanding the foregoing, the Option will become
vested and exercisable with respect to the Time Vested Portion immediately prior to (and contingent
upon) the occurrence of a Sale (as defined below in Section 17(j)), provided the Optionee remains
in continuous service with the Company through the date of that Sale. Solely for purposes of this
Agreement, service with the Company will be deemed to include service with an Affiliated Company
(as defined below in
Section 17(c)
) for so long as such entity remains an Affiliated
Company.
iii.
Performance Vested Portion
. The Option may become vested and exercisable with
respect to 40% of the Option Shares (the
Performance Vested Portion
), based upon the
Return Multiple (as defined below in
Section 17(i)
) realized by the Institutional Holders
while this Option remains outstanding, as follows:
(1) Immediately prior to (and contingent upon) the occurrence of an Investor Sale (as defined
below in
Section 17(g)
), and provided the Optionee remains in continuous service with the
Company through the date of the Investor Sale, the Performance Vested Portion will become vested
and exercisable based on the Return Multiple realized upon completion of the Investor Sale:
|
|
|
|
|
Percentage of Option
|
Return Multiple Achieved
|
|
Shares Exercisable
|
x < 2.00
|
|
None
|
2.00
≤ x < 2.25
|
|
3.08%
|
2.25 ≤ x < 2.50
|
|
6.15%
|
2.50 ≤ x < 2.75
|
|
9.23%
|
2.75 ≤ x < 3.00
|
|
12.31%
|
3.00 ≤ x < 3.25
|
|
15.38%
|
3.25 ≤ x < 3.50
|
|
18.46%
|
3.50 ≤ x < 3.75
|
|
21.54%
|
3.75 ≤ x < 4.00
|
|
24.62%
|
4.00 ≤ x < 4.25
|
|
27.69%
|
4.25 ≤ x < 4.50
|
|
30.77%
|
4.50 ≤ x < 4.75
|
|
33.84%
|
4.75 ≤ x < 5.00
|
|
36.92%
|
5.00 ≤ x
|
|
40%
|
-2-
(2) If the Return Multiple increases following an Investor Sale due to a subsequent
Transfer and the Optionee remains in continuous service with the Company through the date of that
subsequent Transfer, the Option will then become vested and exercisable with respect to an
additional number of Option Shares determined (in accordance with the chart contained in Section
5(a)(iii)(1), above) based on the cumulative Return Multiple achieved, reduced by the number of
Option Shares with respect to which the Performance Vested Portion has previously become vested and
exercisable (taking into account any adjustments pursuant to Section 3(c) of the Plan). This
provisions of this Section 5(a)(iii)(2) will apply with respect to each subsequent Transfer until
the Performance Vested Portion terminates.
(3) At such time as no further increases to the Return Multiple are possible (e.g., when the
Institutional Holders and their Permitted Transferees have Transferred their entire capital stock
holdings in the Company and its Affiliates), any portion of the Performance Vested Portion that has
not, by that time, become vested and exercisable will terminate immediately and automatically.
(4) Notwithstanding anything to the contrary in this Section 5(a)(iii), the Performance Vested
Portion will become fully vested and exercisable if and when a Return Multiple of 5.00 or greater
is realized, regardless of whether such Return Multiple is realized in connection with an Investor
Sale, provided the Optionee remains in continuous service with the Company through the date that
such Return Multiple is realized.
(b)
Method of Exercise
.
The Optionee may exercise the Option by providing written
notice to the Company and shall be delivered in person or by certified mail to the Secretary of the
Company (or such other person as may be designated by the Company). The written notice shall be
accompanied by payment of the purchase price and, if requested by the Company, an executed
counterpart to the Stockholders Agreement. The certificate(s) for the Shares as to which the
Option shall have been exercised will be registered in the name of the Optionee and, in addition to
any other legend that may be required pursuant to applicable law, the Plan, the Stockholders
Agreement or otherwise, will contain the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A NON-QUALIFIED STOCK OPTION AGREEMENT
ENTERED INTO BETWEEN ROBERT MEERS AND LULULEMON ATHLETICA INC. A COPY OF THAT
AGREEMENT IS ON FILE IN THE PRINCIPAL OFFICES OF LULULEMON ATHLETICA INC. AND WILL
BE MADE AVAILABLE TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON REQUEST TO
THE SECRETARY OF LULULEMON ATHLETICA INC.
-3-
(c)
Partial Exercise
.
The Option may be exercised in whole or in part;
provided
,
however
, that any exercise may apply only with respect to whole numbers
of Option Shares.
(d)
Restrictions on Exercise
. The Option may not be exercised if the issuance of the
Option Shares upon such exercise would constitute a violation of any applicable law or regulation
or any exchange listing requirements.
6.
Investment Representations
.
Unless the Option Shares have been registered under
the Securities Act of 1933 (the
Securities Act
), in connection with the acquisition of
this Option, the Optionee represents and warrants to the Company that:
(a) he or she is acquiring the Option, and upon exercise of the Option, will be acquiring the
Option Shares for investment for his or her own account, not as a nominee or agent, and not with a
view to or for resale in connection with any distribution thereof; and
(b) he or she has a preexisting personal or business relationship with the Company or one of
its directors, officers or controlling persons and, by reason of his or her business or financial
experience, has, and can be reasonably assumed to have, the capacity to protect his or her
interests in connection with the acquisition of the Option and the Option Shares.
In addition, as a further condition to the exercise of the Option, the Company may require the
Optionee to make any representation or warranty to the Company as may be required by or advisable
under any applicable law, regulation or exchange listing requirement.
7.
Withholding
.
The Company reserves the right to withhold from any consideration
payable or property transferable to the Optionee any taxes required to be withheld by law as a
result of the grant or exercise of this Option or the sale or other disposition of the Option
Shares. If the amount of any consideration payable to the Optionee is insufficient to pay such
taxes or if no consideration is then payable to the Optionee, upon the request of the Company and
as a condition to the grant or exercise of this Option or the sale or other disposition of the
Option Shares, the Optionee (or such other person entitled to exercise this Option pursuant to
Section 5 of the Plan) will pay to the Company an amount sufficient for the Company to satisfy any
such tax withholding requirements.
8.
The Plan
.
The Optionee has received a copy of the Plan (a copy of which is
attached hereto), has read the Plan and is familiar with its terms, and hereby accepts the Option
subject to all of the terms and provisions of the Plan. Pursuant to the Plan, the Board is
authorized to interpret the Plan and to adopt rules and regulations not inconsistent with the Plan
as it deems appropriate. The Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board regarding any questions arising under the Plan or this
Agreement.
9.
Governing Law
.
This Option Agreement will be construed in accordance with the laws
of the State of Delaware, without regard to the application of the principles of conflicts of laws.
-4-
10.
Amendment
.
This Agreement may only be amended by a writing signed by each of the
parties hereto.
11.
Entire Agreement
.
This Agreement, together with the Plan, represents the entire
agreement between the parties hereto relating to the subject matter hereof, and merges and
supersedes all prior and contemporaneous discussions, agreements and understandings of every nature
(including, without limitation, Section 2.3 of the Employment and Restrictive Covenant Agreement
dated December 5, 2005 between the Optionee and Lululemon Athletica Inc. and Exhibit A attached
thereto). For avoidance of doubt, the Optionee further acknowledges that (i) the Original Option,
and all the Optionees rights thereunder, were replaced by the Substitute Option, and (ii) this
Option amends and restates the Substitute Option in its entirety.
12.
Market Stand-Off
.
(a) The Optionee hereby agrees that, in connection with any registration under the Securities
Act of 1933, as amended, of any Option Shares, the Optionee (and the Optionees permitted
transferees, if any) shall not sell or otherwise transfer (including through short-sales, hedging,
or similar transactions) any Option Shares during the period that the Board specifies (a
Holdback
); provided, however, that such period shall not exceed one hundred eighty (180)
days (or other such period that the underwriters reasonably require) following the effective date
of the applicable registration statement filed under the Securities Act (the
Market Stand-Off
Period
). Until the end of such Market Stand-Off Period, the Company may impose, with respect
to Option Shares, stop-transfer instructions that are subject to the foregoing restrictions.
(b) Optionee also agrees to be bound by any restriction agreed to by holders of not less than
a majority of the then outstanding Shares (giving effect to the pro forma conversion of all
outstanding preferred shares and other convertible securities and the pro forma exercise of all
stock options, warrants and other rights, to the extent then exercisable).
(c) In addition, if any managing underwriter or book runner of any such offering or
registration (the
Underwriter
) requests, the Optionee will execute and deliver to the
Underwriter such documents, agreements, and instruments that the Underwriter shall reasonably
require to enable the Underwriter to obtain the benefit of the Holdback during the Market Stand-Off
Period. In connection with the foregoing, the Optionee hereby appoints the Chairman of the
Companys Board of Directors as the Optionees attorney-in-fact, with full power of substitution,
to execute and deliver all documents, agreements and instruments to be executed and delivered by
the Optionee, and to take all actions to be taken by the Optionee in each case in connection with
effecting any Holdback.
13.
Restrictions on Transfer of Option and Option Shares
.
(a) The Option may not be sold, pledged, assigned, hypothecated, gifted, transferred or
disposed of in any manner either voluntarily or involuntarily by operation of law, other than by
will or by the laws of descent or distribution. During the Optionees lifetime, the Option is
exercisable only by the Optionee. Subject to the foregoing, the terms of the Option will be
binding upon the executors, administrators and heirs of the Optionee.
(b) The Optionee is not prohibited from transferring Option Shares to an Affiliate, provided
the Affiliate agrees to be bound by the provisions of
Sections 12, 13, 14, and
15
(with the repurchase contemplated by
Section 15
being triggered by the
termination of service of the Optionee).
-5-
(c) Except as permitted under this Agreement, the Optionee may not sell, pledge, assign,
encumber, hypothecate, gift, transfer, bequeath, devise, donate or otherwise dispose of, in any way
or manner whatsoever, whether voluntary or involuntary, any legal or beneficial interest in any
Option Shares. If the Optionee, without complying with this Agreements terms and conditions,
attempts to transfer or alienate any legal or beneficial interest in any Option Shares, then the
transfer or alienation will not take effect and the Company will not, and will not be compelled to,
recognize or record on its books any such transfer or alienation or issue to the purported
recipient of such Option Shares any stock certificate(s) representing those Option Shares. The
Optionee agrees not to deposit any Option Shares in a voting trust or subject Option Shares to any
arrangement or agreement with respect to the voting of such Shares.
14.
Right of First Refusal
.
(a) If the Optionee desires, in any manner, to alienate or transfer, to any person, group of
people, or one or more entities (other than the Company or an Affiliate) (collectively, the
Proposed Transferee
), any Option Shares, the Optionee first will deliver to the Company
written notice (the
Transfer Notice
) specifying: (i) the number of Option Shares that
the Optionee proposes to transfer to the Proposed Transferee (hereinafter the
Subject
Shares
), (ii) the name and address of the Proposed Transferee, (iii) the consideration, if
any, that the Proposed Transferee will pay to the Optionee in connection with the proposed transfer
of such Subject Shares, and (iv) all other material terms and conditions of the proposed transfer.
The Optionee will deliver to the Company the Transfer Notice at least forty-five (45) days prior to
the proposed transfer.
(b) The Company (including, for purposes of this section, an assignee of the Company) will
have the option to purchase, at the same price and under the same terms and conditions as set forth
in the Transfer Notice, any or all of the Subject Shares (the
Right of First Refusal
Option
). In order for the Company to exercise its Right of First Refusal Option set forth in
this
Section 14(b)
, the Company must, by no later than fifteen (15) days after receipt by
the Company of a Transfer Notice, deliver to the Optionee written notice of the Companys intent to
exercise its Right of First Refusal Option (a
Company Acceptance Notice
). If the Company
duly exercises the Right of First Refusal Option, then the closing of such purchase and sale will
take place at the Companys offices on such date that is selected with the consent of the Company;
provided
,
however
, that such purchase and sale date must not be more than ninety (90) days, nor
less than thirty (30) days, after the date of the Company Acceptance Notice. At such closing, the
Company will pay to the Optionee the required consideration, and the Company and the Optionee will
proceed with the purchase and sale, under the Transfer Notices specified terms and conditions, of
those of the Optionees Subject Shares to which the Companys written option-exercise notice
refers. Notwithstanding the foregoing, to the extent that the consideration that the Proposed
Transferee offered to pay to the Optionee for the Subject Shares consists of property other than a
promissory note or cash, the consideration that the Company is required to pay to the Optionee may,
at the Companys option, in whole or in part, consist of cash equal to the propertys value, as
mutually agreed-upon, reasonably and in good faith, by the Company and the Optionee.
