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) August 1, 2018 (July 30, 2018)

 

 

VITAMIN SHOPPE, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-34507   11-3664322
(State or Other Jurisdiction   (Commission   (IRS Employer
of Incorporation)   File Number)   Identification No.)

300 Harmon Meadow Blvd.

Secaucus, New Jersey 07094

(Address of Principal Executive Offices, including Zip Code)

(201) 868-5959

(Registrant’s Telephone Number, including Area Code)

Not Applicable

(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 (see General Instruction A.2. below):

 

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))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging Growth Company

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

 

 

 


ITEM 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

On August 1, 2018, Vitamin Shoppe, Inc. (the “ Company ”) reported that David Mock will become the Executive Vice President—Chief Merchandising and Marketing Officer, effective July 30, 2018. Mr. Mock, 58, has served as consultant to the Company since January 12, 2018.

Prior to joining the Company, Mr. Mock served as President of D Mock Retail Rebuild Ltd. since January, 2014. Prior to founding D Mock Retail Rebuild Ltd., he served as Chief Merchandising & Marketing Officer for Earth Fare from 2014 until 2016. From 2012 through 2013, Mr. Mock served as Senior Vice President Merchandising, Global Sourcing and Innovation Officer for Canadian Tire Retail. Prior to joining Canadian Tire Retail, Mr. Mock served as Senior Vice President Merchandising, Hardlines, Consumables, Pharmacy, Haba/Cosmetics for Zellers from 2008 to 2012. From 1983 through 2007, Mr. Mock held various positions at Loblaw Companies Limited, the last being Senior Vice President Food Merchandising and Marketing in 2007. Mr. Mock is a graduate of the University of Toronto.

In connection with Mr. Mock’s employment as Executive Vice President—Chief Merchandising and Marketing Office of the Company, Mr. Mock will be entitled to receive: (i) an annual base salary of $500,000; (ii) a cash signing bonus of $500,000 (subject to continued service for two years); (iii) a target annual bonus opportunity equal to 50% of his eligible earnings; and (iv) equity grants valued at $500,000 in the aggregate as of the grant date, comprised of 31,250 restricted stock units, vesting 50% on the second anniversary of the award date and 50% on the third anniversary of the award date and 31,250 performance share units, vesting in December 2020 (the “ Inducement Award ”). A copy of the respective restricted stock unit agreement and performance share unit grant forms comprising the Inducement Award are attached hereto as Exhibits 10.1 and 10.2, respectively. The Inducement Award generally incorporate the terms of the Vitamin Shoppe 2018 Long-Term Incentive Plan (the “ 2018 Plan ”), provided that as a technical matter, the Inducement Award will be granted in reliance on the employment inducement exemption under NYSE 303A.08 and, therefore, will not be technically settled in shares from the 2018 Plan.

The foregoing summary of the terms of Mr. Mock’s employment does not purport to be complete and is qualified in its entirety by reference to the full text of the Offer Letter Agreement, dated as of January 12, 2018, by and between David Mock, and the Company (the “ Offer Letter ”), a copy of which is attached as Exhibit 10.3 hereto, and the Inducement Award.

ITEM 7.01 Regulation FD Disclosure.

On August 1, 2018, the Company issued a press release announcing Mr. Mock’s appointment. A copy of the press release is filed as Exhibit 99.1 to this Current Report on Form 8-K and the information contained therein is incorporated herein by reference.


NOTE: The information furnished under Item 7.01 (Regulation FD Disclosure) of this Current Report on Form 8-K shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit
No.

  

Description of Document

10.1    Form of Restricted Stock Unit Award Agreement.
10.2    Form of Performance Share Unit Award Agreement.
10.3    Offer Letter Agreement, dated as of January 12, 2018, by and between David Mock, and the Company.
99.1    Press Release dated as of August 1, 2018.


SIGNATURES

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

 

  VITAMIN SHOPPE, INC.
Date: August 1, 2018   By:  

/s/ David M. Kastin

    Name:   David M. Kastin
    Title:   Senior Vice President, General Counsel and
      Corporate Secretary

Exhibit 10.1

VITAMIN SHOPPE, INC.

RESTRICTED STOCK UNIT AWARD AGREEMENT

pursuant to the

VITAMIN SHOPPE 2018 LONG-TERM INCENTIVE PLAN

* * * * *

Participant: David Mock

Grant Date:                     

Number of Restricted Stock Units Granted:                     

* * * * *

THIS AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between Vitamin Shoppe, Inc., a company organized in the State of Delaware (the “ Company ”), and the Participant specified above, pursuant to the Vitamin Shoppe 2018 Long-Term Incentive Plan, as in effect and as amended from time to time (the “ Plan ”); and

WHEREAS, it has been determined by the Committee that it would be in the best interests of the Company to grant the Restricted Stock Units (“ RSUs ”) provided herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1 Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time unless such amendments are expressly intended not to apply to the award provided hereunder), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were expressly set forth herein; provided, that this Agreement is being granted in reliance on the employment inducement exemption under NYSE 303A.08, and, therefore, no Shares issued hereunder shall be drawn from the Share reserve limits set forth in Section 4.1 of the Plan. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of a conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control.

2 Grant of RSUs . The Company hereby grants to the Participant, as of the Grant Date specified above, the number of RSUs specified above. Except as otherwise provided by Section 10 of the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against


potential future dilution of the Participant’s interest in the Company for any reason. Other than as specified in Section  5 hereof, the Participant shall not have the rights of a stockholder (including any voting rights) in respect of the Shares underlying the RSUs unless and until such Shares are delivered to the Participant in accordance with Section  4 .

3 Vesting The RSUs subject to this grant shall become unrestricted and vested: (i) as to the first 50% of the RSUs, on the second anniversary of the Grant Date specified above; and (ii) as to the second 50% of the RSUs, on the third anniversary of the Grant Date specified above.

