Exhibit 10.23
AMENDMENT
TO THE
EMPLOYMENT
AGREEMENT
(Scott A. Falconer)
THIS AMENDMENT, dated as of
December 30, 2008 (the “ Amendment ”), is
between NutriSystem, Inc., a Delaware corporation (the “
Company ”), and Scott A. Falconer (the
“ Employee ”).
RECITALS
WHEREAS, the Company and the
Employee previously entered into an Employment Agreement, dated
May 14, 2008, (the “ Employment Agreement
”), that sets forth the terms and conditions of the
Employee’s employment with the Company;
WHEREAS, the Company and the
Employee desire to amend the Employment Agreement to comply with
the requirements of section 409A of the Internal Revenue Code of
1986, as amended and the final regulations issued thereunder;
and
WHEREAS, Section 16 of the
Employment Agreement provides that the Employment Agreement may be
amended pursuant to a written amendment executed between the
Employee and the Company.
NOW, THEREFORE, the Company and the
Employee, each intending to be legally bound hereby, agree that,
effective December 30, 2008, the Employment Agreement shall be
amended as follows:
A. Death . Section 9 of
the Employment Agreement is hereby amended in its entirety to read
as follows:
“If the Employee dies during
the Employment Term, then the Employment Term shall terminate, and
thereafter the Company shall not have any further liability or
obligation to the Employee, the Employee’s executors,
administrators, heirs, assigns or any other person claiming under
or through the Employee, except (a) that the Employee’s
estate shall receive any unpaid Salary that has accrued through the
date of termination, (b) Employee’s estate shall receive
a lump sum cash payment in an amount equal to the Employee’s
prorated Annual Bonus (calculated as equal to 100% of Salary) for
the fiscal year of his death, which pro ration will be determined
from the first day of the fiscal year in which the Employee dies
through the date of death; and (c) the Initial Stock Grant
will be accelerated for an additional period of 12 months following
the month in which the Employee dies that is applied between
scheduled vesting dates to accelerate vesting on the pro rata
portion of the vesting schedule using a monthly basis instead of
the scheduled vesting dates. Cash payments under this
Section 9 shall be made by the Company within 60 days after
the Employee’s death.”
B. Total Disability . The
first paragraph of Section 10 of the Employment Agreement is
hereby amended in its entirety to read as follows:
“If the Employee becomes
“totally disabled,” then the Employment Term shall
terminate, and thereafter the Company shall have no further
liability or obligation to the Employee hereunder, except as
follows: the Employee shall receive (a) any unpaid Salary that
has accrued through the date of termination, (b) a lump sum
cash payment equal to one month of Salary, (c) a lump sum cash
payment in an amount equal to the Employee’s prorated Annual
Bonus (calculated as equal to 100% of Salary) for the fiscal year
of his termination pursuant to this Section, which pro ration will
be determined from the first day of the fiscal year in which the
Employee’s termination occurs through the date of
termination; (d) the Initial Stock Grant will be accelerated
for an additional period of 12 months following the month in which
the Employee is totally disabled that is applied between scheduled
vesting dates to accelerate vesting on the pro rata portion of the
vesting schedule using a monthly basis instead of the scheduled
vesting dates; and (e) whatever benefits that he may be
entitled t
