UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 OR 15 (d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): January 2, 2015

 

 

NUTRISYSTEM, INC.

(Exact name of registrant as specified in its charter)

 

 

Commission File Number: 0-28551

 

Delaware   23-3012204

(State or other jurisdiction

of incorporation)

 

(I.R.S. Employer

Identification No.)

Fort Washington Executive Center

600 Office Center Drive

Fort Washington, PA 19034

(Address of principal executive offices)

215-706-5300

(Registrant’s telephone number, including area code)

 

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 5.02 – Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On January 2, 2015, Nutrisystem, Inc. (the “Company”) issued 2015 annual equity awards to its named executive officers that had been previously approved by the Compensation Committee (the “Compensation Committee”) of the Board of Directors of the Company. The aggregate grant date value of the 2015 awards for each of the named executive officers remains unchanged from 2014. In addition, the 2015 awards, like those granted in 2014, consist of the same mix and proportion of the Company’s annual incentive equity awards, namely stock options (25%), time-vested restricted stock (25%) and performance-vested restricted stock unit grants (“PRSUs”) (50%). Except as described below, the terms of these awards are consistent with the Company’s past practice.

Background

As part of a review of the Company’s executive compensation practices, the Company’s new independent compensation consultant, Frederic W. Cook & Co., Inc. (“Cook”), recommended to the Compensation Committee certain changes to the Company’s executive compensation program to better align with competitive practices and strengthen the alignment between pay and performance. The changes fell into two categories: 1) Change of Timing of Annual Long-Term Incentive Grants and 2) Minor Structural Modifications, each of which is described in more detail below.

1. Change of Timing of Annual Long-Term Incentive Grants

Historically, the Compensation Committee approved the size of annual equity awards at its February meeting and made such grants effective after the release of the prior year’s fourth quarter earnings, based on the Company’s then-prevailing stock price. Cook recommended that the Compensation Committee determine the annual equity awards earlier, at a time when management and the Board do not yet have knowledge of preliminary results of the Company’s upcoming diet season. In an effort to improve the transparency of its grant process, the Compensation Committee accepted this recommendation for 2015 annual awards and intends to follow this approach in future years as well.

2. Minor Structural Modifications

Long-Term Incentive Vesting

In 2014 the Company used a two-year performance period for its PRSUs. Following Cook’s review of the Company’s executive compensation practices, Cook recommended that the PRSU program continue with a two-year performance period and continue to constitute 50% of the Company’s annual incentive equity awards to named executive officers, but that the service-vesting schedule associated with such awards be extended to three-year graded vesting, such that a three-year period of service will be required to fully realize the value of any PRSUs otherwise earned based on corporate performance.

In addition, to align the Company’s equity grant practices with market norms and provide a consistent three-year vesting period for all long-term incentives, Cook also recommended that the service-vesting schedule associated with the Company’s stock option and restricted stock awards be reduced from four years to three years.


Stronger Pay-for-Performance Alignment

While the Company’s target total direct compensation opportunities were generally competitive with market median, Cook & Co.’s competitive review found that the maximum earning opportunity as a percentage of target in the annual and long-term incentive programs were below market. Based on competitive practice and to further support the Company’s pay-for-performance philosophy, Cook recommended that the maximum payout under the Company’s annual cash incentive program and the PRSU awards be increased from 150% to 200% of target, with a commensurate increase in the difficulty of the goals required for maximum payout under each program.

Market Adjustment to CEO Target Bonus

Cook’s competitive analysis indicated that target total direct compensation opportunity for the Company’s CEO position was below market median, due to a target annual bonus opportunity that was low relative to market practice. Therefore, Cook recommended that the Compensation Committee increase Ms. Zier’s target annual performance bonus opportunity from the greater of 75% of base salary or $500,000, to 100% of base salary.

The Compensation Committee accepted these recommendations and incorporated them into the new forms of PRSU, stock option, and restricted stock award agreements, attached hereto as Exhibits 10.1, 10.2, and 10.3, respectively, and incorporated herein by reference. The Compensation Committee also amended the employment agreements of each of the Company’s named executive officers to reflect these changes on January 2, 2015. The amendments are attached hereto as Exhibits 10.4, 10.5 and 10.6 and incorporated herein by reference.

3. Summary of Equity Awards

Set forth below is a summary of the 2015 annual equity awards made by the Company on January 2, 2015 to its named executive officers:

 

Named Executive Officer   

Shares subject to Stock

Options

  

Shares of Time-Vested

Restricted Stock

  

Shares subject to PRSUs (at

target)

Dawn M. Zier    65,419    16,399    32,798
Keira Krausz    18,128      4,544      9,089
Michael P. Monahan    18,128      4,544      9,089

Item 9.01 – Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.

  

Description

10.1    Form of Performance-Based Restricted Stock Unit Grant Agreement.
10.2    Form of Stock Option Award Agreement.


10.3    Form of Restricted Stock Award Agreement.
10.4    First Amendment to the Employment Agreement between Nutrisystem, Inc. and Dawn M. Zier, dated January 2, 2015.
10.5    First Amendment to the Employment Agreement between Nutrisystem, Inc. and Michael P. Monahan, dated January 2, 2015.
10.6    First Amendment to the Employment Agreement between Nutrisystem, Inc. and Keira Krausz, dated January 2, 2015.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: January 2, 2015

 

NUTRISYSTEM, INC.
By:  

/s/ Ralph J. Mauro

Name:   Ralph J. Mauro
Title:   Senior Vice President and General Counsel


EXHIBIT INDEX

 

Exhibit
No.

  

Description

10.1    Form of Performance-Based Restricted Stock Unit Grant Agreement.
10.2    Form of Stock Option Award Agreement.
10.3    Form of Restricted Stock Award Agreement.
10.4    First Amendment to the Employment Agreement between Nutrisystem, Inc. and Dawn M. Zier, dated January 2, 2015.
10.5    First Amendment to the Employment Agreement between Nutrisystem, Inc. and Michael P. Monahan, dated January 2, 2015.
10.6    First Amendment to the Employment Agreement between Nutrisystem, Inc. and Keira Krausz, dated January 2, 2015.

Exhibit 10.1

NUTRISYSTEM, INC.

AMENDED AND RESTATED NUTRISYSTEM, INC.

2008 LONG-TERM INCENTIVE PLAN

2015 PERFORMANCE-BASED RESTRICTED STOCK UNIT GRANT AGREEMENT

(Name)

This 2015 PERFORMANCE-BASED RESTRICTED STOCK UNIT GRANT AGREEMENT (the “ Agreement ”), effective as of [            ] [    ], 2015 (the “ Date of Grant ”), is delivered by NutriSystem, Inc. (the “ Company ”) to [            ] (the “ Grantee ”).