4 Delivery of Shares . Subject to the terms of the Plan and this Section  4 , to the extent the RSUs awarded by this Agreement vest, the Company shall promptly distribute (any such distribution date, a “ Settlement Date ”) to the Participant the number of Shares equal to the number of RSUs that so vested; provided that, if applicable, the Company may defer the Settlement Date of Shares to a date the Participant is not subject to any Company “blackout” policy or other trading restriction imposed by the Company; provided , further , any such Settlement Date shall in any event occur by the date that is two and one-half (2-1/2) months from the end of the calendar year in which the applicable RSUs vested. In connection with the delivery of Shares pursuant to this Agreement, the Participant agrees to execute any documents reasonably requested by the Company. In no event shall the RSUs be settled in fractional Shares (fractional Shares will be rounded down to the next lowest whole number).

5 Dividends and Other Distributions . Participants holding RSUs shall be entitled to receive all dividends and other distributions paid with respect to the underlying Shares, provided that any such dividends or other distributions will be subject to the same vesting requirements as the underlying RSUs and shall be paid upon the applicable Settlement Date. If any dividends or distributions are paid in Shares, the Shares shall be deposited with the Company and shall be subject to the same restrictions on transferability and forfeitability as the RSUs with respect to which they were paid.

6 Special Rules Regarding Restrictive Covenants .

6.1 Company Rights . In the event that the Participant’s employment with the Company or one of its Subsidiaries or Related Companies is terminated for “Cause” (as defined below) or if Participant fails to comply with this Section  6 , the Company may cancel any or all outstanding RSUs.

 

  (a)

For purposes of this Agreement, “ Cause ” means any of the following: (i) theft or misappropriation of funds or other property of the Company; (ii) alcoholism or drug abuse, either of which materially impair the ability of the Participant to perform his/her duties and responsibilities hereunder or is injurious to the business of the Company; (iii) the conviction of a felony or pleading guilty or nolo contender to a felony involving moral turpitude; (iv) intentionally causing the Company to violate any local, state or federal law, rule or regulation that harms or may harm the Company in any

 

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  material respect; (v) gross negligence or willful misconduct in the conduct or management of the Company which materially affects the Company, not remedied within thirty (30) days after receipt of written notice from the Company; (vi) willful refusal to comply with any significant policy, directive or decision of the Chief Executive Officer, any other executive(s) of the Company to whom the Participant reports, or the Board in furtherance of a lawful business purpose or willful refusal to perform the duties reasonably assigned to the Participant by the Chief Executive Officer, any other executive(s) of the Company to whom the Participant reports, or the Board consistent with the Participant’s functions, duties and responsibilities, in each case, in any material respect, not remedied within thirty (30) days after receipt of written notice from the Company; (vii) breach (other than by reason of physical or mental illness, injury or condition) of any other material obligation to the Company that is or could reasonably be expected to result in material harm to the Company not remedied within thirty (30) days after receipt of written notice of such breach from the Company; (viii) violation of the Company’s operating and or financial/accounting procedures which results in material loss to the Company, as determined by the Company; or (ix) violation of the Company’s confidentiality, non-compete or non-solicit requirements (including those set forth in this Agreement) or code of business conduct.

6.2 Nondisclosure of Confidential and Proprietary Information . The obligation of confidentiality by the Participant set forth in the Company’s agreements(s) with the Participant or policies of the Company binding on or covering the Participant shall remain in effect for perpetuity regardless of any cessation of payment pursuant to this Agreement, such that the Participant shall not disclose confidential information of or pertaining to the Company at any time.

6.3 Non-Competition . During the period of a Participant’s employment and for one (1) year thereafter (or two (2) years thereafter, in the event of a termination following a Change in Control), the Participant shall not, without the Company’s prior written consent, directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, consultant or otherwise with, any profit or non-profit business or organization in the United States that, directly or indirectly, manufactures, markets, distributes or sells (through wholesale, retail or direct marketing channels including, but not limited to, mail order and internet distribution) vitamins, minerals, nutritional supplements, herbal products, sports nutrition products, bodybuilding formulas or homeopathic remedies (the “ Competitive Products ”) if, except with respect to the companies listed below, the sale/distribution of the Competitive Products represent one-third (1/3) or more of such business or organization’s gross sales in the proceeding twelve (12) months from the Participant’s termination of employment date (the “ Competitive Business ”); provided, however, that the Participant can work for a business or organization (other than the companies listed below) that sells Competitive Products that is less than one-third (1/3) of such gross sales only if the Participant is not directly or indirectly involved in that part of the business or organization that deals with, or has knowledge of, the Competitive Products. Notwithstanding, and without limiting, the foregoing, the following

 

3


companies constitute a Competitive Business: [GNC, Rite Aid, Whole Foods, Vitacost, Walgreens, CVS, Nature’s Bounty, Bodybuilding.com, Swanson, Sprout’s Sunflower Markets and Vitamin Cottage. Notwithstanding the foregoing, the Participant may be a passive owner (which shall not prohibit the exercise of any rights as a shareholder) of not more than five percent (5%) of the outstanding stock of any class of any public corporation that engages in a Competitive Business.

6.4 Non-Solicitation . During the period of a Participant’s employment and for one (1) year thereafter (or two (2) years thereafter, in the event of a termination following a Change in Control), the Participant shall not directly or indirectly (i) cause any person or entity to, either for the Participant or for any other person, business, partnership, association, firm, company or corporation, hire from the Company or attempt to hire, divert or take away from the Company, any of the officers or employees of the Company who were employed by the Company during the twelve (12) months prior to the termination date of the Participant’s employment; or (ii) cause any other person or entity to, either for the Participant or for any other person, business, partnership, association, firm, company or corporation, attempt to divert or take away from the Company or its subsidiaries any of the business or vendors of the Company.

