1
EXHIBIT 10.19
EMPLOYMENT AND NONCOMPETITION AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (this "Agreement") made as
of this 14th day of June, 1999, by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive"),
and ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, a Delaware corporation (the "Company").
W I T N E S S E T H :
WHEREAS, the Company is a newly-formed, wholly-owned subsidiary of
Vitamin Shoppe Industries, Inc. (the "Parent"); and
WHEREAS, the Company desires to employ the Executive to be its President
and Chief Executive Officer of the Company, and the Executive wishes to accept
such employment; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants and obligations herein contained, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES. The Executive shall serve as President
and Chief Executive Officer of the Company and, in such capacity, shall be
responsible for the general management of the business, affairs and operations
of the Company, shall perform such duties as are customarily performed by a
president and chief executive officer of a company of a similar size and shall
have such power and authority as shall reasonably be required to enable her to
perform her duties hereunder; provided, however, that in exercising such power
and authority and performing such duties, she shall at all times be subject to
the authority and control of the Board of Directors of the Company (the
"Board"). The Executive shall report to the Board and to the Chairman of the
Board, in his capacity as a liaison and representative of the Board with respect
to the Executive. The Parent shall appoint the Executive to the Board for the
Term hereof. The Executive agrees to devote all of her business time, attention
and services to the diligent, faithful and competent discharge of such duties
for the successful operation of the Company's business.
2. COMPENSATION; SALARY, BONUS AND OTHER BENEFITS. During the term of
this Agreement, the Company shall provide the Executive the following
compensation:
(A) SALARY. In consideration of the services to be rendered by the
Executive to the Company, the Company shall pay the Executive a base salary of
one hundred thousand dollars ($100,000) per annum (such salary as it may be
increased from time to time being hereinafter referred to as the "Base Salary"),
payable in accordance with the Company's usual payroll practices but not less
frequently than monthly. Salary payments shall be subject to all applicable
federal and state withholding, payroll and other taxes. The Executive shall
receive such increases in her Base Salary as the Board of Directors of the
Company may from time to time approve in its discretion; PROVIDED, HOWEVER, that
the Executive's Base Salary will be reviewed not less often than annually. The
Executive's Base Salary may not be decreased without her written consent.
2
(B) BONUSES. In addition to Base Salary, the Executive shall be
entitled to an annual bonus (the "Annual Bonus") of two hundred thousand dollars
($200,000), payable as soon as practicable following the first anniversary of
the date hereof and each anniversary of such date so long as the Executive
remains employed by the Company. After the first year of the Term of this
Agreement, the Company and the Executive, by mutual agreement, may determine to
increase the Base Salary portion of the Executive's compensation package and to
correspondingly decrease the Annual Bonus portion of such compensation package.
The Executive shall also be eligible to receive an additional bonus (the
"Discretionary Bonus") if the Board determines that her and/or the Company's
performance in any year merits the payment of such Discretionary Bonus; the
determination of such Discretionary Bonus and the amount thereof shall be within
the sole discretion of the Board, applying whatever standards the Board deems
appropriate. The Board may determine, in its discretion, that no such award is
appropriate with respect to any year.
(C) BENEFITS; REIMBURSEMENT OF EXPENSES. The Executive also will be
entitled to participate, in accordance with the provisions thereof, in any
health, disability and life insurance and other employee benefit plans and
programs made available by the Parent or the Company to their senior executives
generally, provided that such benefits shall be no less favorable to the
Executive in the aggregate than those benefits currently in effect for senior
executives of the Parent. The Company shall reimburse the Executive for any and
all out-of-pocket expenses reasonably incurred by the Executive during the term
of her employment in connection with her duties and responsibilities as
President and Chief Executive Officer of the Company in accordance with the
Parent's policy governing reimbursement to senior executives.
(D) STOCK OPTIONS.
