UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K/A Amendment No. 1 |
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ý | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2014
OR
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o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number: 001-35671
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LifeLock, Inc. (Exact name of registrant as specified in its charter) |
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Delaware | | 56-2508977 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
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60 East Rio Salado Parkway, Suite 400 Tempe, Arizona 85281 (Address of principal executive offices and zip code) (480) 682-5100 (Registrant’s telephone number, including area code) |
Securities registered pursuant to Section 12(b) of the Act: |
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Title of Each Class | | Name of Each Exchange on Which Registered |
Common Stock, $0.001 par value | | The New York Stock Exchange |
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Securities registered pursuant to Section 12(g) of the Act: None |
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ý No ¨
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ¨ No ý
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ý No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ý No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer | ý | | Accelerated filer | o |
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Non-accelerated filer | o (Do not check if a smaller reporting company) | | Smaller reporting company | o |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes ¨ No ý
As of June 30, 2014, the last business day of the registrant’s most recently completed second fiscal quarter, the aggregate market value of the registrant’s voting common stock held by non-affiliates of the registrant was approximately $1.1 billion based on the closing price of such stock as reported on The New York Stock Exchange on such date.
As of February 13, 2015, there were outstanding 94,026,708 shares of the registrant’s common stock, $0.001 par value.
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DOCUMENTS INCORPORATED BY REFERENCE: |
Portions of the registrant’s definitive Proxy Statement for its 2015 Annual Meeting of Stockholders are incorporated by reference in Part III of this Annual Report on Form 10-K where indicated. Such Proxy Statement will be filed with the Securities and Exchange Commission within 120 days of the registrant’s fiscal year ended December 31, 2014.
EXPLANATORY NOTE
We are filing this Amendment No. 1 on Form 10-K/A (this “Amendment”) to amend our Annual Report on Form 10-K for the year ended December 31, 2014 (“Original Filing”), originally filed with the Securities and Exchange Commission (the “SEC”) on February 20, 2015 (“Original Filing Date”), solely to file Exhibit 10.21 and Exhibit 10.22 to this Amendment, which were inadvertently omitted from the Original Filing.
Except as described above, no changes have been made to the Original Filing and this Amendment does not modify, amend, or update in any way any of the financial or other information contained in the Original Filing. This Amendment does not reflect events that may have occurred subsequent to the Original Filing Date.
Pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended, this Amendment also contains new certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002, which are attached hereto. Because no financial statements have been included in this Amendment and this Amendment does not contain or amend any disclosure with respect to Items 307 and 308 of Regulation S-K, paragraphs 3, 4, and 5 of the certifications have been omitted.
Part IV
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ITEM 15. | EXHIBITS AND FINANCIAL STATEMENT SCHEDULES |
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(a) | Documents filed as a part of this Amendment: |
The following documents were previously filed with the SEC on February 20, 2015 as part of our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, which is being hereby amended.
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• | Financial Statements and Supplementary Data |
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• | Consolidated Balance Sheets as of December 31, 2014 and 2013 |
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• | Consolidated Statements of Operations for the fiscal years ended December 31, 2014, 2013, and 2012 |
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• | Consolidated Statements of Comprehensive Income for the fiscal years ended December 31, 2014, 2013, and 2012 |
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• | Consolidated Statements of Convertible Redeemable Preferred Stock and Stockholders' Equity (Deficit) for the fiscal years ended December 31, 2014, 2013, and 2012 |
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• | Consolidated Statements of Cash Flows for the fiscal years ended December 31, 2014, 2013, and 2012 |
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• | Notes to the Consolidated Financial Statements |
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2. | Financial Statement Schedule: Schedule II—Valuation and Qualifying Accounts was previously filed with the SEC on February 20, 2015 as part of our Annual Report on Form 10-K for the fiscal year ended December 31, 2014, which is being hereby amended. All other schedules have been omitted because the required information is included in the consolidated financial statements or the notes thereto, or is not applicable or required. |
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3. | Exhibits: See Item 15(b) below. We have filed, or incorporated into this Annual Report on Form 10-K/A by reference, the exhibits listed on the accompanying Index to Exhibits immediately following the signature page of this Form 10-K/A. |
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(b) | Exhibits: The exhibit list in the Index to Exhibits immediately following the signature page of this Annual Report on Form 10-K/A is incorporated herein by reference as the list of exhibits required by this Item 15(b). |
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(c) | Financial Statement Schedules: See Item 15(a) above. |
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Excahgne Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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| | LIFELOCK, INC. |