6.5 Remedies . The Participant and the Company acknowledge that the restrictions imposed by this Section  6 are reasonably necessary to protect the legitimate business interests of the Company, and that the Company would not be willing to offer the RSUs granted hereunder in the absence of such agreement. The Participant agrees that any breach of this Section  6 by the Participant would cause irreparable damage to the Company and that in the event of such breach, the Company shall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation of any obligations hereunder, without the necessity of posting a bond, plus if the Company prevails with respect to any dispute between the Company and the Participant as to the interpretation, terms, validity or enforceability of this Section 6, the recovery of any and all costs and expenses incurred by the Company, including reasonable attorneys’ fees in connection with the enforcement of this Section  6 . The Participant further acknowledges and agrees that any period of time during which he or she is in violation of the covenants set forth in this Section  6 shall be added to the applicable restricted period. Resort to such equitable relief shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise.

6.6 Forfeiture and Repayment . The Participant may be required to repay to the Company the proceeds received in connection with, or return to the Company, the RSUs: (i) if during the course of employment, the Participant engages in conduct, or it is discovered that the Participant has engaged in conduct, that is (x) materially adverse to the interest of the Company, which include failures to comply with the Company’s written rules or regulations and material violations of any agreement with the Company, (y) fraud, or (z) conduct contributing to any financial restatements or irregularities occurring during or after employment; (ii) if during the course of employment, the Participant competes with, or engages in the solicitation and/or diversion of customers, vendors or employees of, the Company or it is discovered that the executive employee has engaged in such conduct; (iii) if following termination of employment, the Participant violates any post-termination obligations or duties owed to, or any agreement with, the Company, which includes this Agreement, any employment agreement and other

 

4


agreements restricting post-employment conduct; (iv) if following termination of employment, the Company discovers facts that would have supported a termination for Cause had such facts been known to the Company before the termination of employment; and (v) if compensation that is promised or paid to the Participant is required to be forfeited and/or repaid to the Company pursuant to applicable regulatory requirements as in effect from time to time and/or such forfeiture or repayment affects amounts or benefits payable under this Agreement.

7 Non-transferability . The RSUs, and any rights and interests with respect thereto, issued under this Agreement and the Plan shall not, prior to vesting, be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary(ies) of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Any such RSUs, and any rights and interests with respect thereto, shall not, prior to vesting, be pledged, encumbered or otherwise hypothecated in any way by the Participant (or any beneficiary(ies) of the Participant) and shall not, prior to vesting, be subject to execution, attachment or similar legal process. Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way any of the RSUs, or the levy of any execution, attachment or similar legal process upon the RSUs, contrary to the terms and provisions of this Agreement and/or the Plan, shall be null and void and without legal force or effect.

8 Entire Agreement; Amendment . This Agreement, together with the Plan, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

9 Acknowledgment of Employee . This grant of RSUs does not entitle the Participant to any benefit other than that granted under this Agreement. Any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation. The Participant understands and accepts that the benefits granted under the Plan are entirely at the grace and discretion of the Company and that the Company retains the right to amend or terminate the Plan at any time, at their sole discretion and without notice.

10 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to the principles of conflict of laws thereof.

11 Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the RSUs and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Shares otherwise required to be issued pursuant to this Agreement.

 

 

5


12 No Right to Employment . Any questions as to whether and when there has been a termination of such employment and the cause of such termination shall be determined in the sole discretion of the Company. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or Affiliates or Related Companies to terminate the Participant’s employment or service at any time, for any reason and with or without cause.

13 Notices . Any notice which may be required or permitted under this Agreement shall be in writing and shall be delivered in person, or via facsimile transmission, overnight courier service or certified mail, return receipt requested, postage prepaid, properly addressed as follows:

13.1 If such notice is to the Company, to the attention of the Secretary of Company or at such other address as the Company, by notice to the Participant, shall designate in writing from time to time.

13.2 If such notice is to the Participant, at his or her address as shown on the Company’s records, or at such other address as the Participant, by notice to the Company, shall designate in writing from time to time.

14 Compliance with Laws . The issuance of the Shares pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act of 1933, as amended (the “ 1933 Act ”), the 1934 Act and the respective rules and regulations promulgated thereunder) and any other law or regulation applicable thereto. The Company shall not be obligated to issue any of the Shares pursuant to this Agreement if such issuance would violate any such requirements.

15 Securities Representations . The RSUs are being issued to the Participant and this Agreement is being made by the Company in reliance upon the following express representations and warranties of the Participant. The Participant acknowledges, represents and warrants that:

15.1 The Participant has been advised that the Participant may be an “affiliate” within the meaning of Rule 144 under the 1933 Act and in this connection the Company is relying in part on the Participant’s representations set forth in this Section  15 .

15.2 If the Participant is deemed an affiliate within the meaning of Rule 144 of the 1933 Act, the Shares must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a “re-offer prospectus”) with regard to the Shares and the Company is under no obligation to register the Shares (or to file a “re-offer prospectus”).

 

 

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15.3 If the Participant is deemed an affiliate within the meaning of Rule 144 of the 1933 Act, the Participant understands that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for the Shares, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with, and that any sale of the Shares may be made only in limited amounts in accordance with such terms and conditions.

16 Binding Agreement; Assignment . This Agreement shall inure to the benefit of, be binding upon, and be enforceable by, the Company and its successors and assigns. The Participant shall not assign any part of this Agreement without the prior express written consent of the Company.

17 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 shall constitute one and the same instrument.

18 Section 409A . This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of noncompliance with Section 409A of the Code.

19 Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

20 Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

21 Waiver of Jury Trial . THE PARTICIPANT WAIVES ANY RIGHT HE OR SHE MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.

22 Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.

[Remainder of Page Left Intentionally Blank]

 

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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and the Participant has hereunto set his/her hand, all as of the Grant Date specified above.

 

VITAMIN SHOPPE, INC.
By:  

 

Name:   David M. Kastin
Title:   Senior Vice President, General Counsel & Corporate Secretary

 

Participant

Exhibit 10.2

VITAMIN SHOPPE, INC.

