AGREEMENT
EXHIBIT
10.1
AGREEMENT
THIS
AGREEMENT
(“Agreement”)
dated as of
October 1, 2005 (the “Effective Date”) is entered by and between _____________,
an individual residing at ______________________ (“Executive”), and Schiff
Nutrition Group, Inc., a Utah corporation
with
offices located at 0000 Xxxxx 0000 Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000 (the
“Company”).
RECITALS
WHEREAS,
Executive
is a senior executive of the Company and has made and is expected to continue
to
make major contributions to the short and long term profitability, growth
and
financial strength of the Company;
WHEREAS,
the
Company has entered into an employment-related agreement (the “Prior Agreement”)
with Executive which includes, among other matters, change in control
provisions;
WHEREAS,
the term
of the Prior Agreement expired on September 30, 2005;
WHEREAS,
the
Company and Executive desire to renew the Prior Agreement substantially in
the
same form as the Prior Agreement, thereby preserving the present and future
continuity of management and providing additional inducement for the Executive
to continue to remain in the employ of the Company.
TERMS
OF
AGREEMENT
NOW,
THEREFORE, in
exchange for good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the Company and Executive agree as
follows:
1. Certain
Defined Terms.
In addition to
terms defined elsewhere herein, the following terms have the following meanings
when used in this Agreement with initial capital letters:
(a) “Affiliate”
shall
mean a
domestic or foreign business entity controlled by, controlling, under common
control with, or in a joint venture with, the applicable person or entity.
(b) “Board”
shall
mean the
Board of Directors of the Company.
(c) “Cause”
shall
mean
Executive’s:
(i) Gross,
fraudulent or willful misconduct of Executive at any time during Executive’s
employment by the Company, or any such misconduct during any prior period
of
employment in an executive capacity with any person or entity if not disclosed
to the Company in writing prior to the execution hereof;
(ii) Substantial
and willful failure to perform specific and lawful directives of the Board
or a
superior employee of the Company;
(iii) Willful
and knowing violation of any rules or regulations of any governmental or
regulatory body, which is materially injurious to the financial condition
of the
Company;
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(iv) Conviction
of or
plea of guilty or nolo contendere to a felony or fraud during Executive’s
employment with the Company;
(v) Drug,
alcohol or
substance abuse (to the extent not inconsistent with the Americans with
Disability Act or similar state law); or
(vi) Material
breach of
the terms of this Agreement which is not corrected after written notice and
a
reasonable cure period not to exceed 15 days.
(d) “Change
in
Control”
means
and
includes each of the following:
(i) A
transaction or series of transactions (other than an offering of SNI Class
A
common stock to the general public through a registration statement filed
with
the Securities and Exchange Commission) whereby any “person” or related “group”
of “persons” (as such terms are used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended) (other than
SNI, any of its subsidiaries, an employee benefit plan maintained by SNI
or any
of its subsidiaries or a “person” that, prior to such transaction, directly or
indirectly controls, is controlled by, or is under common control with, SNI)
directly or indirectly acquires beneficial ownership (within the meaning
of
Rule 13d-3 under the Exchange Act) of securities of SNI possessing more
than 50% of the total combined voting power of SNI’s securities outstanding
immediately after such acquisition, excluding any transaction involving a
distribution of SNI’s Class A common stock (or any substituted security) held by
Weider Health and Fitness (“WHF”) to individual stockholders of WHF or their
family trusts if and to the extent the Board finds such distribution to not
be
within the intent of this Section 1(d)(i);
(ii) During
any period of two consecutive years, individuals who, at the beginning of
such period, constitute the Board of Directors of SNI together with any new
director(s) (other than a director designated by a person who shall have
entered
into an agreement with SNI to effect a transaction described in
Section 1(d)(i) or Section 1(d)(iii)) whose election by the Board of
Directors of SNI or nomination for election by SNI’s stockholders was approved
by a vote of at least two-thirds of the directors then still in office who
either were directors at the beginning of the two year period or whose election
or nomination for election was previously so approved, cease for any reason
to
constitute a majority thereof;
(iii) The
consummation by SNI (whether directly involving SNI or indirectly involving
SNI
through one or more intermediaries) of (x) a merger, consolidation,
reorganization, or business combination or (y) a sale or other disposition
of all or substantially all of SNI’s assets or (z) the acquisition of
assets or stock of another entity, in each case other than a