(1) INITIAL GRANT. The Executive shall be granted options
("Options") to purchase three percent (3%) of the Company's outstanding common
shares, par value $.01 per share (the "Shares"), pursuant to and in accordance
with a Company's Stock Option Plan (the "Option Plan"), to be adopted as
expeditiously as possible after the date hereof. All such Options, when issued,
shall have an exercise price equal to (a) the fair market value of the Company
on the date such options are granted (the "Initial Grant Date"), divided by (b)
the number of Shares outstanding on such date, provided that, for purposes
hereof, the fair market value of the Company on the Initial Grant Date shall be
deemed to be the lesser of (1) $50,000,000, or (2) if the Company receives
equity financing other than through an initial public offering of the Company's
Shares ("IPO") within six months of the date hereof, the fair market value of
the Company as valued in such financing.
(2) VESTING OF OPTIONS. (a) Except as otherwise provided herein,
one-third (1/3) of the Options shall vest and become exercisable on each of the
first three anniversaries of the date of grant. Any Options that are not then
exercisable shall become exercisable upon a Change in Control of the Company (as
defined herein), unless the Executive elects otherwise in accordance with
paragraph 3(b)(ii) below.
2
3
(b) Notwithstanding the provisions of Section 2(a) above, (i) the
final one-third (1/3) of the Options granted to the Executive pursuant to this
Section 2(D)(1) above (which would otherwise have vested on the third
anniversary of the date of grant), if not already vested, shall accelerate and
vest upon the consummation of the Company's IPO, and (ii) in connection with the
termination of the Executive's employment hereunder due to the Executive's death
or disability (as hereinafter defined), for each grant of Options, the portion
of the Executive's Options which were to vest on the next anniversary date of
the date of such grant shall instead accelerate and vest on a pro rata basis on
the date of the Executive's death or disability in accordance with the following
formula:
M/12 x PORTION = Pro Rata Vested Options
where "M" equals the number of full months from the last anniversary date of the
date of grant of such Options through the date of the Executive's death or
disability, and "Portion" means the portion of the Executive's Options which
would otherwise vest on such next anniversary date.
(3) (a) ADDITIONAL GRANTS. If, subsequent to the
Initial Grant Date, the Company issues (a) any options to purchase equity
securities of the Company to any employee or any director of the Parent or, (b)
any equity securities of the Company in a private placement prior to an IPO or
in an IPO (each, a "Triggering Event"), the Company shall grant to the Executive
that number of additional Options such that, after giving effect to such
issuance and grant of additional Options, the Executive will continue to hold
Options that provide her with the right to purchase the same percentage of
outstanding Shares after such Triggering Event as held by her immediately
preceding such Triggering Event (assuming in each case that all Options held by
the Executive are exercisable). The exercise price of any additional Options
granted pursuant to this section shall be equal to the value placed on such
Shares in any such Triggering Event. Notwithstanding the foregoing, the
Executive shall not be entitled to an additional grant of Options pursuant to
this Section 2(D)(3) if (i) options are issued to employees of the Company other
than the Executive in an amount which does not exceed the number of options
(subject to adjustment as set forth in the Option Plan) initially reserved for
issuance pursuant to the Option Plan, (ii) equity securities of the Company are
issued in connection with (x) the Company's acquisition of, or merger with,
another entity, or (y) any public or private offering of equity securities of
the Company following the IPO, or (iii) any warrants or other rights to purchase
equity securities of the Company are issued in connection with any debt
financing by the Company, either before or after an IPO.
(b) In addition to the foregoing, The Executive
shall be entitled to receive a grant of additional Options in the first to occur
of any of the following (but in no event shall the Executive receive additional
Options upon the occurrence of more than one of such events):
(i) Upon the consummation of an IPO, the Executive
shall be entitled to receive a grant of Options to
purchase additional Shares equal to one percent (1%)
3
4
of the Shares outstanding immediately following the
consummation of such IPO, at an exercise price equal
to the initial IPO price. One-third of such additional
Options shall vest on each of the first three
anniversaries of the date of grant.
