Consulting Agreement dated September 19, 2008 by and between Nutrition 21,
having an office at 4 Manhattanville Road, Purchase, NY 10577 (“N21”), and Mark
H. Stenberg, residing at 115 East 87th
New York, NY 10128 (“Consultant”).
herewith, N21 and the Executive are entering into a Resignation Agreement and
General Release and Waiver (the “Other Agreement”). This Consulting Agreement
shall be effective only from the first date (the Effective Date”), if any, on
which the Other Agreement shall be effective and not subject to revocation
agrees to provide business consulting services for N21 as requested from time
time by Michael Zeher or his designee, who will provide business priorities
you to focus your time on.
consulting services described herein will be performed exclusively by Consultant
personally and cannot be assigned to others, except with the consent of Mr.
Zeher. Consultant agrees to make every reasonable effort to accommodate N21’s
scheduling needs. All services to be rendered hereunder may be provided via
consulting services will be provided from the Effective Date through December
Structure and Billing:
compensate Consultant at a rate equal to his current salary. In addition, N21
will provide to Consultant family health care for 12 months from the Effective
Date at a cost to Consultant equal to the cost paid by employees for family
health care. Consultant will submit invoices for services rendered bi-weekly.
legitimate expenses incurred by Consultant while doing the business of N21
be reimbursed within 30 days of invoice, including all legitimate business
expenses associated with the Electronic Retailing Association convention
September 21-24, 2008.
During the period of Consultant providing consulting services to N21, Consultant
will acquire from N21 technical and commercial information which N21 considers
to be proprietary and confidential, though specifically excluded from this
definition is vendor information (“Information”). Consultant agrees to keep
confidential and not to use or divulge, except with the consent of N21, any
Information as well as all information developed by Consultant as a result
services provided for N21 under this Agreement (“Developed Information”). Upon
termination of this Agreement or at any other time N21 requests, Consultant
transmit to N21 any written, printed, or other materials embodying such
Information or Developed Information, including all copies and excerpts thereof.
These obligations on Consultant’s part with respect to N21’s Information and
Developed Information shall continue at all times during and beyond the
Notwithstanding the above, this Agreement shall not restrict Consultant’s use or
disclosure of any Information which:
or later becomes publicly known through no fault of
already known to Consultant at the time of its receipt from N21,
evidenced by Consultant's written records;
lawfully and in good faith made available to Consultant by a third
without restriction and disclosure or
Specific information disclosed to Consultant by N21 or developed by Consultant
in Consultant's consulting capacity to N21 shall not be deemed to be available
to the public or in Consultant's prior possession merely because it is embraced
by more general information available to the public or in Consultant's prior
and Work Product
all inventions, discoveries, designs, or other work product (including Developed
Information), whether or not patentable or registrable as copyrighted material
or trademarks, which Consultant develops, conceives and/or makes within the
Consulting Period, and for a period of one year following termination of the
Consulting Period, related to Consultant's work for N21 hereunder or based
Information received from N21 (“Intellectual Property”), shall be promptly and
fully disclosed to N21 and shall be the sole and exclusive property of N21.
Consultant will, at the request of N21, promptly execute any and all
applications, assignments or other instruments which N21 shall deem necessary
useful in order to convey to N21 the sole and exclusive right, title and
interest in and to said Intellectual Property and in order to procure, maintain
and enforce patent protection, copyright protection or other forms of protection
world-wide for said Intellectual Property. N21 shall bear the costs of preparing
and filing all said instruments.
of the Parties
providing services for N21 in a consulting capacity, Consultant will be acting
as an independent contractor and not as an employee of N21 and Consultant will
not be entitled to any of the benefits, direct or indirect, of an employee
N21. From time to time Consultant may be granted authority to act as an agent
N21 insofar as required to fulfill Consultant's consulting responsibilities
obligations which by their nature would continue beyond the termination of
Agreement, shall survive termination of this Agreement, including, but not
limited to, confidentiality and assignment of inventions.
notices or other communications required or permitted to be given hereunder
shall be in writing. All such notices and other communications pursuant to
terms of this Agreement shall be deemed to have been duly given or delivered
when delivered personally, or sent by telegram, facsimile with confirmation
receipt, courier service or by Certified Mail-return receipt requested, to
address first set forth above.
validity, interpretation and performance of this Agreement shall be governed
construed in accordance with the laws of the state of New York.
claims or controversies arising out of or relating to this Agreement shall
settled by arbitration. Either party may demand arbitration. Within thirty
days of a demand for arbitration, each party shall select one arbitrator and
arbitrators shall select a third arbitrator. The arbitration shall be in
accordance with the rules of the American Arbitration Association and be held
New York, New York. The arbitration award may be entered in any court of
competent jurisdiction and enforced as any other judgment, decree or order
Agreement contains all the understandings and representations between us
relating to the matters referred to herein, supersedes any arrangements
previously entered into with respect thereto, and can be amended only in a
writing duly executed on behalf of each party.
Michael A. Zeher
Michael A. Zeher
President and Chief Executive Officer