RECITALS

A. The Amended and Restated NutriSystem, Inc. 2008 Long-Term Incentive Plan, as may be amended from time to time (the “ Plan ”) permits the Grant of performance-based restricted stock units.

B. The Compensation Committee of the Board of Directors of the Company has determined that the Grantee is eligible to participate in the Plan and has approved this Grant under the Plan.

C. Except as otherwise defined in this Agreement, capitalized terms used herein shall have the meanings set forth in the Plan.

NOW, THEREFORE, the parties to this Agreement, intending to be legally bound hereby, agree as follows:

1. Grant of Performance-Based Restricted Stock Units . Subject to the terms and conditions set forth in this Agreement and the Plan, the Company hereby grants to the Grantee [            ] performance-based restricted stock units (the “ Performance Units ”). The Performance Units will become vested and distributable if and only to the extent that the performance goals and other conditions set forth in this Agreement are met. Each Performance Unit shall be a phantom right and shall be equivalent to one share of Company Stock on the applicable distribution date, as described in Paragraph 3 below. The number of Performance Units set forth above is equal to the number of Performance Units that will vest upon achievement of the target level of performance and completion of the requisite period of service (the “ Target Award ”).


2. Vesting .

(a) If the Grantee remains in continuous service with the Employer through December 31, 2017 (the “ Service Date ”), the Performance Units shall vest to the extent determined and certified by the Committee based on the attached Exhibit A . Any Performance Units that do not vest due to failure to fully satisfy the applicable performance goal(s) shall be forfeited as of December 31, 2016 and the Grantee shall not have any further rights with respect to those Performance Units.

(b) If the Grantee’s service with the Employer ceases prior to the Service Date due to the Grantee’s death or “total disability” (as defined below), the Grantee shall become vested in a pro-rata portion of the Performance Units. The pro-rata portion shall be determined by multiplying (i) the Target Award (if such cessation occurs on or prior to December 31, 2016) or the number of Performance Units that would otherwise have vested under Paragraph 2(a) above, but for the cessation of the Grantee’s service (if such cessation occurs after December 31, 2016 but prior to the Service Date), by (ii) a fraction, (A) the numerator of which is the number of days of continuous service performed by the Grantee for the Employer during the period beginning January 1, 2015 and ending on the Service Date (the “ Service Period ”), and (B) the denominator of which is 1095. Any Performance Units that do not vest in connection with such death or total disability shall be forfeited as of the date the Grantee’s service ceases and the Grantee shall not have any further rights with respect to those Performance Units.

(c) If the Grantee’s service with the Employer ceases prior to the Service Date due to (i) a termination by the Employer without “ cause ” (as defined below) or (ii) a resignation by the Grantee with “ good reason ” (as defined below), then the Grantee shall become vested in a number of Performance Units determined by multiplying (A) the number of Performance Units that would otherwise have vested under Paragraph 2(a) above (but for the cessation of the Grantee’s service), by (B) a fraction, (1) the numerator of which is the number of days of continuous service performed by the Grantee for the Employer during the Service Period, and (2) the denominator of which is 1095, subject to the Grantee’s execution and delivery of a general release of claims against the Company and its affiliates in a form prescribed by the Company and subject further to that release becoming irrevocable within 45 days following the Grantee’s cessation of service. Any Performance Units that cannot vest because of the pro-ration described above or due to a failure to satisfy the release condition described above will be forfeited as of the date the Grantee’s service ceases and the Grantee shall not have any further rights with respect to those Performance Units. Any Performance Units that do not vest because of the failure to fully satisfy the applicable performance goal(s) shall be forfeited as of December 31, 2016 and the Grantee shall not have any further rights with respect to those Performance Units.

(d) If the Grantee’s service with the Employer ceases prior to the Service Date due to a resignation by the Grantee without “ good reason ” (other than a resignation by the Grantee in

 

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anticipation of a termination for cause), then the Grantee shall become vested in a number of Performance Units determined by multiplying (A) the number of Performance Units that would otherwise have vested under Paragraph 2(a) above (but for the cessation of the Grantee’s service), by (B) a fraction, (1) the numerator of which is the number of full (but not partial) calendar years of continuous service performed by the Grantee for the Employer during the Service Period, and (2) the denominator of which is three, subject to the Grantee’s execution and delivery of a general release of claims against the Company and its affiliates in a form prescribed by the Company and subject further to that release becoming irrevocable within 45 days following the Grantee’s cessation of service. Any Performance Units that cannot vest because of the pro-ration described above or due to a failure to satisfy the release condition described above will be forfeited as of the date the Grantee’s service ceases and the Grantee shall not have any further rights with respect to those Performance Units. Any Performance Units that do not vest because of the failure to fully satisfy the applicable performance goal(s) shall be forfeited as of December 31, 2016 and the Grantee shall not have any further rights with respect to those Performance Units.

(e) Notwithstanding any other provision of this Agreement, if prior to the payment date described below in Paragraph 3 the Grantee’s employment or service with the Employer ceases due to a termination by the Employer for cause (or due to a resignation by the Grantee in anticipation of a termination for cause), all of the Performance Units shall be immediately forfeited and the Grantee shall not have any further rights with respect to this Grant.

(f) For purposes of this Agreement:

(i) “ cause ” will have the meaning defined in any employment agreement, offer letter or similar agreement between the Employer and the Grantee or, in the absence of such an agreement: (A) the Grantee’s conviction of a felony, or (B) a determination of the Committee that the Grantee has: (1) committed an act of fraud, embezzlement or theft, (2) caused intentional damage to the property of the Employer, (3) materially breached any agreement with the Employer, any duty owed to the Company or its stockholders or any published policy of the Employer, which breach (if curable) is not cured within 30 days after receiving written notice from the Employer identifying the breach, or (4) engaged in gross misconduct or gross negligence in the course of employment or service.

(ii) “ good reason ” will have the meaning defined in any employment agreement, offer letter or similar agreement between the Employer and the Grantee or, in the absence of such an agreement: (A) a material diminution of the Grantee’s title, authority or duties, (B) a material reduction in the Grantee’s base salary, or (C) a relocation by more than 50 miles of the Grantee’s principal worksite; provided that , any such event will constitute “good reason” only if the Grantee notifies the Employer in

 

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writing of such event within 90 days following the initial occurrence thereof, the Employer fails to cure such event within 30 days after receipt from the Grantee of that written notice, and the Grantee resigns his or her employment within 30 days following the expiration of that cure period.

(iii) “ total disability ” means a condition entitling the Grantee to benefits under any long-term disability plan or policy maintained or funded by the Employer.

3. Time and Form of Payment with Respect to Performance Units . The Grantee shall receive a distribution with respect to vested Performance Units within two and one-half months following: (a) the Service Date, for Performance Units vesting pursuant to Paragraphs 2(a), 2(c) or 2(d) , or (b) the date of cessation of the Grantee’s service, for Performance Units vesting pursuant to Paragraph 2(b) , subject to any delay required pursuant to Paragraph 17 . The Performance Units will be distributed in shares of Company Stock, with each vested Performance Unit representing the right to receive one share of Company Stock (equitably adjusted by the Committee in accordance with Section 5(d) of the Plan or any successor provision).