transaction:
(A) Which
results in SNI’s voting securities outstanding immediately before the
transaction continuing to represent (either by remaining outstanding or by
being
converted into voting securities of SNI or the person that, as a result of
the
transaction, controls, directly or indirectly, SNI or owns, directly or
indirectly, all or substantially all of SNI’s assets or otherwise succeeds to
the business of SNI (SNI or such person, the “Successor Entity”)) directly or
indirectly, at least a majority of the combined voting power of the Successor
Entity’s outstanding voting securities immediately after the transaction,
or
(B) After
which no person or group beneficially owns voting securities representing
50% or
more of the combined voting power of the Successor Entity; provided,
however,
that no person or
group shall be treated forpurposes
of this
Section 1(d)(iii)(B) as beneficially owning 50% or more of combined
voting power of the Successor Entity solely as a result of the voting power
held
in SNI prior to the consummation of the transaction; or
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(iv) SNI’s
stockholders approve a liquidation or dissolution of SNI.
(e) “Code”
shall mean Internal Revenue Code of 1986, as amended.
(f) “Cure
Deadline” shall mean the last day of the 15 day period during which the Company
may cure the conduct or event that otherwise will result in “Good Reason” in
accordance with Section 1(f).
(g) “Good
Reason” shall mean any one of the following conduct or events which is not cured
by the Company within 15 days after Executive’s notice in writing to the Company
within 90 days of the first happening of the conduct or event:
(i) the
Company’s material diminution of Executive’s job titles, responsibilities,
duties, perquisites or compensation; or
(ii) any
involuntary relocation of Executive’s principal place of business to a location
more than 50 miles from Executive’s current principal place of business with the
Company.
(h) “Severance
Payment Deadline” shall mean 15 days prior to the Severance Benefit Deadline (as
defined in Section 4 below).
(i) “Termination
Date” shall mean the effective date of the termination of Executive’s employment
with the Company for any reason.
(j) “SNI”
shall mean Schiff Nutrition International, Inc., a Delaware corporation and
the
parent of the Company.
2. Term
of Agreement.
The term of this
Agreement shall commence on the Effective Date and shall continue through
the
full payment of all severance and other benefits to Executive in accordance
with
the terms and conditions of this Agreement. This Agreement shall be effective
with respect to (a) the termination of Executive’s employment with the Company
other than for Cause only if such termination occurs during the period
commencing on the Effective Date and ending on September 30, 2008 or (b)
the
termination of Executive’s employment with the Company for Good Reason only if
the event or conduct giving rise to Good Reason occurs during the period
commencing on the Effective Date and ending on September 30, 2008.
Notwithstanding the foregoing sentence, this Agreement shall be effective
with
respect to any “termination in connection with a Change in Control” (as defined
in Section 3(b) below) if the Change in Control is (i) subject to a definitive
written purchase, sale, merger or similar agreement entered into on or before
September 30, 2008 and (ii) consummated on or prior to the expiration of
six
months following September 30, 2008. During the term of this Agreement,
Executive shall be employed as an at-will employee of the Company.
3. Severance
Payment/Benefits.
(a) If
Executive’s employment as an at-will employee of the Company shall be terminated
either by the Company other than for Cause or by the Executive for Good
Reason,then
in
consideration of and subject to the delivery by Executive to the Company
of a
release, in form and substance reasonably satisfactory to the Company, of
any
claims that Executive might have against the Company, the Company shall pay
the
Executive a severance benefit in an amount equal to the sum of (a) his then
annual rate of base salary and (b) the greater of (i) his annual bonus paid
or
payable relating to the Company’s most recently completed fiscal year, (ii) the
average of his annual bonuses paid or payable relating to the Company’s three
most recently completed fiscal years, or (iii) 30% of his then annual rate
of
base salary. Subject to Section 4 of this Agreement, such amount shall be
paid,
without interest, in 24 equal semi-monthly installments payable in accordance
with the Company’s customary payroll practices, with the first installment to be
paid no later than 30 days following the later of (A) the Termination Date
or
(B) the date on which the release described above is executed by all parties
thereto and ceases to be revocable by Executive; provided, however, that
notwithstanding the foregoing, in no event shall any amounts owing to Executive
pursuant to this Section 3(a) be paid to Executive later than the Severance
Payment Deadline.