-6-
(c) At such closing, the Company and the Optionee each will execute and deliver to the other
all customary documentation that the Company and the Optionee reasonably require to effect, in
accordance with this
Section 14
and the Transfer Notices specified terms and conditions,
the sale and purchase of the Optionees Subject Shares.
(d) If less than all of the Subject Shares are purchased by the Company in accordance with
this
Section 14
, then the Optionee will be permitted, free from the provisions of this
Section 14
and for a period of thirty (30) days from the date that the applicable Right of
First Refusal Option exercise period expired, to offer and sell to the Proposed Transferee the
Optionees remaining Subject Shares;
provided
,
however
, that any such transfer or sale must take
place at the same price and under terms and conditions no more favorable to the Proposed Transferee
than the Transfer Notices specified terms and conditions; and
provided, further,
that as a
condition of any such transfer or sale, the Proposed Transferee must execute and deliver an
agreement in form and substance requested by the Company pursuant to which Proposed Transferee will
agree to be bound by the provisions of
Sections 12, 13, 14, and 15
(with the repurchase
contemplated by
Section 15
being triggered by the termination of service of the Optionee),
and any stock certificate representing any transferred Option Shares will bear any restrictive
legends deemed appropriate by the Company.
(e) The Companys release or failure to exercise its rights under this
Section 14
will
not adversely affect the Companys right to participate, as this
Section 14
provides, in
the Optionees subsequent proposed transfers.
(f) The rights and obligations under this
Section 14
shall terminate immediately upon
(and shall not apply in connection with any sale by Optionee of Option Shares as a part of) a
Qualified Public Offering. For purposes of this Agreement,
Qualified Public Offering
means the initial sale of shares of common stock of the Company (or a successor to the Company) in
an underwritten public offering registered under the Securities Act (
IPO
) in which the
gross proceeds to the Company from the IPO are not less than $75,000,000.
15.
Call Upon Cessation of Service
.
(a) If the Optionees service with the Company ceases for any reason, the Company or its
assignee may repurchase up to all the Option Shares. The price payable by the Company or its
assignee to repurchase Option Shares pursuant to this
Section 15(a)
will be the
Fair
Market Value
(as defined in the Plan) of those shares at the time the right described in this
Section 15
is exercised. Such price may be paid (i) in cash; (ii) by offset of any
obligation of the Optionee to the Company or its Affiliates; or (iii) a promissory note of the
Company payable in four (4) equal annual installments of principal and interest, commencing one
year from the date of the repurchase of the Option Shares and bearing simple interest at the prime
rate as reported in the Wall Street Journal on the date of the repurchase of the Option Shares.
Any promissory note issued under this
Section 15
will be subject to prepayment in part or
in full at any time at the Companys option and without penalty. Payments under any promissory
note issued under this
Section 15
may be deferred to the extent necessary in order to avoid
a violation by the Company of the terms of any credit, loan or other debt financing agreement or
any of the other loan documents related thereto.
-7-
(b) With respect to each Option Share subject to repurchase pursuant to this
Section
15
, the Company (or its assignee) may exercise its repurchase right by delivery of written
notice to the holder of such share at any time during the 90-day period beginning on the later of
(i) the date the Optionees service to the Company ceases, or (ii) six months following the date
the Optionee acquires that Option Share. All the rights of the holder of any such shares, other
than the right to receive payment in the manner described in
Section 15(a)
, will terminate
as of the date of delivery by the Company of the written notice described in this paragraph. The
only representation, warranty or covenant which the holder of such shares will be required to make
in connection with a sale pursuant to
Section 15(a)
is a representation and warranty with
respect to his or her ownership of the shares and his or her ability to convey title thereto free
and clear of liens, claims or encumbrances.
(c) If a holder of Option Shares becomes obligated to transfer shares to the Company or its
assignee pursuant to this Agreement, that holder will endorse in blank the certificates evidencing
the shares to be sold and deliver those certificates to the Company or its assignee within 15 days
of receipt of the notice described above in
Section 15(b)
. If a holder of Option Shares
fails to deliver those shares in accordance with the terms of this Agreement, the Company or its
assignee may, at its option, in addition to all other remedies it may have, either (i) send to that
holder the purchase price for such shares, as herein specified, or (ii) deposit such amount with a
trustee or escrow agent for the benefit of that holder for release upon delivery of shares in
accordance with the terms of this Agreement. Thereupon, the Company or its assignee, upon written
notice to the holder, will (x) cancel on its books the certificate or certificates representing the
Option Shares required to be transferred, and (y) issue, in lieu thereof, in the name of the
Company (or its assignee) a new certificate or certificates representing such shares.
(d) The rights and obligations under this
Section 15
shall terminate immediately upon
the consummation of a Qualified Public Offering.
16.
[Reserved]
17.
Definitions
(a)
Advent Funds
means (i) Advent International GPE V Limited Partnership, Advent
International GPE V-B Limited Partnership and Advent International GPE V-I Limited Partnership,
each a limited partnership formed under the laws of the Cayman Islands, and (ii) Advent
International GPE V-A Limited Partnership, Advent International GPE V-G Limited Partnership, Advent
Partners III Limited Partnership, Advent Partners GPE V Limited Partnership, Advent Partners GPE
V-A Limited Partnership and Advent Partners GPE V-B Limited Partnership, each a Delaware limited
partnership.
(b)
Affiliate
means, as to any specified person or entity, (i) any other person or
entity controlling, controlled by or under common control with such specified person or entity or
(ii) any member of the Family Group of such specified person or of any individual who is an
Affiliate of such specified person by reason of clause (i) of this definition;
provided, however,
that
no person shall be deemed an Affiliate of any other person or entity solely by reason of any
investment in the Company. The term
control
, with respect to any person or entity, means
possession, direct or indirect, of the power to direct or cause the direction of the management and
policies of such person or entity, whether through the ownership of voting securities or a
-8-
partnership interest, by contract or otherwise. With respect to each of the Institutional
Holders, the term Affiliate shall also include (1) any entity in which such Institutional Holder
(or one of its Affiliates) is a general partner or member and (2) each investor in such
Institutional Holder, but only in connection with the liquidation, winding up or dissolution of the
Institutional Holder, and only to the extent of such investors pro rata share in the Institutional
Holder. With respect to each Advent Fund, the term Affiliate shall also include any investment
fund managed by Advent International Corporation, a Delaware corporation. For purposes of this
Agreement,
Family Group
means, as to any holder of capital stock who is a natural person,
such holders spouse, ancestors, the lineal descendants of such individuals grandparents, and
trusts for the benefit of any of the foregoing,
provided that
all the income beneficiaries and
remainderman of any such trust are such individuals spouse, ancestors or lineal descendants.
(c)
Affiliated Company
means (i) lululemon usa inc., a Nevada corporation, (ii)
lululemon athletica canada inc., a company formed under the laws of British Columbia, (iii)
Lululemon FC USA Inc., a Nevada corporation, (iv) Lulu Canadian Holding, Inc., a company formed
under the laws of British Columbia, (v) Lululemon Athletica International SRL, a company formed
under the laws of Barbados and (vi) any Affiliate of any of the foregoing.
(d)
Brooke Funds
means Brooke Private Equity Advisors Fund I-A, L.P. and Brooke
Private Equity Advisors Fund I (D), L.P., each a Delaware limited partnership.
(e)
Highland Funds
means Highland Capital Partners VI Limited Partnership, Highland
Capital Partners VI-B Limited Partnership, and Highland Entrepreneurs Fund VI Limited Partnership,
each a Delaware limited partnership.
(f)
Institutional Holder
means, individually, each of the Advent Funds, Brooke Funds
and Highland Funds, and collectively, the
Institutional Holders
.
(g)
Investor Sale
means (i) a Transfer that, when added to all prior Transfers,
results in the Institutional Holders and their Permitted Transferees ceasing to hold or control at
least 20% of the voting power represented by all the capital stock of the Company held by them
collectively as of the Original Grant Date, or (ii) the sale of substantially all the assets of the
Company (other than (a) a transfer of financial assets made in the ordinary course of business for
the purpose of securitization or (b) pursuant to any recapitalization, reorganization or any
similar transaction pursuant to which control of the Company is substantially unaffected).
(h)
Permitted Transferee
means, with respect to a holder of shares of capital stock
of the Company (a
Holder
and collectively, the
Holders
):
i. an Affiliate of the Holder;
ii. any Person to whom the Holder may transfer its shares of capital stock to hold such shares
of capital stock as such Holders nominee;
iii. in the case of an Institutional Holder, any Person who receives securities in a
liquidating distribution by such fund or holder to its members, partners or shareholders;
-9-
iv. in the case of an Institutional Holder, one or more funds which invest in equity
securities and are qualified institutional buyers or accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) in connection with the sale by such holder of
any material part of its portfolio investments;
v. in the case of an Institutional Holder, any other Institutional Holder; and
vi. in the event of the death or incompetence of the Holder, a legal representative of the
Holder.
(i)
Return Multiple
means as of any given date, the multiple achieved by dividing
(i) the aggregate gross proceeds realized by the Institutional Holders and their Permitted
Transferees in respect of their investment in capital stock of the Company and its Affiliates made
on the Original Grant Date (including, without limitation, gross proceeds from any Transfer(s) to a
third party in registered or private offerings or sales under Rule 144 of the Securities Act, but
excluding gross proceeds received in connection with any Transfer to a Permitted Transferee), over
(ii) $92,783,505.15 (i.e., the aggregate cash amount invested by the Institutional Holders to
acquire shares of capital stock of the Company and its Affiliates as of the Original Grant Date),
all as determined by the Board in good faith immediately prior to (but as of) the relevant date and
subject to the following principles:
i. the Board will determine the value of any illiquid consideration received in connection
with any Transfer(s) by taking into account (among other things) any restrictions on the transfer
of that property and other impairments on its value;
ii. the Board will determine the value of any contingent consideration potentially payable in
connection with any Transfer(s) based on its best estimate of the likelihood that such contingent
consideration will actually be received;
iii. dividends or other non-stock distributions paid prior to the date as of which the Return
Multiple is being determined will be included in the calculation;
iv. securities of the Company and its Affiliates will not be counted as gross proceeds;
v. if the relevant transaction giving rise to a calculation of the Return Multiple is a sale
of substantially all the assets of the Company, a liquidation of the Company will be deemed to
occur immediately following that asset sale; and
vi. the Return Multiple will be calculated net of any commissions, discounts, underwriters
compensation, attorneys, accountants and bankers fees and any similar expenses or transaction
costs that are incurred (A) by or on behalf of the Institutional Holders in connection with the
acquisition of capital stock of the Company or its Affiliates through the Original Grant Date, or
(B) by or on behalf of the Institutional Holders or any Permitted Transferees in connection with
any Transfer(s) of any such capital stock (other than a Transfer between an Institutional Holder
and a Permitted Transferee).
-10-
(j)
Sale
means (i) the sale, transfer, assignment or other disposition (including by
merger, consolidation, recapitalization, reorganization or any similar transaction) by stockholders
of the Company, in one transaction or a series of related transactions, of greater than 66 2/3% of
the voting power represented by the then outstanding shares of capital stock (unless (a) such sale,
transfer, assignment or other disposition by such Holder or Holders is made to a Permitted
Transferee, (b) immediately after the completion of such transaction(s), control of the Company is
substantially unaffected or (c) such merger, consolidation, recapitalization, reorganization or any
similar transaction of the Company is with, into or among any Affiliated Company) or (ii) the sale
of substantially all the assets of the Company (other than (a) a transfer of financial assets made
in the ordinary course of business for the purpose of securitization or (b) pursuant to any
recapitalization, reorganization or any similar transaction pursuant to which control of the
Company is substantially unaffected).
