SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
VITALITY BIOPHARMA, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.001
(Title of Class of Securities)
92849B107
(CUSIP Number)
Avtar S. Dhillon
Vitality Biopharma, Inc.
1901 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
(530) 231-7800
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
July 15, 2016
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☐.
*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
(Continued on following pages)
(Page 1 of 5 Pages)
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524938107 |
13D |
Page 2 of 5 Pages |
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NAMES OF REPORTING PERSONS
Avtar S. Dhillon |
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2 |
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions)(a) ☐ (b) ☐ |
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3 |
SEC USE ONLY
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4 |
SOURCE OF FUNDS (see instructions)
PF |
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5 |
CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) ☐ |
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6 |
CITIZENSHIP OR PLACE OF ORGANIZATION
Canada |
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
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SOLE VOTING POWER 1,530,585 |
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8 |
SHARED VOTING POWER 0 |
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9 |
SOLE DISPOSITIVE POWER 1,530,5851 |
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10 |
SHARED DISPOSITIVE POWER 02 |
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11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,530,8581 |
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12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (see instructions) ☐ |
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13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
12.8 % |
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14 |
TYPE OF REPORTING PERSON (see instructions)
IN |
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Explanatory Note:
This Amendment No. 2 to Schedule 13D (the “Amendment”) amends and supplements the Schedule 13D initially filed on August 22, 2011, and the Amendment No. 1 to Schedule 13D filed on March 21, 2012 (as amended, the “Statement”), on behalf of Avtar S. Dhillon (the “Reporting Person”) relating to the beneficial ownership of shares of common stock, par value $0.001 value per share (the “Common Stock”) of Vitality Biopharma, Inc., a Nevada corporation (formerly known as Stevia First Corp., the “Issuer”). The Reporting Person is filing this Amendment to report changes in his beneficial ownership since the date of the Statement as previously filed. Except as set forth below, this Amendment does not supplement, restate or amend any of the other information disclosed in the Statement as previously filed. Capitalized terms not defined in this Amendment have the meanings ascribed to them in the Statement as previously filed.
Item 2.Identity and Background.
Items 2(a) through 2(c) are amended and restated in their entirety to read in full as follows:
(a) — (c)This Statement is being filed by Avtar S. Dhillon. The business address for the Reporting Person is Vitality Biopharma, Inc., 1901 Avenue of the Stars, 2nd Floor, Los Angeles, CA 90067. The Reporting Person is currently a director of the Issuer and was formerly the Interim Chief Executive Officer and Interim Chief Financial Officer of the Issuer until January 2012. The Reporting Person is currently also (i) a director of BC Advantage Funds, a venture capital corporation in British Columbia, which is located at 885 West Georgia St., Suite 1500, Vancouver, BC, Canada V6C 3E8; (ii) the Chairman of the Board of Inovio Pharmaceuticals, Inc. (NASDAQ: INO), a vertically integrated DNA vaccine development company, which is located at 660 W. Germantown Pike, Suite 110, Plymouth Meeting, PA 19462; (iii) the Chairman of the Board of Oncosec Medical, Inc. (NASDAQ: ONCS), a developer of immunotherapeutic product candidates to treat a wide range of solid tumor types, which is located at 5820 Nancy Ridge Drive, San Diego, CA 92121; and (iv) the Chairman of the Board of Arch Therapeutics, Inc., (OTCQB: ARTH), a developer of surgical and interventional hemostasis products that stop bleeding, which is located at 235 Walnut Street, Suite 6, Framingham, MA 01702.
Item 4.Purpose of Transaction.
The last paragraph of Item 4 is deleted in its entirety and replaced with the following four paragraphs:
On July 20, 2016, the Issuer affected a one (1) for ten (10) reverse stock split of the outstanding Common Stock. As a result and immediately after the reverse stock split, the Reporting Person owned 515,000 shares of Common Stock and a stock option to purchase 50,000 shares of Common Stock with an exercise price of $1.00 per share, as previously reported on a Form 4 filed March 21, 2012.
On May 21, 2015, the Reporting Person was issued a stock option award for 40,000 shares with an exercise price of $2.10, which is scheduled to vest in full on May 21, 2017.