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(b) If
Executive’s
employment as an at-will employee of the Company shall be terminated “in
connection with a Change in Control” either by the Company other than for Cause
or by the Executive for Good Reason, then in consideration of and subject
to the
delivery by Executive to the Company of a release, in form and substance
reasonably satisfactory to the Company, of any claims that Executive might
have
against the Company and in lieu of the provisions of Section 3(a) above,
the
Company shall pay the Executive a severance benefit in an amount equal to
[150%/125%] of the sum of (a) his then annual rate of base salary and (b)
the
greater of (i) his annual bonus paid or payable relating to the Company’s most
recently completed fiscal year, (ii) the average of his annual bonuses paid
or
payable relating to the Company’s three most recently completed fiscal years, or
(iii) 50% of his then annual rate of base salary. Subject to Section 4 of
this
Agreement, such amount shall be paid, without interest, in [36/30] equal
semi-monthly installments payable in accordance with the Company’s customary
payroll practices, with the first installment to be paid no later than 30
days
following the later of (A) the Termination Date or (B) the date on which
the
release described above is executed by all parties thereto and ceases to
be
revocable by Executive; provided, however, that notwithstanding the foregoing,
in no event shall any amounts owing to Executive pursuant to this Section
3(b)
be paid to Executive later than the Severance Payment Deadline. For purposes
of
this Agreement, any termination “in connection with a Change in Control” shall
mean any termination either by the Company other than for Cause or by the
Executive for Good Reason during the period beginning 90 days prior to and
concluding 120 days subsequent to the consummation of a Change in
Control.
(c) Upon
the occurrence
of a Change in Control, all restricted stock, options to purchase shares
of
Class A Common Stock of SNI or other equity awards granted to Executive under
SNI’s 1997 Equity Participation Plan or 2004 Incentive Plan, as either may be
amended from time to time, shall become vested and exercisable as of the
effective date of the Change in Control.
(d) In
the event
Executive’s employment as an at-will employee of the Company shall be terminated
pursuant to Section 3(a), subject to Section 4 of this Agreement, Executive
shall be entitled to continue to receive, at the expense of the Company (other
than Executive’s continued payments of his current portion of such costs), and
participate in, for a period of 12 months from the Termination Date, any
life
insurance, disability insurance, health insurance or hospital plans or other
benefit plans of the Company in effect at the time oftermination
(as
such plans may be amended from time to time thereafter); provided, however,
that
car allowances, if any, or Company matching of individual 401(k) plan
contributions shall not be continued. In the event Executive’s employment as an
at-will employee of the Company shall be terminated pursuant to Section 3(b),
subject to Section 4 of this Agreement, Executive shall be entitled to continue
to receive, at the expense of the Company (other than Executive’s continued
payments of his current portion of such costs), and participate in, for a
period
of [18/15] months from the Termination Date, any life insurance, disability
insurance, health insurance or hospital plans or other benefit plans of the
Company in effect at the time of termination (as such plans may be amended
from
time to time thereafter); provided, however, that car allowances, if any,
or
Company matching of individual 401(k) plan contributions shall not be continued.
Notwithstanding the foregoing, any continued benefits or participation in
the
plans of the Company under this Section 3(d) shall cease on the Severance
Payment Deadline, to the extent such continued benefits or participation
in
plans of the Company would constitute a nonqualified deferred compensation
plan
subject to Code Section 409A.
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4. Code
Section 409A.
