EMPLOYMENT AGREEMENT
Exhibit 10.1
This employment agreement (the “Agreement”) is entered into by and between Xxxxxxx X. Xxxxxxxx
(“you” or “your”) and LifeVantage Corporation, a Colorado corporation, (the “Company”). This
Agreement has an effective date of March 15, 2011 (the “Effective Date”) and this Agreement shall
terminate no later than June 30, 2014 (the date of termination of this Agreement is the “Expiration
Date”).
In consideration of the mutual covenants and promises made in this Agreement, you and the
Company agree as follows:
1. Position and Responsibilities. As of the Effective Date, you will commence serving as a
full-time employee of the Company as the Company’s President and Chief Executive Officer (“PCEO”).
As PCEO, you shall report directly to the Company’s Board of Directors (the “Board”). You shall
have the duties, responsibilities and authority that are customarily associated with such position
and such other senior management duties as may reasonably be assigned by the Board. You will
devote your full time, efforts, abilities, and energies to promote the general welfare and
interests of the Company and any related enterprises of the Company. You will loyally,
conscientiously, and professionally do and perform all duties and responsibilities of his position,
as well as any other duties and responsibilities as will be reasonably assigned by the Company. At
the request of the Company, you will also serve as an officer and/or member of the board of
directors of any Company affiliate, without additional compensation. Your primary workplace will
be located at the Company’s Utah office, located at 00000 X. Xxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxxx 00000, although you will have a home office where you will be able to work remotely
subject to requisite business travel. Nothing herein shall preclude you from (i) serving, with the
prior written consent of the Board in its sole and absolute discretion, as a member of the board of
directors or advisory boards (or their equivalents in the case of a non-corporate entity) of
non-competing businesses and charitable organizations, (ii) engaging in charitable activities and
community affairs, and (iii) managing your personal investments and affairs; provided, however,
that the activities set out in clauses (i), (ii) and (iii) shall be limited by you so as not to
materially interfere, individually or in the aggregate, with the performance of your duties and
responsibilities hereunder.
2. At-Will Employment. Your employment with the Company is at-will and either you or the Company
may terminate your employment at any time and for any reason (or no reason), with or without Cause
(as defined below), in each case subject to the terms and provisions of this Agreement. The terms
of Sections 8 through 18 shall survive any termination or expiration of this Agreement or of your
employment.
3. Salary, Bonus and Equity Incentives. For avoidance of doubt, the Board may delegate some or all
of its authority and responsibilities under this Section 3 to a committee of members of the Board.
(a) Base Salary. During your employment as PCEO and while this Agreement is in effect, you
will be paid an annual base salary of $325,000 (the “Base Salary”) for your services as PCEO,
payable in the time and manner that the Company customarily pays its employees. Your Base Salary
will be automatically increased to $350,000 if, for each calendar month in a consecutive three
month period, the Company’s monthly earnings before interest, taxes, depreciation and amortization
(“EBITDA”) exceeds the product of ten percent multiplied by the Company’s total revenues for each
such month (the “EBITDA Performance Goal”). The Board in its reasonable judgment shall determine
(based on
Company monthly financial statements) if and when the EBITDA Performance Goal has been
achieved. If the EBITDA Performance Goal is achieved while you are PCEO, then the automatic Base
Salary increase shall be effective on the next payroll period following the Board’s determination
that the three month period EBITDA Performance Goal was achieved.
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(b) Bonuses. During your employment as PCEO and while this Agreement is in effect, you will
be eligible to participate in any bonus programs as set forth by the Board. Commencing with the
Company’s Fiscal Year 2012 which ends on June 30, 2012, during each Company fiscal year you will be
eligible to earn an annual cash bonus based on performance objectives established by the Board with
input from you. For fiscal year 2012, the bonus performance objectives shall be established by the
Board within 90 days following the Effective Date. Your annual maximum cash bonus amount will be
equal to 50% of the Base Salary that was paid to you during the applicable fiscal year. The actual
amount of the annual bonus paid to you, if any, shall be determined by the Board in its sole
discretion and may be less than the maximum amount. Any such bonus shall be paid to you during the
first three months of the fiscal year that follows the applicable performance fiscal year. The
bonus will be deemed to have been earned on the date of payment of such bonus and you must remain
an employee of the Company through the date of payment in order to receive the bonus. In addition
to the foregoing, you will be eligible to receive the following transition bonus payments
conditioned on you continuously remaining employed by the Company through the applicable payment
date.
