**2.2****Extension****.**Unless terminated earlier in accordance with the provisions of **Section4**of this Agreement, the employment of the Executive hereunder shall continue after the end of theInitial Employment Period for additional one (1)-year periods (each an “Extension Period”and, together with the Initial Employment Period, the “Employment Period”), unless theCompany or the Executive notifies the other in writing not less than thirty (30) days prior to theend of the Initial Employment Period, or the end of the applicable Extension Period, of its or theExecutive’s election, in its or the Executive’s sole discretion, not to extend the EmploymentPeriod.     **3. ****Compensation and General Benefits****.**          **3.1****Base Salary****.**               (a) During the Employment Period, the Company agrees to pay to the Executive an annual basesalary in an amount equal to Two Hundred Sixty Thousand $260,000 (such base salary, as may beadjusted from time to time pursuant to **Section 3.1(b)**, is referred to herein as the “BaseSalary”). The Executive’s Base Salary, less amounts required to be withheld under applicablelaw, shall be payable in equal installments in accordance with the Company’s normal payrollpractices and procedures in effect from time to time for the payment of salaries to officers of theCompany, but in no event less frequently than monthly.               (b) The Board or the Compensation Committee established by the Board (the “CompensationCommittee”) shall review the Executive’s performance on an annual basis and, based on suchreview, may change the Base Salary, as it, acting in its sole discretion, shall determine to bereasonable and appropriate.          **3.2****Bonus****.**With respect to the 2008 calendar year and with respect to each calendaryear that commences during the Employment Period, the Executive shall be eligible to receive fromthe Company an annual performance bonus (the “Annual Bonus”) on a basis and in an amount tobe determined by the Board or the Compensation Committee in the exercise of its sole discretion forthe applicable year. For 2008, the Executive’s target Annual Bonus shall be forty percent (40%) ofthe Base Salary with a maximum of seventy five percent (75%) of the Base Salary (proratedconsistent with the Executive’s first day of employment) if the Company exceeds the annual goalsdetermined by the Board or the Compensation Committee for 2008. Any Annual Bonus earned shall bepayable in full as soon as reasonably practicable following the determination thereof, but in noevent later than May 15 of the following year, and in accordance with the Company’s normal payrollpractices and procedures. Except as otherwise expressly provided in **Section 4**hereof, any AnnualBonus (or portion thereof) payable under this **Section 3.2**shall not be payable unless the Executiveis employed by the Company on the last day of the period to which such Annual Bonus relates.          **3.3****Expenses****.**During the Employment Period, in addition to any amounts to which theExecutive may be entitled pursuant to the other provisions of this **Section 3**or elsewhere herein,the Executive shall be entitled to receive reimbursement from the Company for all reasonable andnecessary expenses incurred by the Executive in performing the Executive’s duties hereunder onbehalf of the Company, subject to, and consistent with, the Company’s policies for expense paymentand reimbursement, in effect from time to time.
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          **3.4****Fringe Benefits****.**During the Employment Period, in addition to any amounts towhich the Executive may be entitled pursuant to the other provisions of this **Section 3**or elsewhereherein, the Executive shall be entitled to participate in, and to receive benefits under generallyany benefit plans, arrangements or policies made available by the Company to its executives and keymanagement employees generally, subject to and on a basis consistent with the terms, conditions andoverall administration of each such plan, arrangement or policy.     **4. ****Termination****.**          **4.1****General****.**The employment of the Executive hereunder (and the Employment Period)shall terminate as provided in **Section 2**hereof, unless earlier terminated in accordance with theprovisions of this **Section 4**.          **4.2****Death or Disability of the Executive****.**               (a) The employment of the Executive hereunder (and the Employment Period) shall terminate upon(i) the death of the Executive and (ii) at the option of the Company, upon not less than fifteen(15) days’ prior written notice to the Executive or the Executive’s personal representative orguardian, if the Executive suffers a “Total Disability” (as defined in **Section 4.****2(b)** hereof).Upon termination for death or Total Disability, subject to reduction by any benefits paid orpayable to the Executive, the Executive’s beneficiaries or estate under any Company-sponsoreddisability benefit plan program or policy for the period following such date of termination, (A)the Company shall pay to the Executive, guardian or personal representative, as the case may be,the Executive’s current Base Salary for the remainder of the Employment Period in effectimmediately prior to the date of termination and (B) subject further to the sole discretion of theBoard or the Compensation Committee, the Company may also pay to the Executive, guardian orpersonal representative, as the case may be, a prorated share of the Annual Bonus pursuant to**Section 3.2**hereof (based on the period of actual employment) that the Executive would have beenentitled to had the Executive worked the full year during which the termination occurred, providedthat bonus targets are met for the year of such termination. Any bonus shall be payable as soon asreasonably practicable following the determination thereof, but in no event later than May 15 ofthe following year, and in accordance with the Company’s normal payroll practices and procedures.               (b) Subject to the last sentence of this **Section 4.2(b)**, for purposes of this Agreement,“Total Disability” shall mean (i) if the Executive is subject to a legal decree ofincompetency (the date of such decree being deemed the date on which such disability occurred),(ii) the written determination by a physician selected by the Company that, because of a medicallydeterminable disease, injury or other physical or mental disability, the Executive is unablesubstantially to perform, with or without reasonable accommodation, the material duties of theExecutive required hereby, and that such disability has lasted for ninety (90) consecutive days orany one hundred twenty (120) days during the immediately preceding twelve (12)-month period or is,as of the date of determination, reasonably expected to last six (6) months or longer after thedate of determination, in each case based upon medically available reliable information or (iii)Executive’s qualifying for benefits under the Company’s long-term disability coverage, if any. Inconjunction with determining mental and/or physical disability for purposes of this Agreement, theExecutive hereby consents to (x) any examinations that the Board or the Compensation Committeedetermines