4. Dividend Equivalents . At the same time that the Performance Units are converted to shares of Company Stock and distributed to the Grantee as set forth in Paragraph 3 above, the Company shall pay to the Grantee a lump sum cash payment equal to the sum of the dividends that would have been payable between the Date of Grant and the date of such distribution with respect to a number of shares of Company Stock equal to the number of shares then distributable (equitably adjusted by the Committee to take into account any stock splits, reverse splits, mergers, recapitalizations or similar events occurring during such period). If or to the extent the Performance Units are forfeited, dividend equivalent payments will not be made under this Paragraph.

5. Change of Control . In the event of a Change of Control prior to settlement of this Grant, the Committee may in its discretion: (a) shorten the Service Period, the Performance Period (as hereinafter defined on the attached Exhibit A ) or both; (b) accelerate settlement of this Grant, to the extent consistent with Treas. Reg. §1.409A-3(j)(4)(ix) or any successor provision; and/or (c) take such other actions as it deems appropriate with respect to this Grant, provided that such other actions do not cause this Grant to be subject to tax under Section 409A of the Code.

6. Acknowledgment by Grantee . By accepting this Grant, the Grantee acknowledges that with respect to any right to distribution and payment pursuant to this Grant, the Grantee is and shall be an unsecured general creditor of the Company without any preference as against other unsecured general creditors of the Company, and the Grantee hereby covenants for him or herself, and anyone at any time claiming through or under the Grantee, not to claim any such preference, and hereby disclaims and waives any such preference which may at any time be at issue, to the fullest extent permitted by applicable law. The Grantee also hereby agrees to be

 

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bound by the terms and conditions of the Plan and this Agreement. The Grantee further agrees to be bound by the determinations and decisions of the Committee with respect to this Grant and the Plan and the Grantee’s rights to benefits under this Grant and the Plan, and agrees that all such determinations and decisions of the Committee shall be binding on the Grantee, his or her beneficiaries and any other person having or claiming an interest under this Grant and the Plan on behalf of the Grantee.

7. Restrictions on Issuance or Transfer of Shares of Company Stock .

(a) The obligation of the Company to deliver shares of Company Stock hereunder shall be subject to the condition that if at any time the Committee shall determine in its discretion that the listing, registration or qualification of the shares of Company Stock upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the issuance of shares of Company Stock, the shares of Company Stock may not be issued in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Committee. The issuance of shares of Company Stock and the payment of cash to the Grantee pursuant to this Grant, if any, are subject to any applicable taxes and other laws or regulations of the United States and of any state having jurisdiction thereof.

(b) The Grantee hereby (i) agrees to be bound by the Company’s policies (including, but not limited to, the Company’s Insider Trading Policy, Clawback Policy, Anti-Hedging Policy and Stock Ownership Guidelines) as in effect from time to time, and (ii) understands that there may be certain times during the year that the Grantee will be prohibited from selling, transferring, donating, assigning, mortgaging, hypothecating or otherwise encumbering the Company’s securities.

8. Grant Subject to Plan Provisions . This Grant is made pursuant to the Plan, the terms of which are incorporated herein by reference, and in all respects shall be interpreted in accordance with the Plan. In the event of any contradiction, distinction or difference between this Grant and the terms of the Plan, the terms of the Plan will control. This Grant is subject to the interpretations, regulations and determinations concerning the Plan established from time to time by the Committee in accordance with the provisions of the Plan, including, but not limited to, provisions pertaining to (a) rights and obligations with respect to withholding taxes, (b) the registration, qualification or listing of the shares of Company Stock, (c) changes in capitalization of the Company, and (d) other requirements of applicable law. The Committee shall have the authority to interpret and construe this Agreement pursuant to the terms of the Plan, its decisions shall be conclusive as to any questions arising hereunder and the Grantee’s acceptance of this Grant is the Grantee’s agreement to be bound by the interpretations and decisions of the Committee with respect to this Agreement and the Plan.

 

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9. No Rights as Stockholder . The Grantee shall not have any rights as a stockholder of the Company, including the right to any cash dividends (except as provided in Paragraph 4 hereof) or the right to vote, with respect to any Performance Units.

10. No Rights to Continued Employment or Service . This Grant shall not confer upon the Grantee any right to be retained in the employment or service of the Employer and shall not interfere in any way with the right of the Employer to terminate the Grantee’s employment or service at any time. Except to the extent expressly set forth in any employment agreement, offer letter or similar agreement between the Employer and the Grantee, the right of the Employer to terminate at will the Grantee’s employment or service at any time for any reason is specifically reserved.

11. Confidential Information, Non-Competition and Non-Solicitation . The Grantee reaffirms and acknowledges his or her obligations under the Nondisclosure and Noncompete Agreement for Management Employees or similar agreement between the Employer and the Grantee.

12. Assignment and Transfers . No Performance Units or dividend equivalents awarded to the Grantee under this Agreement may be transferred, assigned, pledged, or encumbered by the Grantee and the Performance Units and dividend equivalents shall be distributed during the lifetime of the Grantee only for the benefit of the Grantee. Any attempt to transfer, assign, pledge, or encumber the Performance Units or dividend equivalents under this Grant by the Grantee shall be null, void and without effect. The rights and protections of the Company hereunder shall extend to any successors or assigns of the Company. This Grant may be assigned by the Company without the Grantee’s consent.

13. Withholding . The Grantee shall be required to pay to the Employer, or make other arrangements satisfactory to the Employer to provide for the payment of, any federal, state, local or other taxes that the Employer is required to withhold with respect to the grant, vesting and distribution of the Performance Units and dividend equivalents. Subject to Committee approval, the Grantee may elect to satisfy any tax withholding obligation of the Employer with respect to the distribution of shares of Company Stock under this Grant by having shares of Company Stock withheld up to an amount that does not exceed the minimum applicable withholding tax rate for federal (including FICA), state, local and other tax liabilities. Notwithstanding anything to the contrary herein or the Plan, until the Grantee has satisfied the Employer’s withholding obligation with respect to this Grant, the Grantee shall not have any rights to sell or transfer any shares of Company Stock that have been distributed to the Grantee pursuant to Paragraph 3 above.

14. Effect on Other Benefits . The value of this Grant and the shares of Company Stock and dividend equivalents potentially distributable hereunder shall not be considered eligible earnings for purposes of any other plan maintained by the Company or the Employer, and such value shall not be considered part of the Grantee’s compensation for purposes of determining or calculating other benefits that are based on compensation, such as life insurance.

 

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15. Applicable Law . The validity, construction, interpretation and effect of this Grant shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflicts of laws provisions thereof.