PERFORMANCE STOCK UNIT AWARD AGREEMENT

pursuant to the

VITAMIN SHOPPE 2018 LONG-TERM INCENTIVE PLAN

* * * * *

Participant: David Mock

Grant Date:                     

Number of Performance Stock Units granted (at Target):                     

* * * * *

THIS AWARD AGREEMENT (this “ Agreement ”), dated as of the Grant Date specified above, is entered into by and between Vitamin Shoppe, Inc., a company organized in the State of Delaware (the “ Company ”), and the Participant specified above, pursuant to the Vitamin Shoppe 2018 Long-Term Incentive Plan, as in effect and as amended from time to time (the “ Plan ”); and

WHEREAS, it has been determined by the Committee that it would be in the best interests of the Company to grant the Performance Stock Units provided herein to the Participant.

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows:

1 Incorporation By Reference; Plan Document Receipt . This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time unless such amendments are expressly intended not to apply to the award provided hereunder), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were expressly set forth herein; provided, that this Agreement is being granted in reliance on the employment inducement exemption under NYSE 303A.08, and, therefore, no Shares issued hereunder shall be drawn from the Share reserve limits set forth in Section 4.1 of the Plan. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of a conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control.

2 Grant of Performance Stock Unit Award . The Company hereby grants to the Participant, as of the Grant Date specified above, the number of Performance Stock Units specified above. Except as otherwise provided by Section 10 of the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the


Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason. Other than as specified in Section  5 hereof, the Participant shall not have the rights of a stockholder (including any voting rights) in respect of the Shares underlying this award until such Shares are delivered to the Participant in accordance with Section  4 .

3 Vesting . The Performance Stock Units subject to this grant shall vest in accordance with the terms of Exhibit A attached hereto.

4 Delivery of Shares .

4.1 Subject to the terms of the Plan, to the extent the Performance Stock Units awarded by this Agreement vest, the Company shall promptly distribute to the Participant the number of Shares equal to the number of Performance Stock Units that so vested; provided, that the Company may defer distribution of Shares to a date the Participant is not subject to any Company “blackout” policy or other trading restriction imposed by the Company; provided, further, that absent an election made pursuant to Section  4.2 , any distribution of Shares shall in any event be made by the date that is two and one-half (2-1/2) months from the end of the calendar year in which the applicable Performance Stock Units vested. In connection with the delivery of the Shares pursuant to this Agreement, the Participant agrees to execute any documents reasonably requested by the Company. In no event shall the Performance Stock Units be settled in fractional Shares (fractional Shares will be rounded down to the next lowest whole number).

4.2 If permitted by the Company, the Participant may elect, in accordance with written plans or procedures adopted by the Company from time to time, to defer the distribution of all or any portion of the Shares that would otherwise be distributed to the Participant hereunder (“ Deferred Shares ”). Upon the vesting of Performance Stock Units that have been so deferred, the applicable number of Deferred Shares shall be credited to a bookkeeping account established on the Participant’s behalf (the “ Account ”). Subject to Section  5 , the number of Shares equal to the number of Deferred Shares credited to the Participant’s Account shall be distributed to the Participant in accordance with written plans or procedures adopted by the Company from time to time.

5 Dividends and Other Distributions . Participants holding Performance Stock Units shall be entitled to receive all dividends and other distributions paid with respect to such Shares, provided that any such dividends or other distributions will be subject to the same vesting requirements as the underlying Performance Stock Units and shall be paid at the time the Shares are delivered pursuant to Section  4 . If any dividends or distributions are paid in Shares, the Shares shall be deposited with the Company and shall be subject to the same restrictions on transferability and forfeitability as the Performance Stock Units with respect to which they were paid.

6 Special Rules Regarding Restrictive Covenants .

6.1 Company Rights . In the event that the Participant’s employment with the Company or one of its Subsidiaries or Related Companies is terminated for “Cause” (as defined below) or if Participant fails to comply with this Section  6 , the Company may cancel any outstanding Performance Stock Unit.

 

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For purposes of this Agreement, “ Cause ” means any of the following: (i) theft or misappropriation of funds or other property of the Company; (ii) alcoholism or drug abuse, either of which materially impair the ability of the Participant to perform his/her duties and responsibilities hereunder or is injurious to the business of the Company; (iii) the conviction of a felony or pleading guilty or nolo contender to a felony involving moral turpitude; (iv) intentionally causing the Company to violate any local, state or federal law, rule or regulation that harms or may harm the Company in any material respect; (v) gross negligence or willful misconduct in the conduct or management of the Company which materially affects the Company, not remedied within thirty (30) days after receipt of written notice from the Company; (vi) willful refusal to comply with any significant policy, directive or decision of the Chief Executive Officer, any other executive(s) of the Company to whom the Participant reports, or the Board in furtherance of a lawful business purpose or willful refusal to perform the duties reasonably assigned to the Participant by the Chief Executive Officer, any other executive(s) of the Company to whom the Participant reports or the Board consistent with the Participant’s functions, duties and responsibilities, in each case, in any material respect, not remedied within thirty (30) days after receipt of written notice from the Company; (vii) breach (other than by reason of physical or mental illness, injury, or condition) of any other material obligation to the Company that is or could reasonably be expected to result in material harm to the Company not remedied within thirty (30) days after receipt of written notice of such breach from the Company; (viii) violation of the Company’s operating and or financial/accounting procedures which results in material loss to the Company, as determined by the Company; or (ix) violation of the Company’s confidentiality, non-compete or non-solicit requirements (including those set forth in this Agreement) or Code of Business Conduct.

6.2 Nondisclosure of Confidential and Proprietary Information . The obligation of confidentiality by the Participant set forth in the Company’s agreements(s) with the Participant or policies of the Company binding on or covering the Participant shall remain in effect for perpetuity regardless of any cessation of payment pursuant to this Agreement, such that the Participant shall not disclose confidential information of or pertaining to the Company at any time.