Dated: | February 20, 2015 | By: | | /s/ Todd Davis |
| | | | Todd Davis |
| | | | Chairman and Chief Executive Officer |
EXHIBIT INDEX |
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Exhibit No. | Description of Exhibit |
2.1 | Agreement and Plan of Merger, dated as of December 11, 2013, by and among LifeLock, Inc., Lavender Acquisition Corporation, Lemon, Inc., and Shareholder Representative Services LLC, as the Securityholder Representative (1) |
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3.1 | Seventh Amended and Restated Certificate of Incorporation of LifeLock, Inc. (2) |
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3.2 | Amended and Restated Bylaws of LifeLock, Inc. (3) |
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4.1 | Form of Common Stock Certificate (4) |
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4.2 | Fourth Amended and Restated Investors’ Rights Agreement, dated as of March 14, 2012, by and among LifeLock, Inc. and the investors named therein (5) |
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10.1† | Form of Indemnification Agreement by and between LifeLock, Inc. and each of its directors and executive officers (6) |
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10.2† | Second Amended and Restated Employment Agreement, dated as of September 14, 2012, between LifeLock, Inc. and Todd Davis (7) |
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10.3† | Second Amended and Restated Employment Agreement, dated as of September 14, 2012, between LifeLock, Inc. and Chris Power (8) |
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10.3A† | First Amendment to Second Amended and Restated Employment Agreement, dated as of February 15, 2013, between LifeLock, Inc. and Chris Power (9) |
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10.4† | Second Amended and Restated Employment Agreement, dated as of September 14, 2012, between LifeLock, Inc. and Clarissa Cerda (10) |
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10.7 | Credit Agreement, dated as of January 9, 2013, among LifeLock, Inc., the Guarantors named therein, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, Silicon Valley Bank, as Syndication Agent, the other Lenders named therein, and Merrill Lynch, Pierce, Fenner & Smith Incorporated as Sole Lead Arranger and Sole Book Manager (11) |
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10.8 | Office Lease, dated as of May 18, 2007, between LifeLock, Inc. and Hayden Ferry Lakeside, LLC (12) |
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10.8A | First Amendment to Office Lease, dated as of March 7, 2008, between LifeLock, Inc. and Hayden Ferry Lakeside, LLC (13) |
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10.8B | Second Amendment to Office Lease, dated as of May 17, 2013, between LifeLock, Inc. and PKY Fund II Phoenix II, LLC (14) |
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10.8C | Third Amendment to Office Lease, dated effective as of September 13, 2013, between LifeLock, Inc. and PKY Fund II Phoenix II, LLC (15) |
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10.8D | Fourth Amendment to Office Lease, dated effective as of December 5, 2013, between LifeLock, Inc. and PKY Fund II Phoenix II, LLC (16) |
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10.9 | Lease Agreement, dated as of March 1, 2008, by and between LifeLock, Inc. and BoMin2035M LLC (17) |
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10.9A | First Amendment to Lease Agreement, dated as of March 17, 2008, by and between LifeLock, Inc. and BoMin2035M LLC (18) |
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10.9B | Second Amendment to Lease Agreement, dated as of May 14, 2010, by and between LifeLock, Inc. and BoMin2035M LLC (19) |
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10.10* | Identity Protection Service Provider Agreement, dated as of July 29, 2011, by and between LifeLock, Inc. and Early Warning Services, LLC (20) |
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10.10A* | Fourth Amendment to Identity Protection Service Provider Agreement, dated as of July 3, 2014, by and between LifeLock, Inc. and Early Warning Services, LLC (21) |
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10.11A* | Technology Services Agreement, dated as of January 16, 2014, by and between LifeLock, Inc. and CSIdentity Corporation (22) |
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10.11B** †† | First Amendment to Technology Services Agreement, dated November 19, 2014, between LifeLock, Inc. and CSIdentity Corporation |
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10.12† | Amended and Restated 2006 Incentive Compensation Plan (23) |
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Exhibit No. | Description of Exhibit |
10.13† | Form of Stock Option Agreement under Amended and Restated 2006 Incentive Compensation Plan (24) |
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10.15† | Employment Agreement, dated as of September 14, 2012, between LifeLock, Inc. and Hilary A. Schneider (25) |
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10.16† | 2012 Incentive Compensation Plan (26) |
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10.17† | Form of Stock Option Agreement and Restricted Stock Unit Agreement under 2012 Incentive Compensation Plan (27) |
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10.18† | 2012 Employee Stock Purchase Plan (28) |
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10.19† | 2012 Performance Bonus Plan (29) |
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10.21† | Severance Agreement, dated as of July 22, 2013, by and between LifeLock, Inc. and Don Beck |
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10.22† | 2015 Sales Commission Plan Agreement, dated February 17, 2015, by and between LifeLock, Inc. and Don Beck |
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21.1†† | List of Subsidiaries |
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23.1†† | Consent of Ernst & Young LLP, independent registered public accounting firm |
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24.1†† | Power of Attorney (included on the signature page of this Annual Report on Form 10-K) |
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31.1 | Certification of Chief Executive Officer required by Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