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are relevant to a determination of whether the Executive is mentally and/or physicallydisabled or are required by the Company physician, (y) furnish such medical information as may bereasonably requested and (z) waive any applicable physician patient privilege that may arisebecause of such examination. Notwithstanding anything to the contrary in this **Section 4.2(b)**,Total Disability shall have the definition of “Disabled” contained in Section 409A of the InternalRevenue Code of 1986, as amended (the “Code”), in any instance in which amounts are paidunder this Agreement as a result of Executive’s Total Disability and such amounts are treated asdeferred compensation under Section 409A of the Code.               (c) With respect to outstanding stock options and other equity-based awards held by theExecutive as of the date of termination pursuant to this **Section 4.2**, (i) any such options that arenot vested or exercisable as of such date of termination shall immediately expire and any suchequity-based awards that are not vested as of such date of termination shall immediately beforfeited and (ii) any such options that are vested and exercisable as of such date of terminationshall expire immediately following the expiration of the one hundred eighty (180)-day periodfollowing such date of termination.               (d) With respect to any shares of Common Stock held by the Executive that are vested as of thedate of termination pursuant to this **Section 4.2**(or issued pursuant to the exercise of optionsfollowing such date of termination pursuant to **Section 4.****2(c)** hereof), for the two hundred seventy(270)-day period following such date of termination, the Company (or its designee) shall have theright to purchase from the Executive or the Executive’s beneficiary, as applicable, and theExecutive or the Executive’s beneficiary hereby agrees to sell any or all such shares to theCompany (or the Company’s designee) for an amount equal to the product of (i) the per share currentfair market value of a share of Common Stock (as determined by the Board in good faith) and (ii)the number of shares so purchased.          **4.3****Termination by the Company Without Cause or Resignation by the Executive For GoodReason****.**               (a) The Company may terminate the Executive’s employment without “Cause” (as defined in**Section 4.3(g)**), and thereby terminate the Executive’s employment (and the Employment Period) underthis Agreement at any time with no requirement for notice to the Executive.               (b) The Executive may resign, and thereby terminate the Executive’s employment (and theEmployment Period), at any time for “Good Reason” (as defined in **Section 4.****3(f)** hereof), upon notless than sixty (60) days’ prior written notice to the Company specifying in reasonable detail thereason therefore; provided, however, that the Company shall have a reasonableopportunity to cure any such Good Reason (to the extent possible) within sixty (60) days after theCompany’s receipt of such notice; and provided further that, if the Company is not seekingto cure, the Company shall not be obligated to allow the Executive to continue working during suchperiod and may, in its sole discretion, accelerate such termination of employment (and theEmployment Period) to any date during such period.                    (i) Executive may not terminate employment under this Agreement for Good Reasonregarding any of the Company’s acts or omissions of
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which Executive had actual notice for sixty (60) days or more prior to givingnotice of termination for Good Reason.                    (ii) A determination of whether the Executive legitimately has Good Reason fortermination of the Executive’s employment under this Agreement, and of whether theCompany has effectively cured and thus eliminated the grounds for such Good Reason,shall be made only by the Chief Executive Officer of the Company (the “ChiefExecutive Officer”), within the Chief Executive Officer’s sole judgment anddiscretion, acting in good faith after having met with the Company’s Vice Presidentof Human Resources.               (c) In the event the Executive’s employment is terminated pursuant to this **Section 4.3**, then,subject to **Section 4.****3(d)** hereof, the following provisions shall apply:                    (i) The Company shall continue to pay the Executive the Base Salary to which theExecutive would have been entitled pursuant to **Section 3.1**hereof (at the Base Salaryrate during the year of termination) had the Executive remained in the employ of theCompany until the expiration of the Employment Period in effect immediately prior tothe date of termination, with all such amounts payable in accordance with theCompany’s normal payroll practices and procedures in the same manner and at the sametime as though the Executive remained employed by the Company; provided,however, that if the date of termination is during the Initial EmploymentPeriod, the Company shall continue to pay the Executive such Base Salary for thegreater of (A) the period set forth above in this **Section 4.****3(c)(i)** or (B) a six (6)month period following such date of termination. Notwithstanding any other provisionof this Agreement, the Company shall continue to pay the Executive the Base Salary towhich the Executive would have been entitled pursuant to Section 3.1 hereof (at theBase Salary rate during the year of termination) had the Executive remained in theemploy of the Company for a minimum of six (6) months following the date oftermination.                    (ii) If such termination occurs upon or within six (6) months following a Changeof Control (as defined in **Exhibit A**attached hereto), the Company shall continue topay the Executive the Base Salary to which the Executive would have been entitledpursuant to **Section 3.1**hereof (at the Base Salary rate during the year oftermination) for the greater of (A) the period set forth in **Section 4.****3(c)(i)** hereofor (B) a two (2)-year period following such date of termination, with all suchamounts payable in accordance with the Company’s normal payroll practices andprocedures in the same manner and at the same time as though the Executive remainedemployed by the Company.                    (iii) In the event the Executive’s employment is terminated pursuant to this**Section 4.3**without Cause, and if the Company has previously effected reductions inthe Executive’s Base Salary and the base salary of all executives at the same levelas the Executive, which reductions were substantially similar, then the Base Salaryrate for purposes of **Section 4.****3(c)(i)****or (ii)**hereof shall be the Base Salary ratein effect immediately prior to such reductions.
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                    (iv) Subject to the sole discretion of the Board or the Compensation Committee,the Company may pay to the Executive a prorated share of the Annual Bonus pursuant to**Section 3.2**hereof (based on the period of actual employment) that the Executivewould have been entitled to had the Executive worked the full year during which thetermination occurred, provided that bonus targets are met for the year of suchtermination. The bonus shall be payable as soon as reasonably practicable followingthe determination thereof, but in no event later than May 15 of the following year,and in accordance with the Company’s normal payroll practices and procedures.                    (v) If the Executive elects continuation coverage (with respect to theExecutive’s coverage and/or any eligible dependent coverage) under the ConsolidatedOmnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”)with respect to the Company’s group health insurance plan, the Executive shall beresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unlessprohibited by law, the Company shall reimburse the Executive for any portion of themonthly cost of COBRA Continuation Coverage that exceeds the amount of the monthlyhealth insurance premium (with respect to the Executive’s coverage and/or anyeligible dependent coverage) payable by the Executive immediately prior to the dateof Executive’s termination, such reimbursements to continue (A) through theexpiration of the Employment Period in effect immediately prior to the date oftermination or (B) in the event that Executive’s Base Salary is being paid pursuantto **Section 4.****3(c)(ii)**, for the period set forth therein. The Company shall pay thereimbursements on a monthly basis in accordance with the Company’s normal payrollpractices and procedures.                    (vi) With respect to outstanding options and other equity-based awards held bythe Executive as of the date of termination pursuant to this **Section 4.3**, (A) anysuch options that are not vested or exercisable as of such date of termination shallimmediately expire and any such equity-based awards that are not vested as of suchdate of termination shall immediately be forfeited and (B) any such options that arevested and exercisable as of such date of termination shall expire immediatelyfollowing the expiration of the ninety (90)-day period following such date oftermination.                    (vii) With respect to any shares of Common Stock held by the Executive that arevested as of the date of termination pursuant to this **Section 4.3**(or issued pursuantto the exercise of options following such date of termination pursuant to **Section4.****3(c)(vi)** hereof), for the one hundred eighty (180)-day period following such dateof termination, the Company (or its designee) shall have the right to purchase fromthe Executive, and the Executive hereby agrees to sell any or all such shares to theCompany (or the Company’s designee), for an amount equal to the product of (A) theper share current fair market value of a share of Common Stock (as determined by theBoard in good faith) and (B) the number of shares so purchased.               (d) As a condition precedent to the Executive’s right to receive the benefits set forth in**Section 4.****3(c)** hereof, the Executive agrees to execute a release of the Company
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and its respective Affiliates, officers, directors, stockholders, employees, agents, insurers,representatives and successors from and against any and all claims that the Executive may haveagainst any such Person (as defined in **Section 5.****4(f)** hereof) relating to the Executive’semployment by the Company and the termination thereof, such release to be in form and substancereasonably satisfactory to the Company.               (e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined thatany payment, vesting, distribution or transfer by the Company or any successor, or any Affiliate ofthe foregoing or by any other Person or that any other event occurring with respect to theExecutive and the Company for the Executive’s benefit, whether paid or payable or distributed ordistributable under the terms of this Agreement or otherwise (including under any employee benefitplan) (a “Payment”) would be subject to or result in the imposition of the excise taximposed by Section 4999 of the Code (and any regulations or guidance promulgated or issuedthereunder, any successor provision, and any similar provision of state or local income tax law)(collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to thehighest amount that may be paid by the Company or other entity without subjecting any such Paymentto the Excise Tax (the “Payment Reduction”). The Executive shall have the right todesignate those payments or benefits that shall be reduced or eliminated under the PaymentReduction to avoid the imposition of the Excise Tax, subject to the confirmation of the AccountingFirm (as defined herein) with respect to the intended effect thereof.                    (i) Subject to the provisions of **Section 4.****3(e)(ii)**, all determinations requiredto be made under this **Section 4.3(e)**, including whether and when a Payment is subjectto Section 4999 and the assumptions to be utilized in arriving at such determinationand in determining an appropriate Payment Reduction, shall be made byPricewaterhouseCoopers LLP, or any other nationally recognized accounting firm thatshall be the Company’s outside auditors at the time of such determination (the“Accounting Firm”), which Accounting Firm shall provide detailed supportingcalculations to the Executive and the Company within fifteen (15) business days ofthe receipt of notice from the Company or the Executive that there will be a Paymentthat the Person giving notice believes may be subject to the Excise Tax. All feesand expenses of the Accounting Firm shall be borne by the Company. Any determinationby the Accounting Firm shall be binding upon the Company and the Executive indetermining whether a Payment Reduction is required and the amount thereof (subjectto **Sections 4.****3(e)(ii)** and **(iii)**), in the absence of material mathematical or legalerror.                    (ii) As a result of uncertainty in the application of Section 4999 that mayexist at the time of the initial determination by the Accounting Firm, it may bepossible that in making the calculations required to be made hereunder, theAccounting Firm shall determine that a Payment Reduction need not be made thatproperly should be made (an “Overpayment”) or that a Payment Reduction notproperly needed to be made should be made (an “Underpayment”). If, withinseventy-five (75) days after the Accounting Firm’s initial determination under**Section 4.****3(e)(i)**, the Accounting Firm shall determine that an Overpayment was made,any such Overpayment shall be treated for all purposes, to the extent practicable andsubject to applicable law, as a loan to the Executive with interest at the applicable
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Federal rate provided for in Section 1274(d) of the Code and shall be repaid bythe Executive to the Company within thirty-five (35) days after the Executivereceives notice of the Accounting Firm’s determination; provided,however, that the amount to be repaid by the Executive to the Company eitheras a loan or otherwise as a lump sum payment (where a loan is not practicable orpermitted by law) shall be reduced to the extent that any portion of the Overpaymentto be repaid will not be offset by a corresponding reduction in tax by reason of suchrepayment of the Overpayment. If the Accounting Firm shall determine that anUnderpayment was made, any such Underpayment shall be due and payable by the Companyto the Executive within thirty-five (35) days after the Company receives notice ofthe Accounting Firm’s determination.                    (iii) The Executive shall give written notice to the Company of any claim by theInternal Revenue Service that, if successful, would require the payment by theExecutive of an Excise Tax, such notice to be provided within fifteen (15) days afterthe Executive shall have received written notice of such claim. The Executive shallcooperate with the Company in determining whether to contest or pay such claim andshall not pay such claim without the written consent of the Company, which shall notbe unreasonably withheld, conditioned or delayed.                    (iv) This **Section 4.****3(e)** shall remain in full force and effect following thetermination of the Executive’s employment for any reason until the expiration of thestatute of limitations on the assessment of taxes applicable to the Executive for allperiods in which the Executive may incur a liability for taxes (including ExciseTaxes), interest or penalties arising out of the operation of this Agreement.               (f) For purposes of this Agreement, the Executive would be entitled to terminate theExecutive’s employment for “Good Reason” if without the Executive’s prior written consent:                    (i) the Company fails to comply with any material obligation imposed by thisAgreement;                    (ii) the Company changes the Executive’s position from that of a Senior VicePresident; provided, however, that (A) a change in the Executive’sduties or responsibilities without a change in the Executive’s position as a SeniorVice President shall not constitute Good Reason and (B) nothing herein shall prohibitthe Company from changing the Executive’s specific title as a Senior Vice President,notwithstanding the specific title set forth in **Section 1.1**Error! Reference sourcenot found. hereof, based upon the Company’s needs from time to time; or                    (iii) the Company effects a reduction in the Executive’s Base Salary, unless allexecutives at the same level as the Executive receive a substantially similarreduction in base salary.