6.3 Non-Competition . During the period of a Participant’s employment and for one (1) year thereafter (or two (2) years thereafter, in the event of a termination following a Change in Control), the Participant shall not, without the Company’s prior written consent, directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected as a director, officer, employee, partner, consultant or otherwise with, any profit or non-profit business or organization in the United States that, directly or indirectly, manufactures, markets, distributes or sells (through wholesale, retail or direct marketing channels including, but not limited to, mail order and internet distribution) vitamins, minerals, nutritional supplements, herbal products, sports nutrition products, bodybuilding formulas or homeopathic remedies (the “ Competitive Products ”) if, except with respect to the companies listed below, the sale/distribution of the Competitive Products represent one-third (1/3) or more of such business or organization’s gross sales in the proceeding twelve (12) months from the Participant’s termination of employment date (the

 

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Competitive Business ”); provided, however, that the Participant can work for a business or organization (other than the companies listed below) that sells Competitive Products that is less than one-third (1/3) of such gross sales only if the Participant is not directly or indirectly involved in that part of the business or organization that deals with, or has knowledge of, the Competitive Products. Notwithstanding, and without limiting, the foregoing, the following companies constitute a Competitive Business: GNC, Rite Aid, Whole Foods, Vitacost, Walgreens, CVS, Nature’s Bounty, Bodybuilding.com, Swanson, Sprout’s Sunflower Markets and Vitamin Cottage. Notwithstanding the foregoing, the Participant may be a passive owner (which shall not prohibit the exercise of any rights as a shareholder) of not more than five percent (5%) of the outstanding stock of any class of any public corporation that engages in a Competitive Business.

6.4 Non-Solicitation . During the period of a Participant’s employment and for one (1) year thereafter (or two (2) years thereafter, in the event of a termination following a Change in Control), the Participant shall not directly or indirectly (i) cause any person or entity to, either for the Participant or for any other person, business, partnership, association, firm, company or corporation, hire from the Company or attempt to hire, divert or take away from the Company, any of the officers or employees of the Company who were employed by the Company during the twelve (12) months prior to the termination date of the Participant’s employment; or (ii) cause any other person or entity to, either for the Participant or for any other person, business, partnership, association, firm, company or corporation, attempt to divert or take away from the Company or its subsidiaries any of the business or vendors of the Company.

6.5 Remedies . The Participant and the Company acknowledge that the restrictions imposed by this Section  6 are reasonably necessary to protect the legitimate business interests of the Company, and that the Company would not be willing to offer the Performance Stock Units pursuant to this Agreement in the absence of such agreement. The Participant agrees that any breach of this Section  6 by the Participant would cause irreparable damage to the Company and that in the event of such breach, the Company shall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation of any obligations hereunder, without the necessity of posting a bond, plus if the Company prevails with respect to any dispute between the Company and the Participant as to the interpretation, terms, validity or enforceability of this Section  6 , the recovery of any and all costs and expenses incurred by the Company, including reasonable attorneys’ fees in connection with the enforcement of this Section  6 . The Participant further acknowledges and agrees that any period of time during which he or she is in violation of the covenants set forth in this Section  6 shall be added to the applicable restricted period. Resort to such equitable relief shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise.

6.6 Forfeiture and Repayment . The Participant may be required to repay to the Company the proceeds received in connection with, or return to the Company, the Performance Stock Units: (i) if during the course of employment the Participant engages in conduct, or it is discovered that the Participant has engaged in conduct, that is (x) materially adverse to the interest of the Company, which include failures to comply with the Company’s written rules or regulations and material violations of any agreement with the Company, (y) fraud, or (z) conduct contributing to any financial restatements or irregularities occurring during

 

4


or after employment; (ii) if during the course of employment, the Participant competes with, or engages in the solicitation and/or diversion of customers, vendors or employees of, the Company or it is discovered that the executive employee has engaged in such conduct; (iii) if following termination of employment, the Participant violates any post-termination obligations or duties owed to, or any agreement with, the Company, which includes this Agreement, any employment agreement and other agreements restricting post-employment conduct; (iv) if following termination of employment, the Company discovers facts that would have supported a termination for Cause had such facts been known to the Company before the termination of employment; and (v) if compensation that is promised or paid to the Participant is required to be forfeited and/or repaid to the Company pursuant to applicable regulatory requirements as in effect from time to time and/or such forfeiture or repayment affects amounts or benefits payable under this Agreement.

7 Non-transferability . Performance Stock Units, and any rights and interests with respect thereto, issued under this Agreement and the Plan shall not, prior to vesting, be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary(ies) of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Any such Performance Stock Units, and any rights and interests with respect thereto, shall not, prior to vesting, be pledged, encumbered or otherwise hypothecated in any way by the Participant (or any beneficiary(ies) of the Participant) and shall not, prior to vesting, be subject to execution, attachment or similar legal process. Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way any of the Performance Stock Units, or the levy of any execution, attachment or similar legal process upon the Performance Stock Units, contrary to the terms and provisions of this Agreement and/or the Plan, shall be null and void and without legal force or effect.

8 Entire Agreement; Amendment . This Agreement, together with the Plan contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof.

9 Acknowledgment of Employee . The award of the Performance Stock Units does not entitle Participant to any benefit other than that granted under this Agreement. Any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation. Participant understands and accepts that the benefits granted under the Plan are entirely at the grace and discretion of the Company and that the Company retains the right to amend or terminate the Plan at any time, at their sole discretion and without notice.

10 Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to the principles of conflict of laws thereof.

 

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11 Withholding of Tax . The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Performance Stock Units and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any Shares otherwise required to be issued pursuant to this Agreement.

12 No Right to Employment . Any questions as to whether and when there has been a termination of such employment and the cause of such termination shall be determined in the sole discretion of the Company. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or Affiliates or Related Companies to terminate the Participant’s employment or service at any time, for any reason and with or without cause.

13 Notices . Any notice which may be required or permitted under this Agreement shall be in writing and shall be delivered in person, or via facsimile transmission, overnight courier service or certified mail, return receipt requested, postage prepaid, properly addressed as follows:

13.1 If such notice is to the Company, to the attention of the Secretary of Company or at such other address as the Company, by notice to the Participant, shall designate in writing from time to time.