| Bonus Amount | Payment Date | |||
| $ | 101,250 | Effective Date |
||
| $ | 67,500 | July 31, 2011 |
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| $ | 33,750 | September 30, 2011 |
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| $ | 33,750 | March 30, 2012 |
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| $ | 33,750 | October 1, 2012 |
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| $ | 270,000 | |||
(c) Stock Options and Compensatory Equity. While you are an employee of the Company, you will
be eligible to receive grants of stock options (or other grants of Company equity) to purchase
shares of the Company’s common stock. Such equity grants, if any, will be made in the sole
discretion of the Board and will be subject to the terms and conditions specified by the Board, the
Company’s stock plan, the award agreement that you must execute as a condition of any grant and the
Company’s xxxxxxx xxxxxxx policy. If required by applicable law with respect to transactions
involving Company equity securities, you agree that you shall use your best efforts to comply with
any duty that you may have to (i) timely report any such transactions and (ii) to refrain from
engaging in certain transactions from time to time. The Company has no duty to register under (or
otherwise obtain an exemption from) the Securities Act of 1933 (or applicable state securities
laws) with respect to any Company equity securities that may be issued to you. Any equity
compensation awards that were granted to you before the Effective Date shall continue to be
governed by their applicable terms and conditions.
Upon the Effective Date, subject to approval of the Board and subject to your being a Company
employee on the Effective Date, you shall be granted a stock option under the Company’s 2010 Stock
Incentive Plan (“2010 SIP”) to purchase up to 1,610,000 common shares of the Company (the
“Option”). To the maximum extent permitted by applicable law, the Option shall constitute an
“incentive stock option”, as provided under Internal Revenue Code (the “Code”) Section 422, and the
balance of the Option shall be a nonstatutory stock option. Before the grant of the Option, the
number of shares subject to the Option (and exercise prices referenced below) shall be
proportionately adjusted to the extent necessary under 2010 SIP section 11(a). As a condition of
the grant of the Option, you must timely execute an Option agreement(s)
prescribed by the Company which will provide the terms and conditions of the Option. However, the
Option and the Option agreement will provide for the following terms:
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| Shares subject to Option | Per Share Exercise Price | Vesting Date* | ||||||
| 110,000 | Fair Market Value on Grant Date |
Grant Date |
||||||
| 500,000 | Fair Market Value on Grant Date |
June 30, 2012 |
||||||
| 500,000 | $1.20** |
June 30, 2013 |
||||||
| 500,000 | $1.75** |
June 30, 2014 |
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| 1,610,000 | ||||||||
| * | You must continuously remain in Service (as defined in the 2010 SIP) through the vesting date in order for the applicable portion of the Option to become vested. | |
| ** | If the Fair Market Value on the Option grant date is greater then the per share exercise price shown in the above table, then the actual per share exercise price for the related number of shares shall instead be equal to such higher Fair Market Value. For purposes of this Agreement, “Fair Market Value” shall have the meaning provided to it in the 2010 SIP. |
4. Expense Reimbursement. During your employment as PCEO and while this Agreement is in effect,
you will be reimbursed for all reasonable business expenses (including, but without limitation,
travel expenses) upon the properly completed submission of requisite forms and receipts to the
Company in accordance with the Company’s expense reimbursement policy.
5. Limitation on Golden Parachute Payments Notwithstanding any other provision of this Agreement
or any such other agreement or plan, if any portion of the Total Payments (as defined below) would
constitute an Excess Parachute Payment (as defined below) and therefore would be nondeductible to
the Company by reason of the operation of Code Section 280G relating to golden parachute payments
and/or would be subject to the golden parachute excise tax (“Excise Tax”) by reason of Section 4999
of the Code, then the full amount of the Total Payments shall not be provided to you and you shall
instead receive the Reduced Total Payments (as defined below).