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31.2 | Certification of Chief Financial Officer required by Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
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32.1††† | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
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32.2††† | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 |
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101.INS†† | XBRL Instance Document |
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101.SCH†† | XBRL Taxonomy Extension Schema Document |
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101.CAL†† | XBRL Taxonomy Extension Calculation Linkbase Document |
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101.DEF†† | XBRL Taxonomy Extension Definition Linkbase Document |
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101.LAB†† | XBRL Taxonomy Extension Label Linkbase Document |
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101.PRE†† | XBRL Taxonomy Extension Presentation Linkbase Document |
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(1) | Filed as Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 12, 2013, and incorporated herein by reference. |
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(2) | Filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 9, 2012, and incorporated herein by reference. |
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(3) | Filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 9, 2012, and incorporated herein by reference. |
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(4) | Filed as Exhibit 4.1 to Amendment No. 2 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 19, 2012, and incorporated herein by reference. |
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(5) | Filed as Exhibit 4.2 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(6) | Filed as Exhibit 10.1 to Amendment No. 2 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 19, 2012, and incorporated herein by reference. |
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(7) | Filed as Exhibit 10.2 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference. |
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(8) | Filed as Exhibit 10.3 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference. |
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(9) | Filed as Exhibit 10.3A to the Registrant’s Current Report on Form 8-K filed within the Securities and Exchange Commission on February 22, 2013, and incorporated herein by reference. |
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(10) | Filed as Exhibit 10.4 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference.Filed as Exhibit 10.7 to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on January 15, 2013, and incorporated herein by reference. |
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(11) | Filed as Exhibit 10.7 to the Registrant’s Registration Statement on Form 8-K filed with the Securities and Exchange Commission on January 15, 2013, and incorporated herein by reference. |
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(12) | Filed as Exhibit 10.8 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(13) | Filed as Exhibit 10.8A to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(14) | Filed as Exhibit 10.8B to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 21, 2013, and incorporated herein by reference. |
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(15) | Filed as Exhibit 10.8C to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on September 16, 2013, and incorporated herein by reference. |
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(16) | Filed as Exhibit 10.8D to the Registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 10, 2013, and incorporated herein by reference. |
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(17) | Filed as Exhibit 10.9 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(18) | Filed as Exhibit 10.9A to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(19) | Filed as Exhibit 10.9B to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(20) | Filed as Exhibit 10.10 to Amendment No. 3 the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 27, 2012, and incorporated herein by reference. |
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(21) | Filed as Exhibit 10.10A to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 10, 2014, and incorporated herein by reference. |
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(22) | Filed as Exhibit 10.11A to the Registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 2, 2014, and incorporated herein by reference. |
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(23) | Filed as Exhibit 10.12 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(24) | Filed as Exhibit 10.13 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on August 28, 2012, and incorporated herein by reference. |
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(25) | Filed as Exhibit 10.15 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference. |
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(26) | Filed as Exhibit 10.16 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference. |
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(27) | Filed as Exhibit 10.17 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference. |
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(28) | Filed as Exhibit 10.18 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference. |
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(29) | Filed as Exhibit 10.19 to Amendment No. 1 to the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on September 14, 2012, and incorporated herein by reference. |
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† | Indicates management contract or compensatory plan or arrangement. |
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†† | Previously filed with our Annual Report on Form 10-K filed with the SEC on February 20, 2015. |
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††† | Previously furnished with our Annual Report on Form 10-K filed with the SEC on February 20, 2015. |
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* | Confidential treatment has been granted by the SEC for portions of this exhibit. |
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** | Certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
LIFELOCK, INC.