On July 15, 2016, the Reporting Person was issued a restricted stock award for 925,585 shares, of which 50% is scheduled to vest on March 1, 2017, and to vest in full on March 1, 2018.
Dr. Dhillon is the current Chairman of the Issuer, and acquired the shares of Common Stock for investment purposes, as well as through equity grants provided to him. Depending on market conditions and other factors, the Reporting Person may acquire additional securities of the Issuer as he deems appropriate, whether in open market purchases, privately negotiated transactions, private placements with the Issuer or otherwise. The Reporting Person also reserves the right to dispose of some or all of his shares of Common Stock in the open market, in privately negotiated transactions to third parties or otherwise, provided such transactions are in compliance with applicable securities laws.
Item 5.Interest in Securities of the Issuer.
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Items 5(a) through 5(c) are amended and restated in their entirety to read as follows:
(a)According to the Current Report on Form 10-Q filed on August 16, 2016 by the Issuer with the Securities and Exchange Commission (the “Commission”), as of August 16, 2016, there were 11,997,878 shares of Common Stock outstanding. After the 1-for-10 reverse stock split, the Reporting Person held 515,000 shares of Common Stock that were acquired in a private stock transaction, as well as an option to purchase 50,000 shares of Common Stock, an option to purchase 40,000 shares of Common Stock, and a restricted stock unit award, which upon vesting and conversion would provide 925,585 shares of Common Stock, with the options and restricted stock units being issued to the Reporting Person in connection with his service to the Issuer as a director. Assuming vesting and exercise of each option, and vesting and conversion of the restricted stock units, the Reporting Person would hold 12.8% of the issued and outstanding shares of Common Stock.
(b)The Reporting Person has the sole power to vote and dispose of 1,530,585 shares of Common Stock (giving effect to the shares of Common Stock underlying the options and restricted stock units issued to the Reporting Person in connection with his service to the Issuer as a director, which are currently unvested but could become exercisable within 60 days of July 15, 2016).
(c)Except as reported herein, the Reporting Person has not effected any transactions in the Issuer’s securities within the past 60 days.
Item 6.Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.
Item 6 is amended by adding the following paragraphs:
On July 20, 2016, the Issuer affected a one (1) for ten (10) reverse stock split of the outstanding Common Stock.
On May 21, 2015, the Reporting Person was granted an option to purchase 40,000 shares of Common Stock (now reflected on a post-split basis) of the Issuer pursuant to the Issuer’s Stock Incentive Plan in connection with his service to the Issuer as a director. The option is exercisable at a price of $2.10 per share, expires on May 21, 2020, and is scheduled to vest in full on May 21, 2017.
On July 15, 2016, the Reporting Person was granted a restricted stock unit award for 925,585 shares of Common Stock, which is scheduled to vest in full on March 1, 2018. The restricted stock grant will vest immediately upon a corporate change of control, or if the individual is terminated for any reason other than a "For Cause" termination.
Item 7.Material to be Filed as Exhibits.
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Exhibit |
Description |
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4.1 |
Restricted Stock Option Award Agreement dated July 15, 2016 |
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
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Dated: August 17, 2016 |
By: /s/ Avtar S. Dhillon Avtar S. Dhillon
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NOTICE OF RESTRICTED STOCK Bonus AWARD
Grantee’s Name and Address:Avtar Dhillon
1901 Avenue of the Stars, 2nd Floor
Los Angeles, CA 90067
You (the “Grantee”) have been granted shares of Common Stock of the Company (the “Award”), subject to the terms and conditions of this Notice of Restricted Stock Bonus Award (the “Notice”), and the Restricted Stock Bonus Award Agreement (the “Agreement”) attached hereto, as follows. Unless otherwise defined herein, the terms defined in the Vitality Biopharma, Inc. 2012 Stock Incentive Plan, as amended from time to time (the “Plan”) shall have the same defined meanings in this Notice.
