Colorado | 90-0224471 | |
(State or other jurisdiction of
incorporation or organization) |
(IRS Employer Identification No.) |
Large accelerated filer o | Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company þ |
Proposed maximum | ||||||||||||||||||||||
Title of Securities to be | Amount to be registered | offering price per | Proposed maximum | Amount of Registration | ||||||||||||||||||
registered | (1) | share (2) | aggregate offering price | fee | ||||||||||||||||||
Common Stock, $0.0001
par value per share
|
3,500,000 shares | $ | 1.1422 | (2) | $ | 3,997,570.40 | (2) | $ | 464.12 | |||||||||||||
(1) | Pursuant to Rules 416 and 457 under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common stock that may become issuable pursuant to the anti-dilution adjustment provisions of the Lifevantage Corporation 2010 Long-Term Incentive Plan. | |
(2) | (i) Estimated pursuant to Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, on the basis of the exercise prices of each outstanding stock option. The exercise price per share represents the weighted average of these exercise prices. | |
(ii) Estimated pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee, based on the average of the high and low prices of Registrants common stock as reported on the OTC Bulletin Board on June 20, 2011, as set forth in the following table: | ||
(iii) Represents the weighted average of (i) and (ii) above. |
Exercise Price Per | Maximum Aggregate | |||||||||||
Type of Shares | Number of Shares | Share ($) | Offering Price ($) | |||||||||
(i) Shares
subject to issuance
upon exercise of
stock options
outstanding under
the Lifevantage
Corporation 2010
Long-Term Incentive
Plan
|
2,412,000 | $ | 1.0642 | $ | 2,566,850.40 | |||||||
|
||||||||||||
(ii) Shares
reserved for
issuance for other
awards under the
Lifevantage
Corporation 2010
Long-Term Incentive
Plan
|
1,088,000 | $ | 1.3150 | $ | 1,430,720.00 | |||||||
TOTAL
|
3,500,000 | $ | 1.1422 | (iii) | $ | 3,997,570.40 |
(a) | The Registrants latest Annual Report on Form 10-K for the fiscal year ended June 30, 2010, filed on September 15, 2010. | ||
(b) | All reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act) since the end of the fiscal year covered by the Registrants latest Annual Report; and | ||
(c) | The description of the Registrants common stock contained in the Registrants Registration Statement on Form SB-2 filed under the Securities Act on December 17, 2007, including any amendment or report filed for the purpose of updating such description. |
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Table of Contents
Exhibit
No. |
Description | |
4.1
|
Amended and Restated Articles of Incorporation of the Company (incorporated herein by reference to Appendix C to Lifeline Therapeutics (the predecessor to Lifevantage Corporation) Schedule 14-A filed on October 20, 2006) | |
4.2
|
Amended and Restated Bylaws of the Company (incorporated herein by reference to an exhibit to Lifeline Therapeutics (the predecessor to Lifevantage Corporation) Annual Report on Form 10-KSB for the fiscal year ended June 30, 2006 filed on September 28, 2006) | |
4.3
|
Lifevantage Corporation 2010 Long-Term Incentive Plan | |
4.4
|
Form of Nonstatutory Stock Option Agreement for the 2010 Long-Term Incentive Plan | |
4.5
|
Form of Incentive Stock Option Agreement for the 2010 Long-Term Incentive Plan | |
5.1
|
Opinion of Sheppard, Mullin, Richter & Hampton LLP | |
23.1
|
Consent of Ehrhardt Keefe Steiner & Hottman PC, an Independent Registered Public Accounting Firm | |
23.2
|
Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.1 to this Registration Statement) | |
24.1
|
Power of Attorney (included as part of the signature page to this Registration Statement) |
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Table of Contents
LIFEVANTAGE CORPORATION
|
||||
By: | /s/ Carrie E. McQueen | |||
Carrie E. McQueen | ||||
Chief Financial Officer |
Signature | Title | Date | ||
|
||||
/s/ Douglas C. Robinson
|
President, Chief Executive Officer and Director (Principal Executive Officer) | June 23, 2011 | ||
|
||||
/s/ Carrie E. McQueen
|
Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | June 23, 2011 | ||
|
||||
/s/ David W. Brown
|
President of LifeVantage Network | June 23, 2011 | ||
|
||||
/s/ C. Mike Lu
|
Director | June 23, 2011 | ||
|
||||
/s/ Kay Stout Manovich
|
Director | June 23, 2011 | ||
|
||||
/s/ Garry Mauro
|
Chairman of the Board of Directors | June 23, 2011 | ||
|
||||
/s/ Joe M. McCord
|
Director | June 23, 2011 | ||
|
||||
/s/ James D. Crapo
|
Director | June 23, 2011 |
Exhibit
No.