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT (the “Agreement”) is made and entered into as of the 22nd day of July, 2013 by and between LIFELOCK, Inc., a Delaware corporation (the “Company”), and DON BECK (the “Employee”), together, “the PARTIES”.
Recitals
WHEREAS, the Company wishes to employ the Employee and the Employee wishes to become employed by the Company; and
WHEREAS, the Company and the Employee desire to enter into this Agreement to provide for certain severance benefits, upon the terms and conditions set forth in this Agreement, to be payable solely in the event the Employee’s employment is terminated by the Company without Cause.
Agreement
NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are mutually acknowledged, the Company and the Employee hereby agree as follows:
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1. | Termination of Employment. Nothing in this Agreement changes the Employee’s at-will employment status or confers any right with respect to continuation of employment by the Company. Employee may terminate his employment with the Company at any time and for any reason by notifying the Company. The Company may terminate Employee’s employment at any time, with or without Cause or advance notice. |
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2. | Termination without Cause. If the Company terminates the Employee’s employment without Cause (as defined in Section 3) and if such termination constitutes a “separation of service” for purposes of Section 409A of the Internal Revenue Code (“Section 409A”), the Company shall (a) pay to the Employee any unpaid base salary and any other unpaid undisputed wages due, accrued through the effective date of termination within ten days after such termination, and (b) subject to the execution by the Employee of a release agreement containing standard terms in a form reasonably acceptable to the Company, pay to the Employee, in bi-weekly installments consistent with the Company’s normal payroll schedule during the six-month period following termination, subject to applicable withholding and other taxes, an amount equal to six months of the Employee’s then base salary. Payments under subparagraph (b) above shall be treated as a series of separate payments under Treasury Regulation Section 1.409A-2(b)(2)(iii), are subject to required tax and other withholdings, and shall be conditioned upon the Employee’s execution of a general release of claims that becomes irrevocable within 60 days of the Employee’s termination date. |
Any payments due to the Employee under subparagraph (b) above shall be forfeited if the Employee fails to execute a general release of claims that becomes irrevocable within 60 days after the Employee’s termination date. If the foregoing release is executed and delivered and no longer subject to revocation within 60 days after the termination date, then the following shall apply:
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(i) | To the extent any payments due to the Employee under subparagraph (b) above are not “deferred compensation” for purposes of Section 409A, then such payments shall commence upon the first scheduled payment date immediately after the date the release is executed and no longer subject to revocation (the “Release Effective Date”). The first such cash payment shall include payment of all amounts that otherwise would have been due prior to the Release Effective Date under the terms of this Agreement had such payments commenced immediately upon the termination date, and any payments made thereafter shall continue as provided herein. The delayed payments shall in any event expire at the time such payments would have expired had such payments commenced immediately following the termination date. |
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(ii) | To the extent any payments due to the Employee under subparagraph (b) above are “deferred compensation” for purposes of Section 409A, then such payments shall commence upon the 60th day following the termination date. The first such cash payment shall include payment of all amounts that otherwise would have been due prior thereto under the terms of this Agreement had such payments commenced immediately upon the termination date, and any payments made thereafter shall continue as provided herein. The delayed payments shall in any event expire at the time such payments would have expired had such payments commenced immediately |
following the termination date.