This Agreement is
not intended to provide for any deferral of compensation subject to Code
Section
409A and, accordingly, notwithstanding any other provision of this Agreement
to
the contrary, any and all amounts payable under this Agreement shall be paid
not
later than the later of: (a) two and one-half (2½) months from the end of the
Executive’s tax year in which the Termination Date (or, if earlier, the Cure
Deadline) occurs, and (b) two and one-half (2½) months from the end of the
Company’s fiscal year in which the Termination Date (or, if earlier, the Cure
Deadline) occurs (the later of (a) and (b), the “Severance Benefit Deadline”),
as determined by the Company in accordance with Code Section 409A and any
applicable Treasury Regulations.
5. Parachute
Payments.
(a) If
it is determined (as hereafter provided) that Executive would be subject
to the
excise tax imposed by Code Section 4999 (a “Parachute Tax”) to which Executive
would not have been subject but for any payment or stock option or restricted
stock vesting occurring pursuant to the terms of this Agreement or otherwise
upon a Change in Control or any tax, interest, penalty or other expense incurred
by Executive pursuant to Code Section 409A (a “Deferred Compensation Tax”) to
which Executive would not have been subject but for the Company’s failure to pay
any severance amounts pursuant to the provisions of Section 3 and Section
4 of
this Agreement or other failure to make such payments in a manner that avoids
such payments qualifying as deferred compensation under Section 409A of the
Code
(collectively, a “Payment”), then Executive shall be entitled to receive an
additional payment or payments (a “Gross-Up Payment”) in an amount such that,
after payment by Executive of all taxes (including any Parachute Tax or Deferred
Compensation Tax) imposed upon the Gross-Up Payment, Executive retains an
amount
of the Gross-Up Payment equal to the Parachute Tax or Deferred Compensation
Tax
imposed upon the Payment.
(b) Subject
to the provisions of Section 5(a) hereof, all determinations required to
be made
under this Section 5, including whether a Parachute Tax or Deferred Compensation
Tax is payable by Executive with regard to a Payment and the amount of such
Parachute Tax or Deferred Compensation Tax and whether a Gross-Up Payment
is
required and the amount of such Gross-Up Payment, shall be made by the
nationally recognized firm of certified public accountants (the “Accounting
Firm”) used by the Company prior to the Change in Control (or, if such
Accounting Firm declines to serve, the Accounting Firm shall be a nationally
recognized firm of certified public accountants selected by the Company).
For
purposes of making the calculationsrequired
by this
Section, the Accounting Firm may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G, 4999 and 409A
of
the Code, provided that the Accounting Firm’s determinations must be made with
substantial authority (within the meaning of Section 6662 of the Code). The
Accounting Firm shall be directed by the Company or Executive to submit its
preliminary determination and detailed supporting calculations to both the
Company and Executive within 15 calendar days after the determination date,
if
applicable, and any other such time or times as may be requested by the Company
or Executive. If the Accounting Firm determines that any Parachute Tax or
Deferred Compensation Tax is payable by Executive with regard to a Payment,
the
Company shall pay the required Gross-Up Payment to, or for the benefit of,
Executive within five business days after receipt of such determination and
calculations. If the Accounting Firm determines that no Parachute Tax or
Deferred Compensation Tax is payable by Executive with regard to a Payment,
it
shall, at the same time as it makes such determination, furnish Executive
with
an opinion that he has substantial authority not to report any Parachute
Tax or
Deferred Compensation Tax on his federal tax return. Any good faith
determination by the Accounting Firm as to whether a Gross-Up Payment is
to be
made with regard to a Payment and the amount of the Gross-Up Payment shall
be
binding upon the Company and Executive absent a contrary determination by
the
Internal Revenue Service or a court of competent jurisdiction; provided,
however, that no such determination shall eliminate or reduce the Company’s
obligation to provide any Gross-Up Payments that shall be due as a result
of
such contrary determination. As a result of the uncertainty in the application
of Code Section 4999 or Code Section 409A at the time of any determination
by
the Accounting Firm hereunder, it is possible that Gross-Up Payments that
will
not have been made by the Company should have been made (an “Underpayment”),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts or fails to pursue its remedies pursuant to Section
5(f) hereof and Executive thereafter is required to make a payment of any
Parachute Tax or Deferred Compensation Tax, Executive shall direct the
Accounting Firm to determine the amount of the Underpayment that has occurred
and to submit its determination and detailed supporting calculations to both
the
Company and Executive as promptly as possible. Any such Underpayment shall
be
promptly paid by the Company to, or for the benefit of, Executive within
five
business days after receipt of such determination and calculations.