16. Notice . Notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier addressed, in the case of the Company, c/o its General Counsel at its principal executive office and, in the case of the Grantee, to his or her most recent address set forth in the personnel records of the Company.

17. Section 409A . The amounts payable under this Agreement are intended to be compliant with the requirements of Section 409A of the Code and this Agreement should be interpreted accordingly. If required to avoid the imposition of tax under Section 409A of the Code, any distribution under Paragraph 3(b) in connection with the Grantee’s “total disability” will be delayed until the date that is six months and one day following the Grantee’s separation from service (or, if earlier, the Grantee’s death).

18. Entire Agreement . This Agreement, together with the Plan, represents the entire agreement between the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to the subject matter hereof.

19. Amendment . This Agreement cannot be changed, modified, extended or terminated except upon written amendment executed by the parties hereto. Any such written amendment must be approved by the Committee or its delegate to be effective against the Company.

20. Consent to Electronic Delivery . The Grantee hereby authorizes the Company to deliver electronically any prospectuses or other documentation related to this Grant, the Plan and any other compensation or benefit plan or arrangement in effect from time to time (including, without limitation, reports, proxy statements or other documents that are required to be delivered to participants in such plans or arrangements pursuant to federal or state laws, rules or regulations). For this purpose, electronic delivery will include, without limitation, delivery by means of e-mail or e-mail notification that such documentation is available on the Company’s intranet site. Upon written request, the Company will provide to the Grantee a paper copy of any document also delivered to the Grantee electronically. The authorization described in this Paragraph may be revoked by the Grantee at any time by written notice to the Company.

[ Remainder of page intentionally left blank; signature page follows ]

 

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IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this Agreement, and the Grantee has placed his or her signature hereon, on this [    ] day of [            ], 2015.

 

Attest:     NUTRISYSTEM, INC.
By:  

 

    By:  

 

Name:       Name:  
Title:       Title:  

I hereby accept the Grant of Performance Units described in this Agreement, and I agree to be bound by the terms of the Plan and this Agreement. I hereby further agree that all of the decisions and determinations of the Committee shall be final and binding.

 

 

Grantee: [NAME]

 

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EXHIBIT A

PERFORMANCE GOALS

[GOALS TO BE ESTABLISHED BY COMPENSATION COMMITTEE]

The performance measure applicable to this Grant is the Company’s cumulative, adjusted earnings per share for the period beginning January 1, 2015 and ending on December 31, 2016 (the “ Performance Period ”) (“ EPS ”). For these purposes, EPS will be determined and certified by the Company and will mean the Company’s cumulative earnings per share, as reported in the Company’s periodic reports filed with the SEC for the applicable period; provided, however , that unless otherwise determined by the Compensation Committee, the EPS achievement will not be negatively impacted for expenses arising from the following: severance, asset write-downs, the adverse determination or settlement of litigation, acquisitions or divestitures, and the costs relating to any of the foregoing.

Subject to the foregoing and the other terms of the Agreement, the Performance Units eligible for vesting on the Service Date shall be based on the following schedule:

 

EPS

   Percentage of the Target Award  

Less than $[TBD]

     0

$[TBD]

     50

$[TBD]

     100

$[TBD]

     150

$[TBD] or more

     200

If EPS is between the inflection points specified above, the percentage of the Target Award eligible for vesting on the Service Date will be determined by linear interpolation.

Exhibit 10.2

NUTRISYSTEM, INC.

AMENDED AND RESTATED NUTRISYSTEM, INC.

2008 LONG-TERM INCENTIVE PLAN

2015 NONQUALIFIED STOCK OPTION GRANT AGREEMENT

(NAME)

This NONQUALIFIED STOCK OPTION GRANT AGREEMENT (the “ Agreement ”), dated as of [                    ] (the “ Date of Grant ”), is delivered by NutriSystem, Inc. to [            ] (the “ Grantee ”).

RECITALS

A. The Amended and Restated NutriSystem, Inc. 2008 Long-Term Incentive Plan, as may be amended from time to time (the “ Plan ”), permits the Grant of Options to purchase shares of Company Stock in accordance with the terms and conditions of the Plan.

B. The Compensation Committee of the Board of Directors of the Company has approved this Grant under the Plan.

NOW, THEREFORE, the parties to this Agreement, intending to be legally bound hereby, agree as follows:

1. Grant of Option .

(a) Subject to the terms and conditions set forth in this Agreement and in the Plan, the Company hereby grants to the Grantee a nonqualified stock option (the “ Option ”) to purchase [                ] shares of Company Stock at an exercise price of $[        ] per share of Company Stock. The Option shall become vested and exercisable according to Paragraph 2 below.

(b) Capitalized terms used but not otherwise defined herein will have the meanings defined in the Plan.

2. Exercisability of Option .

(a) Except as provided below in Paragraphs 2(b) and 2(c) , the Option shall become vested and exercisable on the following dates, if the Grantee continues to be employed by, or provide services to, the Employer from the Date of Grant through the applicable vesting date (each, a “ Vesting Date ”):

 

Vesting Date

   Portion of Option Becoming
Exercisable on the Vesting Date

First Anniversary of Date of Grant

   33-1/3%

Second Anniversary of Date of Grant

   33-1/3%

Third Anniversary of Date of Grant

   33-1/3%


The vesting and exercisability of the Option is cumulative, but shall not exceed 100% of the shares of Company Stock subject to the Option. If the foregoing schedule would produce fractional shares of Company Stock, the number of shares of Company Stock for which the Option becomes vested and exercisable shall be rounded down to the nearest whole share.

(b) If at any time prior to the date the Option becomes fully vested and exercisable, the Grantee ceases to be employed by, or provide services to, the Employer on account of (i) the death of the Grantee, (ii) termination by the Employer because the Grantee becomes “totally disabled” (as defined below), (iii) a termination by the Employer without “cause” (as defined below), or (iv) the resignation by the Grantee with “good reason” (as defined below), the next tranche of the Option that would otherwise have become vested and exercisable under Paragraph 2(a) (but for such cessation of employment or service) will become vested and exercisable as of the date of such cessation of employment or service; provided that , in its discretion, the Company may condition such accelerated vesting on the execution by the Grantee or the Grantee’s estate (as applicable) of a release of claims in a form prescribed by the Company and on that release becoming irrevocable within 30 days following the cessation of the Grantee’s employment or service.

(c) If a cessation of employment or service described in Paragraph 2(b) occurs within one (1) year following a Change of Control, then in lieu of accelerating the vesting of only the next tranche of the Option, the Option will become fully vested and exercisable as of the date of such termination of employment or service (subject to the satisfaction of the release requirements described in Paragraph 2(b) ).

