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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

VISALUS, INC.,

Plaintiff,

CY4 '/s.

AMBER THEN and OCEAN AVENUE LLC,

Case No.;

Defendants.

VERIFIED COMPLAINT FOR INJUNCTIVE AND OTHER RELIEF

Plaintiff, VISALUS, INC. ("ViSalus" or the "Company"), by its attorneys, and for

its complaint against Defendants, AMBER THEN ("Then") and OCEAN AVENUE LLC.

("Ocean Avenue"), states as follows:

PRELIMINARY STATEMENT

Defendant Then Was a prominent and successful independent distributor of ViSalus

weight management products, nutritional supplements, and energy drinks. In approximately

November and December 2012, ViSalus discovered information that led it to believe that, while

Then was still a ViSalus distributor, she had nevertheless begun working with a direct competitor

of ViSalus ie., Defendant Ocean Avenue. Based on that information, ViSalus suspended Then's

account. Thereafter. Then requested to be reinstated as a ViSalus distributor and ViSalus agreed

to reinstate her on the condition that, in addition to other covenants, Then agreed to be bound by

a limited non-compete agreement preventing her from working for Ocean Avenue for one year

following any departure from ViSalus, but not otherwise limiting her employment opportunities.

Then accepted ViSalus' offer of reinstatement and signed the non-compete agreement on

1

Case 4:13-cv-00028-WTM-GRS Document 1 Filed 01/30/13 of 18

December 14, 2012, Shortly thereafter, and in blatant violation of her non-compete agreement,

Then began openly working with Ocean Avenue. In addition to violating her non-compete

agreement, Then has actively solicited and recruited other ViSalus distributors to leave ViSalus

for Ocean Avenue. Then's actions have harmed ViSalus and threaten further irreparable injury

unless Then is enjoined from violating her contractual obligations to ViSalus. Ocean Avenue

has intentionally interfered with ViSalus' contractual rights, by, among other things, associating

with Then, despite its knowledge of Then's non-compete agreement, and encouraging Then to

solicit and recruit other ViSalus distributors.

PARTIES, JURISDICTION, AND VENUE

1. This is an action asserting claims for multiple breaches of the non-

compete and non-solicitation agreements by and between Then and ViSalus.

2. ViSalus is a corporation organized under Delaware law with its principal

place of business located at 1607 East Big Beaver Road, Suite 110, Troy, Michigan 48083.

3. On information and belief, Then is a citizen of the State of Georgia who

maintains a residence at 44 White Oak Bluff, Savannah, Georgia 31405. Then became a ViSalus

distributor as an independent contractor beginning on or about March 30, 2011. Then officially

resigned as a ViSalus distributor on December 28, 2012.

4. On information and belief, Ocean Avenue is a limited liability company

organized under the laws of Wyoming, having its principal place of business in South Jordan,

Utah. On information and belief, no members of Ocean Avenue are citizens of Georgia. Ocean

Avenue is a direct competitor of ViSalus.

5. This Court has subject matter jurisdiction under 28 U.S.C. §1332(a)(1)

based on the parties' diversity of citizenship. The amount in controversy exceeds the value, of

2


$75,000, exclusive of interest or costs, as evidenced by, among other things, the revenue and

profits generated by Then and the ViSalus distributors whom she has improperly solicited and

will continue to solicit unless enjoined.

6. This Court has personal jurisdiction over the defendants. At all times

relevant hereto, Then has been a resident of and domiciled in the State of Georgia and has

conducted business activities within the State of Georgia. Ocean Avenue does business within

the State of Georgia, has had numerous contacts with Then and other ViSalus distributors in the

State of Georgia, and has committed tortious acts in the State of Georgia.

7, Venue lies in this district because Then resides in this district and a

substantial part of the events or omissions giving rise to the claims in this Complaint occurred in

this district.