Date of Award July 15, 2016
Vesting Commencement Date March 1, 2017
Total Number of Shares
of Common Stock Awarded
(the “Shares”) _________________________________925,585
Vesting Schedule:
Subject to the Grantee’s Continuous Service and other limitations set forth in this Notice and the Agreement, the Shares will “vest” in accordance with the following schedule:
462,793 of the Shares shall vest on March 1, 2017 and 462,792 of the Shares shall vest on March 1, 2018.
In the event of the Grantee’s change in status from Employee, Director or Consultant to any other status of Employee, Director or Consultant, the Shares shall continue to vest in accordance with the Vesting Schedule set forth above.
For purposes of this Notice and the Agreement, the term “vest” shall mean, with respect to any Shares, that such Shares are no longer subject to forfeiture to the Company. Shares that have not vested are deemed “Restricted Shares.” If the Grantee would become vested in a fraction of a Restricted Share, such Restricted Share shall not vest until the Grantee becomes vested in the entire Share.
Vesting shall cease upon the date of termination of the Grantee’s Continuous Service for any reason, including death or Disability. If the Grantee is terminated by the Company for any reason other than a "For Cause" termination, defined as one following events occurring: (1) fraud, embezzlement, or theft; (2) willful and intentional misconduct damaging to the Company, its reputation, products, services, or customers; (3) intentional violation of any law or regulation; or (4) continued failure to perform duties owed to the Company, the Shares shall vest immediately. In the event the Grantee’s Continuous Service is terminated by Grantee’s, by the
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Company For Cause or by reason of death or Disability, any Restricted Shares held by the Grantee immediately following such termination of Continuous Service shall be deemed reconveyed to the Company and the Company shall thereafter be the legal and beneficial owner of the Restricted Shares and shall have all rights and interest in or related thereto without further action by the Grantee.
The Award shall be vest immediately in the event a Corporate Transaction or Change in Control as defined in the Plan.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Award is to be governed by the terms and conditions of this Notice and the Agreement.
Vitality Biopharma, Inc.,
a Nevada corporation
By:
Title: _____________________________________________________________________________________________________________
THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS SERVICE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS AWARD OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS NOTICE NOR THE AGREEMENT SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION OF THE GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY WITH THE GRANTEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE THE GRANTEE’S CONTINUOUS SERVICE AT ANY TIME, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE. THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY TO THE CONTRARY, THE GRANTEE’S STATUS IS AT WILL.
The Grantee acknowledges receipt of the Agreement and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the Award subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed this Notice and the Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice and fully understands all provisions of this Notice and the Agreement.
Dated: ______________________Signed: _____________________________________________________
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RESTRICTED STOCK BONUS AWARD AGREEMENT
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1. Issuance of Shares. Vitality Biopharma, Inc., a Nevada corporation (the “Company”), hereby issues to the Grantee (the “Grantee”) named in the Notice of Restricted Stock Bonus Award (the “Notice”), the Total Number of Shares of Common Stock Awarded set forth in the Notice (the “Shares”), subject to the Notice and this Restricted Stock Bonus Award Agreement (the “Agreement”), which are incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Vitality Biopharma, Inc. 2012 Stock Incentive Plan, as amended from time to time (the “Plan”) shall have the same defined meanings in this Agreement. All Shares issued hereunder will be deemed issued to the Grantee as fully paid and nonassessable shares, and the Grantee will have the right to vote the Shares at meetings of the Company’s stockholders. The Company shall pay any applicable stock transfer taxes imposed upon the issuance of the Shares to the Grantee hereunder. |
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2. [intentionally omitted] |
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3. Escrow of Stock. For purposes of facilitating the enforcement of the provisions of this Agreement, the Grantee agrees, immediately upon receipt of the certificate(s) for the Restricted Shares, to deliver such certificate(s), together with an Assignment Separate from Certificate in the form attached hereto as Exhibit A, executed in blank by the Grantee with respect to each such stock certificate, to the Secretary or Assistant Secretary of the Company, or their designee, to hold in escrow for so long as such Restricted Shares have not vested pursuant to the Vesting Schedule set forth in the Notice, with the authority to take all such actions and to effectuate all such transfers and/or releases as may be necessary or appropriate to accomplish the objectives of this Agreement in accordance with the terms hereof. The Grantee hereby acknowledges that the appointment of the Secretary or Assistant Secretary of the Company (or their designee) as the escrow holder hereunder with the stated authorities is a material