Description
Amended and Restated Articles of Incorporation of the Company (incorporated herein by
reference to Appendix C to Lifeline Therapeutics (the predecessor to Lifevantage
Corporation) Schedule 14-A filed on October 20, 2006)
Amended and Restated Bylaws of the Company (incorporated herein by reference to an
exhibit to Lifeline Therapeutics (the predecessor to Lifevantage Corporation) Annual
Report on Form 10-KSB for the fiscal year ended June 30, 2006 filed on September 28,
2006)
Lifevantage Corporation 2010 Long-Term Incentive Plan
Form of Nonstatutory Stock Option Agreement for the 2010 Long-Term Incentive Plan
Form of Incentive Stock Option Agreement for the 2010 Long-Term Incentive Plan
Opinion of Sheppard, Mullin, Richter & Hampton LLP
Consent of Ehrhardt Keefe Steiner & Hottman PC, an Independent Registered Public
Accounting Firm
Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.1 to this
Registration Statement)
Power of Attorney (included as part of the signature page to this Registration Statement)
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LIFEVANTAGE CORPORATION
|
||||
/s/ Carrie E. McQueen | ||||
By | Carrie E. McQueen | |||
Title | Chief Financial Officer | |||
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Optionee:
|
||||
|
||||
|
(Signature) | |||
|
||||
Company:
|
||||
|
||||
|
(Signature) | |||
|
||||
Title:
|
||||
|
2
2010 LONG-TERM INCENTIVE PLAN
The Plan and
Other Agreements
The text of the Plan is
incorporated in this Agreement
by reference. Certain
capitalized terms used in this
Agreement are defined in the
Plan.
This Agreement and the Plan
constitute the entire
understanding between you and
the Company regarding this
Option. Any prior agreements,
commitments or negotiations
concerning this Option are
superseded.
Nonstatutory Stock Option
This Option is not intended to
be an Incentive Stock Option
under section 422 of the Code
and will be interpreted
accordingly.
This Option is not intended to
be deferred compensation under
section 409A of the Code and
will be interpreted
accordingly.
Vesting
This Option is only exercisable
before it expires and only with
respect to the vested portion
of the Option. This Option
will vest according to the
Vesting Schedule described in
the cover sheet of this
Agreement.
Term
Your Option will expire in all
cases no later than the close
of business at Company
headquarters on the Expiration
Date, as shown on the cover
sheet. Your Option may expire
earlier if your Service
terminates, as described in
Sections 5, 6 and 7 below or on
the date on which the Option is
cancelled (and not substituted
or assumed) pursuant to a
Change in Control or merger or
acquisition or reorganization
or similar transaction
involving the Company.
Termination of Service General
If, while the Option is
outstanding, your Service
terminates for any reason,
other than being terminated by
the Company for Cause or due to
your death or Disability, then
the unvested portion of your
Option shall be forfeited
without consideration and shall
immediately expire on your
Termination Date and the vested
portion of your Option will
expire at the earlier of (i)
the close of business at
Company headquarters on the
date that is three (3) months
after your Termination Date,
(ii) the Expiration Date set
forth in the attached cover
sheet and further described in
Section 4 above, or (iii) the
date on which the Option is
cancelled (and not substituted
or assumed) pursuant to a
Change in Control or merger or
acquisition or reorganization
or similar transaction
involving the Company. In no
event is the Option exercisable
after the Expiration Date.
3
Termination of Service for
Cause
If your Service is terminated
by the Company for Cause or if
you commit an act(s) of Cause
while this Option is
outstanding, as determined by
the Committee in its sole
discretion, then you shall
immediately forfeit all rights
to your Option without
consideration, including any
vested portion of the Option,
and the entire Option shall
immediately expire, and any
rights, payments and benefits
with respect to the Option
shall be subject to reduction
or recoupment in accordance
with the Clawback Policy and
the Plan. For avoidance of
doubt, your Service shall also
be deemed to have been
terminated for Cause by the
Company if, after your Service
has otherwise terminated, facts
and circumstances are
discovered that would have
justified a termination for
Cause, including, without
limitation, your violation of
Company policies or breach of
confidentiality or other
restrictive covenants or
conditions that may apply to
you prior to or after your
Termination Date.
Termination of Service due to
Death or Disability
If your Service terminates
because of your death or
Disability, then the unvested
portion of your Option shall be
forfeited without consideration
and shall immediately expire on
your Termination Date and the
vested portion of your Option
will expire at the earlier of
(i) the close of business at
Company headquarters on the
date that is twelve (12) months
after your Termination Date,
(ii) the Expiration Date set
forth in the attached cover
sheet and further described in
Section 4 above, or (iii) the
date on which the Option is
cancelled (and not substituted
or assumed) pursuant to a
Change in Control or merger or
acquisition or similar
transaction involving the
Company. In no event is the
Option exercisable after the
Expiration Date. If your
Service terminated due to your
death, then your estate may
exercise the vested portion of
your Option during the
foregoing post-Service exercise
period.