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               (g) For purposes of this Agreement, “Cause” means the occurrence of any one or more ofthe following events, and the Company shall have the sole discretion to determine the existence ofCause:                    (i) a failure by the Executive to comply with any obligation under thisAgreement;                    (ii) the Executive’s being indicted for (A) any felony or (B) any misdemeanorthat causes or is likely to cause harm or embarrassment to the Company or any of itsAffiliates, in the reasonable judgment of the Board;                    (iii) theft, embezzlement or fraud by the Executive in connection with theperformance of the Executive’s duties hereunder;                    (iv) the Executive’s engaging in any activity that gives rise to a materialconflict with the Company or any of its Affiliates;                    (v) the misappropriation by the Executive of any material business opportunityof the Company or any of its Affiliates;                    (vi) any failure to comply with, observe or carry out the Company’s rules,regulations, policies and codes of ethics and/or conduct applicable to its employeesgenerally and in effect from time to time, including (without limitation) thoseregarding conflicts, potential conflicts of interest or the appearance of a conflictof interest;                    (vii) any failure to comply with, observe or carry out the rules, regulations,policies, directions, codes of ethics and/or conduct and restrictions established orapproved by the Board from time to time for senior executive officers of the Company,including (without limitation) those regarding conflicts, potential conflicts ofinterest or the appearance of a conflict of interest;                    (viii) substance abuse or use of illegal drugs that, in the reasonable judgmentof the Board, (A) impairs the Executive’s performance of the Executive’s dutieshereunder or (B) causes or is likely to cause harm or embarrassment to the Company orany of its Affiliates; and                    (ix) engagement in conduct that Executive knows or should know is injurious tothe Company or any of its Affiliates.          **4.4****Termination For Cause, Voluntary Resignation Other Than For Good Reason or ElectionNot to Extend the Employment Period****.**               (a) (i) The Company may, upon action of the Board, terminate the employment of the Executive(and the Employment Period) at any time for “Cause,” (ii) the Executive may voluntarily resignother than for Good Reason and thereby terminate the Executive’s employment (and the EmploymentPeriod) under this Agreement at any time upon not less than thirty
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30)-days’ prior written notice or (iii) either the Company or the Executive may elect not toextend or further extend the Employment Period pursuant to **Section 2.2**hereof.               (b) The following provisions shall apply upon termination by the Company for Cause, by theExecutive as the result of resignation for other than for Good Reason, or by the Company or theExecutive at the end of the Employment Period as the result of an election not to extend or furtherextend the Employment Period:                    (i) The Executive shall be entitled to receive all amounts of earned but unpaidBase Salary and benefits accrued through the date of such termination. Except asprovided below, all other rights of the Executive (and all obligations of theCompany) hereunder shall terminate as of the date of such termination.                    (ii) With respect to outstanding options and other equity-based awards held bythe Executive as of the date of termination pursuant to this **Section 4.4**, (A) anysuch options that are not vested or exercisable as of such date of termination shallimmediately expire and any such equity-based awards that are not vested as of suchdate of termination shall immediately be forfeited and (B) any such options that arevested and exercisable as of such date of termination shall expire immediatelyfollowing the expiration of the ninety (90)-day period following such date oftermination.                    (iii) With respect to any shares of Common Stock held by the Executive that arevested as of the date of termination pursuant to this **Section 4.4**(or issued pursuantto the exercise of options following such date of termination pursuant to **Section4.****4(b)(ii)** hereof), for the one hundred eighty (180)-day period following such dateof termination, the Company (or its designee) shall have the right to purchase fromthe Executive and the Executive hereby agrees to sell any or all such shares to theCompany (or the Company’s designee) for an amount equal to the product of (A) the pershare current fair market value of a share of Common Stock (as determined by theBoard in good faith) and (B) the number of shares so purchased.          **4.5****Resignation from Officer Positions****.**Upon the termination of the Executive’semployment for any reason (unless otherwise agreed in writing by the Company and the Executive),the Executive will be deemed to have resigned, without any further action by the Executive, fromany and all officer and/or director positions that the Executive, immediately prior to suchtermination, (a) held with the Company or any of its Affiliates and (b) held with any otherentities at the direction of, or as a result of the Executive’s affiliation with, the Company orany of its Affiliates. If for any reason this **Section 4.5**is deemed to be insufficient toeffectuate such resignations, then Executive will, upon the Company’s request, execute anydocuments or instruments that the Company may deem necessary or desirable to effectuate suchresignations. In addition, the Executive hereby designates the Secretary or any AssistantSecretary of the Company and of any Affiliate to execute any such documents or instruments as theExecutive’s attorney-in-fact to effectuate such resignations if execution by the Secretary or anyAssistant Secretary of the Company or Affiliate is deemed by the Company or the Affiliate to be amore expedient means to effectuate such resignation or resignations.
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          **4.6****Section 409A of the Code****.**Notwithstanding anything to the contrary in thisAgreement, the parties mutually desire to avoid adverse tax consequences associated with theapplication of Section 409A of the Code to this Agreement and agree to cooperate fully and takeappropriate reasonable actions to avoid any such consequences under Section 409A of the Code,including delaying payments and reforming the form of the Agreement if such action would reduce oreliminate taxes and/or interest payable as a result of Section 409A of the Code. In this regard,notwithstanding anything to the contrary in this **Section 4**, to the extent necessary to comply withSection 409A of the Code, any payment required under this **Section 4**shall be deferred for a periodof six (6) months, regardless of the circumstances giving rise to or the basis for such payment.     **5. ****Confidentiality, Work Product and Non-Competition and Non-Solicitation****.**          **5.1****Confidentiality****.**               (a) In connection with the Executive’s employment with the Company, the Company promises toprovide the Executive with access to “Confidential Information” (as defined in **Section 5.4(d)**hereof) in support of the Executive’s employment duties. The Executive recognizes that theCompany’s business interests require a confidential relationship between the Company and theExecutive and the fullest practical protection and confidential treatment of all ConfidentialInformation. At all times, both during and after the Employment Period, the Executive shall notdirectly or indirectly: (i) appropriate, download, print, copy, remove, use, disclose, divulge,communicate or otherwise “Misappropriate” (as defined in **Section 5.****4(e)** hereof) any ConfidentialInformation, including, without limitation, originals or copies of any Confidential Information, inany media or format, except for the Company’s benefit within the course and scope of theExecutive’s employment or with the prior written consent of the Chief Executive Officer; or (ii)take or encourage any action that would circumvent, interfere with or otherwise diminish the valueor benefit of the Confidential Information to any of the Company Parties (as defined in **Section5.****4(b)** hereof).               (b) All Confidential Information, and all other information and property affecting or relatingto the business of the Company Parties within the Executive’s possession, custody or control,regardless of form or format, shall remain, at all times, the property of the respective CompanyParties, the appropriation, use and/or disclosure of which is governed and restricted by thisAgreement.               (c) The Executive acknowledges and agrees that:                    (i) the Executive occupies a unique position within the Company, and theExecutive is and will be intimately involved in the development and/or implementationof Confidential Information;                    (ii) in the event the Executive breaches this **Section 5.1**with respect to anyConfidential Information, such breach shall be deemed to be a Misappropriation ofsuch Confidential Information; and                    (iii) any Misappropriation of Confidential Information will result in immediateand irreparable harm to the Company.