FACTS - BACKGROUND

8. ViSalus is a network marketing company that sells weight management

products, nutritional supplements, and energy drinks. it uses the trademark "ViSalus Sciences"

in promoting its prOducts. As a network marketing company, ViSalus products are not sold

through retail outlets. Instead, ViSalus relies on a network of distributors (a/Ida promoters") to

market and sell ViSalus products directly to the public.

9: Founded in 2005, ViSalus is one of the fastest growing companies in the

network marketing (a/k/a direct selling) industry. A key component of this business success has

been ViSalus' ability to build and maintain a vast network of distributors who both market and

sell ViSalus product and recruit additional distributors to join the ViSalus team. This

distribution network is the channel through which ViSalus ultimately is able to sell its products

to the end users.

3


10. In order to encourage distributors to encourage growth of product sales

through the recruitment of other distributors, ViSalus not only rewards its top performing

distributors through a generous compensation plan, ViSalus also raises their profile within the

ViSalus network and publicizes their achievements throughout the ViSalus distributor

community.

11. Indeed, ViSalus has developed a program, known as the Rising Stars

program, designed to increase the visibility and exposure of distributors within the Company as

they build their customer base and recruit and develop other distributors, thereby further

increasing ViSalus' customer base.. Through the Rising Stars program, as distributors meet

certain goals designed to measure the sales success of the network of distributors that they bring

to ViSalus, they are assigned a "rank" to recognize their success. The metric used to measure a

distributor's sales success and assign ranks is known as Growth Qualification Volume ("GQV").

The GQV measures the volume of sales generated by the distributor's team. A distributor's

success in recruiting, training, and developing other distributors - which is known as their

"downline network" - is measured by the number of distributors that they directly recruit and the

rank achieved by those distributors, Through this distribution network, YiSalus is able to reach

more and more end users of its products.

12. Under the Rising Stars program, a distributdr is first assigned the rank of

Associate. As the distributor achieves certain goals in the size of their GQV per month and the

size and quality of their downline network, a distributor can advance to Director, Regional

Director, National Director, Presidential Director, and Ambassador. At the Ambassador level, a

distributor can continue to progress through additional ranks such as One Star, Two Star, Three

Star, Four Star, and Five Star Ambassador. Advancement through these ranks correlates with

4


increased sales of ViSalus' products to customers, both by the distributor and through her or her

downline network.

13. ViSalus maintains a web-based intranet system known as Vi-Net. Vi-Net

is accessible to all ViSalus distributors. On Vi-Net, ViSalus recognizes each week those

distributors who had received a promotion to a higher rank. ViSalus also distributes a.quarterly

newsletter to its distributors identifying the distributors who have been promoted in the last

quarter and touting their successes to the ViSalus network of distributors.

14. In addition, ViSalus hosts regional and national meetings, at substantial

expense, at which individuals receiving promotions are recognized by the Company in front of

large audiences of other distributors.

15. During ViSalus' regional and national meetings, its high-ranking

distributors are also given special access to other top performers through closed-door sessions

that are limited to distributors who have achieved a certain rank within the Company, such as

National Director-and Ambassador-only sessions.

16. Through this process of recognizing and promoting distributors for

growing their GQV and downline network, high-ranking distributors gain access to, and become

known to, others who have proved themselves to be superior performers in the network

marketing industry and also gain insights into which distributors are rising more quickly than

others - i.e., which distributors are likely to continue their success, Further, as a recognized

leader in growing a customer and distributor network, a high-ranking distributor at ViSalus also

obtains influence over other distributors who aspire to expand their own networks, increase their

customer base and product sales, and thereby increase their compensation.

5


Then's Relationship with ViSahis

17. On or about November 11, 2010, Then joined ViSalus as a distributor.

For the reasons that follow, Then customarily andregularly solicited customers and distributors

for ViSalus, customarily and regularly engaged in making sales or obtaining orders or contracts

for ViSalus, gained a high level of influence with ViSalus's distributors and business

relationships, was intimately involved in running her part of the business, and possesses

specialized skills, abilities; contacts and information by reason of her work with ViSalus.

