-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HL9T9AGDL6MIKqrJOEnidSQEHIsGqnqit867MqORACTBKpoym2o6OouMjcZoUgUN Wcins8yfbfZCywp2Y13GZQ== 0001047469-03-007631.txt : 20030304 0001047469-03-007631.hdr.sgml : 20030304 20030304154249 ACCESSION NUMBER: 0001047469-03-007631 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20030304 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: HEALTHETECH INC CENTRAL INDEX KEY: 0001141215 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 770478611 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-78393 FILM NUMBER: 03591488 BUSINESS ADDRESS: STREET 1: 523 PARK POINT DRIVE STREET 2: 3RD FLOOR CITY: GOLDEN STATE: CO ZIP: 80401 BUSINESS PHONE: 303-526-5085 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MAULT JAMES R MD CENTRAL INDEX KEY: 0001178846 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O HEALTHETECH STREET 2: 523 PARK POINT DR 3RD FL CITY: GOLDEN STATE: CO ZIP: 80401 BUSINESS PHONE: 3035265085 MAIL ADDRESS: STREET 1: C/O HEALTHETECH STREET 2: 523 PARK POINT DR 3RD FL CITY: GOLDEN STATE: CO ZIP: 80401 SC 13D/A 1 a2104952zsc13da.htm SC 13D/A
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 2)

HEALTHETECH, INC.
(Name of Issuer)

COMMON STOCK
(Title of Class of Securities)

422210 10 4
(CUSIP Number)

JAMES R. MAULT, M.D.,
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
HEALTHETECH, INC.
523 PARK POINT DRIVE, 3RD FLOOR
GOLDEN, CO 80401
(303) 526-5085

COPY TO

DEWAYNE YOUNGBERG,
VICE PRESIDENT AND GENERAL COUNSEL
HEALTHETECH, INC.
523 PARK POINT DRIVE, 3RD FLOOR
GOLDEN, CO 80401
(303) 526-5085
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

FEBRUARY 5, 2003
(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 which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box o.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* 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).


SCHEDULE 13D
(Amendment No. 2)

CUSIP No.    422210 10 4   Page 2 of 5 Pages

1   NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JAMES R. MAULT, M.D.
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*   (a)  o
                (b)  o
3   SEC USE ONLY            
4   SOURCE OF FUNDS*
PF
5   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e)
                o
6   CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
NUMBER OF
SHARES		   7   SOLE VOTING POWER
3,236,385		    
BENEFICIALLY  
OWNED BY
EACH REPORTING		   8   SHARED VOTING POWER
0		    
PERSON WITH  
        9   SOLE DISPOSITIVE POWER
3,236,385		    
       
        10   SHARED DISPOSITIVE POWER
0		    
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,236,385(1)
12   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*    
                o
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.07% (2)
14   TYPE OF REPORTING PERSON*
IN
(1)
Of these shares beneficially held by the Reporting Person, 22,854 shares are held by the Reporting Person as trustee of his minor children's trusts, 1,066,666 shares are held by the James R. Mault Grantor Retained Annuity Trust I on behalf of the Reporting Person, and 569,722 shares are issuable upon exercise by the Reporting Person of stock options that have vested or will vest within 60 days of the filing date.

(2)
The percentage ownership is calculated using 19,565,506 shares of common stock of the Issuer which were issued and outstanding as of February 14, 2003, and 569,722 shares of common stock exercisable pursuant to stock options that have vested or will vest within 60 days of the filing date.


ITEM 1. SECURITY AND ISSUER.

        This statement on Schedule 13D relates to the common stock, $0.001 par value per share (the "Common Stock"), of HealtheTech, Inc., a Delaware corporation (the "Issuer"), and is being filed pursuant to Rule 13d-1 under the Exchange Act. The address of the principal executive offices of the Issuer is 523 Park Point Drive, 3rd Floor, Golden, Colorado 80401.


ITEM 2. IDENTITY AND BACKGROUND.

        (a)  The name of the individual filing this statement is James R. Mault, M.D. (the "Reporting Person").

        (b)  The residence address of the Reporting Person is 30589 Monarch Court, Evergreen, Colorado 80439.