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(c) The
Company and
Executive shall each provide the Accounting Firm access to and copies of
any
books, records and documents in the possession of the Company or Executive,
as
the case may be, reasonably requested by the Accounting Firm, and otherwise
cooperate with the Accounting Firm in connection with the preparation and
issuance of the determination contemplated by Section 5(b) hereof.
(d) The
federal tax
returns filed by Executive (or any filing made by a consolidated tax group
which
includes the Company) shall be prepared and filed on a basis consistent with
the
determination of the Accounting Firm with respect to the Parachute Tax or
Deferred Compensation Tax payable by Executive. Executive shall make proper
payment of the amount of any Parachute Tax or Deferred Compensation Tax,
and at
the request of the Company, provide to the Company true and correct copies
(with
any amendments) of his federal income tax return as filed with the Internal
Revenue Service, and such other documents reasonably requested by the Company,
evidencing such payment. If prior to the filing of Executive’s federal income
tax return, the Accounting Firm determines in good faith that the amount
of the
Gross-Up Paymentshould
be reduced,
Executive shall within five business days pay to the Company the amount of
such
reduction.
(e) The
fees and
expenses of the Accounting Firm for its services in connection with the
determinations and calculations contemplated by Sections 5(b) and (d) hereof
shall be borne by the Company. If such fees and expenses are initially advanced
by Executive, the Company shall reimburse Executive the full amount of such
fees
and expenses within five business days after receipt from Executive of a
statement therefor and reasonable evidence of his payment thereof.
(f) In
the event that
the Internal Revenue Service claims that any payment or benefit received
under
this Agreement constitutes an “excess parachute payment” within the meaning of
Code Section 280G(b)(1), Executive shall notify the Company in writing of
such
claim. Such notification shall be given as soon as practicable but not later
than 10 business days after Executive is informed in writing of such claim
and
shall apprise the Company of the nature of such claim and the date on which
such
claim is requested to be paid. Executive shall not pay such claim prior to
the
expiration of the 30 day period following the date on which Executive gives
such
notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies
Executive in writing prior to the expiration of such period that it desires
to
contest such claim, Executive shall (i) give the Company any information
reasonably requested by the Company relating to such claim; (ii) take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company and reasonably satisfactory to Executive; (iii)
cooperate with the Company in good faith in order to effectively contest
such
claim; and (iv) permit the Company to participate in any proceedings relating
to
such claim; provided, however, that the Company shall bear and pay directly
all
costs and expenses (including, but not limited to, additional interest and
penalties and related legal, consulting or other similar fees) incurred in
connection with such contest and shall indemnify and hold Executive harmless,
on
an after-tax basis, for and against for any Parachute Tax or income tax or
other
tax (including interest and penalties with respect thereto) imposed as a
result
of such representation and payment of costs and expenses.
(g) The
Company shall
direct Executive with regard to all proceedings taken in connection with
such
contest and, at its sole option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority
in
respect of such claim and may, at its sole option, either direct Executive
to
pay the tax claimed and xxx for a refund or contest the claim in any permissible
manner and Executive agrees to prosecute such contest to a determination
before
any administrative tribunal, in a court of initial jurisdiction and in one
or
more appellate courts, as the Company shall determine; provided, however,
that
if the Company directs Executive to pay such claim and xxx for a refund,
the
Company shall advance the amount of such payment to Executive on an
interest-free basis (to the extent permitted by applicable law), and shall
indemnify and hold Executive harmless, on an after tax basis, from any Parachute
Tax or Deferred Compensation Tax (or other tax including interest and penalties
with respect thereto) imposed with respect to such advance or with respect
to
any imputed income with respect to such advance; and provided, further, that
if
Executive is required to extend the statue of limitations to enable the Company
to contest such claim, Executive may limit this extension solely to such
contested amount. The Company’s right to direct Executivewith
regard to the
contest shall be limited to issues with respect to whether and the extent
to
which a payment or benefit is an “excess parachute payment” pursuant to Code
Section 280G(b)(1), the imposition of the Parachute Tax under Code Section
4999
and the imposition of the Deferred Compensation Tax under Code Section 409A,
and
Executive shall be entitled to settle or contest, as the case may be, any
other
issue raised by the Internal Revenue Service or any other taxing authority.