If the Total Payments must be reduced to the Reduced Total Payments, the reduction shall occur in
the following order: (1) reduction of cash payments for which the full amount is treated as a
Parachute Payment; (2) cancellation of accelerated vesting (or, if necessary, payment) of cash
awards for which the full amount is not treated as a parachute payment; (3) cancellation of any
accelerated vesting of equity awards; and (4) reduction of any continued employee benefits. In
selecting the equity awards (if any) for which vesting will be reduced under clause (3) of the
preceding sentence, awards shall be selected in a manner that maximizes the after-tax aggregate
amount of Reduced Total Payments provided to you, provided that if (and only if) necessary in order
to avoid the imposition of an additional tax under Section 409A of the Code, awards instead shall
be selected in the reverse order of the date of grant.
For the avoidance of doubt, for purposes of measuring an equity compensation award’s value to you
when performing the determinations under the preceding paragraph, such award’s value shall equal
the then aggregate fair market value of the vested shares underlying the award less any aggregate
exercise price less applicable taxes. Also, if two or more equity awards are granted on the same
date, each award will be reduced on a pro-rata basis. In no event shall (i) you have any
discretion with respect to the ordering of payment reductions or (ii) the Company be required to
gross up any payment or benefit to you to avoid the effects of the Excise Tax or to pay any regular
or excise taxes arising from the application of the Excise Tax.
All mathematical determinations and all determinations of whether any of the Total Payments are
Parachute Payments that are required to be made under this Section shall be made by a nationally
recognized independent audit firm selected by the Company (the “Accountants”), who shall provide
their
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determination, together with detailed supporting calculations regarding the amount of any
relevant matters, both to the Company and to you. Such determination shall be made by the
Accountants using reasonable good faith interpretations of the Code. The Company shall pay the
fees and costs of the Accountants which are incurred in connection with this Section.
“Excess Parachute Payment” has the same meaning provided to such term by Treasury Regulations
section 1.280G-1 Q/A-3.
“Parachute Payment” has the same meaning provided to such term by Treasury Regulations section
1.280G-1 Q/A-2.
“Reduced Total Payments” means the lesser portion of the Total Payments that may be provided to you
instead of the Total Payments. The Reduced Total Payments shall be the maximum amount from the
Total Payments that can be provided to you without incurring Excess Parachute Payments.
“Total Payments” means collectively the benefits or payments provided by the Company (or by any
person who acquires ownership or effective control of the Company or ownership of a substantial
portion of the Company’s assets within the meaning of section 280G of the Code and the regulations
thereunder) to or for the benefit of you under this Agreement or any other agreement or plan.
6. Employee Benefit Programs. During your employment with the Company, and except as may be
provided under an employee stock purchase plan, you will be entitled to participate, on the same
terms as generally provided to senior executives, in all Company employee benefit plans and
programs at the time or thereafter made available to Company senior executive officers including,
without limitation, any savings or profit sharing plans, deferred compensation plans, stock option
incentive plans, group life insurance, accidental death and dismemberment insurance,
hospitalization, surgical, major medical and dental coverage, vacation, sick leave (including
salary continuation arrangements), long-term disability, holidays and other employee benefit
programs sponsored by the Company. The Company may amend, modify or terminate these benefits at
any time and for any reason.
7. Consequences of Termination of Employment. Unless the Company requests otherwise in writing,
upon termination of your employment for any reason, you understand and agree that you shall be
deemed to have also immediately resigned from all positions as an officer (and/or director, if
applicable) with the Company (and its affiliates) as of your last day of employment (the
“Termination Date”). Upon termination of your employment for any reason, you shall receive payment
or benefits from the Company covering the following: (i) all unpaid salary and unpaid vacation
accrued through the Termination Date, (ii) any payments/benefits to which you are entitled under
the express terms of any applicable Company employee benefit plan, (iii) any unreimbursed valid
business expenses for which you have submitted properly documented reimbursement requests and (iv)
your then outstanding equity compensation awards as governed by their applicable terms
(collectively, (i) through (iv) are the “Accrued Pay”). You may also be eligible for other
post-employment payments and benefits as provided in this Agreement.
(a) For Cause. For purposes of this Agreement, your employment may be terminated by the
Company for “Cause” as a result of the occurrence of one or more of the following:
(i) your conviction of, or a plea of guilty or nolo contendere to, a felony or other crime
(except for misdemeanors which are not materially injurious to the business or reputation of the
Company or a Company affiliate);
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(ii) your willful refusal to perform in any material respect your duties and responsibilities
for the Company or a Company affiliate or your failure to comply in any material respect with the
terms of this Agreement and the Confidentiality Agreement and the polices and procedures of the
Company or a Company affiliate at which you serve as an officer and/or director if such refusal or
failure causes or reasonably expects to cause injury to the Company or a Company affiliate;
(iii) fraud or other illegal conduct in your performance of duties for the Company or a
Company affiliate;
(iv) your material breach of any material term of this Agreement; or
(v) any conduct by you which is materially injurious to the Company or a Company affiliate or
materially injurious to the business reputation of the Company or a Company affiliate.