        (c)  The Reporting Person is the Chairman of the Board and Chief Executive Officer of the Issuer, which business address is 523 Park Point Drive, 3rd Floor, Golden, Colorado 80401.

        (d)  During the past five years, the Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

        (e)  During the past five years, the Reporting Person has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction as a result of which such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, federal or state securities laws or finding any violation with respect to such laws.

        (f)    The Reporting Person is a citizen of the United States.


ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

        On February 5, 2003, the Reporting Person was awarded a stock option grant to purchase up to 47,500 shares of Common Stock of the Issuer as bonus consideration for services rendered through the period ended December 31, 2002. The non-qualified stock option is immediately exercisable at an exercise price of $2.55 per share and expires four years from the date of grant.


ITEM 4. PURPOSE OF TRANSACTION.

        (a)  On February 5, 2003, the Reporting Person was awarded a stock option grant to purchase up to 47,500 shares of Common Stock of the Issuer as bonus consideration for services rendered through the period ended December 31, 2002. The non-qualified stock option is immediately exercisable at an exercise price of $2.55 per share and expires four years from the date of grant. The Reporting Person has the right to purchase 569,722 shares of Common Stock within 60 days after the filing date upon the Reporting Person's exercise of certain vested stock options. The Reporting Person has no immediate plans to exercise such vested stock options.

        (b-j)   Not applicable.

        Other than as described above, the Reporting Person has no plans or proposals which relate to or would result in any of the matters listed in Items 4(a)-(j) of Schedule 13D.


ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.

        (a)  The Reporting Person may be deemed to beneficially own 3,236,385 shares of Common Stock (including stock options providing for the right to acquire 569,722 shares of Common Stock that have vested or will vest within 60 days from the date of this filing). The aggregate number of shares for which the Reporting Person may be deemed to be the beneficial owner represents approximately 16.07% of the 19,565,506 issued and outstanding shares of Common Stock as of February 14, 2003, and the 569,722 shares of Common Stock exercisable by the Reporting Person within 60 days from the date of this filing.

        (b)  The Reporting Person has sole dispositive and voting power over all of the 3,236,385 shares of Common Stock beneficially held by him.

        (c)  During the past 60 days, the Reporting Person has not effected any transactions relating to the Issuer's securities.

        (d)  Not applicable.

        (e)  Not applicable.


ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDING OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

        On February 5, 2003, the Reporting Person was awarded a stock option grant to purchase up to 47,500 shares of Common Stock of the Issuer as bonus consideration for services rendered through the period ended December 31, 2002. The non-qualified stock option is immediately exercisable at an exercise price of $2.55 per share and expires four years from the date of grant.

        Except for the foregoing, there are no other contracts, arrangements, understandings or relationships among the Reporting Person any other person with respect to any securities of the Issuer.


ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.

Exhibit 2   Stock Option Agreement between the Reporting Person and the Issuer relating to a non-qualified stock option granted to the Reporting Person to purchase up to 47,500 shares of Common Stock under the Issuer's 2002 Stock Plan.


SIGNATURES

        After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: February 20, 2003.

    /s/  JAMES R. MAULT      
James R. Mault, M.D.

 
 
Chairman of the Board and
Chief Executive Officer of HealtheTech, Inc.



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SCHEDULE 13D (Amendment No. 2)
SIGNATURES
 EX-2 3 a2104952zex-2.htm EXHIBIT 2
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EXHIBIT 2

HEALTHETECH, INC.
2002 STOCK PLAN
STOCK OPTION AGREEMENT

        Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Option Agreement.

I.    NOTICE OF STOCK OPTION GRANT

    James Mault
    30589 Monarch Ct.
    Evergreen, CO 80439
    United States of America

        You have been granted an option to purchase Common Stock of the Company, subject to the terms and conditions of the Plan and this Option Agreement, as follows:

Grant Number   70

Date of Grant
 
February 5, 2003

Vesting Commencement Date
 
February 5, 2003

Exercise Price per Share
 
$2.550

Total Number of Shares Granted
 
47,500

Total Exercise Price
 
121,125.00

Type of Option:
 
Non-Qualified Stock Option

Term/Expiration Date:
 
4 years/February 4, 2007

    Vesting Schedule:

        This Option may be exercised, in whole or in part, in accordance with the following schedule:

        100% of the Shares subject to the Option shall vest immediately upon the Vesting Commencement Date.