In
addition, the Company shall not direct Executive to take a position or agree
to
any final resolution if such position or resolution could reasonably be expected
to adversely affect Executive unrelated to matters covered hereto, unless
Executive consents in writing to such position or agreement.
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(h) If,
after the
receipt by Executive of an amount advanced by the Company in connection with
the
contest of the Parachute Tax or Deferred Compensation Tax claim, Executive
receives any refund with respect to such claim, Executive shall promptly
pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto); provided, however, if the
amount of that refund exceeds the amount advanced by the Company Executive
may
retain such excess. If, after the receipt by Executive of an amount advanced
by
the Company in connection with a Parachute Tax or Deferred Compensation Tax
claim, a determination is made that Executive shall not be entitled to any
refund with respect to such claim and the Company does not notify Executive
in
writing of its intent to direct Executive to contest the denial of such refund
prior to the expiration of 30 days after such determination such advance
shall
be deemed to be in consideration for services rendered after the Termination
Date.
6. Confidential
Information and Inventions.
(a) Except
as otherwise required by Executive’s employment duties for the Company,
Executive shall maintain in strict confidence and shall not directly, indirectly
or otherwise, use, publish, disclose or disseminate, or use for Executive’s
benefit or the benefit of any person, firm, corporation or entity, any
Confidential Information of or relating to the Company or its affiliates
(or
which the Company or its affiliates has a right to use). For purposes of
this
Agreement, AConfidential
Information@
shall mean all
confidential and proprietary information of the Company and its parents,
subsidiaries and affiliates, whether in oral, written or electronic form
or
obtained by observation or otherwise, whether or not legended or otherwise
identified as confidential or proprietary information, and whether or not
discovered or developed by Executive or known or obtained by Executive as
a
consequence of Executive’s employment with the Company at any time as employee
or agent. Confidential Information shall include, without limitation, all
scientific, clinical, engineering, technical, process, method or commercial
data, information or know-how, relating to the research, development,
manufacture, distribution, sale or marketing of any vitamins, minerals,
nutritional supplements, sports nutrition products, beverages, food bars,
powdered food supplements, or other products or product lines of the Company.
Confidential Information shall also include, without limitation, all customer
lists, pricing data, sources of supply and related supplier and vendor
information, purchasing, operating or other cost data, manufacturing methods,
quality control information, regulatory information, employee and compensation
information, financial data, trade secrets, formulas, intellectual property,
manuals, financial data, forecasts, business plans, expansion or acquisition
plans and product development information and plans. Notwithstanding the
foregoing, Confidential Information shall not include (i) information, from
a
source other than the Company, which is in Executive’s possession on the date
hereof or subsequently becomes available to Executive so longas
such information
was lawfully obtained and is not, to the knowledge of Executive, subject
to
another confidentiality agreement or obligation of secrecy to the Company
or
another person, or (ii) information which becomes generally available to
the
public other than directly or indirectly as a result of disclosure by Executive
or another party bound by legal obligations prohibiting such
disclosure.