Prior to your termination for Cause, you will be provided with written notice from the Company
describing the conduct forming the basis for the alleged Cause and to the extent curable as
determined by the Board in its sole discretion, an opportunity of 15 days to cure such conduct
before the Company may terminate you for Cause. If the Board determines that the Cause event is
curable, you may during this 15 day period present your case to the full Board before any
termination for Cause is finalized by the Company. Any termination for “Cause” will not limit any
other right or remedy the Company may have under this Agreement or otherwise.
In the event your employment is terminated by the Company for Cause you will be entitled only
to your Accrued Pay and you will be entitled to no other compensation from the Company.
(b) Without Cause or for Good Reason. The Company may terminate your employment without Cause
at any time and for any reason with notice or you may resign your employment for Good Reason (as
defined below in Section 7(b)(ii)) upon thirty days advance written notice (each a “Qualifying
Termination”). If your employment is terminated due to a Qualifying Termination, then you will be
eligible to receive the following subject to your timely compliance with Section 7(e) and further
provided that no payments for such Qualifying Termination shall be made until on or after the date
of a “separation from service” within the meaning of Code Section 409A.
(i) The Company shall provide you with cash payments equal in the aggregate to your then Base
Salary. The cash payments provided by this subpart (i) shall be paid to you in substantially equal
monthly installments payable over the 12 month period following your Termination Date, provided,
however, the first payment (in an amount equal to two months of Base Salary) shall be made on the
60th day following the Termination Date.
(ii) For purposes of this Agreement, you may resign your employment from the Company for “Good
Reason” within ninety (90) days after the date that any one of the following events described in
the below subparts (1) through (3) (any one of which will constitute “Good Reason”) has first
occurred without your written consent. Your resignation for Good Reason will only be effective if
the Company has not cured or remedied the Good Reason event within 30 days after its receipt of
your written notice (such notice shall describe in detail the basis and underlying facts supporting
your belief that a Good Reason event has occurred). Such notice of your intention to resign for
Good Reason must be
provided to the Company within 45 days of the initial existence of a Good Reason event.
Failure to timely provide such written notice to the Company or failure to timely resign your
employment for Good Reason means that you will be deemed to have consented to and waived the Good
Reason event. If the Company does timely cure or remedy the Good Reason event, then you may either
resign your
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employment without Good Reason or you may continue to remain employed subject to the
terms of this Agreement. For avoidance of doubt, the initial existence of any Good Reason event
must occur after the Effective Date and before the Expiration Date.
| (1) | You have incurred a material diminution in your responsibilities, duties or authority; | ||
| (2) | You have incurred a material diminution in your Base Salary; or | ||
| (3) | The Company has materially breached a material term of this Agreement. |
For avoidance of doubt, this Section 7(b) does not apply to a termination of employment due to
death or Disability which are addressed in Section 7(d) below.
(c) Voluntary Termination. In the event you voluntarily terminate your employment with the
Company without Good Reason, you will be entitled to receive only your Accrued Pay. You will be
entitled to no other compensation from the Company. You agree to provide the Company with at least
30 days advance written notice of your intention to resign without Good Reason. For avoidance of
doubt, this Section 7(c) does not apply to a termination of employment due to death or Disability
which are addressed in Section 7(d) below.
(d) Death or Disability. In the event your employment with the Company is terminated due to
your Disability or death, then you or your estate will be entitled to receive your Accrued Pay.
For purposes of this Agreement, “Disability” is defined to occur when you are unable to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than twelve (12) months.
(e) Separation Agreement and Release of Claims. As a condition to receiving (and continuing
to receive) the payments provided in Section 7(b), you must: (i) within not later than forty-five
(45) days after your Termination Date, execute (and not revoke) and deliver to the Company a
Separation Agreement in a form prescribed by the Company and such Separation Agreement shall
include without limitation a release of all claims against the Company and its affiliates along
with a covenant not to xxx and (ii) remain in full compliance with such Separation Agreement.