(d) For purposes of this Agreement:

(i) “cause” will have the meaning defined in any employment agreement, offer letter or similar agreement between the Employer and the Grantee or, in the absence of such an agreement: (a) the Grantee’s conviction of a felony, or (b) a determination of the Committee that the Grantee has: (1) committed an act of fraud, embezzlement or theft, (2) caused intentional damage to the property of the Employer, (3) materially breached any agreement with the Employer, any duty owed to the Company or its stockholders or any published policy of the Employer, which breach (if curable) is not cured within 30 days after receiving written notice from the Employer identifying the breach, or (4) engaged in gross misconduct or gross negligence in the course of employment or service.

(ii) “good reason” will have the meaning defined in any employment agreement, offer letter or similar agreement between the Employer and the Grantee or, in the absence of such an agreement: (a) a material diminution of the Grantee’s title, authority or duties, (b) a material reduction in the Grantee’s base salary, or (c) a relocation by more than 50 miles of the Grantee’s principal worksite; provided that, any such event will constitute “good reason” only if the Grantee notifies the Employer in writing of such event within 90 days following the initial occurrence thereof, the Employer fails to cure such event within 30 days after receipt from the Grantee of that written notice, and the Grantee resigns his or her employment within 30 days following the expiration of that cure period.

(iii) “totally disabled” means a condition entitling Grantee to benefits under any long-term disability plan or policy maintained or funded by the Employer.

 

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3. Term of Option .

(a) The Option shall have a term of seven years from the Date of Grant and shall terminate at the expiration of that period, unless it is terminated at an earlier date pursuant to the provisions of this Agreement or the Plan.

(b) The Option shall also automatically terminate upon the happening of the first of the following events:

(i) The expiration of the 90-day period after the Grantee ceases to be employed by, or provide service to, the Employer, if the termination is for any reason other than death, cause or the Grantee becoming totally disabled.

(ii) The expiration of the one-year period after the Grantee ceases to be employed by, or provide service to, the Employer on account of the Grantee becoming totally disabled.

(iii) The expiration of the one-year period after the Grantee ceases to be employed by, or provide service to, the Employer, if the Grantee dies while employed by, or providing service to, the Employer or within 90 days after the Grantee ceases to be so employed or provide such services on account of a termination described in clause (i) above.

(iv) The date on which the Grantee ceases to be employed by, or provide service to, the Employer for “cause.” In addition, notwithstanding the prior provisions of this Paragraph 3 , if the Grantee engages in conduct that constitutes “cause” after the Grantee’s employment or service terminates, the Option shall immediately terminate and the Grantee shall automatically forfeit all shares of Company Stock underlying any exercised portion of the Option for which the Company has not yet delivered the share certificates, upon refund by the Company of the exercise price paid by the Grantee for such shares.

Notwithstanding the foregoing, in no event may the Option be exercised after the date that is immediately before the seventh anniversary of the Date of Grant. Any portion of the Option that is not exercisable at the time the Grantee ceases to be employed by, or provide service to, the Employer (determined after giving effect to Paragraph 2(b) or 2(c) , if applicable) shall immediately terminate.

4. Exercise Procedures .

(a) Subject to the provisions of Paragraphs 2 and 3 above, the Grantee may exercise part or all of the exercisable portion of the Option by giving the Company written notice of intent to exercise in the manner provided in this Agreement, specifying the number of shares of Company Stock as to which the Option is to be exercised and the method of payment. Payment of the exercise price and applicable withholding taxes shall be made in accordance with procedures established by the Committee from time to time based on the type of payment being made but, in any event, prior to issuance of the shares of Company Stock. The Grantee shall pay

 

-3-


the exercise price and applicable withholding taxes (i) in cash or certified check, (ii) if permitted by the Committee, by delivering shares of Company Stock owned by the Grantee and having an aggregate Fair Market Value on the date of exercise equal to the exercise price or by attestation (on a form prescribed by the Committee) to ownership of shares of Company Stock having an aggregate Fair Market Value on the date of exercise equal to the exercise price, (iii) by payment through a broker in accordance with procedures permitted by Regulation T of the Federal Reserve Board, or (iv) by such other method as the Committee may approve to the extent permitted by applicable law. The Committee may impose from time to time such limitations as it deems appropriate on the use of shares of Company Stock to exercise the Option.

(b) The obligation of the Company to deliver shares of Company Stock upon exercise of the Option shall be subject to all applicable laws, rules, and regulations and such approvals by governmental agencies as may be deemed appropriate by the Committee, including such actions as Company counsel shall deem necessary or appropriate to comply with relevant securities laws and regulations. The Company may require that the Grantee (or other person exercising the Option after the Grantee’s death) represent that the Grantee is purchasing the shares of Company Stock for the Grantee’s own account and not with a view to, or for sale in connection with, any distribution of the shares of Company Stock, or such other representations as the Committee deems appropriate.

(c) All obligations of the Company under this Agreement shall be subject to the rights of the Company as set forth in the Plan to withhold amounts required to be withheld for all applicable taxes. Subject to Committee approval, the Grantee may elect to satisfy any tax withholding obligation of the Employer with respect to the Option by having shares of Company Stock withheld up to an amount that does not exceed the minimum applicable withholding tax rate for federal (including FICA), state and local tax liabilities.

5. Dissolution or Liquidation; Sale or Merger . In the event of a dissolution, liquidation, sale or merger of the Company or any similar event or transaction, the Committee may adjust, terminate and/or settle the Option to the extent it deems appropriate and consistent with the Plan’s purposes.

6. Restrictions on Exercise . Except as the Committee may otherwise permit pursuant to the Plan, only the Grantee may exercise the Option during the Grantee’s lifetime and, after the Grantee’s death, the Option shall be exercisable (subject to the limitations specified in the Plan) solely by the person who acquires the right to exercise the Option by will or by the laws of descent and distribution, to the extent that the Option is exercisable pursuant to this Agreement.

7. Grant Subject to Plan Provisions . This Grant is made pursuant to the Plan, the terms of which are incorporated herein by reference, and in all respects shall be interpreted in accordance with the Plan. The Grant and exercise of the Option are subject to interpretations, regulations and determinations concerning the Plan established from time to time by the Committee in accordance with the provisions of the Plan, including, but not limited to, provisions pertaining to (a) rights and obligations with respect to withholding taxes, (b) the registration, qualification or listing of the shares of Company Stock, (c) changes in capitalization of the Company and (d) other requirements of applicable law. The Committee shall have the authority to interpret and construe the Option pursuant to the terms of the Plan, and its decisions shall be conclusive as to any questions arising hereunder.

 

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8. Restrictions on Sale or Transfer of Shares.

(a) The Grantee will not sell, transfer, pledge, donate, assign, mortgage, hypothecate or otherwise encumber the shares of Company Stock underlying the Option unless the shares of Company Stock are registered under the 1933 Act, or the Company is given an opinion of counsel reasonably acceptable to the Company that such registration is not required under the 1933 Act.