(b) Executive
hereby
assigns and transfers to the Company any and all works of authorship, inventions
and innovations (whether deemed patentable or not), which relate to the business
of the Company and which are made by Executive (or by Executive jointly with
others) during the term of Executive’s employment and/or within one year after
the termination of Executive's employment with the Company, if such work
of
authorship, invention, or innovation is based upon or relates to Confidential
Information acquired by Executive during the term of employment with the
Company. For purposes of copyright law, any such work of authorship shall
be
deemed a work made for hire. Executive agrees to promptly disclose to the
Company all such works of authorship, inventions, and innovations. Executive
agrees to execute any document reasonably requested by the Company that is
necessary or appropriate to document, perfect, or effect the intention of
this
Section 6 or to secure any patent, copyright registration (as a work made
for
hire), trademark registration or other protection thereof for the
Company.
(c) Upon
termination of
Executive’s employment, Executive shall immediately deliver to the Company all
Confidential Information embodied in any form (including any form of computer
media), including all copies, then in Executive’s possession or control, whether
prepared by Executive or others, as well as other Company property in
Executive’s possession or control.
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7. Successors
and Binding Agreement.
(a) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation, reorganization or otherwise, including, without
limitation, any successor due to a Change in Control) to the business or
assets
of the Company, by agreement in form and substance reasonably satisfactory
to
the Executive, expressly assume and agree to perform this Agreement in the
same
manner and to the same extent the Company would be required to perform if
no
such succession had taken place. This Agreement will be binding upon and
inure
to the benefit of the Company and any successor to the Company, including,
without limitation, any person directly or indirectly acquiring the business
or
assets of the Company in a transaction constituting a Change in Control (and
such successor shall thereafter be deemed the “Company” for the purpose of this
Agreement), but will not otherwise be assignable, transferable or delegable
by
the Company.
(b) This
Agreement will inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors,
heirs,
distributees and legatees, but will not otherwise be assignable, transferable
or
delegable by Executive.
8. Validity.
If any provision
of this Agreement or the application of any provision hereof to any person
or
circumstances is held invalid, unenforceable or otherwise illegal, the remainder
of this Agreement and the application of such provision to any other person
or
circumstances will not be affected, and the provision so held to be invalid,
unenforceable or otherwise illegal will be reformed to the extent (and only
to
the extent) necessary to make it enforceable, valid or legal.
9. Governing
Law; Jurisdiction.
The laws of the
state of Utah shall govern the interpretation, validity and performance
of the
terms of this Agreement, regardless of the law that might be applied under
principles of conflicts of law. Any suit, action or proceeding against
Executive, with respect to this Agreement, or any judgment entered by any
court
in respect of any of such, may be brought in any court of competent jurisdiction
in the State of Utah, and Executive hereby submits to the jurisdiction
of such
courts for the purpose of any such suit, action, proceeding or
judgment.
10. Notices.
Any notices or
communications given by any party hereto to the other party shall be in writing
and personally delivered or mailed by registered or certified mail, return
receipt requested, postage prepaid. Notices shall be addressed to the parties
at
the addresses set forth above. Notices shall be deemed given when received.
Either party may designate in writing, by notice to the others, such other
address to which notices to such party shall thereafter be sent.
11. Further
Assurances.
Each party agrees
at any time, and from time-to-time, to execute, acknowledge, deliver and
perform, and/or cause to be executed, acknowledged, delivered and performed,
all
such further acts, deeds assignments, transfers, conveyances, powers of attorney
and/or assurances as may be necessary, and/or proper to carry out the provisions
and/or intent of this Agreement.
12. Amendment;
Waiver; Entire Agreement.
No provision of
this Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing signed by the Executive
and
the Company. No waiver by either party hereto at any time of any breach by
the
other party hereto or compliance with any condition or provision of this
Agreement to be performed by such other party will be deemed a waiver of
similar
or dissimilar provisions or conditions at the same or at any prior or subsequent
time. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes any and all prior agreements
of the parties with respect to such subject matter.
13. Counterparts.
This Agreement may
be executed in one or more counterparts, each of which shall be deemed to
be an
original but all of which together will constitute one and the same
agreement.
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IN
WITNESS WHEREOF,
the parties have caused this Agreement to be duly executed and delivered
on the
date set forth below.
SCHIFF
NUTRITION GROUP,
INC.
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By:
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Title:
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Date:
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EXECUTIVE
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Date:
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