(ii) In connection with a merger of the
Company with and into another company or the
sale of all or substantially all of the
Company's stock or assets, in either case in
exchange for stock of the acquiring
corporation, the Executive, at her election,
shall be entitled to receive (x) if the
Company is the surviving entity in such
merger, Options to purchase additional
Shares equal to 1% of the Shares outstanding
immediately prior to the consummation of
such merger at an exercise price equal to
the fair market value of a Share in such
transaction, or (y) if the Company is not
the surviving entity options to purchase
securities of the surviving entity equal to
what options to purchase 1% of the Shares
would have been exercisable for immediately
prior to the consummation of such
transaction, at an exercise price equal to
the value of the new security received by
the Company's stockholders in such
transaction; provided, however, that if the
Executive elects to receive such Options,
any nonexercisable Options then held by her
shall not become immediately exercisable
upon a Change in Control as provided in
Section 2 above, but shall become
exercisable upon the earlier of (i) the
vesting date pursuant to Section 2 above, or
(ii) one year from the date of the closing
of the merger or sale.
(4) PERFORMANCE OPTIONS. In addition to any other Options
granted the Executive hereunder or under the Option Plan, each year the Board
shall review the performance of the Company and the Executive and, in its sole
discretion, may determine to grant the Executive Options for any number of
Shares it deems appropriate to reward such performance (or the Board may
determine, in its discretion, that no such award is appropriate). The exercise
price of any such Option shall be the fair market value of a Share on the date
of grant, as determined by the Board, and any such Option shall vest on each of
the first three anniversaries of the date of grant.
3. TERM. This Agreement shall be effective as of the date hereof and
shall continue through the second anniversary of such date, unless earlier
terminated as hereinafter provided, provided that this Agreement automatically
shall be extended as of such second
4
5
anniversary and each year thereafter for a period of one year unless either
party gives notice to the contrary in writing to the other at least one hundred
and eighty (180) days before the end of the applicable period (such initial
two-year period, plus, if renewed, such additional one-year periods, if any,
shall hereinafter be referred to collectively as the "Term").
4. TERMINATION. The Executive's Term of employment may be earlier
terminated as follows:
(A) AT THE EXECUTIVE'S OPTION. Following the initial Term hereof,
the Executive may terminate her employment at any time upon at least 120 days'
advance written notice to the Company. In such event, the Executive shall be
entitled to no severance or other termination benefits from and after the
termination of her employment, except as provided in Section 4(J) hereof.
(B) AT THE ELECTION OF THE COMPANY WITH CAUSE. The Company may
unilaterally terminate the Executive's employment hereunder with "Cause" at any
time during the Term upon written notice to the Executive. Cause shall mean (i)
the Executive's wrongful misappropriation of Company assets; (ii) the
Executive's alcoholism or drug addiction; (iii) the Executive's being named in
an indictment with respect to a felony offense; (iv) the Executive knowingly
causing the Company to violate a material local, state or federal law; (v) the
Executive's gross negligence or wilful misconduct in the conduct or management
of the Company which is not remedied within 10 days after receipt of written
notice from the Company or the Board; (vi) the Executive's refusal to comply
with any significant policy, directive or decision of the Board in furtherance
of a legitimate business purpose or refusal to perform the duties assigned to
her by the Board consistent with the Executive's function, duties and
responsibilities set forth in Section 1 hereof, in each case if not remedied
within 10 days after receipt of written notice from the Company or the Board; or
(vii) breach by the Executive of this Agreement which is not remedied within 10
days after receipt of written notice from the Company or the Board. In the event
of a termination for Cause, the Executive shall be entitled to no severance or
other termination benefits, except (x) accrued and unpaid Base Salary through
such date of termination, and (y) as provided in Sections 4(I) and (J) hereof.
(C) AT THE ELECTION OF THE COMPANY FOR REASONS OTHER THAN WITH
CAUSE. The Company may unilaterally terminate the Executive's employment
hereunder at any time during the Term hereof without cause upon five business
days' prior written notice to the Executive of the Company's election to
terminate. In the event the Company exercises its right to terminate the
Executive under this Section 4(C), the Company agrees to continue to pay the
Executive her Base Salary and Annual Bonus as in effect on her date of
termination for the remainder of the Term, including any extensions thereof in
accordance with Section 3 hereof, as well as the payments due to her pursuant to
Sections 4(H), (I) and (J) hereof. In addition, the Executive shall be permitted
to continue her participation in the Company's medical plan as if she were an
employee of the Company for the remainder of the Term. Such payments shall be
payable on a quarterly basis following the Executive's termination and shall be
subject to all applicable federal and state withholding taxes.