(b) In consideration for this Option Grant, the Grantee agrees to be bound by the Employer’s policies as in effect from time to time, including, but not limited to, the Company’s Insider Trading, Anti-Hedging and Clawback Policies and Stock Ownership Guidelines, and understands that there may be certain times during the year that the Grantee will be prohibited from selling, transferring, donating, assigning, mortgaging, hypothecating or otherwise encumbering the Company securities.

9. No Employment or Other Rights . The Grant of the Option shall not confer upon the Grantee any right to be retained by or in the employ or service of the Employer and shall not interfere in any way with the right of the Employer to terminate at will the Grantee’s employment or service at any time. Except to the extent expressly set forth in any employment agreement, offer letter or similar agreement between the Employer and the Grantee, the right of the Employer to terminate at will the Grantee’s employment or service at any time for any reason is specifically reserved.

10. No Stockholder Rights . Neither the Grantee, nor any person entitled to exercise the Grantee’s rights in the event of the Grantee’s death, shall have any of the rights and privileges of a stockholder with respect to the shares of Company Stock subject to the Option, until such shares are actually issued following exercise of the Option.

11. Confidential Information, Non-Competition and Non-Solicitation . The Grantee affirms his or her obligations under the Nondisclosure and Noncompete Agreement for Management Employees or similar agreement between the Employer and the Grantee.

12. Assignment and Transfers . Except as the Committee may otherwise permit pursuant to the Plan, the rights and interests of the Grantee under this Agreement may not be sold, assigned, encumbered or otherwise transferred except, in the event of the death of the Grantee, by will or by the laws of descent and distribution. In the event of any attempt by the Grantee to alienate, assign, pledge, hypothecate, or otherwise dispose of the Option or any right hereunder, except as provided for in this Agreement, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company may terminate the Option by notice to the Grantee, and the Option and all rights hereunder shall thereupon become null and void. The rights and protections of the Company hereunder shall extend to any successors or assigns of the Company and to the Company’s parents, subsidiaries, and affiliates. This Agreement may be assigned by the Company without the Grantee’s consent.

13. Effect on Other Benefits . The value of this Option or the shares of Company Stock received upon exercise of the Option shall not be considered eligible earnings for purposes of any other plans maintained by the Company or the Employer. Neither shall such value be considered part of the Grantee’s compensation for purposes of determining or calculating other benefits that are based on compensation, such as life insurance.

 

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14. Applicable Law . The validity, construction, interpretation and effect of this instrument shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflicts of laws provisions thereof.

15. Notice . Notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier addressed, in the case of the Company, c/o its General Counsel at its principal executive office and, in the case of the Grantee, to his or her most recent address set forth in the personnel records of the Company.

16. Entire Agreement . This Agreement, together with the Plan, represents the entire agreement between the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to the subject matter hereof.

17. Amendment . This Agreement cannot be changed, modified, extended or terminated except upon written amendment executed by the parties hereto. Any such written amendment must be approved by the Committee to be effective against the Company.

18. Consent to Electronic Delivery . The Grantee hereby authorizes the Company to deliver electronically any prospectuses or other documentation related to this Agreement, the Plan and any other compensation or benefit plan or arrangement in effect from time to time (including, without limitation, reports, proxy statements or other documents that are required to be delivered to participants in such plans or arrangements pursuant to federal or state laws, rules or regulations). For this purpose, electronic delivery will include, without limitation, delivery by means of e-mail or e-mail notification that such documentation is available on the Company’s intranet site. Upon written request, the Company will provide to the Grantee a paper copy of any document also delivered to the Grantee electronically. The authorization described in this paragraph may be revoked by the Grantee at any time by written notice to the Company.

[ Remainder of page intentionally left blank; signature page follows ]

 

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IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this Agreement, and the Grantee has placed his or her signature hereon, on this [    ] day of [            ].

 

      NUTRISYSTEM, INC.
Attest:        

 

    By:  

 

Name:       Name:  
Title:       Title:  

I hereby accept the Grant of the Option described in this Agreement, and I agree to be bound by the terms of the Plan and this Agreement. I hereby further agree that all of the decisions and determinations of the Committee shall be final and binding.

 

 

Grantee: [NAME]

 

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Exhibit 10.3

NUTRISYSTEM, INC.

AMENDED AND RESTATED NUTRISYSTEM, INC.

2008 LONG-TERM INCENTIVE PLAN

2015 RESTRICTED STOCK AWARD AGREEMENT

(Name)

This RESTRICTED STOCK AWARD AGREEMENT (the “ Agreement ”), dated as of [                    ] (the “ Date of Grant ”), is delivered by NutriSystem, Inc. to [            ] (the “ Grantee ”).

RECITALS

A. The Amended and Restated NutriSystem, Inc. 2008 Long-Term Incentive Plan, as may be amended from time to time (the “ Plan ”), permits the Grant of Stock Awards in accordance with the terms and conditions of the Plan.

B. The Compensation Committee of the Board of Directors of the Company has approved this Stock Award under the Plan.

NOW, THEREFORE, the parties to this Agreement, intending to be legally bound hereby, agree as follows:

1. Stock Award .

(a) Subject to the terms and conditions set forth in this Agreement and the Plan, the Committee hereby grants to the Grantee [                ] shares of Company Stock, subject to the restrictions set forth below and in the Plan (the “ Restricted Stock ”) and acknowledges payment by the Grantee of [$        ] ($0.001 per share) for the Restricted Stock. Shares of Restricted Stock may not be transferred by the Grantee or subjected to any security interest until the shares have become vested pursuant to this Agreement and the Plan.

(b) Capitalized terms used but not otherwise defined herein will have the meanings defined in the Plan.

2. Vesting and Nonassignability of Restricted Stock .

(a) Except as provided in Paragraphs 2(b) and 2(c) , the shares of Restricted Stock shall become vested, and the restrictions described in Paragraph 2(f) shall lapse, according to the following vesting schedule, if the Grantee continues to be employed by, or provide services to, the Employer from the Date of Grant until the applicable vesting date:

(i) 33-1/3% of the shares subject to the Restricted Stock shall become vested on the first anniversary of the Date of Grant;


(ii) 33-1/3% of the shares subject to the Restricted Stock shall become vested on the second anniversary of the Date of Grant; and

(iii) 33-1/3% of the shares subject to the Restricted Stock shall become vested on the third anniversary of the Date of Grant.

The vesting of the shares subject to the Restricted Stock shall be cumulative, but shall not exceed 100% of the shares subject to the Restricted Stock. If the foregoing schedule would produce fractional shares, the number of shares that vest shall be rounded down to the nearest whole share.