8. Proprietary Information and Inventions Agreement; Confidentiality. You will be required, as a
condition of your employment with the Company, to timely execute the Company’s form of proprietary
information and inventions agreement as may be amended from time to time by the Company
(“Confidentiality Agreement”).
9. Assignability; Binding Nature. Commencing on the Effective Date, this Agreement will be binding
upon you and the Company and your respective successors, heirs, and assigns. This Agreement may
not be assigned by you except that your rights to compensation and benefits hereunder, subject to
the limitations of this Agreement, may be
transferred by will or operation of law. No rights or obligations of the Company under this
Agreement may be assigned or transferred except in the event of a merger or consolidation in which
the Company is not the continuing entity, or the sale or liquidation of all or substantially all of
the assets of the Company provided that the assignee or transferee is the successor to all or
substantially all of the assets of the Company and assumes the Company’s obligations under this
Agreement contractually or as a matter of law. The Company will require any such purchaser,
successor or assignee to expressly assume and agree to perform this Agreement in the same manner
and to the same
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extent that the Company would be required to perform if no such purchase,
succession or assignment had taken place. Your rights and obligations under this Agreement shall
not be transferable by you by assignment or otherwise provided, however, that if you die, all
amounts then payable to you hereunder shall be paid in accordance with the terms of this Agreement
to your devisee, legatee or other designee or, if there be no such designee, to your estate.
10. Governing Law; Arbitration. This Agreement will be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of Utah. Any controversy or claim
relating to this Agreement or any breach thereof, and any claims you may have arising from or
relating to your employment with the Company, will be settled solely and finally by arbitration in
Salt Lake City, Utah before a single arbitrator in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association (“AAA”) then in effect
in the State of Utah, and judgment upon such award rendered by the arbitrator may be entered in any
court having jurisdiction thereof, provided that this Section 10 shall not be construed to
eliminate or reduce any right the Company or you may otherwise have to obtain a temporary
restraining order or a preliminary or permanent injunction to enforce any of the covenants
contained in this Agreement before the matter can be heard in arbitration.
11. Taxes. The Company shall have the right to withhold and deduct from any payment hereunder any
federal, state or local taxes of any kind required by law to be withheld with respect to any such
payment. The Company (including without limitation members of the Board) shall not be liable to
you or other persons as to any unexpected or adverse tax consequence realized by you and you shall
be solely responsible for the timely payment of all taxes arising from this Agreement that are
imposed on you. This Agreement is intended to comply with the applicable requirements of Code
Section 409A and shall be limited, construed and interpreted in a manner so as to comply therewith.
Each payment made pursuant to any provision of this Agreement shall be considered a separate
payment and not one of a series of payments for purposes of Code Section 409A. While it is
intended that all payments and benefits provided under this Agreement to you will be exempt from or
comply with Code Section 409A, the Company makes no representation or covenant to ensure that the
payments under this Agreement are exempt from or compliant with Code Section 409A. The Company
will have no liability to you or any other party if a payment or benefit under this Agreement is
challenged by any taxing authority or is ultimately determined not to be exempt or compliant. In
addition, if upon your Termination Date, you are then a “specified employee” (as defined in Code
Section 409A), then solely to the extent necessary to comply with Code Section 409A and avoid the
imposition of taxes under Code Section 409A, the Company shall defer payment of “nonqualified
deferred compensation” subject to Code Section 409A payable as a result of and within six (6)
months following your Termination Date until the earlier of (i) the first business day of the
seventh month following your Termination Date or (ii) ten (10) days after the Company receives
written confirmation of your death. Any such delayed payments shall be made without interest.
Additionally, the reimbursement of expenses or in-kind benefits provided pursuant to this Agreement
shall be subject to the following conditions: (1) the expenses eligible for reimbursement or
in-kind benefits in one taxable year shall not affect the expenses eligible for reimbursement or
in-kind benefits in
any other taxable year; (2) the reimbursement of eligible expenses or in-kind benefits shall be
made promptly, subject to the Company’s applicable policies, but in no event later than the end of
the year after the year in which such expense was incurred; and (3) the right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for another benefit.