5
6
(D) DISABILITY OF EXECUTIVE. In the event of the disability of the
Executive, the Company may terminate the Executive's employment hereunder upon
five business days' written notice to the Executive. For purposes of this
Agreement, "disability" shall mean the inability, by reason of bodily injury or
physical or mental disease, or any combination thereof, of the Executive to
perform her customary or other comparable duties with the Company for a period
of ninety (90) days (whether or not consecutive) in any period of 180
consecutive days. In the event the parties are unable to agree as to whether the
Executive is suffering a disability, the Executive and the Board shall each
select a physician and the two physicians so chosen shall make the determination
or, if they are unable to agree, they shall select a third physician, and the
determination as to whether the Executive is suffering a disability shall be
based upon the determination of a majority of the three physicians. Any other
rights and benefits the Executive may have under employee benefit plans and
programs of the Company generally in the event of the Executive's disability
shall be determined in accordance with the terms of such plans and programs. In
the event that the Company exercises its right to terminate the Executive's
employment under this Section 4(D), the Company agrees to pay to the Executive a
pro rata portion of her Base Salary for a period of 90 days from the date of
termination of her employment, payable on a quarterly basis after such
termination date, as well as the payments, if any, due to the Executive pursuant
to Sections (H) and (I) hereof. In addition, the Executive shall be permitted to
continue her participation in the Company's medical plan as if she were an
employee of the Company during such 90-day period, subject to any applicable
restrictions regarding disability set forth in such plan.
(E) EXECUTIVE'S DEATH. The Executive's employment shall be
terminated upon the death of the Executive. Any other rights and benefits that
the Executive's estate or any other person may have under employee benefit plans
and programs of the Company generally in the event of the Executive's death
shall be determined in accordance with the terms of such plans and programs. Her
estate or other representative shall be entitled to the payments provided in
Sections 4(H) and (I) hereof, if any. In addition, in the event of the
Executive's death, the Company shall pay to her estate a pro rata portion of her
Base Salary for a period of 90 days from the date of death, payable on a
quarterly basis.
(F) CHANGE IN POSITION OR EMPLOYMENT CONDITIONS. The Executive may
terminate her employment immediately upon written notice to the Company upon the
occurrence of any one of the following events: (i) a material adverse change in
her function, duties or responsibilities, from those described in Section 1
hereof, without her written consent, (ii) the Executive is required to change
her principal place of business to a location more than forty (40) miles from
Manhattan, (iii) a breach by the Company of this Agreement in any material
respect which is not remedied within 30 days after receipt of written notice
from the Executive or (iv) the failure to elect or re-elect or to appoint or
re-appoint the Executive to the offices of President and Chief Executive Officer
of the Company and as a member of the Board. If the Executive's employment is
terminated pursuant to this Section 4(F), the Company shall make such payments
to Executive as it would have been required to make had it terminated
Executive's employment pursuant to Section 4(C) hereof.
6
7
(G) TERMINATION FOLLOWING A CHANGE IN CONTROL. In the event that,
following a Change in Control (as defined herein), (i) the Executive is subject
to a material change in the conditions of her employment as described in Section
4(F) hereof, such change has not been reversed or rescinded within ten (10)
business days after the Executive notifies the Company that she objects thereto,
and the Executive elects to terminate her employment with the Company as the
result of such change, or (ii) this Agreement is terminated or permitted to
expire pursuant to Section 3 hereof within 12 months of such Change of Control,
she shall be entitled to (x) the amounts payable under Sections 4(C), (H), (I)
and (J) hereof, (y) an amount equal to an additional one year of Base Salary and
Annual Bonus, payable quarterly, and (z) continue participation in the Company's
medical plan as if she were still an employee of the Company for the remainder
of the Term and for an additional twelve (12) months thereafter; such coverage
shall run concurrently with and be offset against any continuation coverage
under Part 6 of the Title I of the Employee Retirement Income Security Act of
1974.
(H) ACCRUED AND UNPAID BASE SALARY AND PRO RATA PORTION OF ANNUAL
BONUS. Unless termination is pursuant to Section 4(B) hereof, if the Executive's
employment is terminated pursuant to this Section 4 the Executive (or her
estate) shall be entitled to receive any and all accrued but unpaid Base Salary
and the pro rata portion of the Executive's Annual Bonus (calculated on an
annualized basis through the date of termination) earned by the Executive
pursuant to the terms of this Agreement.
