Exhibit (c)(4)
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
AGREEMENT dated as of July 5, 1999 among General Nutrition Companies,
Inc., a Delaware corporation ("Company"), Royal Numico N.V., a company
organized under the laws of The Netherlands ("Parent"), and Xxxxxxx X. Xxxx
("Executive").
WHEREAS, Executive is employed by General Nutrition, Incorporated, a
Pennsylvania corporation and subsidiary of Company, as Executive Vice
President of Marketing and Business Development and Chief Operating Officer;
WHEREAS, in order for Parent and Company to assure itself of the
services of Executive after the effective time of the Merger, Parent and
Company have entered into an employment agreement as of the even date
herewith (the "Employment Agreement"); and
WHEREAS, in connection with an Agreement and Plan of Merger dated as of
July 5, 1999, a subsidiary of Parent will merge with and into Company (the
"Merger");
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereto hereby agree as follows:
1. NON-COMPETITION. During the Restricted Period (as set forth in
Section 3 below and determined without regard to the termination of
Executive's employment), Executive shall not engage in any way, directly or
indirectly, in any Competing Business (as defined below) in the Geographic
Area (as defined below); PROVIDED, HOWEVER; in no event shall this provision
be construed to prohibit Executive's employment with any business in which
less than 5% of its consolidated gross revenues for its most recent fiscal
year relates to a Competing Business if Executive's responsibilities at such
business do not directly relate to a Competing Business. "Competing
Business" shall mean any activity relating to the development, manufacture,
or the retail or wholesale sale or distribution (including but not limited to
sale or distribution through retail, specialty retail, Internet, e-commerce,
mail order, multi-level marketing, mass market, or any other channel of
distribution) of specialized nutrition products (including, but not limited
to, infant milk formula, foods and drinks, clinical nutrition products, and
nutriceuticals), vitamin and mineral supplements, sports nutrition products,
herbs, personal care or other health-related products. "Geographic Area"
shall mean the United States and any other country in which the Parent,
Company or any affiliate thereof maintains owned or franchised facilities or
hosts web sites.
2. NON-SOLICITATION. During the Restricted Period (as set forth in
Section 3 below and determined without regard to the termination of
Executive's employment), Executive shall not directly or indirectly solicit,
encourage, assist, entice, or induce any employee of Parent or Company or any
of its subsidiaries or approach any such employee for any of the foregoing
purposes, to be employed by, or render any services to, any person, firm,
corporation or other entity engaged in any Competing Business.
b. During the Employment Period and thereafter, Executive shall
not, without the Parent's and Company's prior written permission or in
connection with his duties under this Agreement, use or disclose all or any
part of the following valuable, special and unique assets of Parent's or
Company's business to any person, corporation, association or other entity
(but excluding information that has become public knowledge without any
action by, or involvement of, Executive) for any reason whatsoever: the
confidential information and trade secrets of Parent, the Company and or any
affiliate, including but not limited to, financial and sales information,
manufacturing formulas and processes, business plans and projections, and
personnel information and records.
c. Executive acknowledges that the restrictions contained in this
Section 2 in view of the nature of the business in which Parent or Company is
engaged, are reasonable and necessary in order to protect the legitimate
interests of Parent and Company and that any violation of such restrictions
would result in irreparable harm to the Parent or Company. In the event of
Executive's violation of any of these restrictions, Parent or Company shall
be entitled to seek from any court of competent jurisdiction preliminary and
permanent injunctive relief without proving actual damage or immediate or
irreparable harm and without posting any bond. Nothing herein shall prohibit
Parent or Company from pursuing any other remedies legally available to
Parent or Company for such breach or threatened breach, including the
recovery of damages from Executive.
d. If any of the provisions of this Section 2 should ever be
adjudicated to exceed the time, geographic, product or service, or other
limitations permitted by applicable law in any jurisdiction, then the
affected provisions shall be deemed reformed in such jurisdiction to the
maximum time, geographic, product or service, or other limitations permitted
by applicable law.
3. RESTRICTED PERIOD. For purposes of this Agreement "Restricted
Period" shall mean the period commencing at the effective time of the Merger
(the "Effective Time") and ending on the later of the date of termination of
Executive's employment with Company or the expiration of the Employment
Period as defined in the Employment Agreement.
4. CONSIDERATION. In consideration for the foregoing covenants as set
forth above, Company shall pay Executive $120,000 in a single sum (net of
applicable withholding taxes) within 30 days following the Effective Time.
5. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania.
6. ENTIRE AGREEMENT. Effective as of and conditioned upon the
Effective Time, this Agreement supersedes and replaces any and all prior
employment agreements, both written and oral, between the parties. It
contains the entire understanding between parties and can only be amended or
supplemented by a written agreement signed by the parties. In the event the
Merger shall not have become effective, this Agreement shall be of no force
or effect.
7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, which shall together constitute a valid and binding agreement.
PARENT COMPANY
By:/s/ Johannes C.T. van der Wielen By:/s/ Xxxxxxx X. Xxxxx
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Title: President and Chief Executive Title: President and Chief
Officer Executive Officer
Xxxxxxx X. Xxxx
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EXECUTIVE
/s/ Xxxxxxx X. Xxxx
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EXECUTIVE'S SIGNATURE
000 Xxxxx Xxxxx
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XXXXXXX
Xxxxxxxxx, XX 00000
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