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3. | Cause. For the purposes of this Agreement, "Cause" shall mean (a) an act or acts of personal dishonesty, fraud, or embezzlement by the Employee; (b) violation by the Employee of the Company's Proprietary Rights and Nonsolicitation Agreement that are demonstrably willful and deliberate on the Employee's part and which are not remedied in a reasonable period of time after receipt of written notice from the Company; (c) any willful or deliberate refusal to follow the requests or instructions of the Board or the CEO and which are not remedied in a reasonable period of time after receipt of written notice from the Company; or (d) the conviction of the Executive for any criminal act that is a felony or that is a crime involving acts of personal dishonesty causing material harm to the standing and reputation of the Company. Any termination for Cause shall be made in writing to the Executive, which notice shall set forth in detail all acts or omissions upon which the Company is relying for such termination. |
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4. | Death or Disability. The termination of the Employee’s employment due to death or as a result of the Employee’s failure to perform his duties and responsibilities for a period of more than 90 days in any 12-month period due to mental or physical incapacity, illness or disability shall not constitute a termination of the Employee’s employment without Cause. |
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5. | Specified Employee. Notwithstanding any provision of this Agreement to the contrary, if the Employee is a “specified employee” as defined in Section 409A, the Employee shall not be entitled to any payments or benefits the right to which provides for a “deferral of compensation” within the meaning of Section 409A, and whose payment or provision is triggered by the Employee’s termination of employment (whether such payments or benefits are provided to the Employee under this Agreement or under any other plan, program, or arrangement of the Company), until (and any portion or installments of any payments or benefits suspended hereby shall be paid in a lump sum on) the earlier of (a) the date which is the first business day following the six-month anniversary of the Employee’s “separation from service” (within the meaning of Section 409A) for any reason other than death, or (b) the Employee’s date of death, and such payments or benefits that, if not for the six month delay described herein, would be due and payable prior to such date shall be made or provided to the Employee on such date. The Company shall make the determination as to whether the Employee is a “specified employee” in good faith in accordance with its general procedures adopted in accordance with Section 409A and, at the time of the Employee’s “separation of service” will notify the Employee whether or not he is a “specified employee.” |
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6. | Choice of Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of Arizona without regard to its choice of law provisions. Should any valid federal or state law or final determination of any administrative agency or court of competent jurisdiction affect any provision of this Agreement, the provision or provisions so affected shall be automatically conformed to the law and otherwise this Agreement shall continue in full force and effect. |
Any litigation based on, arising out of, or in connection with this Agreement shall be brought exclusively in the state or federal courts located in the County of Maricopa, Arizona, and the PARTIES expressly submit to the personal jurisdiction of those courts. The PARTIES hereby expressly waive, to the fullest extent permitted by law, any objection that they may now or hereafter have, to the laying of venue of any such litigation brought in any such court referred to above, including without limitation any claim that any such litigation has been brought in an inconvenient forum.
EMPLOYEE IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR (II) ARISING FROM ANY DISPUTE OR CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
7.1 Successors.
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(a) | This Agreement is personal to the Employee and without the prior written consent of the Company shall not be assignable by the Employee otherwise than by will or the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal representatives. |
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(b) | This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns. |
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7.2 | Severability. The invalidity of any one or more of the words, phrases, sentences, clauses, or sections contained in this Agreement shall not affect the enforceability of the remaining portions of this Agreement or any part thereof, all of which are inserted conditionally on their being valid in law, and, in the event that any one or more of the words, phrases, sentences, clauses, or sections contained in this Agreement shall be declared invalid, this Agreement shall be construed as if such invalid word or words, phrase or phrases, sentence or sentences, clause or clauses, or section or sections had not been inserted. |
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7.3 | Waivers. The waiver by either party hereto of a breach or violation of any term or provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach or violation. |
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7.4 | Exclusive Severance Benefit. The payments and benefits provided under Section 2 will be instead of any payments or benefits to which the Employee may be entitled under the terms of any severance plan or program of the Company in effect on the termination date. |
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7.5 | No Third Party Beneficiary. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person (other than the parties hereto and, in the case of the Employee, his heirs, personal representative(s), and/or legal representative) any rights or remedies under or by reason of this Agreement. |