(I) REIMBURSEMENT OF EXPENSES. In the event of the Executive's
termination pursuant to this Section 4, the Company shall reimburse the
Executive (or her estate) for any and all out-of-pocket expenses reasonably
incurred by the Executive prior to the date of such termination.
(J) CONTINUING BENEFITS. Termination pursuant to this Section 4
shall not modify or affect in any way whatsoever any vested right of the
Executive to benefits payable under any retirement or pension plan or under any
other employee benefit plan of the Company, and all such benefits shall
continue, in accordance with, and subject to, the terms and conditions of such
plans, to be payable in full to or on account of the Executive after such
termination.
5. NONCOMPETITION COVENANT. The Executive acknowledges that the
Company and Parent do and will do business throughout the world, that the
Company's and the Parent's products are manufactured, distributed, sold and used
throughout the world, and that the knowledge and relationships of the Executive
with customers of, and suppliers to, the Company and the Parent are an important
asset of the Company. Accordingly, for a period commencing on the date hereof
and ending on the second anniversary of the date on which the Executive receives
the last payment due to her from the Company pursuant to Section 4 above (the
"Last Payment Date"), the Executive agrees that she will not, without the prior
consent of the Board, directly or indirectly, whether alone or as a partner,
officer, director, consultant, employee or stockholder of any company or
business organization, engage in any business activity which has as a principal
or material portion or purpose of its business any activity which is or may
reasonably be construed to be competitive, directly or indirectly, in whole or
in part, with the principal business of the Company or the Parent anywhere
7
8
in the world as conducted on the date of the termination of the Executive. The
provisions of this Section 5 expressly shall apply to any business that, as a
principal or material portion or purpose of its business, directly or indirectly
manufactures, markets or distributes (through wholesale, retail or direct
marketing channels, including, but not limited to, mail order or the internet)
vitamins, minerals, nutritional supplements, any other nutritional or
non-prescription health-related product, or any other product produced, marketed
or distributed by the Company after the date hereof, and any business activity
which is connected, directly or indirectly, with the buying, selling, marketing
or any other activity conducted on the Internet in connection with such
products. The period of time set forth in this Section will be extended by the
duration of any violation by Executive of the terms of this Section. The
Executive acknowledges the provisions of this Section 5 are reasonable and
necessary to protect the Company's and the Parent's business.
6. NONDISCLOSURE OBLIGATION. The Executive will not at any time,
whether during or after the termination of her employment, reveal to any person,
association or company any of the trade secrets, proprietary information, or
confidential information concerning the Company, the Parent or any of its
affiliates, including information relating to, without limitation, employees,
marketing plans, strategies, sources or supply of material and inventory,
operating and other cost data, lists of present, past, and prospective customers
and suppliers, customer and supplier proposals, price lists and data relating to
pricing of products or services and designs, trademarks, discoveries, processes,
manufacturing techniques, inventions, developments, improvements, ideas and
"know-how" and business finances or financial information of the Company or the
Parent, including any information concerning projects in research or
development, so far as they have come or may come to her knowledge, except as
may be required in the ordinary course of performing her duties as an officer of
the Company or as may be in the public domain through no fault of her (including
non-Company specific information known to the Executive prior to the date of
this Agreement) or as may be required by law. The terms Confidential Information
also shall include any information that in any way concerns the activities,
business or affairs of any of the Company's customers or clients which is
acquired by the Executive in the course of her employment.
7. REMEDIES UPON BREACH. The Executive agrees that any breach of this
Agreement by her could cause irreparable damage to the Company and that in the
event of such breach the Company shall have, in addition to any and all remedies
of law, the right to an injunction, specific performance or other equitable
relief to prevent the violation of any obligations hereunder, without the
necessity of posting a bond, plus, if the Company finally prevails with respect
to any dispute between the Company and the Executive as to the interpretation,
terms, validity or enforceability of (including any dispute about the amount of
any payment pursuant to) this Agreement, the recovery of any and all costs and
expenses incurred by the Company, including reasonable attorneys' fees in
connection with the enforcement of this Agreement.