(k)
Transfer
means a sale, transfer, assignment or other disposition of shares of
capital stock of the Company or its Affiliates by one or more of the Institutional Holders or their
Permitted Transferees.
[Signature Page Follows]
-11-
IN WITNESS WHEREOF, this Agreement has been executed by each of the parties on the date
indicated below, respectively.
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lululemon athletica inc.
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By:
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/s/
John E. Currie
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Name:
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John E. Currie
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Title:
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Chief Financial Officer
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Date:
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November 28, 2007
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ROBERT MEERS
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By:
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/s/
Robert Meers
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Name:
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Robert Meers
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Date:
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November 28, 2007
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-12-
Exhibit 10.2
Non-Qualified Stock Option Agreement
under the
lululemon athletica inc. 2007 Equity Incentive Plan
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this
Agreement
) is made between lululemon
athletica inc. (the
Company
) and ROBERT MEERS (the
Optionee
).
WHEREAS, the Company maintains the lululemon athletica inc. 2007 Equity Incentive Plan (the
Plan
); and
WHEREAS, the Plan permits the award of Options to purchase Shares, subject to the terms of the
Plan; and
WHEREAS, on January 27, 2006 (the
Original Grant Date
) the Optionee was granted an
option to purchase 1,170,000 shares of common stock of the Companys U.S. operating subsidiary,
lululemon usa inc. (f/k/a Lululemon Athletica USA Inc.), under the Lululemon Athletica USA Inc.
2005 Equity Incentive Plan (such option is hereinafter referred to as the
Original
Option
); and
WHEREAS, on or about July 27, 2007 and in connection with the Companys corporate
reorganization (the
Reorganization
), an option under the Plan (the
Substitute
Option
) was substituted for the Original Option to reflect the effects of the Reorganization;
and
WHEREAS, the Company and the Optionee wish to amend and restate the Substitute Option to
reflect certain negotiated changes.
NOW, THEREFORE, in consideration of these premises and the agreements set forth herein, the
parties intending to be legally bound hereby, agree as follows:
1.
Award of Option
.
This Option constitutes an amendment and restatement of the
Substitute Option. This Option represents the right to purchase 501,802 Shares (the
Option
Shares
). In addition to the terms set forth herein, the Option is subject to the terms of the
Plan applicable to non-qualified stock options, which terms are incorporated herein by this
reference. Except as otherwise specified herein, or unless the context requires otherwise, the
terms defined in the Plan will have the same meanings herein.
2.
Nature of the Option
.
This Option is intended to be a nonstatutory stock option
and is not intended to be an Incentive Stock Option within the meaning of Section 422 of the Code,
or to otherwise qualify for any special tax benefits to the Optionee.
3.
Date of Grant; Term
.
The Option is restated pursuant to the authorization of the
Compensation Committee of the Companys Board of Directors on
November 28, 2007 (the
Effective Date
) and may not be exercised later than the tenth anniversary of the Original
Grant Date, subject to earlier termination as provided in the Plan.
4.
Option Exercise Price
.
The total cost to the Optionee to purchase, pursuant to
this Agreement, one Share is $0.49. All dollar amounts reflected in this Agreement are expressed
in U.S. dollars.
5.
Exercise of Option
.
(a)
Right to Exercise
.
This Option will become exercisable as follows
:
i.
Immediately Vested Portion
. The Option will be vested and exercisable with respect
to 15% of the Option Shares immediately upon the Effective Date.
ii.
Time Vested Portion
. The Option will become vested and exercisable with respect
to 15% of the Option Shares on each of the following dates: January 27, 2008, January 27, 2009 and
January 27, 2010 (such 45% of the Option Shares being herein referred to as the
Time Vested
Portion
);
provided
, in each case, that the Optionee remains in continuous service with
the Company through the applicable date. Notwithstanding the foregoing, the Option will become
vested and exercisable with respect to the Time Vested Portion immediately prior to (and contingent
upon) the occurrence of a Sale (as defined below in Section 17(j)), provided the Optionee remains
in continuous service with the Company through the date of that Sale. Solely for purposes of this
Agreement, service with the Company will be deemed to include service with an Affiliated Company
(as defined below in
Section 17(c)
) for so long as such entity remains an Affiliated
Company.
iii.
Performance Vested Portion
. The Option may become vested and exercisable with
respect to 40% of the Option Shares (the
Performance Vested Portion
), based upon the
Return Multiple (as defined below in
Section 17(i)
) realized by the Institutional Holders
while this Option remains outstanding, as follows:
(1) Immediately prior to (and contingent upon) the occurrence of an Investor Sale (as defined
below in
Section 17(g)
), and provided the Optionee remains in continuous service with the
Company through the date of the Investor Sale, the Performance Vested Portion will become vested
and exercisable based on the Return Multiple realized upon completion of the Investor Sale:
|
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Percentage of Option
|
Return Multiple Achieved
|
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Shares Exercisable
|
x < 2.00
|
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None
|
2.00
≤ x < 2.25
|
|
3.08%
|
2.25 ≤ x < 2.50
|
|
6.15%
|
2.50 ≤ x < 2.75
|
|
9.23%
|
2.75 ≤ x < 3.00
|
|
12.31%
|
3.00 ≤ x < 3.25
|
|
15.38%
|
3.25 ≤ x < 3.50
|
|
18.46%
|
3.50 ≤ x < 3.75
|
|
21.54%
|
3.75 ≤ x < 4.00
|
|
24.62%
|
4.00 ≤ x < 4.25
|
|
27.69%
|
4.25 ≤ x < 4.50
|
|
30.77%
|
4.50 ≤ x < 4.75
|
|
33.84%
|
4.75 ≤ x < 5.00
|
|
36.92%
|
5.00 ≤ x
|
|
40%
|
-2-
(2) If the Return Multiple increases following an Investor Sale due to a subsequent
Transfer and the Optionee remains in continuous service with the Company through the date of that
subsequent Transfer, the Option will then become vested and exercisable with respect to an
additional number of Option Shares determined (in accordance with the chart contained in Section
5(a)(iii)(1), above) based on the cumulative Return Multiple achieved, reduced by the number of
Option Shares with respect to which the Performance Vested Portion has previously become vested and
exercisable (taking into account any adjustments pursuant to Section 3(c) of the Plan). This
provisions of this Section 5(a)(iii)(2) will apply with respect to each subsequent Transfer until
the Performance Vested Portion terminates.
(3) At such time as no further increases to the Return Multiple are possible (e.g., when the
Institutional Holders and their Permitted Transferees have Transferred their entire capital stock
holdings in the Company and its Affiliates), any portion of the Performance Vested Portion that has
not, by that time, become vested and exercisable will terminate immediately and automatically.
(4) Notwithstanding anything to the contrary in this Section 5(a)(iii), the Performance Vested
Portion will become fully vested and exercisable if and when a Return Multiple of 5.00 or greater
is realized, regardless of whether such Return Multiple is realized in connection with an Investor
Sale, provided the Optionee remains in continuous service with the Company through the date that
such Return Multiple is realized.
(b)
Method of Exercise
.
The Optionee may exercise the Option by providing written
notice to the Company and shall be delivered in person or by certified mail to the Secretary of the
Company (or such other person as may be designated by the Company). The written notice shall be
accompanied by payment of the purchase price and, if requested by the Company, an executed
counterpart to the Stockholders Agreement. The certificate(s) for the Shares as to which the
Option shall have been exercised will be registered in the name of the Optionee and, in addition to
any other legend that may be required pursuant to applicable law, the Plan, the Stockholders
Agreement or otherwise, will contain the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A NON-QUALIFIED STOCK OPTION AGREEMENT
ENTERED INTO BETWEEN ROBERT MEERS AND LULULEMON ATHLETICA INC. A COPY OF THAT
AGREEMENT IS ON FILE IN THE PRINCIPAL OFFICES OF LULULEMON ATHLETICA INC. AND WILL
BE MADE AVAILABLE TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON REQUEST TO
THE SECRETARY OF LULULEMON ATHLETICA INC.
-3-
(c)
Partial Exercise
.
The Option may be exercised in whole or in part;
provided
,
however
, that any exercise may apply only with respect to whole numbers
of Option Shares.
(d)
Restrictions on Exercise
. The Option may not be exercised if the issuance of the
Option Shares upon such exercise would constitute a violation of any applicable law or regulation
or any exchange listing requirements.
6.
Investment Representations
.
Unless the Option Shares have been registered under
the Securities Act of 1933 (the
Securities Act
), in connection with the acquisition of
this Option, the Optionee represents and warrants to the Company that:
(a) he or she is acquiring the Option, and upon exercise of the Option, will be acquiring the
Option Shares for investment for his or her own account, not as a nominee or agent, and not with a
view to or for resale in connection with any distribution thereof; and
(b) he or she has a preexisting personal or business relationship with the Company or one of
its directors, officers or controlling persons and, by reason of his or her business or financial
experience, has, and can be reasonably assumed to have, the capacity to protect his or her
interests in connection with the acquisition of the Option and the Option Shares.
In addition, as a further condition to the exercise of the Option, the Company may require the
Optionee to make any representation or warranty to the Company as may be required by or advisable
under any applicable law, regulation or exchange listing requirement.
7.
Withholding
.
The Company reserves the right to withhold from any consideration
payable or property transferable to the Optionee any taxes required to be withheld by law as a
result of the grant or exercise of this Option or the sale or other disposition of the Option
Shares. If the amount of any consideration payable to the Optionee is insufficient to pay such
taxes or if no consideration is then payable to the Optionee, upon the request of the Company and
as a condition to the grant or exercise of this Option or the sale or other disposition of the
Option Shares, the Optionee (or such other person entitled to exercise this Option pursuant to
Section 5 of the Plan) will pay to the Company an amount sufficient for the Company to satisfy any
such tax withholding requirements.
8.
The Plan
.
The Optionee has received a copy of the Plan (a copy of which is
attached hereto), has read the Plan and is familiar with its terms, and hereby accepts the Option
subject to all of the terms and provisions of the Plan. Pursuant to the Plan, the Board is
authorized to interpret the Plan and to adopt rules and regulations not inconsistent with the Plan
as it deems appropriate. The Optionee hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board regarding any questions arising under the Plan or this
Agreement.
9.
Governing Law
.
This Option Agreement will be construed in accordance with the laws
of the State of Delaware, without regard to the application of the principles of conflicts of laws.
-4-
10.
Amendment
.
This Agreement may only be amended by a writing signed by each of the
parties hereto.
11.
Entire Agreement
.
This Agreement, together with the Plan, represents the entire
agreement between the parties hereto relating to the subject matter hereof, and merges and
supersedes all prior and contemporaneous discussions, agreements and understandings of every nature
(including, without limitation, Section 2.3 of the Employment and Restrictive Covenant Agreement
dated December 5, 2005 between the Optionee and Lululemon Athletica Inc. and Exhibit A attached
thereto). For avoidance of doubt, the Optionee further acknowledges that (i) the Original Option,
and all the Optionees rights thereunder, were replaced by the Substitute Option, and (ii) this
Option amends and restates the Substitute Option in its entirety.
12.
Market Stand-Off
.
(a) The Optionee hereby agrees that, in connection with any registration under the Securities
Act of 1933, as amended, of any Option Shares, the Optionee (and the Optionees permitted
transferees, if any) shall not sell or otherwise transfer (including through short-sales, hedging,
or similar transactions) any Option Shares during the period that the Board specifies (a
Holdback
); provided, however, that such period shall not exceed one hundred eighty (180)
days (or other such period that the underwriters reasonably require) following the effective date
of the applicable registration statement filed under the Securities Act (the
Market Stand-Off
Period
). Until the end of such Market Stand-Off Period, the Company may impose, with respect
to Option Shares, stop-transfer instructions that are subject to the foregoing restrictions.