18. Then rapidly advnod within \TiSalus, achieving the rank of Ambassador,

An Ambassador designation, such as Then had, means that she and her downline network

generated substantial sales. As of December 2012, Then had a downline network of more than

1100 distributors.

19. As Then progressed through ViSalus' ranks, ViSalus internally marketed

Then's achievements and promotions through the Vi-Net site and ViSalus' quarterly newsletter,

In addition, Then's accomplishments were recognized by ViSalus in front of other distributors.

20. Attaining a high rank within the ViSalus distributor community and

receiving accolades and visibility from ViSalus, as Then did, essentially "brands" a distributor

such as Then both as a highly, successful person and as a person on whose team other distributors

want to be. To competitors of ViSalus, it is desirable to recruit successful and high-ranking

distributors such as Then, because their "star power" will attract other distributors without

further efforts by the competitor.

21. Ordinarily, ViSalus is willing, to live with this fact, provided the

distributor does not actively solicit or recruit other ViSalus distributors. (See IT 24-27, below,)

However, when Then sought to be reinstated with ViSalus, ViSalus was concerned that if it


agreed to reinstate her, she represented a greater risk than she did before as a new distributor,

because Then had already demonstrated her willingness to leave ViSalus and because the

possibility existed that Then had an ulterior motive for wanting to be reinstated.

22. ViSalus was unwilling to reinstate Then, continue to promote her, and

continue to give her access to ViSalus information and other ViSaIus distributors without a

promise from Then not to go back to Ocean Avenue,

23. Ocean Avenue is of particular concern to ViSalus based on Ocean

Avenue's concerted efforts over the past several months to recruit ViSalus distributors. During

this period, ViSalus has lost a substantial number of distributors to Ocean Avenue, including

numerous distributors with the rank of Ambassador. Moreover, ViSalus was especially

concerned about the good faith of Then and two other Vi Salus distributors with whom was

aligned: her brother Thomas Then and Chelsea Nile. All three of them have now openly joined

Ocean Avenue, just as ViSalus had feared they would. Then's non-compete agreement

addressed ViSalus' legitimate concerns that Then either intended to work with (or return to)

Ocean Avenue, or that she might be tempted to do so in the future.

24. In 2012, and at the time of her separation from ViSalus, Then had a

downline network of distributors principally in northern Florida (approximately north of

Orlando), southern Georgia (south and east of Macon), and eastern South Carolina, and she sold

products, directly or indirectly, to customers and prospective customers in those same areas. In

addition, Then had distributors in her downline network in Del Ray Beach, Ft, Lauderdale,

Miami, and Miami Beach, Florida; Tiffin, Ohio; New Haven, Connecticut; Denver, Colorado

and it suburbs; El Paso and El Campo, Texas; Hohenwald and Columbia, Tennessee, and other

cities in eastern Tennessee; New York, New York and approximately seven other cities in New

7


York State; Framinghani, Massachusetts; Spokane, Washington; and numerous cities in

Alabama, Then had no geographic restrictions on her efforts to recruit distributors or sell

products.

Then's Aff eements with ViSalus.

25. Upon joining ViSalus, Then was provided, with, an "Independent

Distributor Terms Of Agreement" (referred to hereinafter as the "Distributor Agreement" and

attached hereto as Exh. A, pages 9-11) and an "IP Terms of Agreement" (collectively referred to

as the "Non-Solicitation Agreements") through the Vi-Net system (referred to hereinafter as the

"IP Agreement" and attached hereto as Exh, B).

26. Through the Distributor Agreement and the IP Agreement, Then agreed to

various conditions on her right to operate as a distributor, including a provision in each

agreement prohibiting her from soliciting or recruiting any ViSalus distributors for one year

following her departure from ViSalus. (Exh. A, at p,11123; Exh. B ¶24).