    Termination Period:

        This Option may be exercised for three (3) months after Optionee ceases to be a Service Provider. Upon the death or Disability of Optionee, this Option may be exercised for twelve (12) months after Optionee ceases to be a Service Provider. In no event shall this Option be exercised later than the Term/Expiration Date as provided above.

I.I    AGREEMENT

    A.
    Grant of Option.

            The Plan Administrator of the Company hereby grants to the Optionee named in the Notice of Grant attached as Part I of this Agreement (the "Optionee") an option (the "Option") to purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per share set forth in the Notice of Grant (the "Exercise Price"), subject to the terms and conditions of the Plan, which is incorporated herein by reference. Subject to Section 15(c) of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Option Agreement, the terms and conditions of the Plan shall prevail.

            If designated in the Notice of Grant as an Incentive Stock Option ("ISO"), this Option is intended to qualify as an Incentive Stock Option under Section 422 of the Code. However, if this Option is intended to be an Incentive Stock Option, to the extent that it exceeds the $100,000 rule of Code Section 422(d) it shall be treated as a Nonstatutory Stock Option ("NSO").

    B.
    Exercise of Option.

            (a)  Right to Exercise. This Option is exercisable during its term in accordance with the Vesting Schedule set out in the Notice of Grant and the applicable provisions of the Plan and this Option Agreement.

            (b)  Method of Exercise. This Option is exercisable by delivery of an exercise notice, in the form attached as Exhibit A (the "Exercise Notice"), which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the "Exercised Shares"), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice shall be completed by the Optionee and delivered to the Company. The Exercise Notice shall be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares. This Option shall be deemed to be exercised upon receipt by the Company of such fully executed Exercise Notice accompanied by such aggregate Exercise Price.

            No Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with Applicable Laws. Assuming such compliance, for income tax purposes the Exercised Shares shall be considered transferred to the Optionee on the date the Option is exercised with respect to such Exercised Shares.

C.
Method of Payment.

            Payment of the aggregate Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee:

      1.
      cash;

      2.
      check;

      3.
      consideration received by the Company under a cashless exercise program implemented by the Company in connection with the Plan; or

      4.
      surrender of other Shares, which in the case of Shares acquired from the Company, (i) have been owned by the Optionee for more than six (6) months on the date of surrender, and (ii) have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares.

    D.
    Non-Transferability of Option.

            This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Optionee only by the Optionee. The terms of the Plan and this Option Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.

    E.
    Term of Option.

            This Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Option Agreement.

    F.
    Tax Obligations.

            1.    Withholding Taxes. Optionee agrees to make appropriate arrangements with the Company (or the Parent or Subsidiary employing or retaining Optionee) for the satisfaction of all Federal, state, and local income and employment tax withholding requirements applicable to the Option exercise. Optionee acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver Shares if such withholding amounts are not delivered at the time of exercise.

            2.    Notice of Disqualifying Disposition of ISO Shares. If the Option granted to Optionee herein is an ISO, and if Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (1) the date two years after the Date of Grant, or (2) the date one year after the date of exercise, the Optionee shall immediately notify the Company in writing of such disposition. Optionee agrees that Optionee may be subject to income tax withholding by the Company on the compensation income recognized by the Optionee.

    G.
    Entire Agreement; Governing Law.

            The Plan is incorporated herein by reference. The Plan and this Option 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 Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee's interest except by means of a writing signed by the Company and Optionee. This agreement is governed by the internal substantive laws, but not the choice of law rules, of California.

    H.
    No Guarantee of Continued Service.

            OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED AN OPTION OR PURCHASING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT CAUSE.

        By your signature and the signature of the Company's representative below, you and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and this Option Agreement. Optionee has reviewed the Plan and this Option Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option Agreement and fully understands all provisions of the Plan and Option Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Option Agreement. Optionee further agrees to notify the Company upon any change in the residence address indicated below.

OPTIONEE:   HEALTHETECH, INC.

/s/  JAMES R. MAULT      
Signature
 
/s/  STEPHEN E. WEBB      
By

James Mault
Print Name
 
Chief Financial Officer
Title

Residence Address
 
 



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