(b) Optionee also agrees to be bound by any restriction agreed to by holders of not less than
a majority of the then outstanding Shares (giving effect to the pro forma conversion of all
outstanding preferred shares and other convertible securities and the pro forma exercise of all
stock options, warrants and other rights, to the extent then exercisable).
(c) In addition, if any managing underwriter or book runner of any such offering or
registration (the
Underwriter
) requests, the Optionee will execute and deliver to the
Underwriter such documents, agreements, and instruments that the Underwriter shall reasonably
require to enable the Underwriter to obtain the benefit of the Holdback during the Market Stand-Off
Period. In connection with the foregoing, the Optionee hereby appoints the Chairman of the
Companys Board of Directors as the Optionees attorney-in-fact, with full power of substitution,
to execute and deliver all documents, agreements and instruments to be executed and delivered by
the Optionee, and to take all actions to be taken by the Optionee in each case in connection with
effecting any Holdback.
13.
Restrictions on Transfer of Option and Option Shares
.
(a) The Option may not be sold, pledged, assigned, hypothecated, gifted, transferred or
disposed of in any manner either voluntarily or involuntarily by operation of law, other than by
will or by the laws of descent or distribution. During the Optionees lifetime, the Option is
exercisable only by the Optionee. Subject to the foregoing, the terms of the Option will be
binding upon the executors, administrators and heirs of the Optionee.
(b) The Optionee is not prohibited from transferring Option Shares to an Affiliate, provided
the Affiliate agrees to be bound by the provisions of
Sections 12, 13, 14, and 15
(with the repurchase contemplated by
Section 15
being triggered by the
termination of service of the Optionee).
-5-
(c) Except as permitted under this Agreement, the Optionee may not sell, pledge, assign,
encumber, hypothecate, gift, transfer, bequeath, devise, donate or otherwise dispose of, in any way
or manner whatsoever, whether voluntary or involuntary, any legal or beneficial interest in any
Option Shares. If the Optionee, without complying with this Agreements terms and conditions,
attempts to transfer or alienate any legal or beneficial interest in any Option Shares, then the
transfer or alienation will not take effect and the Company will not, and will not be compelled to,
recognize or record on its books any such transfer or alienation or issue to the purported
recipient of such Option Shares any stock certificate(s) representing those Option Shares. The
Optionee agrees not to deposit any Option Shares in a voting trust or subject Option Shares to any
arrangement or agreement with respect to the voting of such Shares.
14.
Right of First Refusal
.
(a) If the Optionee desires, in any manner, to alienate or transfer, to any person, group of
people, or one or more entities (other than the Company or an Affiliate) (collectively, the
Proposed Transferee
), any Option Shares, the Optionee first will deliver to the Company
written notice (the
Transfer Notice
) specifying: (i) the number of Option Shares that
the Optionee proposes to transfer to the Proposed Transferee (hereinafter the
Subject
Shares
), (ii) the name and address of the Proposed Transferee, (iii) the consideration, if
any, that the Proposed Transferee will pay to the Optionee in connection with the proposed transfer
of such Subject Shares, and (iv) all other material terms and conditions of the proposed transfer.
The Optionee will deliver to the Company the Transfer Notice at least forty-five (45) days prior to
the proposed transfer.
(b) The Company (including, for purposes of this section, an assignee of the Company) will
have the option to purchase, at the same price and under the same terms and conditions as set forth
in the Transfer Notice, any or all of the Subject Shares (the
Right of First Refusal
Option
). In order for the Company to exercise its Right of First Refusal Option set forth in
this
Section 14(b)
, the Company must, by no later than fifteen (15) days after receipt by
the Company of a Transfer Notice, deliver to the Optionee written notice of the Companys intent to
exercise its Right of First Refusal Option (a
Company Acceptance Notice
). If the Company
duly exercises the Right of First Refusal Option, then the closing of such purchase and sale will
take place at the Companys offices on such date that is selected with the consent of the Company;
provided
,
however
, that such purchase and sale date must not be more than ninety (90) days, nor
less than thirty (30) days, after the date of the Company Acceptance Notice. At such closing, the
Company will pay to the Optionee the required consideration, and the Company and the Optionee will
proceed with the purchase and sale, under the Transfer Notices specified terms and conditions, of
those of the Optionees Subject Shares to which the Companys written option-exercise notice
refers. Notwithstanding the foregoing, to the extent that the consideration that the Proposed
Transferee offered to pay to the Optionee for the Subject Shares consists of property other than a
promissory note or cash, the consideration that the Company is required to pay to the Optionee may,
at the Companys option, in whole or in part, consist of cash equal to the propertys value, as
mutually agreed-upon, reasonably and in good faith, by the Company and the Optionee.
-6-
(c) At such closing, the Company and the Optionee each will execute and deliver to the other
all customary documentation that the Company and the Optionee reasonably require to effect, in
accordance with this
Section 14
and the Transfer Notices specified terms and conditions,
the sale and purchase of the Optionees Subject Shares.
(d) If less than all of the Subject Shares are purchased by the Company in accordance with
this
Section 14
, then the Optionee will be permitted, free from the provisions of this
Section 14
and for a period of thirty (30) days from the date that the applicable Right of
First Refusal Option exercise period expired, to offer and sell to the Proposed Transferee the
Optionees remaining Subject Shares;
provided
,
however
, that any such transfer or sale must take
place at the same price and under terms and conditions no more favorable to the Proposed Transferee
than the Transfer Notices specified terms and conditions; and
provided, further,
that as a
condition of any such transfer or sale, the Proposed Transferee must execute and deliver an
agreement in form and substance requested by the Company pursuant to which Proposed Transferee will
agree to be bound by the provisions of
Sections 12, 13, 14, and 15
(with the repurchase
contemplated by
Section 15
being triggered by the termination of service of the Optionee),
and any stock certificate representing any transferred Option Shares will bear any restrictive
legends deemed appropriate by the Company.
(e) The Companys release or failure to exercise its rights under this
Section 14
will
not adversely affect the Companys right to participate, as this
Section 14
provides, in
the Optionees subsequent proposed transfers.
(f) The rights and obligations under this
Section 14
shall terminate immediately upon
(and shall not apply in connection with any sale by Optionee of Option Shares as a part of) a
Qualified Public Offering. For purposes of this Agreement,
Qualified Public Offering
means the initial sale of shares of common stock of the Company (or a successor to the Company) in
an underwritten public offering registered under the Securities Act (
IPO
) in which the
gross proceeds to the Company from the IPO are not less than $75,000,000.
15.
Call Upon Cessation of Service
.
(a) If the Optionees service with the Company ceases for any reason, the Company or its
assignee may repurchase up to all the Option Shares. The price payable by the Company or its
assignee to repurchase Option Shares pursuant to this
Section 15(a)
will be the
Fair
Market Value
(as defined in the Plan) of those shares at the time the right described in this
Section 15
is exercised. Such price may be paid (i) in cash; (ii) by offset of any
obligation of the Optionee to the Company or its Affiliates; or (iii) a promissory note of the
Company payable in four (4) equal annual installments of principal and interest, commencing one
year from the date of the repurchase of the Option Shares and bearing simple interest at the prime
rate as reported in the Wall Street Journal on the date of the repurchase of the Option Shares.
Any promissory note issued under this
Section 15
will be subject to prepayment in part or
in full at any time at the Companys option and without penalty. Payments under any promissory
note issued under this
Section 15
may be deferred to the extent necessary in order to avoid
a violation by the Company of the terms of any credit, loan or other debt financing agreement or
any of the other loan documents related thereto.
-7-
(b) With respect to each Option Share subject to repurchase pursuant to this
Section
15
, the Company (or its assignee) may exercise its repurchase right by delivery of written
notice to the holder of such share at any time during the 90-day period beginning on the later of
(i) the date the Optionees service to the Company ceases, or (ii) six months following the date
the Optionee acquires that Option Share. All the rights of the holder of any such shares, other
than the right to receive payment in the manner described in
Section 15(a)
, will terminate
as of the date of delivery by the Company of the written notice described in this paragraph. The
only representation, warranty or covenant which the holder of such shares will be required to make
in connection with a sale pursuant to
Section 15(a)
is a representation and warranty with
respect to his or her ownership of the shares and his or her ability to convey title thereto free
and clear of liens, claims or encumbrances.
(c) If a holder of Option Shares becomes obligated to transfer shares to the Company or its
assignee pursuant to this Agreement, that holder will endorse in blank the certificates evidencing
the shares to be sold and deliver those certificates to the Company or its assignee within 15 days
of receipt of the notice described above in
Section 15(b)
. If a holder of Option Shares
fails to deliver those shares in accordance with the terms of this Agreement, the Company or its
assignee may, at its option, in addition to all other remedies it may have, either (i) send to that
holder the purchase price for such shares, as herein specified, or (ii) deposit such amount with a
trustee or escrow agent for the benefit of that holder for release upon delivery of shares in
accordance with the terms of this Agreement. Thereupon, the Company or its assignee, upon written
notice to the holder, will (x) cancel on its books the certificate or certificates representing the
Option Shares required to be transferred, and (y) issue, in lieu thereof, in the name of the
Company (or its assignee) a new certificate or certificates representing such shares.
(d) The rights and obligations under this
Section 15
shall terminate immediately upon
the consummation of a Qualified Public Offering.
16.
[Reserved]
17.
Definitions
(a)
Advent Funds
means (i) Advent International GPE V Limited Partnership, Advent
International GPE V-B Limited Partnership and Advent International GPE V-I Limited Partnership,
each a limited partnership formed under the laws of the Cayman Islands, and (ii) Advent
International GPE V-A Limited Partnership, Advent International GPE V-G Limited Partnership, Advent
Partners III Limited Partnership, Advent Partners GPE V Limited Partnership, Advent Partners GPE
V-A Limited Partnership and Advent Partners GPE V-B Limited Partnership, each a Delaware limited
partnership.
(b)
Affiliate
means, as to any specified person or entity, (i) any other person or
entity controlling, controlled by or under common control with such specified person or entity or
(ii) any member of the Family Group of such specified person or of any individual who is an
Affiliate of such specified person by reason of clause (i) of this definition;
provided, however,
that
no person shall be deemed an Affiliate of any other person or entity solely by reason of any
investment in the Company. The term
control
, with respect to any person or entity, means
possession, direct or indirect, of the power to direct or cause the direction of the management and
policies of such person or entity, whether through the ownership of voting securities or a
-8-
partnership interest, by contract or otherwise. With respect to each of the Institutional
Holders, the term Affiliate shall also include (1) any entity in which such Institutional Holder
(or one of its Affiliates) is a general partner or member and (2) each investor in such
Institutional Holder, but only in connection with the liquidation, winding up or dissolution of the
Institutional Holder, and only to the extent of such investors pro rata share in the Institutional
Holder. With respect to each Advent Fund, the term Affiliate shall also include any investment
fund managed by Advent International Corporation, a Delaware corporation. For purposes of this
Agreement,
Family Group
means, as to any holder of capital stock who is a natural person,
such holders spouse, ancestors, the lineal descendants of such individuals grandparents, and
trusts for the benefit of any of the foregoing,
provided that
all the income beneficiaries and
remainderman of any such trust are such individuals spouse, ancestors or lineal descendants.
(c)
Affiliated Company
means (i) lululemon usa inc., a Nevada corporation, (ii)
lululemon athletica canada inc., a company formed under the laws of British Columbia, (iii)
Lululemon FC USA Inc., a Nevada corporation, (iv) Lulu Canadian Holding, Inc., a company formed
under the laws of British Columbia, (v) Lululemon Athletica International SRL, a company formed
under the laws of Barbados and (vi) any Affiliate of any of the foregoing.
(d)
Brooke Funds
means Brooke Private Equity Advisors Fund I-A, L.P. and Brooke
Private Equity Advisors Fund I (D), L.P., each a Delaware limited partnership.