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7.6 | Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of the parties reflected hereon as the signatories. |
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7.7 | Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings, inducements, and conditions, express or implied, oral or written. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or amended other than by an agreement in writing signed by both parties hereto. |
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7.8 | Paragraph Headings. The paragraph headings in this Agreement are for convenience only; they form no part of this Agreement and shall not affect its interpretation. |
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7.9 | Gender. Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine, or neuter, as the context requires. |
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7.10 | Employee’s Beneficiaries. In the event the Employee dies and there are any amounts remaining to be paid to the Employee pursuant to this Agreement, such payments shall be made to the beneficiary designated by the Employee or, if none, to the Employee’s estate at the same time that they would have been paid to the Employee. |
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7.11 | Section 409A. This Agreement is intended to satisfy the requirements of Section 409A with respect to amounts subject thereto, and shall be interpreted and construed consistent with such intent; provided that, notwithstanding the other provisions of this subsection and the paragraph above entitled “Specified Employee,” with respect to any right to a payment or benefit hereunder (or portion thereof) that does not otherwise provide for a “deferral of compensation” within the meaning of Section 409A, it is the intent of the parties that such payment or benefit will not so provide. Furthermore, if either party notifies the other in writing that, based on the advice of legal counsel, one or more of the provisions of this Agreement contravenes any regulations or Treasury guidance promulgated under Section 409A or causes any amounts to be subject to interest or penalties under Section 409A, the parties shall promptly and reasonably consult with each other (and with their legal counsel), and shall use their reasonable best efforts, to reform the provisions hereof to (a) maintain to the maximum extent practicable the original intent of the applicable provisions without violating the provisions of Section 409A or increasing the costs to the Company of providing the applicable benefit or payment, and (b) to the extent practicable, to avoid the imposition of any tax, interest, or other penalties under Section 409A upon the Employee or the Company. Notwithstanding the foregoing, nothing in this Agreement shall be construed as an entitlement to or a guarantee of any particular tax treatment to the Employee. |
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written.
THE COMPANY:
LIFELOCK, INC.
By: /s/ Hilary Schneider
Its: President
THE EMPLOYEE:
/s/ Donald Beck
LIFELOCK, INC. 2015 SALES COMMISSION PLAN AGREEMENT
In addition to base salary, LifeLock, Inc. (“LifeLock” or the “Company”) will provide incentive compensation to certain eligible sales employees (“Eligible Employee”) pursuant to the terms and conditions of this Sales Commission Plan (the “Plan”).
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1. | PURPOSE AND GOALS. In implementing the Plan, LifeLock’s goal is to align individually established sales goals with those of LifeLock as defined by the strategy: profitable member & revenue growth. |
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2. | DEFINITIONS. The following definitions are applicable to the capitalized terms used in this Plan and any Plan-related documents: |
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2.1 | Account - LifeLock partner listed in the customer resource management platform (“CRM Platform”). |
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2.2 | Account Commission Period - The period for which an Account is listed as owned by the Eligible Employee and for which commissions are paid. |
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2.3 | Annualized Revenue - Based on the product pricing associated with each Gross New Member and the billing cycle, Revenue is calculated in the month of enrollment on a 12- month pro-rata basis and then multiplied by a Retention Factor. |
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2.4 | Authorized Reseller Opportunities - Those opportunities in which the partner both facilitates enrollment in LifeLock, on behalf of the Gross New Member, and pays LifeLock for corresponding enrollments. |
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2.5 | Billing Partner Opportunities - Those opportunities in which the Gross New Member enrolls directly through LifeLock.com or the contact center with no billing information required from the Gross New Member and in which LifeLock bills the partner for corresponding enrollments. |
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2.6 | Campaign - The marketing plan under a specific Opportunity such as a direct mail campaign, magazine advertisement etc. |
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2.7 | Contract Approval Date - Contract Approval Date is the date that the Opportunity is approved in the CRM Platform. |
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2.8 | Commission Rate - The percentage multiplier that is applied to the Annualized Revenue in order to calculate commissions. This rate is X% of Annualized Revenue for all Gross New Member Enrollments (“GNM”) that fall within the Gross New Member Ownership guidelines. However, if the Eligible Employee brings in Annualized Revenue above his/her quarterly Revenue goal, then the rate is multiplied by 1.12 for all Annualized Revenue for that quarter. For example only: |
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Annualized Revenue Target for Quarter: $250,000.00 |
Actual annualized revenue for quarter: | Rate Applied |
$0.00 to $250,000 | 7.5% |
+$250,001 | 8.4% |
For individual-specific rates, See Attachment A.