Leaves of Absence
For purposes of this Option,
your Service does not terminate
when you go on a
bona fide
leave of absence that was
approved by the Company in
writing, if the terms of the
leave provide for continued
Service crediting, or when
continued Service crediting is
required by applicable law.
Your Service terminates in any
event when the approved leave
ends unless you immediately
return to active work.
The Company determines which
leaves count for this purpose
(along with determining the
effect of a leave of absence on
vesting of the Option), and
when your Service terminates
for all purposes under the
Plan.
Notice of Exercise
When you wish to exercise this
Option, you must notify the
Company by filing a Notice of
Exercise form at the address
given on the form. Your notice
must specify how many Shares
4
you wish to purchase. Your
notice must also specify how
your Shares should be
registered (in your name only
or in your and your spouses
names as community property or
as joint tenants with right of
survivorship). The notice will
be effective when it is
received by the Company.
If someone else wants to
exercise this Option after your
death, that person must prove
to the Companys satisfaction
that he or she is entitled to
do so.
Form of Payment
When you submit your notice of
exercise, you must include
payment of the Exercise Price
for the Shares you are
purchasing. Payment may be
made in one (or a combination)
of the following forms:
Withholding Taxes
You will be solely responsible
for payment of any and all
applicable taxes associated
with this Option.
You will not be allowed to
exercise this Option unless you
make acceptable arrangements to
pay any withholding or other
taxes that may be due as a
result of the Option exercise
or sale of Shares acquired
under this Option.
Restrictions on Exercise and
Resale
By signing this Agreement, you
agree not to (i) exercise this
Option (Exercise
Prohibition), or (ii) sell,
transfer, dispose of, pledge,
hypothecate, make any short
sale of, or otherwise effect a
similar transaction of any
Shares acquired under this
Option (each a Sale
Prohibition) at a time when
applicable laws, regulations or
Company or underwriter trading
policies prohibit the exercise
or disposition of Shares. The
Company will not permit you to
exercise this Option if the
issuance of Shares at that time
would violate any law or
regulation. The Company shall
have the right to designate one
or more periods of time, each
of which generally
|
will not exceed one hundred eighty (180) days in length (provided however, that such period may be extended in connection with the Companys release (or announcement of release) of earnings results or other material news or events), and to impose an Exercise Prohibition and/or Sale Prohibition, if the Company determines (in its sole discretion) that such limitation(s) is needed in connection with a public offering of Shares or to comply with an underwriters request or trading policy, or could in any way facilitate a lessening of any restriction on transfer pursuant to the Securities Act or any state securities laws with respect to any issuance of securities by the Company, facilitate the registration or qualification of any securities by the Company under the Securities Act or any state securities laws, or facilitate the perfection of any exemption from the registration or qualification requirements of the Securities Act or any applicable state securities laws for the issuance or transfer of any securities. The Company may issue stop/transfer instructions and/or appropriately legend any stock certificates issued pursuant to this Option in order to ensure compliance with the foregoing. Any such Exercise Prohibition shall not alter the vesting schedule set forth in this Agreement other than to limit the periods during which this Option shall be exercisable. | |||
|
||||
|
If the sale of Shares under the Plan is not registered under the Securities Act, but an exemption is available which requires an investment or other representation, you shall represent and agree at the time of exercise that the Shares being acquired upon exercise of this Option are being acquired for investment, and not with a view to the sale or distribution thereof, and shall make such other representations as are deemed necessary or appropriate by the Company and its counsel. | |||
|
||||
|
You may also be required, as a condition of exercise of this Option, to enter into any Company shareholder agreement or other agreements that are applicable to shareholders. | |||
|
||||
13.
|
Transfer of Option | Prior to your death, only you may exercise this Option. You cannot transfer, assign, alienate, pledge, attach, sell, or encumber this Option. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will or it may be transferred by the laws of descent and distribution. Regardless of any marital property settlement agreement, the Company is not obligated to honor a notice of exercise from your spouse, nor is the Company obligated to recognize your spouses interest in your Option in any other way. |
5
14.
|
Retention Rights | Your Option or this Agreement does not give you the right to be retained by the Company (or any Parent or any Subsidiaries or Affiliates) in any capacity. The Company (or any Parent and any Subsidiaries or Affiliates) reserves the right to terminate your Service at any time and for any reason. | ||
|
||||
|
This Option and the Shares subject to the Option are not intended to constitute or replace any pension rights or compensation and are not to be considered compensation of a continuing or recurring nature, or part of your normal or expected compensation, and in no way represent any portion of your salary, compensation or other remuneration for any purpose, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. | |||
|
||||
15.
|
Shareholder Rights | You, or your estate, shall have no rights as a shareholder of the Company with regard to the Option until you have been issued the applicable Shares by the Company and have satisfied all other conditions specified in Section 4(g) of the Plan. No adjustment shall be made for cash or stock dividends or other rights for which the record date is prior to the date when such applicable Shares are issued, except as provided in the Plan. | ||
|
||||
16.
|
Adjustments | In the event of a stock split, a stock dividend or a similar change in the Company stock, the number of Shares covered by this Option (rounded down to the nearest whole number) and the Exercise Price per Share may be adjusted pursuant to the Plan. Your Option shall be subject to the terms of the agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. | ||
|
||||
17.
|
Legends | All certificates representing the Shares issued upon exercise of this Option may, where applicable, have endorsed thereon the following legends and any other legend the Company determines appropriate: | ||
|
||||
|
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE. |
6
7
THE SHARES REPRESENTED HEREBY
HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD,
PLEDGED, OR OTHERWISE
TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR AN OPINION OF
COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT
SUCH REGISTRATION IS NOT
REQUIRED.
