Unassociated Document


    SEPARATION
AGREEMENT AND GENERAL RELEASE

     

    This
Separation Agreement and General Release (this  “Agreement”)
is made as of May 3, 2010, by and between Smart Balance, Inc., a Delaware
corporation (the “Company”)
and Robert S. Gluck (the “Executive”)
to acknowledge and set forth the terms and conditions regarding the termination
of Executive’s employment and positions with the Company.

     

    1.  Separation
Date. The
Executive hereby resigns, effective as of June 30, 2010 (the “Separation
Date”), from any and all positions the Executive holds with the Company
and its Affiliates (as defined below), including without limitation:
(a) his position as Chief Operating Officer of the Company, (b) his
position as an officer of any Affiliate of the Company; (c) his position as a
director of the Company and of any Affiliate of the Company, (d) any
position he holds in any fiduciary capacity with respect to any benefit or other
plan sponsored by the Company or its Affiliates, and (e) any position he
holds as a member of any committee established by the Company. The Executive’s
last day of employment with the Company will be the Separation Date. The
Executive also agrees to withdraw his name from consideration for reelection to
the Board of Directors of the Company prior to the annual meeting of the
shareholders of the Company to be held on May 12, 2010.  The Executive
will take all actions and provide the Executive’s full cooperation, whether
before or after the Separation Date, to the extent the Company reasonably
believes such assistance is necessary, to effectuate the foregoing resignations.
For purposes of this Agreement, the term “Affiliate”
means, with respect to any person, any other person that controls, is controlled
by, or is under common control with that person.

     

    2.  Separation
Payments and Benefits. In consideration of the
Release (defined below) and the other promises, acknowledgements,
representations, and obligations of the Executive under this Agreement, the
Company will pay the following amounts to the Executive (collectively, the
“Separation
Compensation”), in each case minus any applicable payroll taxes and other
deductions and withholdings required by federal, state, or local law or as
requested by the Executive:

     

    (a)          The
Company will pay to the Executive his salary from the Effective Date (as defined
below) through the Separation Date, to be paid in the time and in the manner the
Executive currently receives his salary payments from the Company;
and

     

    (b)          The
Company will pay to the Executive the aggregate amount of One Million Eight
Hundred Seven Thousand Five Hundred US Dollars ($1,807,500.00), in semi-monthly
installments over a twenty four (24) period beginning on July 1, 2010 (the
“Severance
Period”), to be paid at the time and in the manner the Executive
currently receives his salary payments from the Company, with each of such
installments to be treated as a “separate payment” within the meaning of Section
409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Treas.
Reg. § 1.409A-2(b)(2)(iii); and

    


    (c)          The
Company will pay to the Executive the bonus that would have been payable to the
Executive, if any, for the semi-annual period ending June 30, 2010, pursuant to
the Company’s 2010 Bonus Program under the Company Financial Incentive Program
in effect as of the date of this Agreement, the determination of such bonus to
be made by the Board of Directors of the Company in its sole and absolute
discretion and the payment of such bonus, if any, to be made to the Executive in
a lump sum at the same time as similar bonuses are paid to senior executives of
the Company, but in any event no later than March 15, 2011; and

    


    (d)          In
the event of the Executive’s death, all payments to be made by the Company to
the Executive under this Section 2 will be made to the estate of the
Executive.

     

    3.  General
Release and Waiver. In consideration of the
Company’s promise to pay the Separation Compensation, the Executive agrees to
the following General Release and Waiver (the “Release”):

     

    3.1.  Release.  For
good and valuable consideration, the receipt and sufficiency whereof is hereby
acknowledged, the Executive, individually and on behalf of his heirs, executors,
administrators, representatives, agents, attorneys, and assigns of every kind,
hereby irrevocably, fully, unconditionally, and forever releases, discharges,
and holds harmless, to the fullest extent permitted by applicable law, the
Company and its affiliated companies, parents, subsidiaries, predecessors,
successors, assigns, divisions, related entities, and all of their respective
past and present employees, officers, directors, trustees, shareholders,
members, partners (as applicable), 

     

    
      
        
        

      