13.2 If such notice is to the Participant, at his or her address as shown on the Company’s records, or at such other address as the Participant, by notice to the Company, shall designate in writing from time to time.

14 Compliance with Laws . The issuance of the Shares pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act of 1933, as amended (the “ 1933 Act ”), the 1934 Act and the respective rules and regulations promulgated thereunder) and any other law or regulation applicable thereto. The Company shall not be obligated to issue any of the Shares pursuant to this Agreement if such issuance would violate any such requirements.

15 Securities Representations . The Performance Stock Units are being issued to the Participant and this Agreement is being made by the Company in reliance upon the following express representations and warranties of the Participant. The Participant acknowledges, represents and warrants that:

15.1 The Participant has been advised that the Participant may be an “affiliate” within the meaning of Rule 144 under the 1933 Act, and in this connection the Company is relying in part on the Participant’s representations set forth in this Section  15 .

15.2 If the Participant is deemed an affiliate within the meaning of Rule 144, the Shares must be held indefinitely unless an exemption from any applicable resale restrictions is available or the Company files an additional registration statement (or a “re-offer prospectus”) with regard to the Shares and the Company is under no obligation to register the Shares (or to file a “re-offer prospectus”).

 

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15.3 If the Participant is deemed an affiliate within the meaning of Rule 144, the Participant understands that the exemption from registration under Rule 144 will not be available unless (i) a public trading market then exists for the Shares, (ii) adequate information concerning the Company is then available to the public, and (iii) other terms and conditions of Rule 144 or any exemption therefrom are complied with, and that any sale of the Shares may be made only in limited amounts in accordance with such terms and conditions.

16 Binding Agreement; Assignment . This Agreement shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign any part of this Agreement without the prior express written consent of the Company.

17 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 shall constitute one and the same instrument.

18 Section 409A . This Agreement is intended to comply with Section 409A of the Code or an exemption thereunder and shall be construed and interpreted in a manner that is consistent with the requirements for avoiding additional taxes or penalties under Section 409A of the Code. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A of the Code and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Participant on account of non-compliance with Section 409A of the Code.

19 Headings . The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement.

20 Further Assurances . Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as any other party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder.

21 Waiver of Jury Trial . PARTICIPANT WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.

22 Severability . The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.

[Remainder of Page Left Intentionally Blank]

 

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IN WITNESS WHEREOF , the Company has caused this Agreement to be executed by its duly authorized officer, and the Participant has hereunto set his/her hand, all as of the Grant Date specified above.

 

VITAMIN SHOPPE, INC.
By:  

 

Name:   David M. Kastin
Title:   Senior Vice President, General Counsel & Corporate Secretary

 

Participant


EXHIBIT A

Vesting Conditions

Exhibit 10.3

 

LOGO

January 12, 2018

David Mock

Dear Dave:

Vitamin Shoppe Industries Inc. (“Company” or “The Vitamin Shoppe”) is very pleased to offer you the position of Executive Vice President, Chief Merchandising and Marketing Officer. You will report to the Chief Executive Officer. Your start date will be on a date to be mutually agreed after the issuance of an employment visa by U.S. immigration authorities, as discussed below.

As you know, you cannot perform services as an employee of The Vitamin Shoppe until you obtain an employment visa from U.S. immigration authorities. Therefore, the Company will engage legal counsel to prepare a visa application and you agree to cooperate with the Company and outside legal counsel to gather all required documentation and to prepare to interview with immigration authorities.

The Vitamin Shoppe will pay all costs associated with the visa application and related attorneys’ fees. In addition, The Vitamin Shoppe will reimburse you for all reasonable expenses you may incur in connection with gathering required documentation. The Company anticipates that it will take approximately 8-10 weeks to obtain an employment visa on your behalf, including the time necessary to gather documentation and prepare the application. This offer shall expire if the visa is not obtained and your employment does not commence on or prior to June 1, 2018 (unless such date is extended in writing by the parties hereto).

Your employment will be subject to all Company policies, procedures and practices, including our Standards of Business Conduct and Health Enthusiast Handbook. In addition, by accepting employment with the Company, you agree to arbitrate any disputes arising out of your employment as set forth in the Company’s Dispute Resolution Program, which you will be required to sign prior to beginning your employment with the Company.

The following will outline the general terms of our engagement offer:

1. Position . You will perform the duties and services assigned to you by the Company. You will devote your full time and attention to the affairs of the Company and to your duties on the Company’s behalf. You will not be permitted to engage in outside business activities unless approved by the Company; provided that you may engage in charitable and community activities and manage your personal investments so long as such activities do not, individually or in the aggregate, interfere with the performance of your duties to the Company. Notwithstanding, you will be permitted to continue to serve on the boards of directors of other companies with prior approval from the Company, provided such service does not individually or in the aggregate, interfere with the performance of your duties to the Company.


2. Compensation . During your employment, the Company will pay you a base salary at a bi-weekly rate of $19,230.77 US, less lawful deductions, which is equivalent to $500,000 US on an annualized basis. The Company conducts performance appraisals and merit increase reviews for all employees annually. You will be eligible for a performance appraisal and consideration for a merit in March 2019.

3. Annual Bonus . You will be eligible to participate in the Vitamin Shoppe, Inc. Management Incentive Plan (“MIP”), with a target bonus of 50% of your eligible earnings in each calendar year. Payment of a MIP bonus is made on an annual basis, based upon the Company’s performance against certain targets as outlined or approved by the Board of Directors, and can be increased or decreased based on the actual results and your individual performance toward mutually acceptable objectives. Payments, if any, will usually be paid in the first quarter of the following year, and in all events on or before March 15 of such year, after appropriate approval from the Board of Directors, or the appropriate committee of the Board of Directors. You acknowledge that the Company reserves the right to change the structure of the MIP from time to time in their sole discretion.