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               (d) Upon receipt of any formal or informal request, by legal process or otherwise, seeking theExecutive’s direct or indirect disclosure or production of any Confidential Information to anyPerson, the Executive shall promptly and timely notify the Company and provide a description and,if applicable, hand deliver a copy of such request to the Company. The Executive irrevocablynominates and appoints the Company as the Executive’s true and lawful attorney-in-fact to act inthe Executive’s name, place and stead to perform any act that the Executive might perform to defendand protect against any disclosure of Confidential Information.               (e) At any time the Company may request, during or after the Employment Period, the Executiveshall deliver to the Company all originals and copies of Confidential Information and all otherinformation and property affecting or relating to the business of the Company Parties within theExecutive’s possession, custody or control, regardless of form or format, including, withoutlimitation any Confidential Information produced by the Executive. Both during and after theEmployment Period, the Company shall have the right of reasonable access to review, inspect, copyand/or confiscate any Confidential Information within the Executive’s possession, custody orcontrol.               (f) Upon termination or expiration of this Agreement, the Executive shall immediately returnto the Company all Confidential Information, and all other information and property affecting orrelating to the business of the Company Parties, within the Executive’s possession, custody orcontrol, regardless of form or format, without the necessity of a prior Company request.               (g) During the Employment Period, the Executive represents and agrees that the Executive willnot use or disclose any confidential or proprietary information or trade secrets of others,including but not limited to former employers, and that the Executive will not bring onto thepremises of the Company or access such confidential or proprietary information or trade secrets ofsuch others, unless consented to in writing by said others, and then only with the prior writtenauthorization of the Company.          **5.2****Work Product/Intellectual Property****.**               (a) Assignment. The Executive hereby assigns to the Company all right, title andinterest to all “Work Product” (as defined in **Section 5.****4(h)** hereof) that (i) relates to any of theCompany Parties’ actual or anticipated business, research and development or existing or futureproducts or services, or (ii) is conceived, reduced to practice, developed or made using anyequipment, supplies, facilities, assets, information or resources of any of the Company Parties(including, without limitation, any intellectual property rights).               (b) Disclosure. The Executive shall promptly disclose Work Product to the ChiefExecutive Officer and perform all actions reasonably requested by the Company (whether during orafter the Employment Period) to establish and confirm the ownership and proprietary interest of anyof the Company Parties in any Work Product (including, without limitation, the execution ofassignments, consents, powers of attorney, applications and other instruments). The Executiveshall not file any patent or copyright applications related to any Work Product except with thewritten consent of the Chief Executive Officer.
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          **5.3****Non-Competition and Non-Solicitation****.**               (a) In consideration of the Confidential Information being provided to the Executive as statedin **Section 5.1**hereof, and other good and valuable new consideration as stated in this Agreement,including, without limitation, employment and/or continued employment with the Company, and thebusiness relationships, Company goodwill, work experience, client, customer and/or vendorrelationships and other fruits of employment that the Executive will have the opportunity toobtain, use and develop under this Agreement, the Executive agrees to the restrictive covenantsstated in this **Section 5.3**.               (b) During the Employment Period and until the end of the Restricted Period (as defined in**Section 5.****4(g)** hereof), the Executive agrees that the Executive will not, directly or indirectly,on the Executive’s own behalf or on the behalf of any other Person, within the United States ofAmerica or in any other country or territory in which the businesses of the Company are conducted:                    (i) engage in a Competing Business (as defined in **Section 5.****4(c)** hereof),including, without limitation, by owning, managing, operating, controlling, beingemployed by, providing services as a consultant or independent contractor to orparticipating in the ownership, management, operation or control of any CompetingBusiness;                    (ii) induce or attempt to induce any customer, vendor, supplier, licensor orother Person in a business relationship with any Company Party, for or with which theExecutive or employees working under the Executive’s supervision had any direct orindirect responsibility or contact during the Employment Period, (A) to do businesswith a Competing Business or (B) to cease, restrict, terminate or otherwise reducebusiness with the Company for the benefit of a Competing Business, regardless ofwhether the Executive initiates contact; or                    (iii) (A) solicit, recruit, persuade, influence or induce, or attempt tosolicit, recruit, persuade, influence or induce anyone employed or otherwise retainedby any of the Company Parties (including any independent contractor or consultant),to cease or leave their employment or contractual or consulting relationship with anyCompany Party, regardless of whether the Executive initiates contact for suchpurposes or (B) hire, employ or otherwise attempt to establish, for any Person, anyemployment, agency, consulting, independent contractor or other business relationshipwith any Person who is or was employed or otherwise retained by any of the CompanyParties (including any independent contractor or consultant).               (c) The parties hereto acknowledge and agree that, notwithstanding anything in **Section5.****3(b)(i)** hereof, (i) the Executive may own or hold, solely as passive investments, securities ofPersons engaged in any business that would otherwise be included in **Section 5.****3(b)(i)**, as long aswith respect to each such investment the securities held by the Executive do not exceed fivepercent (5%) of the outstanding securities of such Person and such securities are publicly tradedand registered under Section 12 of the Securities Exchange Act of 1934, as amended (the“Exchange Act”), and (ii) the Executive may serve on the board of directors (or other
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comparable position) or as an officer of any entity at the request of the Board;provided, however, that in the case of investments otherwise permitted under clause(i) above, the Executive shall not be permitted to, directly or indirectly, participate in, orattempt to influence, the management, direction or policies of (other than through the exercise ofany voting rights held by the Executive in connection with such securities), or lend theExecutive’s name to, any such Person.               (d) The Executive acknowledges and agrees that, for purposes of this **Section 5.3**, indirectacts by the Executive shall include, without limitation, an act by the Executive’s spouse,ancestor, lineal descendant, lineal descendant’s spouse, sibling or other member of the Executive’simmediate family.               (e) The Executive acknowledges that (i) the restrictive covenants contained in this **Section5.3**hereof are ancillary to and part of an otherwise enforceable agreement, such being theagreements concerning Confidential Information and other consideration as stated in this Agreement,(ii) at the time that these restrictive covenants are made, the limitations as to time, geographicscope and activity to be restrained, as described herein, are reasonable and do not impose agreater restraint than necessary to protect the good will and other legitimate business interestsof the Company, including without limitation, Confidential Information (including trade secrets),client, customer and/or vendor relationships, client and/or customer goodwill and businessproductivity, (iii) in the event of termination of the Executive’s employment, the Executive’sexperiences and capabilities are such that the Executive can obtain gainful employment withoutviolating this Agreement and without the Executive incurring undue hardship, (iv) based on therelevant benefits and other new consideration provided for in this Agreement, including, withoutlimitation, the disclosure and use of Confidential Information, the restrictive covenants of this**Section 5.3**, as applicable according to their terms, shall remain in full force and effect even inthe event of the Executive’s involuntary termination from employment, with or without Cause and (v)the Executive has carefully read this Agreement and has given careful consideration to therestraints imposed upon the Executive by this Agreement and consents to the terms of therestrictive covenants in this **Section 5.3**, with the knowledge that this Agreement may be terminatedat any time in accordance with the provisions hereof.          **5.4****Definitions****.**For purposes of this Agreement, the following terms shall have thefollowing meanings:               (a) An “Affiliate” of any specified Person means any other Person, whether now orhereafter existing, directly or indirectly controlling or controlled by, or under direct orindirect common control with, such specified Person. For purposes hereof, “control” or any otherform thereof, when used with respect to any Person, means the power to direct the management andpolicies of such Person, directly or indirectly, whether through the ownership of votingsecurities, by contract or otherwise; and the terms “controlling” and “controlled” shall havemeanings correlative to the foregoing.               (b) “Company Parties” means the Company, and its direct and indirect parents,subsidiaries and Affiliates, and their successors in interest.               (c) “Competing Business” means any business that competes with any of the CompanyParties, including, without limitation, any enterprise that engages in, owns or