(b) If, prior to the date 100% of the Restricted Stock becomes vested, the Grantee ceases to be employed by, or provide services to, the Employer on account of (i) the death of the Grantee, (ii) termination by the Employer because the Grantee becomes “totally disabled” (as defined below), (iii) a termination by the Employer without “cause” (as defined below), or (iv) the resignation by the Grantee with “good reason” (as defined below), then the next tranche of shares that would otherwise have vested under Paragraph 2(a) (but for such cessation of employment or service) will become vested as of the date of such cessation; provided that , in its discretion, the Company may condition such accelerated vesting on the execution by the Grantee or the Grantee’s estate (as applicable) of a release of claims in a form prescribed by the Company and on that release becoming irrevocable within 30 days following the cessation of the Grantee’s employment or service.

(c) If a cessation of employment or service described in Paragraph 2(b) occurs within one (1) year following a Change of Control, then in lieu of accelerating the vesting of only the next tranche of shares, 100% of the Restricted Stock will become vested as of the date of such termination of employment or service (subject to the satisfaction of the release requirements described in Paragraph 2(b) ).

(d) For purposes of this Agreement:

(i) “cause” will have the meaning defined in any employment agreement, offer letter or similar agreement between the Employer and the Grantee or, in the absence of such an agreement: (a) the Grantee’s conviction of a felony, or (b) a determination of the Committee that the Grantee has: (1) committed an act of fraud, embezzlement or theft, (2) caused intentional damage to the property of the Employer, (3) materially breached any agreement with the Employer, any duty owed to the Company or its stockholders or any published policy of the Employer, which breach (if curable) is not cured within 30 days after receiving written notice from the Employer identifying the breach, or (4) engaged in gross misconduct or gross negligence in the course of employment or service.

(ii) “good reason” will have the meaning defined in any employment agreement, offer letter or similar agreement between the Employer and the Grantee or, in the absence of such an agreement: (a) a material diminution of the Grantee’s title, authority or duties, (b) a material reduction in the Grantee’s base salary, or (c) a relocation by more than 50 miles of the Grantee’s principal worksite; provided that, any such event will constitute “good reason” only if the Grantee notifies the Employer in writing of such event within 90 days following the initial occurrence thereof, the

 

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Employer fails to cure such event within 30 days after receipt from the Grantee of that written notice, and the Grantee resigns his or her employment within 30 days following the expiration of that cure period.

(iii) “totally disabled” means a condition entitling Grantee to benefits under any long-term disability plan or policy maintained or funded by the Employer.

(e) Except as otherwise provided in this Paragraph 2 , if the Grantee’s employment or service with the Employer terminates for any reason before the Restricted Stock is fully vested, the shares of Restricted Stock that are not then vested (or do not then become vested) shall be forfeited and must be immediately returned to the Company, and the Company shall pay to the Grantee, as consideration for the return of the non-vested shares, the lesser of $0.001 per share or the Fair Market Value of a share of Company Stock on the date of the forfeiture, for each returned share.

(f) During the period before the shares of Restricted Stock vest (the “ Restriction Period ”), the non-vested shares of Restricted Stock may not be assigned, transferred, pledged or otherwise disposed of by the Grantee. Any attempt to assign, transfer, pledge or otherwise dispose of the shares contrary to the provisions hereof, and the levy of any execution, attachment or similar process upon the shares, shall be null, void and without effect.

3. Issuance of Shares .

(a) The Company will cause the Restricted Stock to be issued in the Grantee’s name either by book-entry registration or issuance of a stock certificate or certificates. While the Restricted Stock remains unvested, the Company will cause an appropriate stop-transfer order to be issued and to remain in effect with respect to the Restricted Stock. As soon as practicable following the vesting of any of the Restricted Stock (and provided that appropriate arrangements have been made with the Company for the satisfaction of any required tax withholding), the Company will cause the stop-transfer order to be removed from an appropriate number of shares.

(b) If any certificate is issued in respect of Restricted Stock, that certificate will include such legends as the Company determines are appropriate and will be held in escrow by the Company or its designee. In addition, the Grantee may be required to execute and deliver to the Company or its designee a stock power with respect to the Restricted Stock. When any certificated Restricted Stock becomes vested, the Company will cause a new certificate to be issued without that portion of the legend referencing the forfeiture conditions described in Paragraph 2 and will cause that new certificate to be delivered to the Grantee (provided that appropriate arrangements have been made with the Company for the satisfaction of any required tax withholding).

(c) During the Restriction Period, the Grantee shall receive any cash dividends or other distributions paid with respect to the shares of Restricted Stock and may vote the shares of Restricted Stock. In the event of a dividend or distribution payable in stock or other property or a reclassification, split up or similar event during the Restriction Period, the shares or other property issued or declared with respect to the non-vested shares of Restricted Stock shall be subject to the same forfeiture conditions and transfer restrictions as those non-vested shares.

(d) The obligation of the Company to deliver shares upon the vesting of the Restricted Stock shall be subject to all applicable laws, rules, and regulations and such approvals by governmental agencies as may be deemed appropriate to comply with relevant securities laws and regulations.

 

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4. Dissolution or Liquidation; Sale or Merger . In the event of a dissolution, liquidation, sale or merger of the Company or similar event or transaction, the Committee may take such actions with respect to the Restricted Stock as it deems appropriate and consistent with the Plan.

5. Grant Subject to Plan Provisions . This Grant is made pursuant to the Plan, the terms of which are incorporated herein by reference, and in all respects shall be interpreted in accordance with the Plan. The Grant is subject to interpretations, regulations and determinations concerning the Plan established from time to time by the Committee in accordance with the provisions of the Plan, including, but not limited to, provisions pertaining to (i) rights and obligations with respect to withholding taxes, (ii) the registration, qualification or listing of the shares, (iii) changes in capitalization of the Company, and (iv) other requirements of applicable law. The Committee shall have the authority to interpret and construe the Grant pursuant to the terms of the Plan, and its decisions shall be conclusive as to any questions arising hereunder.

6. Withholding . The Grantee shall be required to pay to the Employer, or make other arrangements satisfactory to the Employer to provide for the payment of, any federal, state, local or other taxes that the Employer is required to withhold with respect to the Grant or vesting of the Restricted Stock. Subject to Committee approval, the Grantee may elect to satisfy any tax withholding obligation of the Employer with respect to the Restricted Stock by having vested shares withheld up to an amount that does not exceed the minimum applicable withholding tax rate for federal (including FICA), state, local and other tax liabilities. Notwithstanding anything to the contrary in the Plan or this Agreement, until the Grantee has satisfied the Employer’s withholding obligation with respect to the shares of Restricted Stock, the Grantee shall not have any rights to sell or transfer any shares that have become vested pursuant to Paragraph 2 .

7. Restrictions on Sale or Transfer of Shares .

(a) The Grantee will not sell, transfer, pledge, donate, assign, mortgage, hypothecate or otherwise encumber the shares underlying this Grant unless the shares are registered under the 1933 Act, or the Company is given an opinion of counsel reasonably acceptable to the Company that such registration is not required under the 1933 Act.