12. Entire Agreement. Except as otherwise specifically provided in this Agreement, this Agreement
(and the agreements referenced herein) contains all the legally binding understandings and
agreements between you and the Company pertaining to the subject matter of this Agreement and
supersedes all such agreements, whether oral or in writing, previously discussed or entered into
between the parties including without limitation any term sheets regarding your potential
employment with the
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Company. As a material condition of this Agreement, you represent that by
entering into this Agreement or by becoming a Company employee you are not violating the terms of
any other contract or agreement or other legal obligations that would prohibit you from performing
your duties for the Company. You further agree and represent that in providing your services to
the Company you will not utilize or disclose any other entity’s trade secrets or confidential
information or proprietary information. You represent that you are not resigning employment or
relocating any residence in reliance on any promise or representation by the Company regarding the
kind, character, or existence of such work, or the length of time such work will last, or the
compensation therefor.
13. Covenants
(a) As a condition of this Agreement and to your receipt of any
post-employment benefits, you agree that you will fully and timely comply with all of the covenants
set forth in this subsection 13(a) (which shall survive your termination of employment and
termination or expiration of this Agreement):
(i) You will fully comply with all obligations under the Confidentiality Agreement and further
agree that the provisions of the Confidentiality Agreement shall survive any termination or
expiration of this Agreement or termination of your employment or any subsequent service
relationship with the Company;
(ii) Within five (5) days of the Termination Date, you shall return to the Company all Company
confidential information including, but not limited to, intellectual property, etc. and you shall
not retain any copies, facsimiles or summaries of any Company proprietary information;
(iii) You will not at any time during the period of your employment with the Company and
during any period in which you are receiving severance payments under section 7 of this Agreement,
make (or direct anyone to make) any disparaging statements (oral or written) about the Company, or
any of its affiliated entities, officers, directors, employees, stockholders, representatives or
agents, or any of the Company’s products or services or work-in-progress, that are harmful to their
businesses, business reputations or personal reputations.;
(iv) You agree that during the period of your employment with the Company and for one year
after the Termination Date, you will not induce, solicit, recruit or encourage any employee of the
Company to leave the employ of the Company which means that you will not (x) disclose to any
person, entity or employer the backgrounds or qualifications of any Company employees or otherwise
identify them as potential candidates for employment or (y) personally or through any other person
recruit or otherwise solicit Company employees to work for you or any other person, entity, or
employer;
(v) You agree that during the period of your employment with the Company and thereafter, you
will not utilize any trade secrets of the Company in order to solicit, either on behalf of yourself
or any other person or entity, the business of any client or customer of the Company, whether past,
present or prospective. The Company considers the following, without limitation, to be its trade
secrets: Financial information, administrative and business records, analysis, studies,
governmental licenses, employee records (including but not limited to counts and goals), prices,
discounts, financials, electronic and written files of Company policies, procedures, training, and
forms, written or electronic work product that was authored, developed, edited, reviewed or
received from or on behalf of the Company during period of employment, Company developed
technology, software, or computer programs, process manuals, products, business and marketing plans
and or projections, Company sales and marketing data, Company technical information, Company
strategic plans, Company financials, vendor affiliations, proprietary information, technical data,
trade secrets, know-how, copyrights, patents, trademarks, intellectual property, and all
documentation related to or including any of the foregoing; and
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(vi) You agree that, upon the Company’s request and without any payment therefore, you shall
reasonably cooperate with the Company (and be available as necessary) after the Termination Date in
connection with any matters involving events that occurred during your period of employment with
the Company.