      
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    agents,
investors, attorneys, and representatives (collectively, the “Company Released
Parties”), from and against any and all manner of actions and causes of
action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements,
judgments, charges, claims, demands, and losses of any kind or nature whatsoever
(based on any legal or equitable theory, whether contractual, common law,
statutory, federal, state, local, or otherwise, including any claims for
attorneys’ fees or costs), whether known or unknown, that the Executive has or
may hereafter have against the Company Released Parties or any of them arising
out of or by reason of any cause, matter, or thing whatsoever from the beginning
of the world until and through the Effective Date, including without limitation
any and all matters arising out of the Executive’s employment and cessation of
employment with the Company and with  its Affiliates, any and all
matters arising out of the Executive’s service and cessation of service as a
director of the Company and of any Affiliate, any and all matters arising out of
any benefit plan, program, policy, contract, agreement, or other arrangement
applicable between the Company and the Executive, and any and all matters
arising under any federal, state, or local statute, rule, or regulation or
principle of contract law or common law, including but not limited to the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., the Civil Rights Act
of 1866, as amended, 42 U.S.C. § 1981 et seq., Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Employee
Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq., the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq., the Older Workers
Benefits Protection Act, 29 U.S.C. § 626 et seq.,  the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., The New Jersey
Conscientious Employee Protection Act,  N.J.S.A. 34:19-1 et seq., and any other
applicable labor and employment laws of the State of New Jersey (collectively
“Claims”).
Notwithstanding the foregoing, (a) this Release will not apply to any
actions to enforce any rights that the Executive may have under this Agreement
and the Indemnification Agreement (as defined below), and (b) the Executive
does not release and will retain any claim (i) for indemnification and
defense pursuant to the charter documents and bylaws of the Company or any
Company Released Party, and (ii) under any insurance coverage available to
the Executive under any director’s and officer’s insurance policy or similar
policy maintained by the Company, its Affiliates, or any Company Released
Party.

     

    3.2.  Acknowledgements.  Without limiting
the foregoing, and for avoidance of doubt, the Executive understands and agrees
that by giving the Release:

     

    (a)          The
Executive is specifically and voluntarily waiving, releasing, and forever giving
up any and all Claims the Executive may have against the Company Released
Parties for illegal discrimination or retaliation of any kind or nature,
including without limitation those based on his age, sex, race, color, religion,
national origin, citizenship, veteran status, sexual orientation, disability,
and/or handicap, whether for tort, breach of express or implied employment
contract, wrongful discharge, intentional infliction of emotional distress,
defamation, or injuries incurred on the job or as a result of his loss of
employment or otherwise;

     

    (b)          The
Executive is specifically and voluntarily waiving, releasing, and forever giving
up any and all Claims that the Executive may have against the Company Released
Parties for breach of contract, severance pay, or separation pay, vacation pay,
holiday pay, breach of promise, wrongful discharge, unjust dismissal,
whistle-blowing, breach of fiduciary duty, breach of the implied covenant of
good faith and fair dealing, defamation, wrongful denial of benefits,
intentional and/or negligent infliction of emotional distress, negligence,
and/or any other intentional torts;

     

    (c)          The
Executive is specifically and voluntarily waiving, releasing, and forever giving
up all Claims released by the Executive pursuant to Section 3.1 of this
Agreement through and including the Effective Date, including without limitation
any alleged injuries or damages suffered at any time after the date the
Executive signs this Release by reason of the continued effects of alleged
discriminatory acts or other conduct which occurred on or before the date of
this Agreement; and

     

    (d)          The
Executive is specifically and voluntarily waiving, releasing, and forever giving
up all Claims that the Executive may have with respect to all Option Shares
covered by the Amended Stock Option Agreement between the Company and the
Executive dated as of May 21, 2007 (the “2007 Option Agreement”) and the Amended
Stock Option Agreement between the Company and the Executive dated as of June 5,
2008 (the “2008 Option Agreement”), including without limitation any and all
rights he might have to the vested and unvested portions of both the Time Vested
Awards and the Price Vested Awards under both agreements, as those terms are
defined in such agreements.

    
       

      
        
          
          

        

        
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    3.3.  Non-Participation.  The Executive promises and agrees that,
from and after the date of this Agreement, the Executive will not, either
individually or with any other person or entity, commence, maintain, prosecute,
participate as a party, or permit to be filed by any other person or entity on
his behalf, any action, charge, lawsuit, complaint, or any administrative,
arbitral, judicial, or other proceeding with any governmental agency, or against
any Company Released Party with respect to any of the Claims released by the
Executive pursuant to Section 3.1 above. The Executive understands that
this Section 3.3 bars the Executive from initiating legal action only to
the fullest extent such a prohibition is valid under law. In addition, the
Executive agrees that, from and after the date of this Agreement, and to the
fullest extent permitted under applicable law, the Executive will not
voluntarily participate or assist in any judicial, administrative, arbitral, or
other proceedings of any nature or description against any Company Released
Party brought by or on behalf of any administrative agency or any executives or
former executives of the Company other than pursuant to a valid judicial
subpoena or court order. If any person or entity brings a Claim released under
the Release on the Executive’s behalf, the Executive will waive any right to
recovery under such Claim and will use commercially reasonable efforts to
cooperate with Company Released Parties to have such claim
dismissed.

