Exhibit 10.21
SECOND AMENDMENT
TO THE
EMPLOYMENT
AGREEMENT
(Thomas F. Connerty)
THIS SECOND AMENDMENT, dated as of
December 30, 2008 (the “ Second Amendment
”), is between NutriSystem, Inc., a Delaware corporation
(the “ Company ”), and Thomas F. Connerty
(the “ Employee ”).
RECITALS
WHEREAS, the Company and the
Employee previously entered into an Employment Agreement, dated
November 30, 2007 (the “ Employment Agreement
”), and an Amendment, dated as of May 14, 2008, to the
Employment Agreement (the “ First Amendment ”),
that set 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 and the First
Amendment 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 and
First Amendment shall be amended as follows:
A. Total Disability . The
first paragraph of Section 10 of the Employment Agreement, and
Part D of the First Amendment amending subsection (b) of the
first paragraph of Section 10 of the Employment Agreement, are
hereby amended in their 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 under this Agreement,
except that 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, and
(c) whatever benefits that the Employee may be entitled to
receive under any then existing disability benefit plans of the
Company, and except as provided in the Stock Award Agreement with
respect to the Stock Grant. Cash payments under this
Section 10 shall be made by the Company within 60 days after
the Employee’s termination of employment.”
B. Termination without Cause by
the Company . Subsections (1) through (6) of
Section 13 of the Employment Agreement, and Part E of the
First Amendment amending subsections (1) through (6) of
the Employment Agreement, are hereby amended in their entirety to
read as follows:
“(1) within 60 days following
the Employee’s termination date, the Company will pay to the
Employee a lump sum cash severance payment in the amount equal to
the sum of:
(i) the Salary for period from the
date of termination to the end of the Employment Term;
and
(ii) the value of the premium cost
to the Company to continue the Employee on the Company’s
group life and AD&D policy for the period from the date of
termination to the end of the Employment Term;
(2) the Employee’s group
heathcare coverage will be continued for the period from the date
of termination to the end of the Employment Term, at the
Employee’s norm