Applicable Law
This Agreement will be
interpreted and enforced under
the laws of the State of
Colorado without reference to
the conflicts of law provisions
thereof and any action relating
to this Agreement must be
brought in state or federal
courts located in San Diego
County, California.
Binding Effect; No Third Party
Beneficiaries
This Agreement shall be binding
upon and inure to the benefit
of the Company and you and any
respective heirs,
representatives, successors and
permitted assigns. This
Agreement shall not confer any
rights or remedies upon any
person other than the Company
and you and any respective
heirs, representatives,
successors and permitted
assigns. The parties agree
that this Agreement shall
survive the settlement or
termination of the Award.
Voluntary Participant
You acknowledge that you are
voluntarily participating in
the Plan.
No Rights to Future Awards
Your rights, if any, in respect
of or in connection with this
Option or any other Awards are
derived solely from the
discretionary decision of the
Company to permit you to
participate in the Plan and to
benefit from a discretionary
future Award. By accepting
this Option, you expressly
acknowledge that there is no
obligation on the part of the
Company to continue the Plan
and/or grant any additional
Awards to you or benefits in
lieu of Options or any other
Awards even if Awards have been
granted repeatedly in the past.
All decisions with respect to
future Awards, if any, will be
at the sole discretion of the
Committee.
Future Value
The future value of the
underlying Shares is unknown
and cannot be predicted with
certainty. If the underlying
Shares do not increase in value
after the Date of Option Grant,
the Option will have little or
no value. If you exercise the
Option and obtain Shares, the
value of the Shares acquired
upon exercise may increase or
decrease in value, even below
the Exercise Price.
No Advice Regarding Grant
The Company has not provided any tax, legal or financial advice, nor has the Company made any recommendations regarding your
|
participation in the Plan, or your acquisition or sale of the underlying Shares. You are hereby advised to consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. | |||
|
||||
24.
|
No Right to Damages | You will have no right to bring a claim or to receive damages if any portion of the Option is cancelled or expires unexercised. The loss of existing or potential profit in the Option will not constitute an element of damages in the event of the termination of your Service for any reason, even if the termination is in violation of an obligation of the Company or a Parent or a Subsidiary or an Affiliate to you. | ||
|
||||
25.
|
Data Privacy | You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by the Company for the exclusive purpose of implementing, administering and managing your participation in the Plan. You understand that the Company holds certain personal information about you, including, but not limited to, name, home address and telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Awards or any other entitlement to Shares awarded, cancelled, purchased, exercised, vested, unvested or outstanding in your favor for the purpose of implementing, managing and administering the Plan (Data). You understand that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere and that the recipient country may have different data privacy laws and protections than your country. You may request a list with the names and addresses of any potential recipients of the Data by contacting the Company. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data, as may be required to a broker or other third party with whom you may elect to deposit any Shares acquired under the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage participation in the Plan. You understand that you may view your Data, request additional information about the storage and processing of the Data, require any necessary amendments to the Data or refuse or withdraw the consents herein, in any case without cost, by contacting the Committee in writing. You understand that refusing or withdrawing consent may affect your ability to participate in the Plan. |
8
9
Other Information
You agree to receive
shareholder information,
including copies of any annual
report, proxy statement and
periodic report, from the
Companys website at
www.lifevantage.com, if the
Company wishes to provide such
information through its
website. You acknowledge that
copies of the Plan, Plan
prospectus, Plan information
and stockholder information are
also available upon written or
telephonic request to the
Committee and/or the Board.
Nondisclosure of Confidential
Information
You acknowledge that the
businesses of the Company is
highly competitive and that the
Companys strategies, methods,
books, records, and documents,
technical information
concerning their products,
equipment, services, and
processes, procurement
procedures and pricing
techniques, the names of and
other information (such as
credit and financial data)
concerning former, present or
prospective customers and
business affiliates, all
comprise confidential business
information and trade secrets
which are valuable, special,
and unique assets which the
Company uses in their business
to obtain a competitive
advantage over competitors.