4. Sign-On Cash Bonus . As an inducement for you to serve as an employee of the Company, the Company will make a one-time cash payment in the gross amount of $500,000 to you or to your designee promptly following the date your employment commences (the “Sign-On Bonus”). The Sign-on Bonus, or any part of it, shall not be earned until all conditions set out in this letter have been satisfied.

If, within six (6) months after the date of this letter, (A) you give notice of resignation for any reason whatsoever or (B) your employment is terminated by the Company due to (i) a violation of The Vitamin Shoppe Standards of Business Conduct, any other policy governing the ethical performance of your job and/or any other law applicable to the ethical conduct of business, (ii) any conduct giving rise to immediate discharge (other than for performance), (iii) your failure or refusal to perform your material duties or (iv) your material breach of this letter agreement or any other agreement between you and the Company, then you shall repay to the Company the entire net amount of the Sign-On Bonus actually received by you (the “Net Sign-On Amount”).

If none of the foregoing events occurs within six (6) months after the date of this letter, then 30% of the Net Sign-On Amount shall no longer be subject to recoupment by the Company pursuant to this Section. The remainder of the Net Sign-Amount (the “Remainder Amount”) shall remain subject to recoupment for an additional twenty-four (24) months; provided, however, that with each completed month of service beyond the first six (6) months after the date of this letter an additional 4.2% of the Remainder Amount shall no longer be subject to recoupment by the Company.

The amount owed pursuant to this Section will be deducted from your last paycheck(s) to the extent permitted by law; provided that if the amount owed is greater than what was deducted from your paychecks, the remaining balance will be due within ninety (90) days following the date of termination of employment.

 

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5. Sign-On Equity Grant . As an inducement for you to accept employment with the Company and as soon as practicable after your first date of employment and subject to the approval of the Compensation Committee of the Board of Directors, you will receive a one-time sign-on grant/award of restricted stock units (“RSUs”) and performance share units (“PSUs”) valued at $500,000 as of the grant date. The grant of RSUs and PSUs will be subject to terms regarding time-based and/or performance-based vesting over a period of continued employment, and forfeiture and repayment provisions if you breach certain covenants regarding confidentiality, trade secrets, non-competition or have engaged in fraud, all of which will be set forth in grant agreements to be entered into between you and the Company. Each of the grants will be made pursuant to an individual award agreement that shall contain substantially the same terms as similar awards granted under the Plan.

For the avoidance of doubt, the grant of the RSUs and PSUs referred to herein is contingent upon you becoming an employee of the Company. In the event that you do not become an employee of the Company, whether it be because you fail to secure an employment visa or for any other reason, the Company will not grant you any RSUs or PSUs.

6. Annual Equity Grants . Provided you remain employed by the Company beginning in 2019, you will be eligible to participate in the Plan. Whether or not equity grants are made, and, if so, the amount of such grants is determined by the Compensation Committee of the Board of Directors from time-to-time. Restricted stock grants, if awarded, are subject to the terms of the Plan and the related equity award agreements, which may include terms regarding time-based and/or performance-based vesting over a period of continued employment, and forfeiture and repayment provisions if you breach certain covenants regarding confidentiality, trade secrets, non-competition or have engaged in fraud.

7. Paid Time Off . You will be eligible to accrue paid time off (“PTO”) based on weeks worked, up to a maximum of 27 PTO days annually. Accrual, carryover, use and forfeiture of PTO is subject to applicable Company policies.

8. Holidays . You will be eligible for paid holidays. The Company observes the following holidays: Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Day, and New Year’s Day.

9. Other Employee Benefits . You will be eligible for additional employee benefits, including:

 

   

In lieu of the partially subsidized health insurance generally available to employees of the Company, the Company shall make commercially reasonable efforts to obtain a health insurance policy on your behalf that will cover any catastrophic costs incurred by you while you are physically present in the United States. Any such available plan will be partially subsidized by the Company but will require your contribution.

 

   

While you are employed by the Company, the Company shall reimburse you costs associated with annual preparation of your income tax filings in both the United States and Canada, up to a maximum annual limit of $10,000.

 

   

401(k) eligibility on the first day of the month following one full calendar month of employment. Following one full year of employment, the Company will match 100% of the first 3% and 50% of the next 2% of your contribution. You will be eligible to receive the Company match on the first day of the month following your anniversary date.

 

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Company-paid basic life insurance and AD&D coverage in an amount equivalent to your annualized salary, up to a maximum of $500,000.

 

   

Company-paid Long Term Disability insurance.

10. Employment at Will . Your employment will be “employment-at-will,” which means it is not for any definite period of time and the terms and conditions of employment may be modified or employment may be terminated by either you or by the Company at any time, for any reason, or for no reason. Your employment-at-will status will apply throughout your employment with the Company and cannot be modified except by an express, written contract that is executed by the Chief Executive Officer and you.

11. Intellectual Property . You acknowledge and agree that all writings, inventions, improvements, processes, procedures, programs, techniques and other data and information that are furnished to you by the Company or that you design, generate or develop within the scope of your employment with the Company or related to the business of the Company, whether on the Company’s property or otherwise, whether alone or with others, are and will remain the sole and confidential property of the Company. You specifically agree that all materials that you design, generate or develop within the scope of your employment with the Company, related to the business of the Company or using any confidential or proprietary information of the Company will be considered “works made for hire” under applicable law and that all such material will be owned exclusively by the Company. You hereby assign and transfer to the Company all right, title and interest that you may have in and to such materials under patent, copyright, trade secret, trademark and other applicable laws.

