10b5-1 STOCK REPURCHASE PLAN
EXHIBIT
10.1
10b5-1
STOCK REPURCHASE PLAN
THIS
RULE 10b5-1 STOCK REPURCHASE PLAN
dated
October 12, 2005 (the “Repurchase Plan”), between Reliv International, Inc. (the
“Issuer”) and The Xxxxxxx Companies, (“Broker”).
WHEREAS,
the
Issuer’s Board of Directors has determined that it is in the best interests of
the Issuer and its shareholders that the Issuer commence a repurchase up
to an
aggregate of 200,000 shares of its $0.001 par value Common Stock (the
“Stock”);
WHEREAS,
Issuer’s Board of Directors desires to conduct its share repurchases under the
provisions of the safe harbor of the Securities and Exchange Commission’s Rules
10b5-1 and 10b-18;
WHEREAS,
the
Issuer accordingly desires to establish this Repurchase Plan to effect said
repurchases of shares of its Stock; and
WHEREAS,
the
Issuer desires to engage Xxxxxx to effect repurchases of shares of Stock
in
accordance with this Repurchase Plan.
NOW,
THEREFORE,
the
Issuer and Xxxxxx hereby agree as follows:
1. (a) Subject
to the Issuer’s continued compliance with Section 2 hereof, Broker shall effect
a purchase or purchases (each, a “Purchase”) of up to an aggregate of Two
Hundred Thousand (200,000) shares of the Stock (the “Total Plan Shares”) in
accordance with Appendix 1.
(b) Purchases
may be made in the open market or through privately negotiated transactions.
Broker shall comply with the requirements of paragraphs (b)(2), (b)(3) and
(b)(4) of Rule 10b-18 under the Securities Exchange Act of 1934, as amended
(the
“Exchange Act”), in connection with Purchases of Stock in the open market
pursuant to this Repurchase Plan. The Issuer agrees not to take any action
that
would cause Purchases not to comply with Rule 10b-18 or Rule
10b5-1.
2. The
Issuer shall pay to Broker a commission of six cents ($0.06) per share of
Stock
repurchased pursuant to this Repurchase Plan. In accordance with Xxxxxx’s
customary procedures, Xxxxxx will deposit shares of Stock repurchased hereunder
into an account established by Xxxxxx for the Issuer against payment to Broker
of the purchase price therefore and commissions and other amounts in respect
thereof payable pursuant to this Section. The Issuer will be notified of
all
transactions pursuant to customary trade confirmations.
3. (a) This
Repurchase Plan shall become effective immediately and shall terminate upon
the
first to occur of the following:
1
(1)
the
ending of the Trading Period, as set forth in Appendix
1;
(2)
the
purchase of the number of Total Plan Shares pursuant to this Repurchase
Plan;
(3) the
end
of the second business day following the date of receipt by Xxxxxx of notice
of
early termination substantially in the form of Appendix 2 hereto, delivered
by
facsimile, transmitted to (000) 000-0000; Attention: Xx. Xxxx Xxxxxx, and
confirmed by telephone to Xx. Xxxxxx Xxxxxxxx at (000) 000-0000;
(4) 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 seeking the appointment of a trustee, receiver or other similar
official or the taking of any corporate action by the Issuer to authorize
or
commence any of the foregoing;
(5) the
public announcement of a tender or exchange offer for the Stock or of a merger,
acquisition, recapitalization or other similar business combination or
transaction as a result of which the Stock would be exchanged for or converted
into cash, securities or other property; or
(6) the
failure of the Issuer to comply with Section 2 hereof.
(b) Sections
2 and 13 of this Repurchase Plan shall survive any termination hereof. In
addition, the Issuer’s obligation under Section 2 hereof in respect of any
shares of Stock purchased prior to any termination hereof shall survive any
termination hereof.
4. The
Issuer understands that Broker may not be able to effect a Purchase due to
a
market disruption or a legal, regulatory or contractual restriction or internal
policy applicable to Broker or otherwise. If any Purchase cannot be executed
as
required by Section 1 due to a market disruption, a legal, regulatory or
contractual restriction or internal policy applicable to Broker or any other
event, such Purchase shall be cancelled and shall not be effected pursuant
to
this Repurchase Plan.
5. The
Issuer represents and warrants, on the date hereof and on the date of any
amendment hereto, that: (a) it is not aware of material, nonpublic information
with respect to the Issuer or any securities of the Issuer (including the
Stock), (b) it is entering into or amending, as the case may be, this Repurchase
Plan in good faith and not as part of a plan or scheme to evade the prohibitions
of Rule 10b5-1 under the Exchange Act or other applicable securities laws
and
(c) its execution of this Repurchase Plan or any amendment hereto, as the
case
may be, and the Purchases contemplated hereby do not and will not violate
or
conflict with the Issuer’s certificate of incorporation or by-laws or, if
applicable, any similar constituent document, or any law, rule regulation
or
agreement binding on or applicable to the Issuer or any of its subsidiaries
or
any of its or their properties or assets.