(e)
Highland Funds
means Highland Capital Partners VI Limited Partnership, Highland
Capital Partners VI-B Limited Partnership, and Highland Entrepreneurs Fund VI Limited Partnership,
each a Delaware limited partnership.
(f)
Institutional Holder
means, individually, each of the Advent Funds, Brooke Funds
and Highland Funds, and collectively, the
Institutional Holders
.
(g)
Investor Sale
means (i) a Transfer that, when added to all prior Transfers,
results in the Institutional Holders and their Permitted Transferees ceasing to hold or control at
least 20% of the voting power represented by all the capital stock of the Company held by them
collectively as of the Original Grant Date, or (ii) the sale of substantially all the assets of the
Company (other than (a) a transfer of financial assets made in the ordinary course of business for
the purpose of securitization or (b) pursuant to any recapitalization, reorganization or any
similar transaction pursuant to which control of the Company is substantially unaffected).
(h)
Permitted Transferee
means, with respect to a holder of shares of capital stock
of the Company (a
Holder
and collectively, the
Holders
):
i. an Affiliate of the Holder;
ii. any Person to whom the Holder may transfer its shares of capital stock to hold such shares
of capital stock as such Holders nominee;
iii. in the case of an Institutional Holder, any Person who receives securities in a
liquidating distribution by such fund or holder to its members, partners or shareholders;
-9-
iv. in the case of an Institutional Holder, one or more funds which invest in equity
securities and are qualified institutional buyers or accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) in connection with the sale by such holder of
any material part of its portfolio investments;
v. in the case of an Institutional Holder, any other Institutional Holder; and
vi. in the event of the death or incompetence of the Holder, a legal representative of the
Holder.
(i)
Return Multiple
means as of any given date, the multiple achieved by dividing
(i) the aggregate gross proceeds realized by the Institutional Holders and their Permitted
Transferees in respect of their investment in capital stock of the Company and its Affiliates made
on the Original Grant Date (including, without limitation, gross proceeds from any Transfer(s) to a
third party in registered or private offerings or sales under Rule 144 of the Securities Act, but
excluding gross proceeds received in connection with any Transfer to a Permitted Transferee), over
(ii) $92,783,505.15 (i.e., the aggregate cash amount invested by the Institutional Holders to
acquire shares of capital stock of the Company and its Affiliates as of the Original Grant Date),
all as determined by the Board in good faith immediately prior to (but as of) the relevant date and
subject to the following principles:
i. the Board will determine the value of any illiquid consideration received in connection
with any Transfer(s) by taking into account (among other things) any restrictions on the transfer
of that property and other impairments on its value;
ii. the Board will determine the value of any contingent consideration potentially payable in
connection with any Transfer(s) based on its best estimate of the likelihood that such contingent
consideration will actually be received;
iii. dividends or other non-stock distributions paid prior to the date as of which the Return
Multiple is being determined will be included in the calculation;
iv. securities of the Company and its Affiliates will not be counted as gross proceeds;
v. if the relevant transaction giving rise to a calculation of the Return Multiple is a sale
of substantially all the assets of the Company, a liquidation of the Company will be deemed to
occur immediately following that asset sale; and
vi. the Return Multiple will be calculated net of any commissions, discounts, underwriters
compensation, attorneys, accountants and bankers fees and any similar expenses or transaction
costs that are incurred (A) by or on behalf of the Institutional Holders in connection with the
acquisition of capital stock of the Company or its Affiliates through the Original Grant Date, or
(B) by or on behalf of the Institutional Holders or any Permitted Transferees in connection with
any Transfer(s) of any such capital stock (other than a Transfer between an Institutional Holder
and a Permitted Transferee).
-10-
(j)
Sale
means (i) the sale, transfer, assignment or other disposition (including by
merger, consolidation, recapitalization, reorganization or any similar transaction) by stockholders
of the Company, in one transaction or a series of related transactions, of greater than 66 2/3% of
the voting power represented by the then outstanding shares of capital stock (unless (a) such sale,
transfer, assignment or other disposition by such Holder or Holders is made to a Permitted
Transferee, (b) immediately after the completion of such transaction(s), control of the Company is
substantially unaffected or (c) such merger, consolidation, recapitalization, reorganization or any
similar transaction of the Company is with, into or among any Affiliated Company) or (ii) the sale
of substantially all the assets of the Company (other than (a) a transfer of financial assets made
in the ordinary course of business for the purpose of securitization or (b) pursuant to any
recapitalization, reorganization or any similar transaction pursuant to which control of the
Company is substantially unaffected).
(k)
Transfer
means a sale, transfer, assignment or other disposition of shares of
capital stock of the Company or its Affiliates by one or more of the Institutional Holders or their
Permitted Transferees.
[Signature Page Follows]
-11-
IN WITNESS WHEREOF, this Agreement has been executed by each of the parties on the date
indicated below, respectively.
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lululemon athletica inc.
|
|
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By:
|
/s/
John E. Currie
|
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Name:
|
John E. Currie
|
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|
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Title:
|
Chief Financial Officer
|
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|
Date:
|
November 28, 2007
|
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ROBERT MEERS
|
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By:
|
/s/
Robert Meers
|
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Name:
|
Robert Meers
|
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Date:
|
November 28, 2007
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-12-
Exhibit 10.3
lululemon athletica inc.
EMPLOYEE SHARE PURCHASE PLAN
lululemon athletica inc.
EMPLOYEE SHARE PURCHASE PLAN
Article 1 Definitions
1.1 Definitions
In this Plan, unless the context otherwise requires:
Administration Agreement
means the administration, trust, administrative services, plan services or other agreement entered
into by lululemon with the Administrator pursuant to section 9.1 or 9.2 then in effect, as the same
may be amended pursuant to section 9.3.
Administrator
means the party appointed as Administrator and service provider in connection with the
administration of this Plan pursuant to section 9.1 or 9.2 then acting as such.
Applicable Tax Legislation
means the
Income Tax Act
(Canada) and the regulations made thereunder and applicable provincial
income tax legislation and regulations made thereunder or, as applicable, the Internal Revenue Code
of 1986, as amended.
Board of Directors
means the board of directors of lululemon.
Canadian Employee
means an Employee who is resident in Canada within the meaning of that expression as used in the
Income Tax Act
(Canada) and is employed by a Canadian Employer.
Canadian Employer
means an Employer that is organized under the laws of Canada or a province thereof which carries on
business in Canada and deals at non-arms length with lululemon.
Committee
means the Compensation Committee of the Board of Directors and shall include (i) any successor to
such committee, and (ii) any committee of the Board of Directors which may, subsequent to the
implementation of this Plan, be established by the Board of Directors and to which the Board of
Directors has delegated responsibility for administration of this Plan (any successor or other
committee being herein referred to as a Successor Committee), provided
that if the Compensation Committee of the Board of Directors shall cease to exist without any
Successor Committee coming into existence Committee shall mean the Board of Directors.
Common Shares
means common shares, par value U.S. $0.01 per share, in the capital of lululemon.
Declaration of Trust
in respect of any Member, means the separate application and declaration of trust (including any
addenda in respect of locked-in funds) entered into by the Trustee and such Member pursuant to
the Sponsor Agreement in the form approved by the Trustee, as amended by the Trustee from time to
time, which creates, governs and sets out the terms of the registered retirement savings plan under
the Applicable Tax Legislation under which such Member is the annuitant within the meaning of
Applicable Tax Legislation.
Earnings
means, with respect to any Member, the total base earnings of such Member from such Members
Employer, but excluding overtime pay, commissions, bonus payments, on-call pay, gratuities and
other special compensation.
Employee
means a person who is an employee of an Employer.
Employer
means:
(a) lululemon; or
(b) a Participating Subsidiary.
Full-Time Employee
means:
|
(i)
|
|
is in a full-time year round position and works 24 or more
hours per week;
|
|
|
(ii)
|
|
is in a position of store manager or assistant store manager
and works year round with no break in service and works 24 or more hours per
week; or
|
|
|
(iii)
|
|
is in a position of Educator and works year round with no
break in service and works 24 or more hours per week; or
|
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(b)
|
|
an Employee or class of Employees whose participation in the Plan is approved
in writing by the Chief Executive Officer of lululemon.
|
lululemon
means lululemon athletica inc., a Delaware corporation.
Market Value
on any date, means the average of the closing prices per share of at least a board lot of Common
Shares on The Toronto Stock Exchange for the five trading days immediately preceding such date on
which at least a board lot of Common Shares traded.
Member
means a Full-Time Employee who is enrolled in this Plan pursuant to the provisions hereof.
Non-Registered ESPP
means a Non-Registered ESPP Account established and maintained by the Administrator with respect to
a Member under this Plan that is not a Registered ESPP.
Non-Registered ESPP Account
means, with respect to any Member, an account of such Member established and maintained by the
Administrator pursuant to section 10.1.
Participating Subsidiary
means any Subsidiary of lululemon that has been designated by the Board of Directors, the Committee
or the Chief Executive Officer of lululemon as participating in this Plan unless such designation
has been revoked by the Board of Directors, the Committee or the Chief Executive Officer as the
case may be.
Plan
means this Employee Share Purchase Plan (ESPP) which will consist of the Non-Registered ESPPs and
the Registered ESPPs.
Registered ESPP
means a Registered ESPP Account established and maintained by the Trustee with respect to a Member
under this Plan pursuant to a Declaration of Trust that is a registered retirement savings plan
under the Applicable Tax Legislation.
Registered ESPP Account
means with respect to any Member, an account of such Member established and maintained by the
Trustee pursuant to section 10.2.
Sponsor Agreement
means the RSP Sponsor Agreement entered into by lululemon with the Trustee pursuant to section 9.4
or 9.5 then in effect, as the same may be amended pursuant to section 9.6.
Subsidiary
means a subsidiary as that term is defined in the
Securities Act
(British Columbia).
Trustee
means (i) in respect of Non-Registered ESPPs, the Administrator, and (ii) in respect of Registered
ESPPs, the party appointed as Trustee under this Plan pursuant to section 9.4 or 9.5 then acting as
such.
Year
means a year ending December 31.
Article 2 Eligibility
2.1 Eligibility
Except to the extent that an Employees ability to re-enrol in this Plan is restricted as provided
in section 7.5, all Full-Time Employees are eligible to enrol and participate in this Plan and may
enrol and participate in this Plan at any time after:
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(a)
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in the case of a Full-Time Employee who is part of the Senior Management
Team, as designated by the Chief Executive Officer of lululemon, commencing employment
with such Full-Time Employees Employer;
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(b)
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in the case of all other Full-Time Employees, the commencement of the first
calendar month following the end of the Employees three-month initial probation
period.
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2.2 Re-enrolment
If the employment of a Member is terminated as described in section 7.9 and the Employee thereafter
becomes a Full-Time Employee, for the purposes of this Plan, except to the extent that an
Employees ability to re-enrol or recommence participation in this Plan is restricted as provided
in section 7.5, the Employee will be considered to be a new Employee.
2.3 No Right to Employment
Participation in this Plan is entirely voluntary and any decision by a Full-Time Employee not to
participate will not affect such Employees employment with such Employees Employer. Nothing
contained in this Plan gives any Full-Time Employee who participates in this Plan the right to be
employed or to continue to be employed by an Employer.
Article 3 Enrolment
3.1 Enrolment by Canadian Employees
A Full-Time Employee who is a Canadian Employee who wishes to participate in a Non-Registered ESPP
or a Registered ESPP must:
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(a)
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submit to lululemon or the Administrator an enrolment form authorizing the
Employees Employer to deduct from the Earnings of such Employee such contributions to
this Plan as such Employee may designate in such enrolment form (subject to changes
which the Employee may thereafter make pursuant to section 4.1);
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(b)
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open an account with the Administrator;
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(c)
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if the Employee wishes to enrol and participate in a Registered ESPP, complete
and submit to the Administrator a group application form;
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(d)
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if the Employee wishes to enrol and participate in both a Non-Registered ESPP
and a Registered ESPP, designate a percentage of the Members contributions to this
Plan that the Employee wishes to contribute to (i) the Non-Registered ESPP and (ii) the
Registered ESPP;
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(e)
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submit to the Administrator or lululemon a beneficiary designation form; and
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(f)
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express the agreement of such Employee to be bound by the terms and conditions
of this Plan;
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in each case in the form and manner from time to time required by lululemon, the Administrator or
the Trustee.