12. Confidentiality and Restrictive Covenants . During your employment by the Company, you agree that you will not, directly or indirectly, either for yourself or for any other person, business, or entity, hire from the Company or attempt to hire, divert or take away from the Company, any of the business of the Company or any officer or employee of the Company. Upon commencement of employment you will be asked to sign an agreement further acknowledging the confidential nature of all information disclosed in connection with your employment by the Company. You agree that in your work for the Company, you will not use or disclose any confidential information, including trade secrets of any current or former employer or third party to whom you have any obligation of confidentiality. You further agree that you can perform your duties to the Company without reliance on any such confidential information or trade secrets of any current or former employer or third party. You agree that you will not bring onto the Company’s premises, or transmit or store using any electronic communication equipment or computer network or system of the Company, any unpublished documents or property belonging to any current or former employer or third party to whom you have any obligation of confidentiality, including any documents or property containing confidential information or trade secrets. You represent and agree that in connection with your anticipated employment with the Company, including during your discussions with the Company, you (i) have not breached any restrictive covenant agreement to which you are bound, and (ii) have complied with all of your fiduciary obligations to any current or former employer or third party to whom you have any such obligations.

 

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18 U.S.C. § 1833(b) states: “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that—(A) is made—(i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, you have the right to disclose in confidence trade secrets to Federal, State, and local government officials, or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law. You also have the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing in this offer letter is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. § 1833(b).

13. Taxes . All payments hereunder are subject to applicable tax withholdings.

14. Conditions . The Company supports a Drug Free Work Environment. Your employment is contingent upon successful completion of a drug test. Instructions for the drug test will be provided to you. Testing must be completed within forty-eight hours prior to your first day of employment. Any questions regarding our drug policy may be directed to the Human Resources Department, which is available weekdays from 9 A.M. to 6 P.M. or by calling 201-552-6001.

The offer is also contingent on: (i) a successful background check; and (ii) your completion of Section 1 of the Form I-9 on or before the end of your first day of employment and your presentation of your original documentation verifying your work eligibility and identification on or before the third day of employment.

Please indicate your acceptance by returning a signed copy of this offer to the Company.

We look forward with pleasure to your joining us.

 

Regards,
/S/ Teresa Orth

Teresa Orth

SVP, Human Resources

 

CC:

Colin Watts, CEO

 

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Acknowledgment:

I have carefully read and fully understand each of the terms of the foregoing offer of employment. I understand that by accepting employment with the Company, I agree to arbitrate any dispute arising out of my employment as set forth in the Company’s Dispute Resolution Program, which I will be required to sign prior to beginning my employment. I further understand that my employment with the Company is at-will, which means that either I or the Company may terminate the employment relationship at any time, for any reason, with or without cause.

 

/S/ David Mock

    

January 11, 2018

David Mock      Date

 

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Exhibit 99.1

 

V ITAMIN S HOPPE , I NC .

300 Harmon Meadow Blvd

Secaucus, NJ 07094

(201) 868-5959

VitaminShoppe.com

   NEWS RELEASE

THE VITAMIN SHOPPE ® EXPANDS EXECUTIVE TEAM

HIRES EXECUTIVE VICE PRESIDENT, CHIEF MERCHANDISING & MARKETING OFFICER

SECAUCUS, NJ (August 1, 2018) – Vitamin Shoppe, Inc. (NYSE: VSI), an omni-channel, specialty retailer of nutritional products, today announced that David Mock, who has served as a consultant to the Company since January 2018, has joined as Executive Vice President—Chief Merchandising and Marketing Officer effective July 30, 2018.

Alex Smith, Chairman of the Vitamin Shoppe commented, “We are delighted to have Dave join the Vitamin Shoppe leadership team. He is a talented and experienced retail executive with significant experience in retail transformation and a proven track record of successfully implementing strategies and rapidly turning around retailers driving top line growth and improved profitability. We look forward to working with Dave as we continue building on the transformational work that is underway.”

Mr. Mock brings over three decades of experience in retail transformation most recently as President of D Mock Retail Rebuild Ltd. From 2014 until 2016 he served as Chief Merchandising & Marketing Officer for Earth Fare. Mr. Mock served as Senior Vice President Merchandising, Global Sourcing and Innovation Officer for Canadian Tire Retail from 2012 through 2013. His other retail experience included; Senior Vice President Merchandising, Hardlines, Consumables, Pharmacy, Haba/Cosmetics for Zellers from 2008 to 2012 and various positions at Loblaw Companies Limited, from 1983 through 2007 with his last position being Senior Vice President Food Merchandising and Marketing.

In connection with Mr. Mock’s hiring, the Compensation Committee of Vitamin Shoppe, Inc.’s Board of Directors granted Mr. Mock equity valued at $500,000 as of the grant date, comprised of restricted stock units, vesting 50% on the second anniversary of the award date and 50% on the third anniversary of the award date and performance share units, vesting in 2020, subject to Mr. Mock’s continued employment with the Company (the “Inducement Award”). The Inducement Award was granted outside of the Vitamin Shoppe 2018 Long-Term Incentive Plan (the “LTIP”) (but generally incorporates the terms and conditions of the LTIP), in reliance on the employment inducement exemption under NYSE 303A.08, which requires public announcement of inducement awards. The Company is issuing this press release pursuant to the requirements of Rule 303A.08.


About the Vitamin Shoppe, Inc. (NYSE:VSI)

Vitamin Shoppe is an omni-channel, specialty retailer of nutritional products based in Secaucus, New Jersey. In its stores and on its website, the Company carries a comprehensive retail assortment including: vitamins, minerals, specialty supplements, herbs, sports nutrition, homeopathic remedies, green living products, and beauty aids. In addition to offering products from approximately 900 national brands, the Vitamin Shoppe also carries products under The Vitamin Shoppe ® , BodyTech ® , True Athlete ® , MyTrition ® , plnt ® , ProBioCare ® , and Next Step ® brands. The Vitamin Shoppe conducts business through more than 775 company-operated retail stores under The Vitamin Shoppe and Super Supplements retail banners, and through its website, www.vitaminshoppe.com. Follow the Vitamin Shoppe on Facebook at http://www.facebook.com/THEVITAMINSHOPPE and on Twitter at http://twitter.com/VitaminShoppe .

 

Analysts and Investors:    Media:
Kathleen Heaney    Crystal Carroll
201-552-6430    201-552-6328
kathleen.heaney@vitaminshoppe.com    crystal.carroll@vitaminshoppe.com

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