RULE 10b5-1 STOCK REPURCHASE PLAN
Exhibit
10.1
RULE
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ PLAN
This
Rule
▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Plan is made and entered into this 17th day of January,
2007 by and between Reliv International, Inc., a Delaware corporation (the
“Company”), and Canaccord ▇▇▇▇▇ Inc. (“Canaccord ▇▇▇▇▇”).
WHEREAS,
the Company’s Board of Directors has determined that it is in the best interests
of the Company and its shareholders that the Company institute and perform
a
plan pursuant to which it will repurchase up to 500,000 shares of its Common
Stock;
WHEREAS,
the Company’s Board of Directors desires to conduct its share repurchases under
the safe harbor provisions of Rule 10b5-1 and Rule 10b-18 promulgated under
the
Securities Exchange Act of 1934 (the “Act”);
WHEREAS,
the Company accordingly desires to establish the plan provided herein to effect
the repurchase of shares of its Common Stock;
WHEREAS,
the Company desires to engage Canaccord ▇▇▇▇▇, as broker, to effect the
repurchases of shares of its Common Stock in accordance with the plan provided
herein.
NOW,
THEREFORE, in consideration of the premises and of the terms, covenants and
conditions hereinafter contained, the parties hereto agree as
follows:
1. Sales
Plan.
Subject
to and on the terms and conditions herein contained, and during the Plan Term
as
provided herein, the Company hereby authorizes Canaccord ▇▇▇▇▇ to purchase
for
the account of the Company up to an aggregate of 500,000 shares of Common Stock
of the Company.
2. Plan
Term.
The
term during which Canaccord ▇▇▇▇▇ shall be authorized to effect the purchase
of
shares of Common Stock of the Company for the account of the Company shall
commence on the date hereof and shall terminate on the first to occur
of:
a. December
28, 2007;
b. When
the
aggregate number of shares of Common Stock of the Company purchased by Canaccord
▇▇▇▇▇ under this Plan shall reach 500,000;
b. The
end
of the second business day following the date of receipt by Canaccord ▇▇▇▇▇
of
notice by the Company of early termination.
c. The
commencement of any voluntary or involuntary case or other proceeding seeking
liquidation, reorganization or other relief under any bankruptcy, insolvency
or
similar law or seeing the appointment of a trustee, receiver or other similar
official or the taking of any corporate action by the Company to authorize
any
of the foregoing.
3. Suspension
or Termination by Canaccord ▇▇▇▇▇.
This
Agreement and the obligations of Canaccord ▇▇▇▇▇ to engage in purchases of
common stock of the Company for the account of the Company may be suspended
or
terminated by Canaccord ▇▇▇▇▇, in its discretion, at any time when:
a. Canaccord
▇▇▇▇▇ shall determine, in its judgment, that any representation or warranty
of
the Company made herein shall be false or misleading;
b. The
Company shall have violated any of its obligations hereunder;
c. Canaccord
▇▇▇▇▇ shall determine (based on the advice of counsel) that any purchase
effected pursuant to this Plan violates (or in the opinion of such counsel
is
reasonably likely to violate) any applicable law or regulation.
4. Trading
Restrictions.
The
repurchase of shares of Common Stock of the Company by Canaccord ▇▇▇▇▇ hereunder
for the account of the Company shall be subject to the following terms and
restrictions:
a. All
transactions effected hereunder by Canaccord ▇▇▇▇▇ shall comply with the
limitations of Rule 10b-18 promulgated under the Act;
b. No
purchases of shares shall be made at a price (excluding any commissions or
expenses) in excess of $11.00 per share.
5. Purchase
Plan.
a. Subject
to the restrictions set forth in Section 4 hereof, Canaccord ▇▇▇▇▇ will use
its
reasonable efforts, consistent with ordinary principles of best execution,
during the Term of this Agreement to purchase the maximum number of shares
available for purchase up to the Maximum Shares on each Trading Day at the
then-prevailing market price. The Company acknowledges that the number of shares
which Canaccord ▇▇▇▇▇ is able to purchase for its account on any Trading Day
may
be less than the Maximum Shares.
b. For
purposes of this Agreement:
(i)
“Maximum Shares” shall mean an amount shares of the common stock of the Company
equal to 25% of the average daily trading volume for such stock during the
four
calendar weeks preceding the week in which the purchase is made;
(ii)
“Trading Day” shall mean any day that the principal market or exchange on which
the common stock of the Company is traded is open for business.