3.2 Employee Solely Responsible re Contribution Limits to Registered ESPP
For greater certainty, the Employers and Administrator and Trustee assume no responsibility in
relation to whether any Employee is or continues to be eligible under applicable laws to
participate in a Registered ESPP or contribution limits applicable to any Employee to any
Registered ESPP, which matters shall be the sole responsibility of the Employee.
3.3 Enrolment by Non-Canadian Employees
A Full-Time Employee who is not a Canadian Employee who wishes to participate in the Plan may
participate through a Non-Registered ESPP and such Employee must:
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(a)
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submit to lululemon or the Administrator an enrolment form authorizing the
Employees Employer to deduct from the Earnings of such Employee such contributions to
this Plan as such Employee may designate in such enrolment form (subject to changes
which the Employee may thereafter make pursuant to section 4.1);
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(b)
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open an account with the Administrator (and, in connection therewith, if
required by the Administrator or lululemon, submit to the Administrator or lululemon a
Substitute Form W-9 or other form that the Administrator or lululemon may require); and
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(c)
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express the agreement of such Employee to be bound by the terms and conditions
of this Plan;
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in each case in the form and manner from time to time required by lululemon and the Administrator.
Article 4 Contributions
4.1 Member Contributions and Allocation
A Member may, no less frequently than monthly, contribute an amount to this Plan equal to what ever
portion of his or her Earnings equates, after deduction of applicable taxes, to either 3%, 6%
or 9%
of such Members Earnings for such period, as designated by such Member from time to time in the
form and manner contemplated pursuant to sections 3.1 or 3.3 or in a written notice given pursuant
to this section. The contributions to this Plan made by a Member who is a Canadian Employee who is
participating in both a Non-Registered ESPP and a Registered ESPP shall be allocated between a
Non-Registered ESPP and a Registered ESPP as designated by such Member from time to time in the
form and manner contemplated pursuant to sections 3.1(d) or 4.2(b) or in a written notice given
pursuant to this section. A Member may change any designation or allocation referred to in this
section to be applicable to future regularly scheduled payroll payments by giving notice of such
change to the Administrator and the Trustee (and, if the Administrator or lululemon so advises the
Member, to lululemon and the Members Employer), in the form and manner and subject to such
restrictions or conditions (which may include conditions regarding when changes will become
effective subsequent to notice being given or limitations on the number of times a Member may make
changes in a specified time period) from time to time required by lululemon and the Administrator.
Subject to the mandatory change of allocation contemplated pursuant to section 4.2, any such
designation will remain in effect until changed by the Member.
4.2 Change of Status of Canadian Employee
If a Member participating in a Registered ESPP ceases to be a Canadian Employee:
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(a)
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the Member must, not less than 10 days prior to the date on which the status of
the Member changes, give notice of such change to the Administrator and the Members
Employer specifying the date on which the Member will cease to be a Canadian Employee,
in the form and manner required by lululemon and the Administrator or Trustee; and
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(b)
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effective upon the date that the Member so ceases to be a Canadian Employee,
all contributions made after such time to this Plan by the Member shall be allocated to
the Members Non-Registered ESPP unless and until the Member again becomes a Canadian
Employee, in which event the Member may give a notice
pursuant to this section designating an allocation of such Members contributions
between such Members Non-Registered ESPP and Registered ESPP in the form and manner
required by lululemon and the Administrator or Trustee.
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4.3 Deduction of Contributions Registered ESPP
Contributions to this Plan made by a Member who is a Canadian Employee participating in a
Registered ESPP which are, pursuant to section 4.1, allocated to the Members Registered ESPP will
be deducted and withheld by the Members Employer by payroll deductions from such Members Earnings
which will be made no more frequently than the regularly scheduled payroll payments as may be
designated by the Members Employer from time to time and all such amounts so deducted or withheld
will promptly (and, in any event, within ten days after the deduction or withholding thereof) be
deposited by the Employer with the Trustee (or with the Administrator, as agent for the Trustee).
4.4 Deduction of Contributions Non-Registered ESPP
Contributions made by a Member to this Plan which are not, pursuant to section 4.1, allocated to a
Members Registered ESPP will be deducted and withheld by the Members Employer by payroll
deductions from such Members Earnings which will be made no more frequently than the regularly
scheduled payroll payments as may be designated by the Members Employer from time to time and will
be allocated to the Members Non-Registered ESPP and all such amounts so deducted or withheld will
promptly (and in any event, within ten days after the deduction or withholding thereof) be
deposited by the Employer with the Administrator.
4.5 Employer Contributions Registered ESPP
Subject to section 4.9, the Employer, on behalf of each Member who is a Canadian Employee who is
participating in a Registered ESPP, will make a contribution to the Members Registered ESPP on
behalf of the Member equal to one-third of the amount contributed by such Member to the Members
Registered ESPP. The contribution of lululemon will be deposited by lululemon with the Trustee (or
with the Administrator, as agent for the Trustee) at the time of or promptly (and in any event,
within ten days) after the end of each month in which contributions to this Plan made by such
Member are deducted and withheld by the Members Employer.
4.6 Employer Contributions Non-Registered ESPP
Subject to section 4.9, the Employer, on behalf of each Member who is participating in a
Non-Registered ESPP, will make a contribution to the Members Non-Registered ESPP on behalf of the
Member equal to one-third of the amount contributed by such Member to the Members Non-Registered
ESPP. The contribution by lululemon will be deposited by lululemon with the Administrator at the
time of or promptly (and in any event, within ten days) after the end of each month in which
contributions to this Plan made by such Member are deducted and withheld by the Members Employer.
The Employers contributions will be additional compensation to the Member and the Employer will be
entitled to make such withholdings as may be required by Applicable Tax Legislation from cash
remuneration payable to the Member.
4.7 Contributions Credited to Accounts
The Trustee (or the Administrator as agent for the Trustee) will, on receipt of any contribution to
a Registered ESPP by or on behalf of a Member, credit such contribution to such Members Registered
ESPP Account. The Administrator will, on receipt of any contribution to a Non-Registered ESPP by
or on behalf of a Member, credit such contribution to such Members Non-Registered ESPP Account.
All contributions by lululemon on behalf of a Member will vest irrevocably in such Member as and
when they are received by the Trustee or Administrator.
4.8 Holding of Amounts Pending Investment
The Trustee will hold all cash amounts credited to each Members Registered ESPP Account from time
to time, pending the application thereof to the purchase of Common Shares pursuant to section 5.1,
in a non-interest bearing account of the Trustee or the Administrator or of any Canadian chartered
bank, including, without limitation, any bank expressly permitted in the Sponsor Agreement, or any
trust corporation existing under the laws of Canada or any province
thereof, and will credit all
cash dividends or other earnings arising therefrom to such Members Registered ESPP Account. The
Administrator will hold all cash amounts credited to each Members Non-Registered ESPP Account from
time to time, pending the application thereof to the purchase of Common Shares pursuant to
section 5.4, in a non interest bearing account of the Administrator or of any Canadian chartered
bank, including, without limitation, any bank expressly permitted in the Administration Agreement,
or any trust corporation existing under the laws of Canada or any province thereof, and will credit
all cash dividends or other earnings arising therefrom to such Members Non-Registered ESPP
Account.
4.9 Insolvency
Notwithstanding anything to the contrary herein, the Employer will not make any contribution to
this Plan pursuant to section 4.5 or 4.6 in circumstances where the Employer is insolvent or such
contribution would render the Employer insolvent.
Article 5 Purchase of Common Shares
5.1 Purchase by Trustee of Common Shares Registered ESPPs
The contributions by or on behalf of each Member to a Members Registered ESPP, together with all
cash dividends, interest and other earnings credited to such Members Registered ESPP Account, will
be applied by the Trustee (or the Administrator as agent for the Trustee) to the purchase of Common
Shares to be held in trust for the benefit of such Member. Such purchases will be made by the
Trustee (or the Administrator as agent for the Trustee) on or before the 15th day of the month
following the month in which contributions by or on behalf of a Member are made, through the
facilities of the Toronto Stock Exchange (or such other stock exchange as lululemon may designate
from time to time) and at the prevailing market price of our Common Stock on the Toronto Stock
Exchange (or such other stock exchange as lululemon may designate from time to time) on the date of
purchase.
5.2 Holding of Common Shares Registered ESPPs
All Common Shares purchased by the Trustee (or the Administrator as agent for the Trustee) pursuant
to section 5.1 on behalf of a Member will be held by the Trustee in trust for the benefit of such
Member, and the Trustee (or the Administrator as agent for the Trustee) will record in such
Members Registered ESPP Account the number of Common Shares (including any fraction thereof) so
held by the Trustee for the benefit of such Member. The certificates representing such Common
Shares will, prior to the withdrawal of such Common Shares from the Members Registered ESPP, be
registered in the name of the Trustee or its nominee.
5.3 Dividends in Registered ESPPs
The Trustee will, on receipt of any dividends paid on any Common Shares held by the Trustee in
trust for the benefit of a Member pursuant to section 5.2, credit such dividends to such Members
Registered ESPP Account.
5.4 Purchase by Administrator of Common Shares Non-Registered ESPPs
The contributions by or on behalf of each Member to a Members Non-Registered ESPP, together with
all cash dividends, interest and other earnings credited to such Members Non-Registered ESPP
Account, will be applied by the Administrator to the purchase of Common Shares on behalf of such
Member. Such purchases will be made by the Administrator on or before the 15
th
day of
the month following the month in which contributions by or on behalf of a Member are made, through
the facilities of the Toronto Stock Exchange (or such other stock exchange as lululemon may
designate from time to time) and at the prevailing market price of our Common Stock on the Toronto
Stock Exchange (or such other stock exchange as lululemon may designate from time to time) on the
date of purchase.
5.5 Holding of Common Shares Non-Registered ESPPs
All Common Shares purchased by the Administrator pursuant to section 5.4 on behalf of a Member will
be held by the Administrator for the benefit of such Member, and the Administrator will record in
such Members Non-Registered ESPP the number of Common Shares (including any fraction thereof) so
held by the Administrator for the benefit of such Member. The certificates representing such
Common Shares will, prior to the withdrawal of such Common Shares from this Plan, be registered in
the name of the Administrator or its nominee.
5.6 Dividends in Non-Registered ESPPs
The Administrator will, on receipt of any dividends paid on any Common Shares held by the
Administrator for the benefit of a Member pursuant to this Plan, credit such dividends to such
Members Non-Registered ESPP Account.
Article 6 Transfers to Registered ESPP
6.1 Transfer to Registered ESPP
A Member who is a Canadian Employee participating in a Registered ESPP may transfer all or some of
the Common Shares, money or other property held in such Members Non-Registered ESPP Account to
such Members Registered ESPP Account, subject to such restrictions and limitations and conditions
as may be imposed from time to time by lululemon or the Trustee or Administrator. If the Canadian
Employee Member is not already participating in a Registered ESPP the Member will be required to
first enrol in a Registered ESPP pursuant to section 3.1(c) prior to effecting any transfer
referred to in this section. A Member wishing to effect such a transfer must execute and submit to
the Administrator an ESPP Transfer form in the form and manner required by lululemon and the
Administrator. Such a transfer will not constitute a withdrawal from the Members Non-Registered
ESPP for the purpose of Article 7.
6.2 Transfer Process
In the event of a transfer pursuant to section 6.1, the Administrator will transfer the Common
Shares, money or other property held for the benefit of the Member in the transferring Members
Non-Registered Account to the Trustee, on behalf of the Member, as directed by the Member, to be
held by the Trustee in trust for the benefit of the Member. The Trustee (or the Administrator
as
agent for the Trustee) will record in such Members Registered ESPP Account the number of Common
Shares (including any fraction thereof) so held by the Trustee for the benefit of such Member. The
certificate representing any Common Shares so transferred will, prior to the withdrawal of such
Common Shares from the Members Registered ESPP Account, be registered in the name of the Trustee
or its nominee. The Member will provide the Administrator or Trustee with such information, and
comply with such requirements as the Administrator or Trustee may require in relation to any
capital gains which may be realized by the Member as a result of any such transfer. The Member
effecting such transfer will have sole liability for determining and discharging any tax liability
of the Member in respect of or arising as a result of such transfer.