You further acknowledge that
protection of such confidential
business information and trade
secrets against unauthorized
disclosure and use is of
critical importance to the
Company in maintaining its
competitive position. You
acknowledge that by reason of
your duties to and association
with the Company, you have had
and will have access to and
have and will become informed
of confidential business
information which is a
competitive asset of the
Company. You hereby agree that
you will not, at any time
during or after employment,
make any unauthorized
disclosure of any confidential
business information or trade
secrets of the Company, or make
any use thereof, except in the
carrying out of services
responsibilities. You shall
take all necessary and
appropriate steps to safeguard
confidential business
information and protect it
against disclosure,
misappropriation, misuse, loss
and theft. Confidential
business information shall not
include information in the
public domain (but only if the
same becomes part of the public
domain through a means other
than a disclosure prohibited
hereunder). The above
notwithstanding, a disclosure
shall not be unauthorized if
(i) it is required by law or by
a court of competent
jurisdiction or (ii) it is in
connection with any judicial,
arbitration, dispute resolution
or other legal proceeding in
which your legal rights and
obligations as a service
provider or under this
Agreement are at issue;
provided, however, that you
shall, to the extent
practicable and lawful in any
such events, give prior notice
to the Company of your intent
to disclose any such
confidential business
information in such context so
as to allow the Company an
opportunity (which you will not
oppose) to
|
obtain such protective orders or similar relief with respect thereto as may be deemed appropriate. Any information not specifically related to the Company would not be considered confidential to the Company. | |||
|
||||
|
The Company will be entitled to enforce its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights to which it may be entitled. You agree and acknowledge that money damages may not be an adequate remedy for breach of the provisions of this Agreement and that the Company may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. | |||
|
||||
28.
|
Further Assistance | You agree to provide assistance reasonably requested by the Company in connection with actions taken by you while providing services to the Company, including but not limited to assistance in connection with any lawsuits or other claims against the Company arising from events during the period in which you rendered service to the Company. | ||
|
||||
29.
|
Notice | All notices, requests, demands, claims, and other communications under this Agreement shall be in writing. Any notice, request, demand, claim, or other communication under this Agreement shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient at the address set forth below the recipients signature to this Agreement. Either party to this Agreement may send any notice, request, demand, claim, or other communication under this Agreement to the intended recipient at such address using any other means (including personal delivery, expedited courier, messenger service, telecopy, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Either party to this Agreement may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner set forth in this section. |
10
11
|
|
[PRINT NAME OF OPTIONEE]
|
Percentage | ||
of Payment | Form of Payment As Provided In the Nonstatutory Stock Option Agreement | |
_____%
|
Cash/My Personal Check/Cashiers Check/Money Order (payable to Lifevantage Corporation) | |
|
||
_____%
100%
|
Surrender of vested Shares (Valued At Their Fair Market Value) Owned By Me For More Than Six (6) Months |
Check one:
|
o | The Shares certificate is to be issued and registered in my name only. | ||
|
||||
|
o | The Shares certificate is to be issued and registered in my name and my spouses name. | ||
|
||||
|
||||
|
[PRINT SPOUSES NAME, IF CHECKING SECOND BOX]
|
|||
|
||||
|
Check one (if checked second box above): | |||
|
||||
|
o Community Property or o Joint Tenants With Right of Survivorship |
|
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(Optionees Signature)
|
(Spouses Signature)** | |
|
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|
**Spouse must sign this Notice of Exercise if listed above. | |
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(Full Address)
|
(Full Address) |
* | THIS NOTICE OF EXERCISE MAY BE REVISED BY THE COMPANY AT ANY TIME WITHOUT NOTICE. |
Optionee:
|
||||
|
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|
(Signature) | |||
|
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Company:
|
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|
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|
(Signature) | |||
|
||||
Title:
|
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|
2010 LONG-TERM INCENTIVE PLAN
The Plan and
Other Agreements
The text of the Plan is
incorporated in this Agreement
by reference. Certain
capitalized terms used in this
Agreement are defined in the
Plan.
This Agreement and the Plan
constitute the entire
understanding between you and
the Company regarding this
Option. Any prior agreements,
commitments or negotiations
concerning this Option are
superseded.
Incentive Stock Option
This Option is intended to be
an Incentive Stock Option under
section 422 of the Code and
will be interpreted
accordingly.
If you cease to be an employee
of the Company, a Subsidiary or
of a Parent but continue to
provide Service, this Option
will be treated as a
Nonstatutory Stock Option on
the day after the date that is
three (3) months after you
cease to be an employee of the
Company (and any Subsidiary or
any Parent): (i) even if you
continue to provide Service
after your employment has
terminated or (ii) if your
termination of employment was
for any reason other than due
to your death or Disability.
In addition, to the extent that
all or part of this Option
exceeds the $100,000 limitation
rule of section 422(d) of the
Code, this Option or the lesser
excess part will be treated as
a Nonstatutory Stock Option.
This Option is not intended to
be deferred compensation under
section 409A of the Code and
will be interpreted
accordingly.