inducement to the Company to make this Agreement and that such appointment is coupled with an interest and is accordingly irrevocable. The Grantee agrees that the Restricted Shares may be held electronically in a book entry system maintained by the Company’s transfer agent or other third party and that all the terms and conditions of this Section 3 applicable to certificated Restricted Shares will apply with the same force and effect to such electronic method for holding the Restricted Shares. The Grantee agrees that such escrow holder shall not be liable to any party hereto (or to any other party) for any actions or omissions unless such escrow holder is grossly negligent relative thereto. The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time. Upon the vesting of Restricted Shares, the escrow holder will, without further order or instruction, transmit to the Grantee the certificate evidencing such Shares; provided, however, that no transmittal of certificates evidencing the Shares will occur unless and until the Grantee has satisfied all Tax Withholding Obligations (as defined in Section 5(c) below). |
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4. Additional Securities and Distributions. |
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(a) Any securities or cash received (other than a regular cash dividend) as the result of ownership of the Restricted Shares (the “Additional Securities”), including, but not by way of limitation, warrants, options and securities received as a stock dividend or stock split, or as a result of a recapitalization or reorganization or other similar change in the Company’s
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capital structure, shall be retained in escrow in the same manner and subject to the same conditions and restrictions as the Restricted Shares with respect to which they were issued, including, without limitation, the Vesting Schedule set forth in the Notice. The Grantee shall be entitled to direct the Company to exercise any warrant or option received as Additional Securities upon supplying the funds necessary to do so, in which event the securities so purchased shall constitute Additional Securities, but the Grantee may not direct the Company to sell any such warrant or option. If Additional Securities consist of a convertible security, the Grantee may exercise any conversion right, and any securities so acquired shall constitute Additional Securities. In the event of any change in certificates evidencing the Shares or the Additional Securities by reason of any recapitalization, reorganization or other transaction that results in the creation of Additional Securities, the escrow holder is authorized to deliver to the issuer the certificates evidencing the Shares or the Additional Securities in exchange for the certificates of the replacement securities. |
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(b) The Company shall disburse to the Grantee all regular cash dividends with respect to the Shares and Additional Securities (whether vested or not), less any applicable withholding obligations. |
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5. Taxes. |
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(a) [intentionally omitted] |
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(b) Tax Liability. The Grantee is ultimately liable and responsible for all taxes owed by the Grantee in connection with the Award, regardless of any action the Company or any Related Entity takes with respect to any tax withholding obligations that arise in connection with the Award. Neither the Company nor any Related Entity makes any representation or undertaking regarding the treatment of any tax withholding in connection with the grant or vesting of the Award or the subsequent sale of Shares subject to the Award. The Company and its Related Entities do not commit and are under no obligation to structure the Award to reduce or eliminate the Grantee’s tax liability. |
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(c) Payment of Withholding Taxes. Prior to any event in connection with the Award (e.g., vesting) that the Company determines may result in any tax withholding obligation, whether United States federal, state, local or non-U.S., including any employment tax obligation (the “Tax Withholding Obligation”), the Grantee must arrange for the satisfaction of the minimum amount of such Tax Withholding Obligation in a manner acceptable to the Company. |
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(i) By Share Withholding. The Grantee authorizes the Company to, upon the exercise of its sole discretion, withhold from those Shares issuable to the Grantee the whole number of Shares sufficient to satisfy the minimum applicable Tax Withholding Obligation. The Grantee acknowledges that the withheld Shares may not be sufficient to satisfy the Grantee’s minimum Tax Withholding Obligation. Accordingly, the Grantee agrees to pay to the Company or any Related Entity as soon as practicable, including through additional payroll withholding, any amount of the Tax Withholding Obligation that is not satisfied by the withholding of Shares described above. |