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2.9 | Employee Benefit Opportunity -- An opportunity that results in Gross New Members enrolling in LifeLock directly or indirectly, as the result of an employer communicating the LifeLock offer to its employees. |
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2.10 | Gross New Member - A person who has been enrolled for the Services and such Services have commenced. |
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2.11 | Gross New Member Ownership - Eligible Employees “own” Gross New Memberships in one of two ways: (1) Gross New Members that come in through partnerships that are past the Account Ownership Period, are owned only by the Campaign Owners (generally PAMs); or (2) Gross New Members that come in through partnerships that are within the Account Ownership Period, are owned by the Campaign Owner and the Opportunity Owner. |
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2.12 | LifeLock’s Internal Compensation Team - The team is comprised of the Chief Financial Officer, Chief Legal Officer, the President and the Vice President of Human Resources. |
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2.13 | New Account - Any Account that has a Contract Approval Date during the then-current Plan Year. Except as specified below, an Account is considered a “New Account” for the first eighteen (18) months from the Contract Approval Date or when LifeLock’s Internal Compensation Team approves certain re-engaged partners. For |
solution engineers and launch managers, only months one (1) through six (6), will earn commissions as “New Accounts.”
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2.13.1 | For Billing Partner Opportunities, Authorized Reseller Opportunities and Employee Benefits Opportunities, months nineteen (19) through twenty-four (24), will earn commissions at the same rate as a New Account. |
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2.14 | Opportunity - A sales channel under an Account including Co-Marketing, Breach, Embedded, Wholesale/Reseller, and Employee Benefits. |
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2.15 | Plan Year - The term to which this Commission Agreement applies, January 1, 2015 through December 31, 2015. |
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2.16 | Rate Per Member - A calculated rate by individual based on quarterly quotas. The Rate per Member is multiplied by the total Gross New Members, per the Gross New Member Ownership guidelines. However, if the Eligible Employee brings in Gross New Members above his/her quarterly Gross New Member goal, then the Rate is multiplied by 1.12 for all Gross New Members for that quarter. For example only: |
|
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Quarterly Gross New Member Target: 2,500 |
Actual GMN for Quarter | Rate Applied |
0 to 2,500 | $2.50 |
+2,501 | $2.80 |
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2.17 | Retention Factor - a pre-determined calculation of the average mid-year retention rates by bill cycle by route to market. This calculation is kept constant throughout the year and applied to the Annualized Revenue calculation for Gross New Members contingent on route to market and bill cycle. If a particular partner is determined to have a Retention factor 10% lower than the average for route to market and bill cycle, LifeLock may, in its discretion, apply a lower Retention Factor to the partner in question. |
For channel-specific rates, See Attachment A.