(b) You also agree that you will fully and timely comply with all of the covenants set forth
in this subsection 13(b) (which shall survive your termination of employment and termination or
expiration of this Agreement):
(i) You will fully pay off any outstanding amounts owed to the Company no later than their
applicable due date or within thirty days of your Termination Date (if no other due date has been
previously established);
(ii) Within five (5) days of the Termination Date, you shall return to the Company all Company
property including, but not limited to, computers, cell phones, pagers, keys, business cards, etc.;
(iii) Within thirty days of the Termination Date, you will submit any outstanding expense
reports to the Company on or prior to the Termination Date; and
(iv) As of the Termination Date, you will no longer represent that you are an officer,
director or employee of the Company and you will immediately discontinue using your Company mailing
address, telephone, facsimile machines, voice mail and e-mail;
(c) You acknowledge that (i) upon a violation of any of the covenants contained in Section 13
of this Agreement or (ii) if the Company is terminating your employment for Cause as provided in
Section 7(a), the Company would as a result sustain irreparable harm, and, therefore, you agree
that in addition to any other remedies which the Company may have, the Company shall be entitled to
seek equitable relief including specific performance and injunctions restraining you from
committing or continuing any such violation; and
(d) You agree that you will strictly adhere to and obey all Company rules, policies,
procedures, regulations and guidelines, including but not limited to those contained in the
Company’s employee handbook, as well any others that the Company may establish including without
limitation any policy the Company adopts on the recoupment of compensation (“Clawback Policy”). As
a result, you understand and agree that you may be required to repay to the Company certain
previously paid (and/or future) compensation in accordance with any such Clawback Policy and/or in
accordance with applicable
law. In particular, under a Clawback Policy, the Company may among other things (i) cause the
cancellation of any 2010 SIP award, including the Option, (ii) require reimbursement by you of any
2010 SIP award (including the Option) or of any previously paid bonus and (iii) effect any other
right of recoupment of equity or other compensation in accordance with the Clawback Policy and/or
applicable law. You will also strictly adhere to all applicable state and/or federal laws and/or
regulations relating to your employment with the Company.
14. Offset. Any severance or other payments or benefits made to you under this Agreement may be
reduced, in the Company’s discretion, by any amounts you owe to the Company provided that any such
offsets do not violate Code Section 409A.
15. Notice. Any notice that the Company is required to or may desire to give you shall be given by
personal delivery, recognized overnight courier service, email, telecopy or registered or certified
mail, return receipt requested, addressed to you at your address of record with the Company, or at
such
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other place as you may from time to time designate in writing. Any notice that you are
required or may desire to give to the Company hereunder shall be given by personal delivery,
recognized overnight courier service, email, telecopy or by registered or certified mail, return
receipt requested, addressed to the Company’s General Counsel at its principal office, or at such
other office as the Company may from time to time designate in writing. The date of actual
delivery of any notice under this Section 15 shall be deemed to be the date of delivery thereof.
16. Waiver; Severability. No provision of this Agreement may be amended or waived unless such
amendment or waiver is agreed to by you and the Company in writing and such amendment or waiver
expressly references this section. No waiver by you or the Company of the breach of any condition
or provision of this Agreement will be deemed a waiver of a similar or dissimilar provision or
condition at the same or any prior or subsequent time. Except as expressly provided herein to the
contrary, failure or delay on the part of either party hereto to enforce any right, power, or
privilege hereunder will not be deemed to constitute a waiver thereof. In the event any portion of
this Agreement is determined to be invalid or unenforceable for any reason, the remaining portions
shall be unaffected thereby and will remain in full force and effect to the fullest extent
permitted by law.
17. Voluntary Agreement. You acknowledge that you have been advised to review this Agreement with
your own legal counsel and other advisors of your choosing and that prior to entering into this
Agreement, you have had the opportunity to review this Agreement with your attorney and other
advisors and have not asked (or relied upon) the Company or its counsel to represent you or your
counsel in this matter. You further represent that you have carefully read and understand the
scope and effect of the provisions of this Agreement and that you are fully aware of the legal and
binding effect of this Agreement. This Agreement is executed voluntarily by you and without any
duress or undue influence on the part or behalf of the Company.
18. Key-Man Insurance. The Company shall have the right to insure your life for the sole benefit
of the Company, in such amounts, and with such terms, as it may determine. All premiums payable
thereon shall be the obligation
of the Company. You shall have no interest in any such policy, but you agree to cooperate with the
Company in taking out such insurance by submitting to physical examinations, supplying all
information required by the insurance company, and executing all necessary documents, provided that
no financial obligation is imposed on you by any such documents.
Please acknowledge your acceptance and understanding of this Agreement by signing and returning it
to the undersigned. A copy of this signed Agreement will be sent to you for your records.
ACKNOWLEDGED AND AGREED: |
||
This
11 day of March, 2011.
|
This 11 day of March, 2011. | |
LIFEVANTAGE CORPORATION
|
XXXXXXX X. XXXXXXXX | |
/s/ XXXXX XXXXX |
/s/ XXXXXXX X. XXXXXXXX | |
BY: Xxxxx Xxxxx |
||
TITLE: Chairman of the Board of Directors |
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