Article 7 Withdrawals
7.1 Annual Withdrawals Permitted
No more than twice in each Year a Member may withdraw all or some of the Common Shares, money or
other property held in such Members Non-Registered ESPP Account or Registered ESPP Account, or, if
the Member has both a Non-Registered ESPP Account and Registered ESPP Account, may separately
withdraw all or some of the Common Shares, money or other property held in both such Non-Registered
ESPP Account and Registered ESPP Account, without in any way affecting the right of such Member to
continue to participate in this Plan. If a Member wishes to withdraw some or all of the Common
Shares, money or other property held in such Members Non-Registered ESPP Account or Registered
ESPP Account, the Member must complete and submit to the Administrator a withdrawal form in the
form and manner from time to time required by lululemon and the Administrator.
7.2 Suspension of Contributions Following Third Withdrawal
If a Member withdraws all or some of the Common Shares, money or other property held in such
Members Non-Registered ESPP Account or Registered ESPP Account more than twice in any Year, the
right of the Member to make contributions under this Plan will be suspended for a period of 12
months following the date of the third withdrawal. During this period of suspension any Common
Shares, money and other property held in such Members Non-Registered ESPP Account or Registered
ESPP Account following such third withdrawal will continue to be held in such Members
Non-Registered ESPP Account and Registered ESPP Account pursuant to the terms of this Plan, and
dividends, if any, paid on any Common Shares held by the Trustee for the benefit of such Member in
such Members Registered ESPP Account will be applied by the Trustee (or the Administrator as agent
for the Trustee) to the purchase of Common Shares on behalf of such Member pursuant to section 5.1
and dividends, if any, paid on any Common Shares held by the Trustee for the benefit of such Member
in such Members Non-Registered ESPP Account will be applied by the Administrator to the purchase
of Common Shares on behalf of such Member pursuant to section 5.4, but no contributions will be
made by or on behalf of the Member under this Plan (either in the form of contributions deducted
and withheld from payroll deductions or contributions by an Employer pursuant to section 4.5 or
4.6) during such period of suspension.
7.3 No Further Withdrawals
If a Members right to make contributions under this Plan is suspended pursuant to section 7.2, the
Member will not have the right to make further withdrawals of any of the Common Shares, money or
other property held in such Members Non-Registered ESPP Account or Registered ESPP Account during
the period of suspension unless the Member terminates such Members participation in this Plan.
7.4 Termination of Participation
If a Members right to make contributions under this Plan is suspended pursuant to section 7.2 and
the Member makes a withdrawal of any of the Common Shares, money or other property held in such
Members Non-Registered ESPP Account or Registered ESPP Account during the period of suspension,
the Member will cease to be entitled to participate in this Plan, or make contributions to this
Plan from and after the date of such withdrawal unless such Employee, if the Employee continues to
be a Full-Time Employee eligible to do so, thereafter, subject to section 7.5, again enrols in this
Plan pursuant to section 3.1 or section 3.3.
7.5 Withdrawal Following Termination
In the event:
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(a)
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any Member ceases to be entitled to participate in this Plan as provided in
section 7.4; and
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(b)
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upon the conclusion of the 12-month suspension period contemplated in section
7.2, such Member continues to be a Full-Time Employee eligible to participate in
the Plan but does not again enrol in this Plan pursuant to section 3.1 or section
3.3,
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all of the Common Shares, money and other property held in such Members Non-Registered ESPP
Account and, if applicable, Registered ESPP Account will be deemed to have been withdrawn by the
Member within 60 days of the conclusion of the 12-month suspension period contemplated in section
7.2. In addition, in such event the Employee will not be entitled to re-enrol or recommence
participation in this Plan prior to the first anniversary of the first day of the month following
the month in which such Members Common Shares, money and other property were deemed to have been
withdrawn.
7.6 Transfers to Registered ESPP During Suspension Period
Notwithstanding that a Members right to make contributions under this Plan is suspended pursuant
to section 7.2, a Member who is a Canadian Employee participating in a Registered ESPP will have
the right to transfer all or some of the Common Shares, money or property held in such Members
Non-Registered ESPP Account pursuant to Article 6 during the period of such suspension.
7.7 Authorization by Chief Financial Officer or the Vice President People Resources No Suspension
Either the Chief Financial Officer or the Vice President People Resources of lululemon may, in his
or her discretion, authorize a Member, on such terms and conditions, if any, as such authorization
may specify, to withdraw Common Shares, money or other property held in such Members
Non-Registered ESPP Account or, if applicable, Registered ESPP Account more than twice in a Year
without such Members right to make contributions being suspended pursuant to section 7.2 where, in
the opinion of either the Chief Financial Officer or the Vice President People Resources, such
action is necessary or desirable as a result of financial hardship being suffered by such Member.
If either the Chief Financial Officer or the Vice President People Resources makes an authorization
pursuant to this section 7.7, section 7.2 will not apply to any withdrawal made in accordance with
such authorization.
7.8 Authorization by Chief Financial Officer or the Vice President People Resources During Suspension Period
Either the Chief Financial Officer or the Vice President People Resources of lululemon, in his or
her discretion, may authorize a Member, on such terms and conditions, if any, as such authorization
may specify, to withdraw Common Shares, money or other property held in such Members
Non-Registered ESPP Account or, if applicable, Registered ESPP Account during any period of
suspension referred to in section 7.2 without such Member ceasing to be entitled to participate in
this Plan or to make contributions to this Plan where, in the opinion of either the Chief Financial
Officer or the Vice President People Resources, such action is necessary or desirable as a result
of financial hardship being suffered by such Member. If either the Chief Financial Officer or the
Vice President People Resources makes an authorization pursuant to this section 7.8, sections 7.3
and 7.4 will not apply to any withdrawal made in accordance with such authorization.
7.9 Withdrawal Following Termination of Employment
In the event of the termination of the employment of a Member with an Employer for any reason
whatsoever (including death or disability), the Member will cease to be entitled to participate in
this Plan as of the last day of active employment for the Member and all of the Common Shares,
money and other property held in such Members Non-Registered ESPP Account and Registered ESPP
Account, as applicable, will be deemed to have been withdrawn by the Member within 60 days after
the date on which such Members employment is so terminated.
7.10 Withdrawal Following Change of Employment
In the event any Member participating in this Plan ceases to be a Full-Time Employee for any reason
whatsoever (including disability), the Member will cease to be entitled to participate in this Plan
and all of the Common Shares, money and other property held in such Members Non-Registered ESPP
Account and Registered ESPP Account, as applicable, will be deemed to have been withdrawn by the
Member within 60 days after the date on which such Member ceases to be a Full-Time Employee.
7.11 Withdrawal Following Termination of Plan
In the event of the termination of this Plan, all of the Common Shares, money and other property
held in each Members Non-Registered ESPP Account and Registered ESPP Account, as applicable, will
be deemed to have been withdrawn by the Member within 60 days after the date on which this Plan is
terminated.
7.12 Fractional Share Interest on Withdrawal
All rights of a Member to a fraction of a Common Share upon any withdrawal of Common Shares from a
Members Registered ESPP will be satisfied by a cash payment in an amount equal to the value
thereof as determined by the Trustee on the basis of the Market Value on the day on which such
withdrawal is made. All rights of a Member to a fraction of a Common Share upon any withdrawal of
Common Shares from a Members Non-Registered ESPP will be satisfied by a cash payment in an amount
equal to the value thereof as determined by the Administrator on the basis of the Market Value on
the day on which such withdrawal is made.
7.13 Distribution Following Withdrawal Non-Registered ESPP
Upon any withdrawal of Common Shares, money and other property by any Member from such Members
Non-Registered ESPP, the Member (or the Members legal representatives) will be entitled to
instruct the Administrator, in the manner required by the Administrator, to (i) sell any Common
Shares so withdrawn in the open market, through the facilities of the Toronto Stock Exchange (or
such other stock exchange as lululemon may designate from time to time) and remit the proceeds from
such sale, net of related transaction expenses, to such Member; (ii) transfer any Common Shares so
withdrawn to a self-directed investment account of the Member designated by the Member; or
(iii) cause a share certificate registered in the name of such Member (or the Members legal
representatives) representing any such Common Shares so withdrawn to be sent to the Member. If the
Member (or the Members legal representatives) does not provide instructions to the Administrator
within 60 days after the withdrawal, the
Administrator will sell all Common Shares so withdrawn and remit the proceeds from such sale, net
of related transaction expenses, together with all money and other property so withdrawn from such
Members Non-Registered ESPP, (i) by first class registered mail to such Member to the address
specified by such Member by written notice delivered to the Administrator (or, failing such written
notice, to the address of such Member as it appears on such Members Non-Registered ESPP Account)
or (ii) by direct deposit with such bank or financial institution, or utilizing such other
alternate payment mechanism, as may have been authorized by the Member. In the event the
Administrator receives evidence satisfactory to the Administrator of the appointment of one or more
legal representatives of such Member or of the estate of such Member, the share certificate (if
applicable), money and other property will be forwarded to the address specified by such personal
representatives by written notice delivered to the Administrator (or, failing such written notice,
to the address of such Member as it appears on such Members Non-Registered ESPP Account).
7.14 Distribution Following Withdrawal Registered ESPP
Upon any withdrawal of Common Shares, money and other property by any Member from such Members
Registered ESPP, the Member (or the Members legal representatives) will be entitled to instruct
the Trustee (or the Administrator, as agent for the Trustee), in the manner required by the Trustee
or the Administrator, to (i) sell any Common Shares so withdrawn in the open market, through the
facilities of the Toronto Stock Exchange (or such other stock exchange as lululemon may designate
from time to time) and remit the proceeds from such sale, net of related transaction expenses, to
such Member, or (ii) transfer any Common Shares so withdrawn to a self-directed investment account
or registered retirement savings plan of the Member designated by the Member. If the Member (or
the Members legal representatives) does not provide instructions to the Trustee (or the
Administrator as agent for the Trustee) within 60 days after the withdrawal, the Trustee will sell
all Common Shares so withdrawn and remit the proceeds from such sale, net of related transaction
expenses, to the Member, together with all money and other property withdrawn from such Members
Registered ESPP, (i) by first class registered mail to such Member to the address specified by such
Member by written notice delivered to the Trustee (or, failing such written notice, to the address
of such Member as it appears on such Members Registered ESPP Account), or (ii) by direct deposit
with such bank or financial institution, or utilizing such other alternate payment mechanism, as
may have been authorized by the Member, all subject to the right of the Trustee to withhold and
deduct taxes or other amounts, or sell Common Shares held on behalf of a Member, pursuant to
section 7.16 and in accordance with the terms, conditions, rules and restrictions of the
Declaration of Trust applicable in respect of such Members Registered ESPP.
7.15 Compliance with Laws
lululemon may from time to time take such steps and require such documentation from Members that in
its opinion are necessary or desirable to ensure compliance with all applicable laws, including
(i) the applicable securities laws and regulations of Canada (including the provinces and
territories thereof) and of the United States, and any political subdivision of either, and the
bylaws, rules and regulations of any stock exchange or other organized market on which the Common
Shares may from time to time be listed or traded and (ii) the withholding provisions of Applicable
Tax Legislation. lululemon may also from time to time take such steps that in its
opinion are necessary or desirable to restrict the transferability of any Common Shares withdrawn
from this Plan in order to ensure such compliance.
7.16 Tax Withholding
The Trustee shall have the right to:
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(a)
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withhold and deduct from any payment to be made by the Trustee under this Plan
any federal, provincial, local or other taxes and other amounts required by law to be
withheld in respect of such payments; and
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(b)
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sell any Common Shares held on behalf of any Member and use the proceeds from
such sale to pay any federal, provincial, local or other taxes and other amounts
required by law to be withheld in respect of any distribution to such Member under this
Plan.