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3. | WHEN COMMISSIONS ARE EARNED AND PAID OUT |
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3.1 | Commissions are based on Annualized Revenue from Gross New Member enrollments and from Gross New Member counts and are earned quarterly based on the time of the Gross New Member’s enrollment. |
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3.2 | Commissions are calculated by: (1) multiplying the employee’s Quarterly Annualized Revenue by the applicable Commission Rate; and (2) multiplying the total Gross New Members by the applicable Rate per Member. Commissions are paid on the following schedule: Q1 pays on April 17, 2015; Q2 on July 24, 2015; Q3 on October 16, 2015; and Q4 on January 22, 2016. |
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3.3 | The information contained in the CRM Platform, including Gross New Member Ownership, is utilized by LifeLock during the calculation of Annualized Revenue. Each Eligible Employee is responsible for ensuring the accuracy of the Accounts to which he/she is assigned, including pricing, account set- up, ownership, etc., within the CRM Platform. Failure to check and correct the CRM Platform, where applicable, can result in negative impacts to Annualized Revenue calculations and/or attribution of Gross New Members. LifeLock will not be held accountable for any errors and/or omissions the Eligible Employee makes in the CRM Platform that may negatively impact his or her commission. In the event that any such error or omission results in additional commission paid to an Eligible Employee or an underpayment of commission, Eligible Employee must notify LifeLock immediately of the error and will work with LifeLock to correct and rectify the error promptly. Failure to notify LifeLock of any such error or omission when discovered may be grounds for immediate termination from employment. |
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3.4 | All commissions under this Plan are subject to normal federal and state withholding tax, social security and all other employment taxes and authorized payroll deductions. |
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4. | PAYOUT UPON TERMINATION |
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4.1 | Eligible Employees whose employment with LifeLock terminates for any reason will receive any earned but unpaid commissions in accordance with the appropriate state law regarding final payment of wages. Such payments will be calculated based on all data available as of the date of termination. Eligible Employees who terminate employment during any quarter of the Plan Year will be eligible for a final commission based on all Gross New Members enrolled under their applicable commission plans on or before their final date of employment with LifeLock. |
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4.2 | A check for the final commission payout to employees who separate from employment for any reason will be issued in compliance with relevant state law. NO FURTHER COMMISSIONS MAY BE EARNED BY ELIGIBLE EMPLOYEE AFTER THEIR SEPARATION DATE nor can the rate of commission be altered by events occurring after the termination. |
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5. | BONUS OPPORTUNITY. An employee may be eligible for one or more opportunities to earn additional sums in addition to the commissions paid under this Plan, as further described in Attachment B. |
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6. | INTERPRETATION OF PLAN. LifeLock retains the exclusive right to interpret the terms of this Plan. Any Account or Opportunities for any Account may be assigned to specific employees by the Senior Vice President - Sales in his/her sole discretion, based on a variety of factors including client relationships, region, type of Account and which employees are actually servicing an Account. Any question, dispute or issue regarding the interpretation of this Plan shall be submitted to LifeLock’s Internal Compensation Team who shall interpret of the terms of this Plan. The interpretation of LifeLock’s Internal Compensation Team shall be binding, conclusive and final. |
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7. | MODIFICATION/TERMINATION OF PLAN. LifeLock reserves the right to modify or terminate this Plan at its sole discretion, at any time, on a prospective basis effective upon written notice to the employee. This right to modify or terminate may be triggered by (but not limited to) the following factors: material change in the business, material change in the amount, nature and performance of accounts assigned to eligible employees and material change in the organization or organizational resources. If such modification or termination occurs prior to the end of any month, the employee will receive any commissions earned during the portion of the month the Plan was in effect. |
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8. | ACKNOWLEDGEMENT. By signing below, Eligible Employee agrees they he/she has read and understands this Sales Commission Plan and agrees to comply by its terms, including LifeLock’s right to make adjustments to my commission advances paid for members who cancel before their annual membership is completed. Eligible Employee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of LifeLock’s Internal Compensation Team for any questions, issues or disputes arising under this Plan. In addition, Eligible Employee understands that nothing in this Plan is intended to alter the at-will nature of his/her employment relationship with the Company. |
I, Donald Beck, hereby acknowledge that LifeLock has provided me with my 2015 Sales Commission Plan Agreement including Attachment A. [in accordance with California Labor Code Section 2751 where applicable].
Printed Name: Donald Beck
Signature: /s/ Donald Beck
Date: 2/17/2015
LifeLock representative: /s/ Chris Power
Title: CFO
Date: February 17, 2015
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a),
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Todd Davis, certify that:
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1. | I have reviewed this Annual Report on Form 10-K/A of LifeLock, Inc.; and |
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2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
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Date: | February 20, 2015 | /s/ Todd Davis |
| | Todd Davis |
| | Chairman and Chief Executive Officer |
| | (Principal Executive Officer) |
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a),
AS ADOPTED PURSUANT TO
SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Chris Power, certify that:
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1. | I have reviewed this Annual Report on Form 10-K/A of LifeLock, Inc.; and |
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2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report. |
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Date: | February 20, 2015 | /s/ Chris Power |
| | Chris Power |
| | Chief Financial Officer |
| | (Principal Financial and Accounting Officer) |
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