27. The operative provision in the Distributor Agreement reads as follows:

During the term of this Agreement (and any renewals) I will not sell any other products for any entity competing with VISALUS. During the term of the Agreement (and any renewals) and for (1) one year (hereafter, I will not solicit or recruit, VISALUS employees or Distributors, whether active or inactive, to participate in a network marketing program whether or not such marketing company offers products. I acknowledge that my violation of this provision will result in immediate termination of my Distributorship and payments of any kind.

Exh. A, at p.11 123 (emphasis added).

28. The operative provision in the IP Agreement reads as follows:

During the term of this agreement (and any renewals) I will not participate in any other network marketing companies. In addition, during the terms of the Agreement and for (1) one year thereafter, I will not solicit or recruit, ViSatus employees

8


or Promoters, whether active or inactive, to participate in any network marketing .program. I acknowledge that my violation of this provision will result in immediate termination of my Prômotorship and payments of any kind.

Exh, B, ¶24 (emphasis added).

29. Then accepted the benefits of the Agreements, including access to

ViSalus' products, Commission payments, marketing materials, and customer tracking and

accounting services. While affiliated with ViSalus and accepting the benefits of her affiliation

with ViSalus, Then did not object to the - Non-Solicitation Agreements or any of their terms or

conditions.

30. In November and December 2012, ViSalus discovered information that

led it to believe that Then had begun working with Ocean Avenue, a direct competitor of

ViSalus, while Then was still a ViSalus distributor. This was • a violation of the Non-Solicitation

Agreements, which prohibited Then from selling products for "any entity competing with

VISALUS" or "partieipaflingj in any other network marketing companies." Accordingly,

ViSalus took the appropriate steps to suspend Then's account and terminate its distributor

relationship with Then, and informed her of that fact.

31. Shortly thereafter, Then informed ViSalus that she wished to be reinstated

as a ViSalus distributor. As a condition of reinstatement with ViSalus, Then agreed to remove

her Ocean Avenue marketing site and to cease any further marketing of Ocean Avenue products.

ViSalus also required Then to execute a limited non-compete agreement (referred to hereinafter

as the "Non-Compete Agreement" and attached hereto as Exhibit C) prohibiting her from

working for Ocean Avenue for one (1) year following any departure from ViSalus. Then

accepted ViSalus' offer of reinstatement and signed the Non-Compete Agreement on December

14, 2012.


32. The Non-Compete Agreement reads, in part, as follows:

As you know, there was and continues to be credible evidence that you enrolled with a competing network marketing company called Ocean Avenue. With your Ocean Avenue marketing Web site taken down, and your further assurance, that you will resign from Ocean Avenue and cease all promoting for that company, we are willing to reinstate you. The terms are simple. Your business will continue uninterrupted, subject to all of the same agreements, policies and procedures. However, we will require you. to confirm by your counter-signature[] below that should you choose to resign from ViSalus, or should you be terminated by 'iSalus at anv time in the future, you will be subject to a one (1) year non-competition provision specific to Ocean Avenue. This is not an attack on Ocean Avenue or its executives per Se, it's an honest recognition that none of us want to live through this exact scenario again. So, to be clear, should you leave ViSalus again you will be prohibited from joining Ocean Avenue for one (1) year, and ViSalus will enforce that restriction through all available means.

Exh. . C (emphasis added).

Then's.VioJit ion of the Non-Compete Agreement

33. Despite having executed the Non-Compete Agreement, on December 28,

2012, Then formally tendered her resignation to ViSalus and began openly to work with Ocean

Avenue.

34. Then's duties and responsibilities as a distributor for Ocean Avenue are

the same or substantially the same as her duties and responsibilities were for ViSalus.

35. In the month following Then's resignation, Then has actively promoted

Ocean Avenue's products on her personal Facebook page. [Facebook.com , Amber Then,

https://www.facebook.comlamber.then.l (last visited January 21, 2013)],

36. Then has violated the Non-Compete Agreement by working for Ocean

Avenue during the one-year period during which she is prohibited from doing so. As a result,

ViSalus has suffered substantial business losses and is threatened with the continuing losses of

10


customers and distributors.