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operates businesses that market, sell, distribute, manufacture or otherwise are involved inthe nutritional supplements industry.               (d) Confidential Information.                    (i) Definition. “Confidential Information” means any and allmaterial, information, ideas, inventions, formulae, patterns, compilations, programs,devices, methods, techniques, processes, know how, plans (marketing, business,strategic, technical or otherwise), arrangements, pricing and other data of orrelating to any of the Company Parties (as well as their customers and/or vendors)that is confidential, proprietary or trade secret (A) by its nature, (B) based on howit is treated or designated by a Company Party, (C) because the disclosure of whichwould have a material adverse effect on the business or planned business of any ofthe Company Parties and/or (D) as a matter of law.                    (ii) Exclusions. Confidential Information does not include material,data, and/or information (A) that any Company Party has voluntarily placed in thepublic domain, (B) that has been lawfully and independently developed and publiclydisclosed by third parties, (C) that constitutes the general non-specializedknowledge and skills gained by the Executive during the Employment Period or (D) thatotherwise enters the public domain through lawful means; provided,however, that the unauthorized appropriation, use or disclosure ofConfidential Information by the Executive, directly or indirectly, shall not affectthe protection and relief afforded by this Agreement regarding such information.                    (iii) Inclusions. Confidential Information includes, without limitation,the following information (including without limitation, compilations or collectionsof information) relating or belonging to any Company Party (as well as their clients,customers and/or vendors) and created, prepared, accessed, used or reviewed by theExecutive during or after the Employment Period: (1) **product and manufacturinginformation,**such as ingredients, combinations of ingredients and manufacturingprocesses; (2) **scientific and technical information,**such as research anddevelopment, tests and test results, formulae and formulations, studies and analysis;(3) **financial and cost information,**such as operating and production costs, costs ofgoods sold, costs of supplies and manufacturing materials, non-public financialstatements and reports, profit and loss information, margin information and financialperformance information; (4) **customer related information,**such as customer relatedcontracts, engagement and scope of work letters, proposals and presentations,customer-related contacts, lists, identities and prospects, practices, plans,histories, requirements and needs, price information and formulae and informationconcerning client or customer products, services, businesses or equipmentspecifications; (5) **vendor and supplier related information,**such as the identities,practices, history or services of any vendors or suppliers and vendor or suppliercontacts; (6) **sales, marketing and price information,**such as marketing and salesprograms and related data, sales and marketing strategies and plans, sales andmarketing procedures and processes, pricing methods, practices and techniques andpricing schedules and lists; (7) **database, software and other computer related**
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**information,**such as computer programs, data, compilations of information andrecords, software and computer files, presentation software and computer-stored orbacked-up information including, but not limited to, e-mails, databases, wordprocessed documents, spreadsheets, notes, schedules, task lists, images and video;(8) **employee-related information,**such as lists or directories identifying employees,representatives and contractors, and information regarding the competencies(knowledge, skill, experience), compensation and needs of employees, representativesand contractors and training methods; and (9) **business- and operation-relatedinformation,**such as operating methods, procedures, techniques, practices andprocesses, information about acquisitions, corporate or business opportunities,information about partners and potential investors, strategies, projections andrelated documents, contracts and licenses and business records, files, equipment,notebooks, documents, memoranda, reports, notes, sample books, correspondence, listsand other written and graphic business records.               (e) “Misappropriate”, or any form thereof, means:                    (i) the acquisition of any Confidential Information by a Person who knows or hasreason to know that the Confidential Information was acquired by theft, bribery,misrepresentation, breach or inducement of a breach of a duty to maintain secrecy orespionage through electronic or other means (each, an “Improper Means”); or                    (ii) the disclosure or use of any Confidential Information without the expressconsent of the Company by a Person who (A) used Improper Means to acquire knowledgeof the Confidential Information, (B) at the time of disclosure or use, knew or hadreason to know that his or her knowledge of the Confidential Information was (x)derived from or through a Person who had utilized Improper Means to acquire it, (y)acquired under circumstances giving rise to a duty to maintain its secrecy or limitits use or (z) derived from or through a Person who owed a duty to the Company tomaintain its secrecy or limit its use or (C) before a material change of his or herposition, knew or had reason to know that it was Confidential Information and thatknowledge of it had been acquired by accident or mistake.               (f) “Person” means any individual, corporation, partnership, limited liabilitycompany, joint venture, association, business trust, joint-stock company, estate, trust,unincorporated organization, government or other agency or political subdivision thereof or anyother legal or commercial entity.               (g) “Restricted Period” means the longer of (i) twelve (12) months after the date oftermination of employment (the Executive’s last day of work for the Company) or (ii) the periodduring which the Executive is receiving payments from the Company pursuant to **Section 4**hereof.               (h) “Work Product” means all patents and patent applications, all inventions,innovations, improvements, developments, methods, designs, analyses, drawings, reports, creativeworks, discoveries, software, computer programs, modifications, enhancements, know-how,
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formulations, concepts and ideas, and all similar or related information (in each case whetheror not patentable), all copyrights and copyrightable works, all trade secrets, confidentialinformation, and all other intellectual property and intellectual property rights that areconceived, reduced to practice, developed or made by the Executive either alone or with others inthe course of employment with the Company (including employment prior to the date of thisAgreement).          **5.5****Remedies****.**Because the Executive’s services are unique and because the Executivehas access to Confidential Information, the Executive acknowledges and agrees that if the Executivebreaches any of the provisions of **Section 5**hereof, the Company may suffer immediate andirreparable harm for which monetary damages alone will not be a sufficient remedy. The restrictivecovenants stated in **Section 5**hereof are without prejudice to the Company’s rights and causes ofaction at law.          **5.6****Interpretation; Severability****.**               (a) The Executive has carefully considered the possible effects on the Executive of thecovenants not to compete, the confidentiality provisions and the other obligations contained inthis Agreement, and the Executive recognizes that the Company has made every effort to limit therestrictions placed upon the Executive to those that are reasonable and necessary to protect theCompany’s legitimate business interests.               (b) The Executive acknowledges and agrees that the restrictive covenants set forth in thisAgreement are reasonable and necessary in order to protect the Company’s valid business interests.It is the intention of the parties hereto that the covenants, provisions and agreements containedherein shall be enforceable to the fullest extent allowed by law. If any covenant, provision oragreement contained herein is found by a court having jurisdiction to be unreasonable in duration,scope or character of restrictions, or otherwise to be unenforceable, such covenant, provision oragreement shall not be rendered unenforceable thereby, but rather the duration, scope or characterof restrictions of such covenant, provision or agreement shall be deemed reduced or modified withretroactive effect to render such covenant, provision or agreement reasonable or otherwiseenforceable (as the case may be), and such covenant, provision or agreement shall be enforced asmodified. If the court having jurisdiction will not review the covenant, provision or agreement,the parties hereto shall mutually agree to a revision having an effect as close as permitted byapplicable law to the provision declared unenforceable. The parties hereto agree that if a courthaving jurisdiction determines, despite the express intent of the parties hereto, that any portionof the covenants, provisions or agreements contained herein are not enforceable, the remainingcovenants, provisions and agreements herein shall be valid and enforceable. Moreover, to theextent that any provision is declared unenforceable, the Company shall have any and all rightsunder applicable statutes or common law to enforce its rights with respect to any and allConfidential Information or unfair competition by the Executive.     **6. ****Miscellaneous****.**          **6.1****Public Statements****.**               (a) Media Nondisclosure. The Executive agrees that during the Employment Period or atany time thereafter, except as may be authorized in writing by the
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Company, the Executive will not directly or indirectly disclose or release to the Media anyinformation concerning or relating to any aspect of the Executive’s employment or termination fromemployment with the Company and/or any aspect of any dispute that is the subject of this Agreement.For the purposes of this Agreement, the term “Media” includes, without limitation, anynews organization, station, publication, show, website, web log (blog), bulletin board, chat roomand/or program (past, present and/or future), whether published through the means of print, radio,television and/or the Internet or otherwise, and any member, representative, agent and/or employeeof the same.               (b) Non-Disparagement. The Executive agrees that during the Employment Period or atany time thereafter, the Executive will not make any statements, comments or communications in anyform, oral, written or electronic to any Media or any customer, client or supplier of the Companyor any of its Affiliates, which would constitute libel, slander or disparagement of the Company orany of its Affiliates, including, without limitation, any such statements, comments orcommunications that criticize, ridicule or are derogatory to the Company or any of its Affiliates;provided, however, that the terms of this **Section 6.****1(b)** shall not apply tocommunications between the Executive and, as applicable, the Executive’s attorneys or other personswith whom communications would be subject to a claim of privilege existing under common law,statute or rule of procedure. The Executive further agrees that the Executive will not in any waysolicit any such statements, comments or communications from others.          **6.2****ARBITRATION****. SUBJECT TO THE RIGHTS UNDER SECTION 6.3 HEREOF TO SEEK INJUNCTIVE OROTHER EQUITABLE RELIEF, AND SUBJECT FURTHER TO THE RIGHT OF THE COMPANY TO OPT OUT OF ARBITRATIONAS STATED IN SECTION 6.2(b) HEREOF, BINDING ARBITRATION SHALL BE THE EXCLUSIVE REMEDY FOR ANY ANDALL DISPUTES, CLAIMS OR CONTROVERSIES, WHETHER STATUTORY, CONTRACTUAL OR OTHERWISE, BETWEEN THEPARTIES HERETO ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE EXECUTIVE’S EMPLOYMENT BY ORTERMINATION FROM THE COMPANY (INCLUDING, BUT NOT LIMITED TO, THE AMOUNT OF DAMAGES, OR THECALCULATION OF ANY BONUS OR OTHER AMOUNT OR BENEFIT DUE) (COLLECTIVELY, “****DISPUTES****”). THEPARTIES EACH WAIVE THE RIGHT TO A JURY TRIAL AND WAIVE THE RIGHT TO ADJUDICATE THEIR DISPUTES UNDERTHIS AGREEMENT OUTSIDE THE ARBITRATION FORUM PROVIDED FOR IN THIS AGREEMENT,****EXCEPT ASOTHERWISE PROVIDED IN THIS AGREEMENT.**               (a) Mediation First. In the event either party provides a notice of arbitration ofany Dispute to the other party, the parties shall promptly proceed to make a good-faith effort tosettle the Dispute by agreement, in a full-day, non-binding mediation with a mediator selected froma panel of mediators of JAMS. The mediation will be governed by JAMS mediation procedures ineffect at the time of the mediation. The parties shall equally bear the costs for mediation,including the mediator’s fees; provided, however, that the parties shall each bear their ownindividual costs and attorneys’ fees for mediation. If for any reason JAMS cannot serve as themediation administrator, the Company may select an alternative mediation administrator, such as theAmerican Arbitration Association (“AAA”), to serve under the terms of this Agreement. TheExecutive may, but is not required to, be represented by counsel in mediation. Any mediatorsproposed for the panel provided for in this Section 6.2(a) must be available to serve in the AgreedVenue.
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               (b) Company Opt-Out.                    (i) In the event that the parties fail to settle the Dispute at the mediationrequired by **Section 6.****2(a)** of this Agreement, the Company shall have thirty (30) daysafter the conclusion of the full-day mediation to opt out of arbitration. TheCompany may do so only by written notice provided to the Executive and JAMS.Providing such notice within the time requirements of this Agreement will render**Section 6.2**of this Agreement and its subparts (the “Arbitration Provision”)otherwise inapplicable and of no effect as to all parties to this Agreement, but onlywith regard to the Dispute raised in the notice of arbitration sent pursuant to**Section 6.****2(a)** above.                    (ii) It is the intention of the parties hereto that the terms of the ArbitrationProvision shall be enforceable to the fullest extent allowed by law. However, if anyterms of the Arbitration Provision (including, without limitation, the terms of the**Section 6.****2(b)(i)** Company Opt-Out) are adjudicated to be invalid, illegal orunenforceable, then the parties hereby stipulate and agree that (A) the adjudicatingauthority may and hereby is requested to modify the effect and/or interpret suchterms so that they become valid, legal and enforceable and are as like the originalterms as possible; (B) such terms will not affect any other terms of the ArbitrationProvision or this Agreement; (C) if for any reason the terms in question cannot bemodified or interpreted in accordance with this subsection, then the ArbitrationProvision will be reformed, construed and enforced as if such terms never had beencontained herein and/or have been severed herefrom; (D) such invalidity, illegalityor unenforceability will not take effect in any other jurisdiction absent a separateadjudication to that effect; and (E) the remainder of this Agreement shall continuein full force and effect.               (c) Procedure Generally. In the event that the parties fail to settle at themediation required by this Agreement, and the Company does not exercise its right to opt out ofarbitration as provided in **Section 6.****2(b)** above, the parties agree to submit the Dispute to asingle arbitrator selected from a panel of JAMS arbitrators. The arbitration will be governed bythe JAMS Comprehensive Arbitration Rules and Procedures in effect at the time the arbitration iscommenced, subject to the terms and modifications of this Agreement. If for any reason JAMS cannotserve as the arbitration administrator or cannot fulfill the panel requirements of the ArbitrationProvision, the Company may select an alternative arbitration administrator, such as AAA, to serveunder the terms of this Agreement.               (d) Arbitrator Selection. To select the arbitrator, the parties shall make theirrespective strikes from a panel of former federal court judges and magistrates, to the extentavailable from JAMS (the “First Panel”). If the parties cannot agree upon an arbitratorfrom the First Panel or if such a panel is not available from JAMS, then the parties will next maketheir respective strikes from a panel of former Pennsylvania state court trial and appellatejudges, to the extent available from JAMS (the “Second Panel”). Any arbitrators proposedfor the First and Second Panels provided for in this **Section 6.****2(d)** must be available to serve inthe Agreed Venue. If the parties cannot agree upon an arbitrator from the Second Panel or if sucha panel is not available from JAMS, then the parties will next make their respective strikes fromthe panel of all other JAMS arbitrators available to serve in the Agreed Venue.