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(ii) By Sale of Shares. Unless the Grantee determines to satisfy the Tax Withholding Obligation by some other means in accordance with clause (iii) below, the Grantee’s acceptance of this Award constitutes the Grantee’s instruction and authorization to the Company and any brokerage firm determined acceptable to the Company for such purpose to sell on the Grantee’s behalf a whole number of Shares from those Shares issuable to the Grantee as the Company determines to be appropriate to generate cash proceeds sufficient to satisfy the minimum applicable Tax Withholding Obligation. Such Shares will be sold on the day such Tax Withholding Obligation arises (e.g., a vesting date) or as soon thereafter as practicable. The Grantee will be responsible for all broker’s fees and other costs of sale, and the Grantee agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. To the extent the proceeds of such sale exceed the Grantee’s minimum Tax Withholding Obligation, the Company agrees to pay such excess in cash to the Grantee. The Grantee acknowledges that the Company or its designee is under no obligation to arrange for such sale at any particular price, and that the proceeds of any such sale may not be sufficient to satisfy the Grantee’s minimum Tax Withholding Obligation. Accordingly, the Grantee agrees to pay to the Company or any Related Entity as soon as practicable, including through additional payroll withholding, any amount of the Tax Withholding Obligation that is not satisfied by the sale of Shares described above. |
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(iii) By Check, Wire Transfer or Other Means. At any time not less than five (5) business days (or such fewer number of business days as determined by the Administrator) before any Tax Withholding Obligation arises (e.g., a vesting date), the Grantee may elect to satisfy the Grantee’s Tax Withholding Obligation by delivering to the Company an amount that the Company determines is sufficient to satisfy the Tax Withholding Obligation by (x) wire transfer to such account as the Company may direct, (y) delivery of a certified check payable to the Company, or (z) such other means as specified from time to time by the Administrator. |
Notwithstanding the foregoing, the Company also may satisfy any Tax Withholding Obligation by offsetting any amounts (including, but not limited to, salary, bonus and severance payments) due to the Grantee by the Company.
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6. [intentionally omitted] |
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7. Refusal to Transfer. The Company shall not be required (i) to transfer on its books any Shares that have been sold or otherwise transferred in violation of any of the provisions of this Agreement or (ii) to treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom such Shares shall have been so transferred. |
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8. Restrictive Legends. The Grantee understands and agrees that the Company shall cause the legends set forth below or legends substantially equivalent thereto, to be placed upon any certificate(s) evidencing ownership of the Shares together with any other legends that may be required by the Company or by state or federal securities laws: |
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THAT CERTAIN
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RESTRICTED STOCK BONUS AWARD AGREEMENT BETWEEN THE COMPANY AND THE NAMED STOCKHOLDER. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH SUCH AGREEMENT, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
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9. Entire Agreement: Governing Law. The Notice and this Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s interest except by means of a writing signed by the Company and the Grantee. These agreements are to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Should any provision of the Notice or this Agreement be determined to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable. |
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10. Construction. The captions used in the Notice and this Agreement are inserted for convenience and shall not be deemed a part of the Award for construction or interpretation. Except when otherwise indicated by the context, the singular shall include the plural and the plural shall include the singular. Use of the term “or” is not intended to be exclusive, unless the context clearly requires otherwise. |
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11. [intentionally omitted] |
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12. Venue. The parties agree that any suit, action, or proceeding arising out of or relating to the Notice or this Agreement shall be brought in the United States District Court for the Southern District of California (or should such court lack jurisdiction to hear such action, suit or proceeding, in a California state court in the County of San Diego) and that the parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court. If any one or more provisions of this Section 12 shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable. |
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13. Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon deposit for delivery by an internationally recognized express mail courier service or upon deposit in the United States mail by certified mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown in these instruments, or to such other address as such party may designate in writing from time to time to the other party. |
END OF AGREEMENT
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EXHIBIT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, hereby sells, assigns and transfers unto _______________________, _________ (______) shares of the Common Stock of Vitality Biopharma, Inc., a Nevada corporation (the “Company”), standing in his name on the books of, the Company represented by Certificate No. herewith, and does hereby irrevocably constitute and appoint the Secretary of the Company attorney to transfer the said stock in the books of the Company with full power of substitution.
DATED: ________________
[Please sign this document but do not date it. The date and information of the transferee will be completed if and when the shares are assigned.]
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