     

    3.4. Voluntary
Act.  The
Executive is giving the Release knowingly, voluntarily, and with full
understanding of its terms and effects. The Executive is giving the Release of
his own free will without any duress, being fully informed, and after due
deliberation. The Executive voluntarily accepts the Company’s promise to pay the
Separation Compensation to him in consideration of the
Release.

     

    3.5.  Third
Party Beneficiaries.  The Executive
understands and agrees that each of the individuals and entities identified as
Company Released Parties in Section 3.1 of this Agreement are intended
third party beneficiaries of the releases and undertakings conveyed by Executive
hereunder, and that each such beneficiary will have the right to enforce the
terms and conditions of the Release directly, in its own name and its own right,
to the fullest extent that such rights are afforded to the Company
hereunder.

     

    4.  Transition
Period. During
the period from the date hereof through the Separation Date, the Executive will
devote such time and attention to the business of the Company, and will provide
the Company with such advice, information, assistance, and counsel, as the Chief
Executive Officer of the Company may request in order to promote the Company’s
business and operations and to transition the Executive’s responsibilities to
others.

     

    5.   Cooperation. The Executive hereby agrees
that at all times during the Severance Period, and at all times thereafter
solely with respect to any Proceeding, he will make himself reasonably available
to, and will as reasonably requested by the Company cooperate with, the Company
and its Affiliates, at the Company’s sole cost and expense, with respect to any
matter about which Executive has knowledge arising out of the Executive’s
employment with the Company, or any roles or positions the Executive had with
the Company or any of its Affiliates, including without limitation in connection
with any Proceeding. For purposes of this Agreement, “Proceeding”
means any and all past, present and future actions, causes of action, suits,
litigation, complaints, controversies, threats, demands, inquiries,
investigations, or other proceedings, whether formal or informal, and whether
pending or threatened or otherwise, involving the Company or its
Affiliates.  The Company and the Executive agree that if the Executive
is required to provide in excess of one hundred (100) hours of his time pursuant
to this Section 5, including travel time, the Company will compensate the
Executive at the rate of $300 per hour for all such excess time.  The
Company agrees that the Executive will not be required to provide any merger and
acquisition advice or services under this Section 5, and further agrees that
nothing in this Section shall be interpreted to create an obligation in the
event of the Executive’s death or disability.

     

    6.  Non-Solicitation
and Non-Competition.  During the Severance Period, the
Executive agrees that he will not, directly or indirectly, (a) solicit any
employee of the Company for employment, or (b) enter into, organize,
control, engage in, be employed by, serve as a consultant to, be an officer or
director of, participate in any effort to purchase all or substantially all of
the assets of or any of the shares of any corporation or other entity owning, or
have any direct or indirect investment in, any spread, specialty milk, soymilk,
half and half, cooking oil, or peanut butter business in competition with the
spread, specialty milk, soymilk, half and half, cooking oil, or peanut butter
business of the Company and its Affiliates in any geographic areas in which the
Company and/or any of its Affiliates is then currently conducting such
business.  Nothing contained in this Agreement shall be construed to
prevent the Executive from owning at any time, directly or indirectly, as much
as 5% of any class of equity securities issued by any corporation or other
entity which are publicly traded and registered under the Securities and
Exchange Act of 1934, as amended.

    
       

      
        
          
          

        

        
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    7.  Confidentiality.  The Company and
the Executive are parties to an Employee Invention Assignment and
Confidentiality Agreement dated as of May 21, 2008 (the “Confidentiality
Agreement”).  The Company and the Executive agree that the
Confidentiality Agreement shall remain in full force and effect according to its
terms notwithstanding the execution and entry into effect of this
Agreement.  In addition to the understandings and agreements contained
in the Confidentiality Agreement, the Executive agrees that he will not use any
Confidential Information and Trade Secrets of the Company, as those terms are
defined in the Confidentiality Agreement, in any manner adverse to the interests
of the Company.  The Executive agrees that, without limiting the
generality of the foregoing, his direct or indirect participation in any effort
to purchase all or substantially all of the assets of any business of the
Company, or shares of the Company sufficient to constitute control of the
Company, would constitute a use by the Executive of Confidential Information and
Trade Secrets of the Company in a manner adverse to the interests of the
Company.