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               (e) **VENUE****. THE PARTIES STIPULATE AND AGREE THAT THE EXCLUSIVE VENUE OF ANY SUCHARBITRATION PROCEEDING (AND OF ANY OTHER PROCEEDING, INCLUDING ANY COURT PROCEEDING, UNDER THISAGREEMENT) SHALL BE ALLEGHENY COUNTY, PENNSYLVANIA (THE “****AGREED VENUE****”).**               (f) Authority and Decision. The arbitrator shall have the authority to award the samedamages and other relief that a court could award. The arbitrator shall issue a reasoned awardexplaining the decision and any damages awarded. The arbitrator’s decision will be final andbinding upon the parties and enforceable by a court of competent jurisdiction. The parties willabide by and perform any award rendered by the arbitrator. In rendering the award, the arbitratorshall state the reasons therefor, including (without limitation) any computations of actual damagesor offsets, if applicable.               (g) Fees and Costs. In the event of arbitration under the terms of this Agreement,the fees charged by JAMS or other arbitration administrator and the arbitrator shall be borne bythe parties as determined by the arbitrator, except for any initial registration fee, which theparties shall bear equally. Otherwise, the parties shall each bear their own costs, expenses andattorneys’ fees incurred in arbitration; provided, however, that the prevailingparty shall be entitled to recover and have awarded its attorneys’ fees, court costs, arbitrationexpenses, and its portion of the fees and costs charged by JAMS or other arbitration administrator,regardless of which party initiated the proceedings, in addition to any other relief to which itmay be entitled. The Executive may, but is not required to, be represented by counsel inarbitration.               (h) Limited Scope. The following are excluded from binding arbitration under thisAgreement: claims for workers’ compensation benefits or unemployment benefits; replevin; andclaims for which a binding arbitration agreement is invalid as a matter of law.          **6.3****Injunctive Relief****.**The parties hereto may seek injunctive relief in arbitration;provided, however, that as an exception to the arbitration agreement set forth in**Section 6.2**hereof, the parties, in addition to all other available remedies, shall each have theright to initiate an action in any court of competent jurisdiction in order to request injunctiveor other equitable relief regarding the terms of **Sections 5**or **6.2**hereof. The exclusive venue ofany such proceeding shall be in the Agreed Venue. The parties agree (a) to submit to thejurisdiction of any competent court in the Agreed Venue, (b) to waive any and all defenses theExecutive may have on the grounds of lack of jurisdiction of such court and (c) that neither partyshall be required to post any bond, undertaking or other financial deposit or guarantee in seekingor obtaining such equitable relief. Evidence adduced in any such proceeding for an injunction maybe used in arbitration as well. The existence of this right shall not preclude or otherwise limitthe applicability or exercise of any other rights and remedies that a party hereto may have at lawor in equity.          **6.4****Settlement of Existing Rights****.**In exchange for the other terms of this Agreement,the Executive acknowledges and agrees that: (a) the Executive’s entry into this Agreement is acondition of employment and/or continued employment with the Company, as applicable; (b) except asotherwise provided herein, this Agreement will replace any existing employment agreement betweenthe parties and thereby act as a novation, if applicable; (c) the Executive is being provided withaccess to Confidential Information, including, without limitation,
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proprietary trade secrets of one or more Company Parties, to which the Executive has notpreviously had access; (d) all Company inventions and intellectual property developed by theExecutive during any past employment with the Company and all goodwill developed with the Company’sclients, customers and other business contacts by the Executive during any past employment withCompany, as applicable, is the exclusive property of the Company; and (e) all ConfidentialInformation and/or specialized training accessed, created, received or utilized by the Executiveduring any past employment with Company, as applicable, will be subject to the restrictions onConfidential Information described in this Agreement, whether previously so agreed or not.          **6.5****Entire Agreement; Waiver****.**This Agreement contains the entire agreement betweenthe Executive and the Company with respect to the subject matter hereof, and supersedes any and allprior understandings or agreements, whether written or oral. No modification or addition hereto orwaiver or cancellation of any provision hereof shall be valid except by a writing signed by theparty to be charged therewith. No delay on the part of any party to this Agreement in exercisingany right or privilege provided hereunder or by law shall impair, prejudice or constitute a waiverof such right or privilege.          **6.6****Governing Law****.**This Agreement shall be governed by and construed in accordancewith the laws of the Commonwealth of Pennsylvania, without regard to principles of conflict oflaws.          **6.7****Successors and Assigns; Binding Agreement****.**The rights and obligations of theparties under this Agreement shall be binding upon and inure to the benefit of the parties heretoand their heirs, personal representatives, successors and permitted assigns. This Agreement is apersonal contract, and, except as specifically set forth herein, the rights and interests of theExecutive herein may not be sold, transferred, assigned, pledged or hypothecated by any partywithout the prior written consent of the others. As used herein, the term “successor” as itrelates to the Company, shall include, but not be limited to, any successor by way of merger,consolidation or sale of all or substantially all of such Person’s assets or equity interests.          **6.8****Representation by Counsel; Independent Judgment****.**Each of the parties heretoacknowledges that (a) it or the Executive has read this Agreement in its entirety and understandsall of its terms and conditions, (b) it or the Executive has had the opportunity to consult withany individuals of its or the Executive’s choice regarding its or the Executive’s agreement to theprovisions contained herein, including legal counsel of its or the Executive’s choice, and anydecision not to was the Executive’s or its alone and (c) it or the Executive is entering into thisAgreement of its or the Executive’s own free will, without coercion from any source, based upon itsor the Executive’s own independent judgment.          **6.9****Interpretation****.**The parties and their respective legal counsel activelyparticipated in the negotiation and drafting of this Agreement, and in the event of any ambiguityor mistake herein, or any dispute among the parties with respect to the provisions hereto, noprovision of this Agreement shall be construed unfavorably against any of the parties on the groundthat the Executive, it, or the Executive’s or its counsel was the drafter thereof.          **6.10****Survival****.**The provisions of **Sections 4.3(e), 5**and **6**hereof shall survive thetermination of this Agreement.
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          **6.11****Notices****.**All notices and communications hereunder shall be in writing and shallbe deemed properly given and effective when received, if sent by facsimile or telecopy, or bypostage prepaid by registered or certified mail, return receipt requested, or by other deliveryservice which provides evidence of delivery, as follows:If to the Company, to:General Nutrition Centers, Inc.