8. CHANGE IN CONTROL. For purposes of this Agreement, a Change in
Control shall mean the happening of any of the following:
(A) any "person," as such term is used in Section 13(d) and 14(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") (other than the
Parent, the Company, any
8
9
principal shareholder, affiliate or subsidiary of the Company or the Parent, or
any trustee or other fiduciary holding securities under an employee benefit plan
of the Parent, the Company or any subsidiary of the Parent or the Company)
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company or the Parent
representing fifty percent (50%) or more of the combined voting power of the
Company's or the Parent's then outstanding securities; or
(B) the consummation of a sale or disposition by the Company or
the Parent of all or substantially all of the Company's or the Parent's assets,
or any transaction having a similar effect.
9. NONSOLICITATION. (A) For a period commencing on the date hereof
and ending on the second anniversary of the Last Payment Date, the Executive (i)
will not directly or indirectly either for herself or for any other person,
business, partnership, association, firm, company or corporation, call upon,
solicit, divert or take away or attempt to solicit, divert or take away, any of
the customers or business of the Company or the Parent or officers or employees
of the Company or the Parent in existence from time to time during her
employment with the Company, or induce or attempt to induce any customer,
supplier, licensee or business relation of the Company or the Parent to cease
doing business with the Company or the Parent or in any way interfere with the
relationship between the Company or the Parent and any such party; (ii) will not
interfere with the relationship between the Company or the Parent and any
employee of either, or (iii) employ any employee of the Company or the Parent.
(B) For a period commencing on the date hereof and ending on the
second anniversary of the Last Payment Date, (i) the Executive shall not,
directly or indirectly, knowingly make any statement or other communication that
impugns or attacks the reputation or character of the Company, the Parent or any
of their respective subsidiaries or joint venture entities, or damages the
goodwill of the Company, the Parent or any of their respective subsidiaries or
joint venture entities, or knowingly take any action, directly or indirectly,
that would interfere with any contractual or customer or supplier relationships
of the Company, the Parent or any of their respective subsidiaries or joint
venture entities and (ii) the Company shall not, directly or indirectly,
knowingly make any statement or other communication (other than as part of the
Company's response to a routine reference check) that impugns or attacks the
reputation or character of the Executive.
10. INDEMNIFICATION. If the Executive becomes a party to or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that she is or was an officer,
director, agent or employee of the Company or is or was serving at the request
of the Company as an officer, director, agent or employee of another corporation
or other entity, she shall be indemnified by the Company to the maximum extent
permitted by applicable law and not inconsistent with the provisions of the
certificate of incorporation and by-laws of the Company. The right of
indemnification herein provided for shall not be deemed exclusive of any other
rights to which the Executive may be entitled as a matter of law and any rights
of indemnity under any policy of insurance carried by the Company, and shall not
include any costs, expenses,
9
10
damages or other liabilities incurred by the Executive in connection with a
violation of Section 12 hereof.
11. ACKNOWLEDGMENTS. The Executive hereby acknowledges that the
enforcement of the provisions of Sections 5 and 6 hereof may potentially
interfere with her ability to pursue a livelihood. The Executive recognizes and
agrees that the enforcement of this Agreement is necessary to ensure the
preservation, protection and continuity of the business, trade secrets and
goodwill of the Company. The Executive agrees that, due to the proprietary
nature of the Company's business, the restrictions set forth in this Agreement
are reasonable as to time and scope.
12. EXECUTIVE'S REPRESENTATIONS. (a) The Executive hereby represents
and warrants that her employment with the Company on the terms and conditions
set forth herein and her execution and performance of this Agreement do not
constitute a breach or violation of any other agreement, obligation or
understanding with a third party. The Executive represents that she is not bound
by any agreement or any other existing or previous business relationship which
conflicts with, or may conflict with, the performance of her obligations
hereunder or prevent the full performance of her duties and obligations
hereunder,
(b) The Executive acknowledges that neither the issuance
of Options nor Shares to her will be registered under the Securities Act of
1933, as amended, or applicable state securities laws, and she agrees that such
securities may not be sold, transferred, pledged or otherwise disposed of except
in accordance with such laws and any agreements relating to such securities. The
Executive agrees that in connection with the issuance of Shares to her upon
exercise of Options, she will be required to make such representations to the
Company as are customary and appropriate in order to enable the Company to issue
such securities to her.