     

    8.  Change of
Control Agreement.  The Company and the
Executive are parties to a Change of Control Agreement dated as of May 21, 2007
(the “Change of Control Agreement”).  The Company and the Executive
agree that as of the Effective Date the Change of Control Agreement shall be
null and void and no longer of any force and effect.

     

    9.  Indemnification
Agreement.  The Company and
the Executive are parties to an Indemnification Agreement dated as of March 10,
2010 (the “Indemnification Agreement”).  The Company and the Executive
agree that notwithstanding this Agreement and the granting by the Executive of
the Release, the Indemnification Agreement remains in full force and
effect.

     

    10.  2007
Option Agreement and 2008 Option Agreement.  The Company and
the Executive agree that as of the Effective Date the 2007 Option Agreement and
the 2008 Option Agreement shall each be null and void and no longer of any force
and effect.  Specifically, and without limiting the generality of the
foregoing, the Executive acknowledges and agrees that, in consideration of the
Company’s promise to pay the Separation Compensation, he is forfeiting all of
his rights under the 2007 Option Agreement and the 2008 Option Agreement,
including any rights he might have to the vested and unvested portions of both
the Time Vested Awards and the Price Vested Awards under both agreements, as
those terms as defined in such agreements.

     

    11.  Press
Release.  The Company and
the Executive will agree on appropriate language to be provided to the
Securities and Exchange Commission regarding the Executive’s separation from
service with the Company, and his decision to withdraw his name from
consideration for reelection to the Board of Directors of the Company, which is
both acceptable to the Executive and which meets all of the Company’s legal and
ethical obligations to report.  Such report to the Securities and
Exchange Commission will also include a copy of a press release which will be
released by the Company.  The substance of press release will be that
the Executive has decided to leave his employment with the Company to pursue
other interests.

     

    12.  Records,
Documents and Property. On or before the Separation Date, the Executive
agrees to return to the Company all of its property including but not limited to
its records, correspondence, and documents, in both digital and hard copy form,
as well as all keys, pagers, computers, access cards, and corporate charge
cards.

     

    13.  Additional
Acknowledgements, Representations, and Affirmations.

     

    13.1  No
Consideration Absent Execution of Separation Agreement. The Executive
acknowledges and agrees that he is not presently entitled to any portion of the
Severance Compensation other than by reason of the Executive’s execution and
delivery of this Agreement, and that delivery of the Severance Compensation
constitutes additional consideration for the Executive’s execution and delivery
of this Agreement and his fulfillment of the promises and undertakings contained
in this Agreement.

     

    13.2  Full
Satisfaction.
The Executive acknowledges and agrees that, except for the payments and benefits
set forth in Sections 2, 3.1(a), 3.1(b), and 9 above, the Executive will neither
receive, nor be entitled to receive, any other compensation, payments, or
benefits of any kind or nature from the Company or its Affiliates, including
without limitation any salary, commission, compensation, bonus, incentive
payment, severance, expense reimbursement, or other payment of any kind or
nature whatsoever pursuant to the any agreement, understanding, or instrument,
whether verbal or written, between the Executive and the Company or its
Affiliates.

    
       

      
        
          
          

        

        
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      13.3  Absence
of Potential Claims.

    

     

    (a)          The
Executive hereby affirms that he has not filed, caused to be filed, or presently
is a party to any pending or threatened claim or action against the Company or
any of the Company Released Parties, and agrees that he will not file or cause
to be filed any such claim between the date hereof and the Effective
Date.

     

    (b)          The
Executive hereby affirms that he has been paid and/or has received from the
Company all compensation, wages, bonuses, commissions, and/or benefits to which
he may be entitled in connection with his employment with the Company (other
than his base salary and bonus for the period from the date hereof through the
Separation Date to be paid to the Executive pursuant to Section 2 hereof in
consideration of the Executive’s service through the Separation Date). The
Executive further affirms that he has been granted any leave to which he was
entitled under the Family and Medical Leave Act or related state or local leave
or disability accommodation laws and has not been subjected to retaliation by
the Company for taking such leave.