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Article 8 Temporary Suspension and Termination
8.1 Temporary Suspension
A Member may elect to suspend making contributions to this Plan effective as of the commencement of
any month and for a period of not less than 3 months and not more than 12 months by giving written
notice of such election to the Members Employer not less than 10 days prior to the commencement of
such month in the manner from time to time required by lululemon.
8.2 Restriction
No Member may elect to suspend making contributions to this Plan pursuant to section 8.1 more than
once in any Year.
8.3 Short Term Leaves
A Member who ceases to perform the duties of the Members position by virtue of being absent
pursuant to a medical disability (short term disability, long term disability or Workers
Compensation leave), maternity or parental leave or pursuant to such other leave of absence as may
be approved by the Members Employer or required by law, may elect to suspend making contributions
to this Plan effective as of the commencement of any month during such absence by giving written
notice of such election to the Members Employer not less than 10 days prior to the commencement of
such month in the manner required by lululemon. In such case the Member must begin contributing to
this Plan as soon as the Member returns to active employment.
8.4 Termination of Participation
A Member may elect to terminate the Members participation in this Plan effective as of the
commencement of any month by giving written notice of such election to the Members Employer not
less than 10 days prior to the commencement of such month in the manner from
time to time required by lululemon. If a Member makes such election, the Member will cease to be
entitled to participate in this Plan, or make contributions to this Plan, effective from and after
the commencement of the month indicated in the notice, unless such Employee, if the Employee
continues to be a Full-Time Employee eligible to do so, thereafter, subject to section 8.5, again
enrols in this Plan pursuant to section 3.1 or section 3.3.
8.5 Effect of Termination of Participation
In the event any Member ceases to participate in this Plan as provided in section 8.4, all of the
Common Shares, money and other property held in such Members Non-Registered ESPP Account and, if
applicable, Registered ESPP Account, will be deemed to have been withdrawn by the Member within 60
days after the date such Member ceases to participate. In addition, in such event, the Employee
will not be entitled to re-enrol or recommence participating in this Plan
prior to the first
anniversary of the first day of the month following the month in which such Member ceased to be
entitled to participate in this Plan.
8.6 Required Form
If a Member wishes to temporarily suspend making contributions to this Plan as contemplated in
section 8.1 or to terminate the Members participation in this Plan as contemplated by section 8.4,
the Member must complete and submit to lululemon a suspension/termination form in the form and
manner from time to time required by lululemon.
8.7 No Contributions
For greater certainty,
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(a)
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so long as a Members contributions to this Plan are suspended, or
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(b)
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from and after the time a Member ceases to participate in this Plan,
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contributions on behalf of such Member pursuant to sections 4.5 and 4.6 will also be suspended.
Article 9 Administrator and Trustee
9.1 Administrator
Each of the Chief Financial Officer and the Vice President People Resources of lululemon shall have
the authority to appoint an Administrator and service provider in connection with the
administration of this Plan pursuant to the terms of an administration, trust, administrative
services, plan services or other agreement in form and on terms and conditions approved by either
the Chief Financial Officer or the Vice President People Resources.
9.2 Successor Administrator
lululemon will have the right at any time and from time to time to appoint any trust company or
life insurance company authorized to carry on trust or deposit business or insurance business
within British Columbia as a replacement Administrator and service provider in connection with
the administration of this Plan pursuant to the terms of an administration, trust, administrative
services, plan services or other agreement between lululemon and such trust company or insurance
company in form and on terms and conditions approved by either the Chief Financial Officer or the
Vice President People Resources of lululemon.
9.3 Amendment of Administration Agreement
lululemon will have the right at any time and from time to time to agree to any modification or
amendment to the administration, trust, administrative services, plan services or other agreement
referred to in sections 9.1 or 9.2 which is approved by either the Chief Financial Officer or the
Vice President People Resources of lululemon.
9.4 Trustee
Each of the Chief Financial Officer and the Vice President People Resources of lululemon shall have
the authority to appoint a Trustee, pursuant to the terms of a Sponsor Agreement between lululemon
and the Trustee, in form and on terms and conditions approved by either the Chief Financial Officer
or the Vice President People Resources.
9.5 Successor Trustee
lululemon will have the right at any time and from time to time to appoint any trust company
authorized to carry on a trust business within the Province of British Columbia as a replacement
Trustee to serve as trustee under this Plan in respect of the Registered ESPPs pursuant to the
terms of an agreement between lululemon and such trust company in form and on terms and conditions
approved by either the Chief Financial Officer or the Vice President People Resources of lululemon.
9.6 Amendment of Sponsor Agreement
lululemon will have the right at any time and from time to time to agree to any modification or
amendment to the Sponsor Agreement or a trust agreement referred to in section 9.5 which is
approved by either the Chief Financial Officer or the Vice President People Resources of lululemon.
Article 10 Accounts and Records
10.1 Non-Registered ESPP Accounts
The Administrator will establish and maintain a separate account for each Member who is
participating in a Non-Registered ESPP in which the Administrator will record:
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(a)
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contributions made by such Member pursuant to section 4.1 allocated to the
Members Non-Registered ESPP;
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(b)
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contributions to such Members Non-Registered ESPP made on behalf of such
Member pursuant to section 4.6;
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(c)
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interest or other earnings credited to such account;
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(d)
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Common Shares purchased by the Administrator on behalf of such Member pursuant
to section 5.4;
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(e)
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dividends paid on any Common Shares held by the Administrator for the benefit
of such Member;
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(f)
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Common Shares, money or other property transferred from such account pursuant
to Article 6; and
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(g)
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Common Shares, money and other property withdrawn from such account pursuant to
Article 7.
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10.2 Registered ESPP Accounts
The Trustee will establish and maintain a separate account for each Member who is a Canadian
Employee who is participating in a Registered ESPP in which the Trustee will record:
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(a)
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contributions made by such Member pursuant to section 4.1 which are allocated
to the Members Registered ESPP;
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(b)
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contributions to such Members Registered ESPP made on behalf of such Member
pursuant to section 4.5;
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(c)
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interest or other earnings credited to such account;
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(d)
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Common Shares purchased by the Trustee in trust for the benefit of such Member
pursuant to section 5.1;
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(e)
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dividends paid on any Common Shares held by the Trustee in trust for the
benefit of such Member;
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(f)
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Common Shares, money and other property transferred to such account pursuant to
Article 6; and
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(g)
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Common Shares, money and other property withdrawn from such account pursuant to
Article 7.
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10.3 Reporting Non-Registered ESPP Accounts
Promptly after December 31 in each Year the Administrator will deliver to each Member who is
participating in a Non-Registered ESPP a statement of the Common Shares, money and other property
recorded in such Members Non-Registered ESPP Account as of the last day of the immediately
preceding month and such information concerning dividends, interest or other earnings credited to
such Members Non-Registered ESPP Account, Common Shares purchased by the Administrator on behalf
of such Member pursuant to section 5.4, Common Shares transferred from such account pursuant to
Article 6 and Common Shares withdrawn from such
account pursuant to Article 7 (including proceeds from the sale of any Common Shares pursuant to
section 7.13 and cash payments made in lieu of a fraction of a Common Share pursuant to
section 7.12) and other matters as may be necessary to enable such Member to file returns in
respect of such Year under Applicable Tax Legislation. The Administrator will complete any
information slips or similar reporting as may be required under Applicable Tax Legislation.
10.4 Reporting Registered ESPP Accounts
Promptly after December 31 in each Year the Trustee (or the Administrator as agent for the Trustee)
will deliver to each Member who is a Canadian Employee who is participating in a Registered ESPP a
statement of the Common Shares, money and other property recorded in such
Members Registered ESPP
Account as of the last day of the immediately preceding month and such information concerning
dividends, interest or other earnings credited to such Members Registered ESPP Account, Common
Shares purchased by the Trustee in trust for the benefit of such Member pursuant to section 5.1,
Common Shares transferred to such account pursuant to Article 6 and Common Shares withdrawn
pursuant to Article 7 (including proceeds from the sale of any Common Shares pursuant to
section 7.14 and cash payments made in lieu of a fraction of a Common Share pursuant to
section 7.12) and other matters as may be necessary to enable such Member to file returns in
respect of such Year under Applicable Tax Legislation.
Article 11 Common Shares Subject to the Plan
11.1 Authorized Shares
The aggregate number of Common Shares available for purchase under the Plan will be 3,000,000,
subject to adjustment pursuant to this Article 11.
11.2 Adjustments
The number of Common Shares available for purchase under the Plan will be automatically and
proportionately adjusted for share dividends, share splits, share combinations, reorganizations and
other similar events or transactions in a manner that reflects equitably the effects of such events
or transactions.
Article 12 Shareholder Materials
12.1 Shareholder Meeting Materials and Voting
So long as the Administrator or Trustee is holding Common Shares on behalf of a Member, the
Administrator and Trustee (or the Administrator as agent for the Trustee) will cause the Member to
be provided with a copy of the notice, information circular and proxy for each meeting of the
shareholders of lululemon received by the Administrator and Trustee (or their nominees) as the
registered holder of Common Shares together with an appropriate form on which the Member may
indicate voting instructions to the Administrator or Trustee. Provided that the Member provides
clear and timely instructions to the Administrator, or Trustee, as applicable, the Common Shares
held by the Administrator and Trustee on behalf of a Member pursuant to this Plan will be voted by
the Administrator and Trustee at each meeting of the shareholders of lululemon in accordance with
such instructions of such Member.
12.2 Take-Over Bids, etc.
The Administrator and Trustee (or the Administrator as agent for the Trustee) will promptly advise
all Members of take-over bids, issuer bids, rights offerings and other events notice of which is
delivered to the Administrator and Trustee or their nominee as the registered holder of Common
Shares and cause all Members to be provided with copies of all materials delivered by the offeror
or lululemon to the Administrator or Trustee or their nominee in connection therewith.
Article 13 Amendments and Termination
13.1 Amendments, Suspensions and Terminations of Plan
lululemon may at any time and from time to time amend, suspend or terminate this Plan in whole or
in part as approved by resolution of the Board of Directors, provided that no such amendment,
suspension or termination shall deprive any Member of any benefits that have accrued on or prior to
the date thereof without the consent of the affected Member.
Article 14 General
14.1 Agents
lululemon may from time to time appoint or engage accountants, lawyers and such other personnel as
it deems necessary or advisable for the proper administration of this Plan.
14.2 Administrative Rules
lululemon may make administrative rules for the proper functioning of this Plan.
14.3 Interpretation
Save as expressly provided herein, the rights and obligations of a Member with respect to Common
Shares, money and other property held by the Trustee pursuant to such Members Registered ESPP will
be as provided in the Declaration of Trust in respect of such Member. All questions arising as to
the interpretation of this Plan (including any disputes or disagreements which may arise under, as
a result of or in any way related to the application of this Plan) will be determined by the Chief
Executive Officer, Chief Financial Officer or the Vice President People Resources of lululemon or
such other officer of lululemon as the Chief Executive Officer may designate in writing to the
Administrator and Trustee from time to time, and any such determination will be final, binding and
conclusive for all purposes.
14.4 Governing Law
This Plan and the rights of the parties hereto will be construed and governed according to the laws
of British Columbia.
14.5 Expenses
Except as otherwise provided herein, lululemon will pay all administrative expenses of this Plan,
including fees of the Administrator and the Trustee and brokerage fees and commissions in respect
of the purchase of Common Shares purchased by the Trustee or Administrator under this Plan.
Members will be responsible for (i) brokerage fees and commissions and other transaction fees and
expenses payable upon a sale by the Administrator or Trustee of Common Shares held under this Plan;
(ii) transaction fees (including fees charged by the Administrator) payable upon a transfer of
Common Shares held under this Plan to a self-directed investment account of a Member; and
(iii) share certificate fees (including fees charged by the Administrator) payable in respect of
share certificates delivered to a Member.