6. Representations,
Warranties and Covenants of the Company.
The
Company represents, warrants and covenants to Canaccord ▇▇▇▇▇ as
follows:
6.1 As
of the
date hereof, the Company is not aware of any material nonpublic information
concerning the Company or its securities;
6.2 The
Company is entering into this Plan in good faith, with the intent that this
Plan
comply with the affirmative defense established by Rule 10b5-1 under the
Securities Exchange Act of 1934 (the “Exchange Act”), and not as part of a plan
or scheme to evade compliance with the federal securities laws.
6.3 The
Company will not communicate, directly or indirectly, any material nonpublic
information relating to the Company or its securities to any employee of
Canaccord ▇▇▇▇▇ or its affilates who is involved, directly or indirectly, in
executing this Plan.
6.4 The
execution and delivery of this Plan, and the transactions contemplated
hereunder, do not: (i) contravene any provision of applicable law or any
agreement or other instrument binding upon the Company or any of its affiliates;
or (ii) contravene any order or decree of any governmental body, agency or
court
having jurisdiction over the Company or its affiliates. There is no litigation,
arbitration or other proceeding pending, or to the Company’s knowledge
threatened, that would prevent or interfere with the transactions contemplated
by this Plan.
6.5 The
Company will comply with all applicable laws in connection with the performance
of this Plan.
7. Indemnification;
Limitation of Liability; No Advice Given.
7.1 The
Company agrees to indemnify and hold harmless Canaccord ▇▇▇▇▇ and its directors,
officers, employees and affiliates from and against all claims, losses, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) arising our of or attributable to Canaccord ▇▇▇▇▇’▇ actions
taken or not taken in compliance with this Plan or arising out of or
attributable to any breach by the Company of this Plan (including the Company’s
representations and warranties hereunder) or any violation by the Company of
applicable laws or regulations, except to the extent such losses are due to
Canaccord ▇▇▇▇▇’▇ ▇▇▇▇▇ negligence or willful misconduct. This indemnification
obligation will survive the termination of this Plan.
7.2 Notwithstanding
any other provision hereof, Canaccord ▇▇▇▇▇ will not be liable to the Company
for: (i) special, indirect, punitive, exemplary or consequential damages, or
incidental losses or damages of any kind, including without limitation lost
profits or lost savings, regardless of whether arising from breach of contract,
warranty, tort, strict liability or otherwise, and even if advised of the
possibility of such losses or damages or if such losses or damages could have
been reasonably foreseen; or (ii) any failure to perform or to cease performance
or any delay in performance that results from a cause or circumstance that
is
beyond Canaccord ▇▇▇▇▇’▇ reasonable control, including but not limited to
failure of electronic or mechanical equipment, strikes, failure of common
carrier or utility systems, acts of terrorism or war, severe weather, market
disruptions or other causes commonly known as “acts of God.”
7.3 The
Company has consulted with its own advisors as to the legal, tax, business,
financial and related aspects of its adoption and implementation of this Plan.
The Company has not relied upon the advice of Canaccord ▇▇▇▇▇ or any person
affiliated with Canaccord ▇▇▇▇▇ with respect to the legal, tax, business,
financial and related aspects of its adoption and implementation of this Plan,
including with respect to the availability of an affirmative defense under
Rule
10b5-1 or the applicability of any other federal or state securities laws.
The
Company acknowledges that Canaccord ▇▇▇▇▇ is not acting as its fiduciary or
advisor.
8. General
8.1 This
Plan
shall be deemed an effective contract and binding agreement between Canaccord
▇▇▇▇▇ and the Company only upon signature by a principal of Canaccord ▇▇▇▇▇
and
an authorized officer of the Company. The date this agreement is signed by
Canaccord ▇▇▇▇▇ is the "Effective Date" of this Plan.
8.2 This
Sales Plan (including all Schedules and Exhibits referred to herein) constitutes
the entire agreement between the parties with respect to this Plan and
supercedes any prior agreements or understandings with regard to this
Plan.