(b) In consideration for this Grant of Restricted Stock, the Grantee agrees to be bound by the Employer’s policies as in effect from time to time, including, but not limited to, the Company’s Insider Trading, Anti-Hedging and Clawback Policies and Stock Ownership Guidelines, and understands that there may be certain times during the year that the Grantee will be prohibited from selling, transferring, donating, assigning, mortgaging, hypothecating or otherwise encumbering the Company’s securities.

8. No Employment or Other Rights . This Grant shall not confer upon the Grantee any right to be retained by or in the employ or service of the Employer and shall not interfere in any way with the right of the Employer to terminate the Grantee’s employment or service at any time. Except to the extent expressly set forth in any employment agreement, offer letter or similar agreement between the Employer and the Grantee, the right of the Employer to terminate at will the Grantee’s employment or service at any time for any reason is specifically reserved.

 

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9. Confidential Information, Non-Competition and Non-Solicitation . The Grantee affirms his or her obligations under the Nondisclosure and Noncompete Agreement for Management Employees or similar agreement between the Employer and the Grantee.

10. Assignment by Company . The rights and protections of the Company hereunder shall extend to any successors or assigns of the Company and to the Company’s parents, subsidiaries, and affiliates. This Agreement may be assigned by the Company without the Grantee’s consent.

11. Effect on Other Benefits . The value of this Grant or the shares of Company Stock subject hereto shall not be considered eligible earnings for purposes of any other plan maintained by the Company or the Employer. Neither shall such value be considered part of the Grantee’s compensation for purposes of determining or calculating other benefits that are based on compensation, such as life insurance.

12. Applicable Law . The validity, construction, interpretation and effect of this instrument shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the conflicts of laws provisions thereof.

13. Notice . Notices permitted or required under this Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier addressed, in the case of the Company, c/o its General Counsel at its principal executive office and, in the case of the Grantee, to his or her most recent address set forth in the personnel records of the Company.

14. Entire Agreement . This Agreement, together with the Plan, represents the entire agreement between the parties hereto relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions, agreements and understandings of every nature relating to the subject matter hereof.

15. Amendment . This Agreement cannot be changed, modified, extended or terminated except upon written amendment executed by the parties hereto. Any such written amendment must be approved by the Committee to be effective against the Company.

16. Consent to Electronic Delivery . The Grantee hereby authorizes the Company to deliver electronically any prospectuses or other documentation related to this Agreement, the Plan and any other compensation or benefit plan or arrangement in effect from time to time (including, without limitation, reports, proxy statements or other documents that are required to be delivered to participants in such plans or arrangements pursuant to federal or state laws, rules or regulations). For this purpose, electronic delivery will include, without limitation, delivery by means of e-mail or e-mail notification that such documentation is available on the Company’s intranet site. Upon written request, the Company will provide to the Grantee a paper copy of any document also delivered to the Grantee electronically. The authorization described in this paragraph may be revoked by the Grantee at any time by written notice to the Company.

[ Remainder of page intentionally left blank; signature page follows ]

 

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IN WITNESS WHEREOF, the Company has caused its duly authorized officer to execute this Agreement, and the Grantee has placed his or her signature hereon, on this [    ] day of [            ].

 

    NUTRISYSTEM, INC.
Attest:      

 

    By:  

 

Name:     Name:  
Title:     Title:  

I hereby accept the Grant of Restricted Stock described in this Agreement, and I agree to be bound by the terms of the Plan and this Agreement. I hereby further agree that all of the decisions and determinations of the Committee shall be final and binding.

 

 

Grantee: [NAME]

 

-6-

Exhibit 10.4

 

 

LOGO

January 2, 2015

Ms. Dawn M. Zier

[Address Redacted]

Dear Dawn:

Reference is hereby made to the letter agreement between us dated November 1, 2012 (the “ Agreement ”). The parties hereby agree to amend the Agreement as of the date first set forth above on the terms set forth in this letter agreement (this “ First Amendment ”).

With respect to the provisions in the Agreement set forth opposite the caption labelled “Annual Bonus Opportunity for 2013 and Later Years”, (i) the first sentence thereof is hereby deleted in its entirety and replaced with the following: “Target annual bonus will be 100% of then current Base Salary”; and (ii) the second sentence thereof is hereby amended to delete the percentage “150%” referenced therein and to replace it with the percentage “200%.” Except as expressly amended by this First Amendment, the terms of the Agreement are unchanged and remain in full force and effect.

To acknowledge your agreement with the foregoing, please sign this First Amendment in the space provided below and return it to me. Please retain a copy for your records.

 

Sincerely,
/s/ Michael P. Monahan
Michael P. Monahan
Executive Vice President and CFO

Agreed and accepted:

 

/s/ Dawn M. Zier

Dawn M. Zier

Exhibit 10.5

 

 

LOGO

January 2, 2015

Mr. Michael P. Monahan

[Address Redacted]

Dear Mike:

Reference is hereby made to the letter agreement between us dated April 19, 2013 (the “ Agreement ”). The parties hereby agree to amend the Agreement as of the date first set forth above on the terms set forth in this letter agreement (this “ First Amendment ”).

With respect to the provisions in the Agreement set forth opposite the caption labelled “Annual Cash Bonus Opportunity”, the second sentence thereof is hereby amended to delete the percentage “150%” referenced therein and to replace it with the percentage “200%.” Except as expressly amended by this First Amendment, the terms of the Agreement are unchanged and remain in full force and effect.

To acknowledge your agreement with the foregoing, please sign this First Amendment in the space provided below and return it to me. Please retain a copy for your records.

 

Sincerely,
/s/ Dawn M. Zier
Dawn M. Zier
President and CEO

Agreed and accepted:

 

/s/ Michael P. Monahan

Michael P. Monahan

Exhibit 10.6

 

 

LOGO

January 2, 2015

Ms. Keira Krausz

[Address Redacted]

Dear Keira:

Reference is hereby made to the letter agreement between us dated February 5, 2013 (the “ Agreement ”). The parties hereby agree to amend the Agreement as of the date first set forth above on the terms set forth in this letter agreement (this “ First Amendment ”).

With respect to the provisions in the Agreement set forth opposite the caption labelled “Annual Cash Bonus Opportunity”, the second sentence thereof is hereby amended to delete the percentage “150%” referenced therein and to replace it with the percentage “200%.” Except as expressly amended by this First Amendment, the terms of the Agreement are unchanged and remain in full force and effect.

To acknowledge your agreement with the foregoing, please sign this First Amendment in the space provided below and return it to me. Please retain a copy for your records.

 

Sincerely,
/s/ Dawn M. Zier
Dawn M. Zier
President and CEO

Agreed and accepted:

 

/s/ Keira Krausz

Keira Krausz