Vesting
This Option is only exercisable
before it expires and only with
respect to the vested portion
of the Option. This Option
will vest according to the
Vesting Schedule described in
the cover sheet of this
Agreement.
Term
Your Option will expire in all
cases no later than the close
of business at Company
headquarters on the Expiration
Date, as shown on the cover
sheet. Your Option may expire
earlier if your Service
terminates, as described in
Sections 5, 6 and 7 below or on
the date on which the Option is
cancelled (and not substituted
or assumed) pursuant to a
Change in Control or merger or
acquisition or reorganization
or similar transaction
involving the Company.
Termination of Service General
If, while the Option is
outstanding, your Service
terminates for any reason,
other than being terminated by
the Company for Cause or due to
your death or Disability, then
the unvested portion of your
Option shall be forfeited
without consideration and shall
immediately expire on your
Termination Date and the vested
portion of your Option will
expire at the earlier of (i)
the close of business at
Company headquarters on the
date that is three (3) months
after your Termination Date,
(ii) the Expiration Date set
forth in the attached cover
sheet and further described in
Section 4 above, or (iii) the
date on which the Option is
cancelled (and not substituted
or assumed) pursuant to a
Change in Control or merger or
acquisition or reorganization
or similar transaction
involving the Company. In no
event is the Option exercisable
after the Expiration Date.
Termination of Service for
Cause
If your Service is terminated
by the Company for Cause or if
you commit an act(s) of Cause
while this Option is
outstanding, as determined by
the Committee in its sole
discretion, then you shall
immediately forfeit all rights
to your Option without
consideration, including any
vested portion of the Option,
and the entire Option shall
immediately expire, and any
rights, payments and benefits
with respect to the Option
shall be subject to reduction
or recoupment in accordance
with the Clawback Policy and
the Plan. For avoidance of
doubt, your Service shall also
be deemed to have been
terminated for Cause by the
Company if, after your Service
has otherwise terminated, facts
and circumstances are
discovered that would have
justified a termination for
Cause, including, without
limitation, your violation of
Company policies or breach of
confidentiality or other
restrictive covenants or
conditions that may apply to
you prior to or after your
Termination Date.
Termination of Service due to
Death or Disability
If your Service terminates
because of your death or
Disability, then the unvested
portion of your Option shall be
forfeited without consideration
and shall immediately expire on
your Termination Date and the
vested portion of your Option
will expire at the earlier of
(i) the close of business at
Company headquarters on the
date that is twelve (12) months
after your Termination Date,
(ii) the Expiration Date set
forth in the attached cover
sheet and further described in
Section 4 above, or (iii) the
date on which the Option is
cancelled (and not substituted
or assumed) pursuant to a
Change in Control or merger or
acquisition or similar
transaction involving the
Company. In no event is the
Option exercisable after the
Expiration Date. If your
Service terminated due to your
death, then your estate may
exercise the vested portion of
your Option during the
foregoing post-Service exercise
period.
Leaves of Absence
For purposes of this Option,
your Service does not terminate
when you go on a
bona fide
leave of absence that was
approved by the Company in
writing, if the terms of the
leave provide for continued
Service crediting, or when
continued Service crediting
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is required by applicable law. For income tax purposes, if the period of leave exceeds three (3) months and your right to reemployment is not provided either by statute or by contract, then this Option will be treated as a Nonstatutory Stock Option if the exercise of this Option occurs after the expiration of six (6) months from the commencement of such leave of absence. Your Service terminates in any event when the approved leave ends unless you immediately return to active work. | |||
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The Company determines which leaves count for this purpose (along with determining the effect of a leave of absence on vesting of the Option), and when your Service terminates for all purposes under the Plan. | |||
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9.
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Notice of Exercise | When you wish to exercise this Option, you must notify the Company by filing a Notice of Exercise form at the address given on the form. Your notice must specify how many Shares you wish to purchase. Your notice must also specify how your Shares should be registered (in your name only or in your and your spouses names as community property or as joint tenants with right of survivorship). The notice will be effective when it is received by the Company. | ||
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If someone else wants to exercise this Option after your death, that person must prove to the Companys satisfaction that he or she is entitled to do so. | |||
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10.
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Form of Payment | When you submit your notice of exercise, you must include payment of the Exercise Price for the Shares you are purchasing. Payment may be made in one (or a combination) of the following forms: | ||
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Cash, your personal
check, a cashiers check or a
money order.
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Shares which have
already been owned by you for
more than six (6) months and
which are surrendered to the
Company. The Fair Market Value
of the Shares, determined as of
the effective date of the
Option exercise, will be
applied to the Exercise Price.
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To the extent a public
market for the Shares exists as
determined by the Company, by
Cashless Exercise through
delivery (on a form prescribed
by the Company) of an
irrevocable direction to a
securities broker to sell
Shares and to deliver all or
part of the sale proceeds to
the Company in payment of the
aggregate Exercise Price.
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Withholding Taxes
You will be solely responsible
for payment of any and all
applicable taxes associated
with this Option.