8.3 All
notices to Canaccord ▇▇▇▇▇ under this Plan will be delivered to Canaccord ▇▇▇▇▇'
corporate services group by telephone at ▇-▇▇▇-▇▇▇-▇▇▇▇ or by facsimile at
▇-▇▇▇-▇▇▇-▇▇▇▇, in either case provided that a confirmatory copy is delivered
to
the address below by a reputable overnight carrier guaranteeing overnight
delivery, or by certified mail to the address below:
Canaccord
▇▇▇▇▇
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
Corporate Services Group
8.4 This
Plan
may be modified or amended only by a writing signed by the parties hereto.
The
rights and obligations of the Company under this Plan may not be assigned or
delegated without the written permission of Canaccord ▇▇▇▇▇.
8.5. If
any
provision of this Plan is or becomes inconsistent with any applicable present
or
future law, rule or regulation, that provision will be deemed modified or,
if
necessary, rescinded in order to comply with the relevant law, rule or
regulation. All mother provisions of this Plan will continue and remain in
full
force and effect.
8.6. This
Plan
will be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without regard to such state's conflict of laws
rules.
8.7. THIS
SECTION 8.7 IS A PRE-DISPUTE ARBITRATION PROVISION
(a)
Any
dispute between the Company and Canaccord ▇▇▇▇▇ arising out of, relating to
or
in connection with this Plan or any transaction relating to this Plan will
be
determined by arbitration only before the New York Stock Exchange, Inc.; the
National Association of Securities Dealers, Inc.; or the Municipal Securities
Rulemaking Board, as the Company may elect. If the Company make no written
election addressed to Canaccord ▇▇▇▇▇ by registered mail within five days after
receiving a written demand for arbitration from Canaccord ▇▇▇▇▇, I authorize
Canaccord ▇▇▇▇▇ to elect one of the above listed forums for me. Unless the
rules
of the arbitral forum dictate otherwise, any arbitration proceeding between
the
Company and Canaccord ▇▇▇▇▇ will be held at a location at which the selected
forum regularly conducts such proceedings nearest to the Canaccord ▇▇▇▇▇ office
carrying the Company’s accounts at the time the claim arose; this venue will
apply even if the Company has related disputes with other parties which cannot
be resolved in the same location. Any arbitration proceeding between me and
Canaccord ▇▇▇▇▇ will be heard and decided by a panel of not fewer than three
arbitrators. The law of the Commonwealth of Massachusetts will apply in all
respects, including but not limited to determination of applicable statutes
of
limitation and available remedies. The award of the arbitrator or a majority
of
arbitrators will be final, and judgment on the award may be entered in any
state
or federal court having jurisdiction.
(b) The
Company represents that it understands the terms of the arbitration clause
contained in this Section 6.7 as follows: (i) arbitration is final and binding
on the parties; (ii) the parties are waiving their right to seek remedies in
court, including the right to jury trial; (iii) pre-arbitration discovery is
generally more limited than and different from court proceedings; (iv) the
arbitrators' award is not required to include factual findings or legal
reasoning, and any party's right to appeal or seek modification of rulings
by
the arbitrators is strictly limited; (v) the panel of arbitrators will typically
include a minority of arbitrators who were or are affiliated with the securities
industry; (vi) no person will bring a putative or certified class action to
arbitration, nor seek to enforce any pre-dispute arbitration agreement against
any person who has initiated in court a putative class action or who is a member
of a putative class who has not opted out of the class with respect to any
claims encompassed by the putative class action until: (a) the class
certification is denied; (b) the class is decertified; or (c) the customer
is
excluded from the class by the court. Such forbearance to enforce an agreement
to arbitrate will not constitute a waiver of any rights under this Plan except
to the extent stated herein.
NOTICE:
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION PROVISION IN SECTION
8.7.
IN
WITNESS WHEREOF, the undersigned have signed this Stock Repurchase Plan as
of
the date first written above.
Date:
January 17, 2007
RELIV
INTERNATIONAL, INC.
BY
/s/ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇,
Chief
Executive Officer
CANACCORD
▇▇▇▇▇, INC.
BY
_/s/
▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇
Title:
Corporate
Services