     

    (c)          The
Executive affirms that he has not suffered any known workplace injuries or
occupational diseases.

     

    (d)          The
Executive affirms that he has not been retaliated against for reporting any
allegations of wrongdoing by the Company or its Affiliates, or their respective
officers or board members, including any allegations of corporate
fraud.

     

    13.4.  Acknowledgements.

     

    (a)          The
Executive acknowledges that he has been advised to consult with an attorney
prior to signing this Agreement, and that he has done so.

     

    (b)          The
Executive acknowledges that he has not relied on any representations or
statements not set forth in this Agreement. The Executive will not disclose the
contents or substance of this Agreement to any third parties, other than his
attorneys, accountants, or as required by law, and the Executive will instruct
each of the foregoing not to disclose the same.

     

    14.  No Duty
to Mitigate.  The Executive will not be required to mitigate
the amount of any payment or benefit contemplated by this Agreement, nor will
any earnings that the Executive may receive from any other source reduce any
such payment or benefit.

    


    15.  Non-Admission.  The
Company and the Executive agree that this Agreement shall not be deemed or
construed at any time for any purpose as an admission by either party of any
liability or unlawful or wrongful conduct of any kind.  Specifically,
and without limiting the generality of the foregoing, the Executive further
agrees that nothing contained in this Agreement shall be deemed or construed at
any time for any purpose as an admission by the Company that the Executive is at
the date hereof or was at any time during his employment with the Company
anything other than an At-Will employee of the Company.

     

    16.  Breach.  The
Executive acknowledges and agrees that any material breach of this Agreement
will entitle the Company immediately to cease providing the Separation
Compensation to Employee under this Agreement, except as provided by
law.

     

    17.  Indemnification.  Except
as provided by law, the Executive agrees to indemnify and hold the Company
Released Parties harmless from and against any suit, claim, loss, liability,
cost, expense, damage, or deficiency (including without limitation, attorneys’
fees) resulting from or relating to any material breach by the Executive of any
promise, acknowledgement, representation, or obligation of the Executive under
this Agreement.

     

    18.  Governing
Law and Venue.
This Agreement has been negotiated and executed in the State of New Jersey and
is to be performed in New Jersey.  This Agreement shall be governed by
and interpreted in accordance with the laws of the State of New Jersey,
including all matters of construction, validity, performance, and enforcement,
without giving effect to principles of conflict of laws.  Any dispute,
action, litigation, or other proceeding concerning this Agreement shall be
instituted, maintained, heard, and decided in the State of New
Jersey. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE THEIR RIGHT TO A TRIAL
BY JURY IN ANY LITIGATION RELATED TO OR ARISING OUT OF THIS
AGREEMENT.

    
       

      
        
          
          

        

        
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    19.  Successors
and Assigns.  This Agreement is
binding on the Company and its successors and assigns and inures to the benefit
of the Executive and the Executive’s heirs, executors, and personal
representatives.

     

    20.  Miscellaneous. This Agreement contains the
complete agreement between the Company and the Executive with respect to its
subject matter, and supersedes all prior agreements, arrangements, or
understandings with respect to the subject matter of this Agreement, except as
expressly set forth in Section 7 or elsewhere in this Agreement. This Agreement
may only be modified in a writing signed by the Company and the Executive. The
provisions of this Agreement are severable and the unenforceability or
invalidity of any provision of this Agreement will not render any other
provision unenforceable or invalid. If any provision of Section 6 is determined
by a court of competent jurisdiction to be invalid in whole or in part, it shall
be deemed to have been amended, whether as to time, area covered, or otherwise,
as and to the extent required for its validity under applicable law, and as so
amended, shall be enforceable. The parties further agree to execute all
documents necessary to evidence such amendment. This Agreement may be executed
simultaneously in one or more counterparts, each of which will be deemed an
original, but all of which together will constitute one and the same
instrument.