You will not be allowed to
exercise this Option unless you
make acceptable arrangements to
pay any withholding or other
taxes that may be due as a
result of the Option exercise
or sale of Shares acquired
under this Option.
Restrictions on Exercise and
Resale
By signing this Agreement, you
agree not to (i) exercise this
Option (Exercise
Prohibition), or (ii) sell,
transfer, dispose of, pledge,
hypothecate, make any short
sale of, or otherwise effect a
similar transaction of any
Shares acquired under this
Option (each a Sale
Prohibition) at a time when
applicable laws, regulations or
Company or underwriter trading
policies prohibit the exercise
or disposition of Shares. The
Company will not permit you to
exercise this Option if the
issuance of Shares at that time
would violate any law or
regulation. The Company shall
have the right to designate one
or more periods of time, each
of which generally will not
exceed one hundred eighty (180)
days in length (provided
however, that such period may
be extended in connection with
the Companys release (or
announcement of release) of
earnings results or other
material news or events), and
to impose an Exercise
Prohibition and/or Sale
Prohibition, if the Company
determines (in its sole
discretion) that such
limitation(s) is needed in
connection with a public
offering of Shares or to comply
with an underwriters request
or trading policy, or could in
any way facilitate a lessening
of any restriction on transfer
pursuant to the Securities Act
or any state securities laws
with respect to any issuance of
securities by the Company,
facilitate the registration or
qualification of any securities
by the Company under the
Securities Act or any state
securities laws, or facilitate
the perfection of any exemption
from the registration or
qualification requirements of
the Securities Act or any
applicable state securities
laws for the issuance or
transfer of any securities.
The Company may issue
stop/transfer instructions
and/or appropriately legend any
stock certificates issued
pursuant to this Option in
order to ensure compliance with
the foregoing. Any such
Exercise Prohibition shall not
alter the vesting schedule set
forth in this Agreement other
than to limit the periods
during which this Option shall
be exercisable.
If the sale of Shares under the
Plan is not registered under
the Securities Act, but an
exemption is available which
requires an investment or other
representation, you shall
represent and agree at the time
of exercise that the Shares
being acquired upon exercise of
this Option are being acquired
for investment, and not with a
view to the sale or
distribution thereof, and shall
make such other representations
as are deemed necessary or
appropriate by the Company and
its counsel.
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You may also be required, as a condition of exercise of this Option, to enter into any Company shareholder agreement or other agreements that are applicable to shareholders. | |||
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If you sell or otherwise dispose of any of the Shares acquired pursuant to the exercise of this Option on or before the later of (i) the date that is two years after the Date of Option Grant or (ii) the date that is one year after the applicable exercise of this Option, then you shall within ten days of any and all such sales or dispositions provide the Company with written notice of such transactions including without limitation the date of each disposition, the number of Shares that you disposed of in each transaction and their original Date of Option Grant, and the amount of proceeds you received from each disposition. | |||
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13.
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Transfer of Option | Prior to your death, only you may exercise this Option. You cannot transfer, assign, alienate, pledge, attach, sell, or encumber this Option. If you attempt to do any of these things, this Option will immediately become invalid. You may, however, dispose of this Option in your will or it may be transferred by the laws of descent and distribution. Regardless of any marital property settlement agreement, the Company is not obligated to honor a notice of exercise from your spouse, nor is the Company obligated to recognize your spouses interest in your Option in any other way. | ||
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14.
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Retention Rights | Your Option or this Agreement does not give you the right to be retained by the Company (or any Parent or any Subsidiaries or Affiliates) in any capacity. The Company (or any Parent and any Subsidiaries or Affiliates) reserves the right to terminate your Service at any time and for any reason. | ||
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This Option and the Shares subject to the Option are not intended to constitute or replace any pension rights or compensation and are not to be considered compensation of a continuing or recurring nature, or part of your normal or expected compensation, and in no way represent any portion of your salary, compensation or other remuneration for any purpose, including but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. | |||
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15.
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Shareholder Rights | You, or your estate, shall have no rights as a shareholder of the Company with regard to the Option until you have been issued the applicable Shares by the Company and have satisfied all other |
18.
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Applicable Law | This Agreement will be interpreted and enforced under the laws of the State of Colorado without reference to the conflicts of law provisions thereof and any action relating to this Agreement must be brought in state or federal courts located in San Diego County, California. | ||
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19.
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Binding Effect; No Third Party Beneficiaries | This Agreement shall be binding upon and inure to the benefit of the Company and you and any respective heirs, representatives, successors and permitted assigns. This Agreement shall not confer any rights or remedies upon any person other than the Company and you and any respective heirs, representatives, successors and permitted assigns. The parties agree that this Agreement shall survive the settlement or termination of the Award. | ||
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20.
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Voluntary Participant | You acknowledge that you are voluntarily participating in the Plan. | ||
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21.