13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware.
14. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement for any reason shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, and this Agreement shall
be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein. Moreover, if one or more of the provisions contained in
this Agreement shall for any reason be held to be excessively broad as to scope,
time, activity, subject or geographic area so as to be unenforceable at law,
such provision or provisions shall be construed and reformed by the appropriate
judicial body by limiting and reducing such provision or provisions, so as to be
enforceable to the maximum extent compatible with the applicable law as it shall
then appear.
15. WAIVERS AND MODIFICATIONS. This Agreement may be modified, and
the rights and remedies of any provisions hereof may be waived, only in
accordance with this Section 15. No modification or waiver by the Company shall
be effective without the consent of at least a majority of the Board of
Directors then in office at the time of such modification or waiver. No waiver
by either party of any breach by the other or any provision hereof shall be
deemed to be a waiver of any
10
11
later or other breach thereof or as a waiver of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to that term or
any other term of this Agreement. Any waiver must be in writing.
16. ENTIRE AGREEMENT. This Agreement sets forth all of the terms of
the understandings between the parties with reference to the subject matter set
forth herein, supersedes all prior agreements between the parties, and may not
be waived, changed, discharged or terminated orally or by any course of dealing
between the parties, but only by an instrument in writing signed by the party
against whom any waiver, change, discharge or termination is sought.
17. ASSIGNMENT. The Executive acknowledges that the services to be
rendered by her are unique and personal. Accordingly, the Executive may not
assign any of her rights or delegate any of her duties or obligations under this
Agreement. The Company shall have the right to assign this Agreement to its
successors, assigns and affiliates, and the rights and obligations of the
Company under this Agreement shall inure to the benefit of, and shall be binding
upon, such successors, assigns and affiliates of the Company.
18. NOTICES. All notices hereunder shall be (i) delivered by hand,
(ii) sent by first-class certified mail, postage prepaid, return receipt
requested, (iii) delivered by overnight commercial courier, or (iv) transmitted
by telecopy or facsimile machine, to the following address of the party to whom
such notice is to be made, or to such other address as such party may designate
in the same manner provided herein:
11
12
If to the Company:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
c/o Vitamin Shoppe Industries Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
FdG Associates LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇, Scholer, Fierman, ▇▇▇▇ & Handler, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & Associates, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
19. SURVIVAL OF OBLIGATIONS. The provisions of Sections 5, 6, 7, 9
and 12 shall survive the termination or expiration of this Agreement . The
existence of any claim or cause of action by Executive against the Company shall
not constitute and shall not be asserted as a defense to the enforcement by the
Company of this Agreement.
12
13
20. ARBITRATION. Any dispute, controversy, or claim arising out of or
in connection with this Agreement, other than injunctive relief pursuant to
Section 8, shall be determined and settled by arbitration pursuant to the rules
then in effect of the American Arbitration Association at its New York City
offices before a panel of three arbitrators. The parties agree that, in any such
arbitration, the arbitrators shall not have the power to reform or modify this
Agreement in any way and to that extent their powers are so limited. Any award
rendered shall be final and conclusive upon the parties and a judgment thereon
may be entered in a court having competent jurisdiction.
21. NO SET-OFF. The Company's obligation to make the payments
provided for in this Agreement shall not be set-off against any amounts to which
the Company may be entitled from the Executive. If the Executive finally
prevails with respect to any dispute between the Company and the Executive as to
the interpretation, terms, validity or enforceability of (including any dispute
about the amount of any payment pursuant to) this Agreement, the Company agrees
to pay any and all costs and expenses incurred by the Executive, including
reasonable attorneys' fees in connection with any such dispute.
22. THIRD-PARTY BENEFICIARY. The Executive acknowledges that the
Parent is a beneficiary of certain of the provisions of this Agreement, and
that, accordingly, the Parent shall be entitled to enforce any of such
provisions directly against the Executive as if the Parent were a party to this
Agreement.
13
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMPANY:
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ EXECUTIVE:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ [SIG]
----------------------- ----------------------
Title: President & CEO ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
14