    


    21.  Tax
Matters and Section 409A.  This Agreement
shall be interpreted, operated, and administered in a manner so that any amount
or benefit payable hereunder shall be paid or provided in a manner that is
either exempt from or compliant with the requirements under Section 409A of
the Code and any guidance issued thereunder. Any reference in this Agreement to
termination of employment shall mean “separation from service” within the
meaning of Section 409A of the Code and Treas. Reg.
1.409A-1(h).  Notwithstanding anything in this Agreement to the
contrary, any amount or benefit that would constitute non-exempt deferred
compensation (and would be payable by reason of the Executive’s separation from
service during a period in which he is a “specified employee” within the meaning
of Section 409A of the Code and Treas. Reg. § 1.409A-1(i)) will be accumulated
and paid no earlier than the first day of the seventh month following the
Executive’s separation from service (or if earlier upon the Executive’s death),
if and to the extent such delay is required under Section 409A of the Code. If
the Executive is entitled to be paid or reimbursed for any taxable expenses
under this Agreement, the amount of such expenses reimbursable in any one
calendar year shall not affect the amount reimbursable in any other calendar
year, and the reimbursement of an eligible expense must be made no later than
December 31 of the year after the year in which the expense was
incurred.  Notwithstanding the foregoing, the Company does not
guarantee the tax treatment of any compensation or benefits hereunder, whether
pursuant to the Code, state, or local tax laws and regulations.

     

     

    22.  Right
to Review and Revoke.  The Executive acknowledges that he has
been given the opportunity to review and consider this Agreement for twenty-one
(21) days from the date he received a copy. If he elects to sign this Agreement
before the expiration of the twenty-one (21) days, the Executive acknowledges
that he has chosen, of his own free will and without any duress, to waive his
right to the full twenty-one (21) day review period. The Executive may revoke this
Agreement after signing it by delivering written notice to the Secretary of the
Company within seven (7) days after signing it. This Agreement, provided it
is not revoked, will be effective on the eighth day after execution (the
“Effective Date”), provided that if the last day of the revocation period is a
weekend or legal holiday, then the revocation period will not expire, and the
Effective Date will not occur, until the next following day that is not a
weekend or legal holiday.  To be effective any revocation within the
seven (7) day period must be in writing and state “I hereby revoke my acceptance
of the Separation Agreement and General Release between Smart Balance, Inc., and
the undersigned.”   If the Executive timely revokes this Agreement,
then the Company and the Executive will automatically return to the status quo existing
immediately prior to such revocation, this Agreement will be null and void, and
there will be no obligation on the part of the Company to pay the Separation
Compensation.

    
       

      
        
          
          

        

        
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    IN WITNESS WHEREOF, the
parties have knowingly and voluntarily executed this Agreement as of the date
and year first above written.

     

    


    
      	 
      	 
      	 
      	 
      	 
      	 
      	 
      
	
              EXECUTIVE

            	 
      	 
      	 
      	
              SMART
      BALANCE, INC.

            
	 
      	 
      	 
      	 
      
	
              
                /s/
      Robert S.
      Gluck

              

            	 
      	 
      	 
      	
              By:

            	 
      	
              
                /s/
      Stephen B.
      Hughes

              

            
	
              Robert
      S. Gluck

            	 
      	 
      	 
      	 
      	 
      	
              Stephen
      B. Hughes

            
	 
      	 
      	 
      	 
      	 
      	 
      	
              Chairman
      and Chief Executive Officer

            
	 
      	 
      	 
      


    

    


    
       

      
        
          
          

        

        
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      STATE OF
NEW JERSEY

    

    


    COUNTY OF
Bergen

    


    I, the
undersigned Notary Public, do hereby certify that Robert S. Gluck personally
known to me to be the same person whose name is subscribed to the foregoing
instrument, appeared before me this day in person and acknowledged that he
signed and delivered the said instrument as his free and voluntary act, for the
uses and purposes therein set forth.

    


    Given
under my hand and official seal this 3rd day of May, 2010.

    
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              /s/
      Patricia A Rooney

            	 
      
	 
      	
              Notary
      Public 

            	 
      
	
              Patricia
      Ann Rooney

              Notary
      Public, State of New Jersey

              My
      Commission Expires

              April
      14, 2013

            	 
      	 
      
	 
      


    

     

    STATE OF
NEW
JERSEY

    


    COUNTY OF
_________

    


    The
foregoing instrument was acknowledged before me this 3rd day of May, 2010 by
Stephen B. Hughes, Chairman and Chief Executive Officer of Smart Balance, Inc.,
a Delaware corporation, on behalf of such corporation.

    


    Given
under my hand and official seal this 3rd day of May, 2010.

    
      	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
              /s/
      Ariel L. Reid

            	 
      
	 
      	
              Notary
      Public 

                                     For
      Stephen Hughes

            	 
      


    

    


    April L
Reid

    Notary
Public

    State of
Colorado

    Commission
expires 6/22/2013

    
       

      
        
          
          

        

        
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