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No Rights to Future Awards | Your rights, if any, in respect of or in connection with this Option or any other Awards are derived solely from the discretionary decision of the Company to permit you to participate in the Plan and to benefit from a discretionary future Award. By accepting this Option, you expressly acknowledge that there is no obligation on the part of the Company to continue the Plan and/or grant any additional Awards to you or benefits in lieu of Options or any other Awards even if Awards have been granted repeatedly in the past. All decisions with respect to future Awards, if any, will be at the sole discretion of the Committee. | ||
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22.
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Future Value | The future value of the underlying Shares is unknown and cannot be predicted with certainty. If the underlying Shares do not increase in value after the Date of Option Grant, the Option will have little or no value. If you exercise the Option and obtain Shares, the value of the Shares acquired upon exercise may increase or decrease in value, even below the Exercise Price. | ||
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23.
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No Advice Regarding Grant | The Company has not provided any tax, legal or financial advice, nor has the Company made any recommendations regarding your participation in the Plan, or your acquisition or sale of the underlying Shares. You are hereby advised to consult with your own personal tax, legal and financial advisors regarding your participation in the Plan before taking any action related to the Plan. |
24.
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No Right to Damages | You will have no right to bring a claim or to receive damages if any portion of the Option is cancelled or expires unexercised. The loss of existing or potential profit in the Option will not constitute an element of damages in the event of the termination of your Service for any reason, even if the termination is in violation of an obligation of the Company or a Parent or a Subsidiary or an Affiliate to you. | ||
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25.
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Data Privacy | You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal data as described in this document by the Company for the exclusive purpose of implementing, administering and managing your participation in the Plan. You understand that the Company holds certain personal information about you, including, but not limited to, name, home address and telephone number, date of birth, social security or insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Awards or any other entitlement to Shares awarded, cancelled, purchased, exercised, vested, unvested or outstanding in your favor for the purpose of implementing, managing and administering the Plan (Data). You understand that the Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in your country or elsewhere and that the recipient country may have different data privacy laws and protections than your country. You may request a list with the names and addresses of any potential recipients of the Data by contacting the Company. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data, as may be required to a broker or other third party with whom you may elect to deposit any Shares acquired under the Plan. You understand that Data will be held only as long as is necessary to implement, administer and manage participation in the Plan. You understand that you may view your Data, request additional information about the storage and processing of the Data, require any necessary amendments to the Data or refuse or withdraw the consents herein, in any case without cost, by contacting the Committee in writing. You understand that refusing or withdrawing consent may affect your ability to participate in the Plan. | ||
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26.
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Other Information | You agree to receive shareholder information, including copies of any annual report, proxy statement and periodic report, from the Companys website at www.lifevantage.com, if the Company wishes to provide such information through its website. You acknowledge that copies of the Plan, Plan prospectus, Plan |
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breach of any provision of this Agreement and to exercise all other rights to which it may be entitled. You agree and acknowledge that money damages may not be an adequate remedy for breach of the provisions of this Agreement and that the Company may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. | |||
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28.
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Further Assistance | You agree to provide assistance reasonably requested by the Company in connection with actions taken by you while providing services to the Company, including but not limited to assistance in connection with any lawsuits or other claims against the Company arising from events during the period in which you rendered service to the Company. | ||
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29.
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Notice | All notices, requests, demands, claims, and other communications under this Agreement shall be in writing. Any notice, request, demand, claim, or other communication under this Agreement shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient at the address set forth below the recipients signature to this Agreement. Either party to this Agreement may send any notice, request, demand, claim, or other communication under this Agreement to the intended recipient at such address using any other means (including personal delivery, expedited courier, messenger service, telecopy, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Either party to this Agreement may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner set forth in this section. |
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[PRINT NAME OF OPTIONEE]
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Percentage | ||
of Payment | Form of Payment As Provided In the Incentive Stock Option Agreement | |
_____%
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Cash/My Personal Check/Cashiers Check/Money Order (payable to Lifevantage Corporation) | |
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_____%
100%
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Surrender of vested Shares (Valued At Their Fair Market Value) Owned By Me For More Than Six (6) Months |
Check one:
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o | The Shares certificate is to be issued and registered in my name only. | ||
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o | The Shares certificate is to be issued and registered in my name and my spouses name. | ||
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[PRINT SPOUSES NAME, IF CHECKING SECOND BOX]
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Check one (if checked second box above): | |||
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o Community Property or o Joint Tenants With Right of Survivorship |
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(Optionees Signature)
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(Spouses Signature)** | |
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**Spouse must sign this Notice of Exercise if listed above. | |
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(Full Address)
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(Full Address) |
* | THIS NOTICE OF EXERCISE MAY BE REVISED BY THE COMPANY AT ANY TIME WITHOUT NOTICE. |
Suite 200 | 12275 El Camino Real | San Diego, CA 92130-2006
858-720-8900 office | 858-509-3691 fax | www.sheppardmullin.com |