2
6. It
is the
intent of the parties that this Repurchase Plan comply with the requirements
of
Rule 10b5-1(c)(1)(i)(B) and Rule 10b-18 under the Exchange Act, and this
Repurchase Plan shall be interpreted to comply with the requirements
thereof.
7. At
the
time of the Issuer’s execution of this Repurchase Plan, the Issuer has not
entered into a similar agreement with respect to the Stock. The Issuer agrees
not to enter into any such agreement while this Repurchase Plan remains in
effect.
8. Except
as
specifically contemplated hereby, the Issuer shall be solely responsible
for
compliance with all statutes, rules and regulations applicable to the Issuer
and
the transactions contemplated hereby, including, without limitation, reporting
and filing requirements.
9. This
Repurchase Plan shall be governed by and construed in accordance with the
laws
of the State of Missouri and may be modified or amended only by a writing
signed
by the parties hereto.
10. The
Issuer represents and warrants that the transactions contemplated hereby
are
consistent with the Issuer’s publicly announced stock repurchase program
(“Program”) and said Program has been duly authorized by the Issuer’s board of
directors.
11. The
number of Total Plan Shares, other share amounts and prices, if applicable,
set
forth in Section 1(a) shall be adjusted automatically on a proportionate
basis
to take into account any stock split, reverse stock split or stock dividend
with
respect to the Stock or any change in capitalization with respect to the
Issuer
that occurs during the term of this Repurchase Plan.
12. Except
as
contemplated by Section 3 (a) (3) of this Repurchase Plan, the Issuer
acknowledges and agrees that it does not have authority, influence or control
over any Purchase effected by Broker pursuant to his Repurchase Plan and
the
Issuer will not attempt to exercise any authority, influence or control over
any
Purchases. Xxxxxx agrees not to seek advice from the Issuer with respect
to the
manner in which it effects Purchases under this Repurchase Plan.
13. The
Issuer agrees to indemnify and hold harmless Broker and its affiliates and
their
officers, directors, employees and representatives against any loss, claim,
damage or liability, including legal fees and expenses, arising out of any
action or proceeding relating to this Repurchase Plan or any Purchase, except
to
the extent that any such loss, claim, damage or liability is determined in
a
non-appealable determination of a court of competent jurisdiction to be solely
the result of the indemnified person’s willful misconduct.
14. This
Repurchase Plan may be executed in any number of counterparts, all of which,
taken together, shall constitute one and the same agreement.
3
IN
WITNESS WHEREOF,
the
undersigned have executed this Repurchase Plan as of the date first written
above.
BROKER: | ||
By: | /s/ Xxxx Xxxxxx | |
Name: | Xxxx Xxxxxx | |
Title: | Equity Trader |
RELIV INTERNATIONAL, INC. | ||
By: | /s/ Xxxxxxx X. Xxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Senior Vice-President |
4
APPENDIX
1
TRADING
PARAMETERS
Total
Plan Shares: 200,000
Trading
Period:
From and
including October 12, 2005, through December 31, 2005
Daily
Share Purchase Amount: Lesser
of
(a) 2,500 shares; (b) Rule 10b-18(b)4 limit (25% of prior 4 weeks’ average daily
trading volume); and (c) 33% of current trading day’s volume. The timing of all
Share Purchases shall be in strict compliance with the parameters of Rule
10b-18.
Maximum
Price:
$11.00
per share
Maximum
Calendar Month Purchase Amount:
$300,000
TRADE
ORDER
Subject
to Paragraphs 1, 4 and 6 of that certain Rule 10b5-1 Stock Repurchase Plan
dated
October 12, 2005 (the “Repurchase Plan”) to which this Appendix 1 is attached,
each day during the Trading Period on which the NASDAQ National Market Stock
Exchange is open for business, Broker shall use its best efforts to effect
a
purchase or purchases (each, a “Purchase”) of the Daily Share Purchase Amount,
such Purchases cumulatively not to exceed the Total Plan Shares and, in no
case,
will the market price per share, excluding commissions, of any Purchase exceed
the Maximum Price. Capitalized terms used but not otherwise defined herein
shall
have the meaning assigned thereto in the Repurchase Plan.
5
APPENDIX
2
Request
for Early Termination of Repurchase Plan
To: The
Xxxxxxx Companies:
As
of the
date hereof, Reliv International, Inc. hereby requests termination of its
Rule
10b5-1 Stock Repurchase Plan, dated October 12, 2005, in good faith and not
as
part of a plan or scheme to evade the prohibitions of Rule 10b5-1 or other
applicable securities laws.
IN
WITNESS WHEREOF, the undersigned has signed this Request for Early Termination
of Repurchase Plan as of the date specified below.
Reliv
International, Inc.
By: | ||||
Name: | Date: | |||
Title: |
6