37. By her conduct, it is clear that, unless enjoined from doing so, Then will

continue working with Ocean Avenue and expose ViSalus to substantial harm to its legitimate

business interests.

Then's Unlawful Solicitations

38. In direct violation of her Non-Solicitation Agreements, Then has actively

solicited and recruited ViSalus distributors to Ocean Avenue,

39. Then joined Ocean Avenue as a member of the Legacy Global Network

("the Network"). The Network is Travis Flaherty's personally branded system of multi-level

marketing ("MLM") professionals, which Flaherty brought to Ocean Avenue in early 2012. The

Network is specifically aimed at recruiting lv[LM professionals like Then to Ocean Avenue from

other MLM entities such as ViSalus. As a member of the Network, Then successfully solicited

and recruited, among others, Jennifer Gueorguiev, Shellie Hrabal-Hargrove, David Bannerman,

and Tara Kelly.

40. In addition, on or about December 28, 2012, Then posted on her Facebook

page a video message in which she announced that she was now affiliated with Ocean Avenue

and encouraged her audience of ViSatus distributors and others to join her. [Facebook.com ,

Amber Then, https://www.facebook.conilamber.then. I (last visited January 21, 2013)].

41. Then has further announced on her Facebook page that she will be

attending an Ocean Avenue conference in Cancun, Mexico in late January 2013.

42. By her conduct, it is clear that, unless enjoined from doing so, Then will

continue her efforts to recruit and solicit ViSalus distributors to Ocean Avenue and expose

ViSalus to substantial harm to its legitimate business interests.

11


First Cause of Action (Against Then) Breach of Contract - Breach of Non-Compete Agreement

43. ViSalus repeats and realleges each and every allegation set forth in

Paragraphs] through 41, above, as though fully set forth herein.

44. By virtue of the conduct described above Then has breached the Non-

Compete Agreement.

45. As a direct and proximate result of Then's breaches of the Non-Compete

Agreement, ViSalus has been injured and will continue to be injured through the loss and threats

of continuing loss of customers, distributors and goodwill.

46. ViSalus' injuries cannot be fully quantified, and ViSalus has suffered

and/or will suffer irreparable harm due to Then's actions

47. ViSalus has no adequate remedy at law, and the balance of hardships

favors entering of an injunction against Then

48. ViSalüs has important and legitimate protectable business interests in

enforcing the term of the Non-Compete Agreement against Then,

49. The scope of the Non-Compete Agreement is reasonable asit is limited to

one year and to a single competing company.

Second Cause of Action (Against Then) Breach of Contract—Breach of Distributor Agreement and I? Agreement

50. ViSalus repeats and realleges each and every allegation set forth. in

Paragraphs 1 through 41, above, as though fully set forth herein.

51. By virtue of the conduct described above, Then has breached the Nan-

Solicitation Agreements.

52, As a direct and proximate result of Then's breaches of the Non-

Solicitation Agreements, ViSalus has been injured and will continue to be injured through the

12


loss of distributors and business revenue to a direct competitor.

53. ViSalus' injuries cannot be fully quantified, and ViSalus has suffered

and/or will suffer irreparable harm due to Then's actions,

54. ViSalus has no adequate remedy at law, and the balance of hardships

favors entering of an injunction against Then.

55. ViSalus has a legitimate protectable business interest in enforcing the

terms of the Non-Solicitation Agreements against Then, as that they serve to protect ViSalus'

distributor network by preventing Then from exploiting the knowledge Of, relationships with,

and influence over ViSalus' distributors that he obtained as a result of ViSalus' active promotion

and marketing of her within the Company.

56. The scope of the Non-Solicitation Agreements are reasonable because

they run for only one year and limit only Then's ability to solicit and recruit ViSalus distributors,

Third Cause of Action (Against Then) Tortious Interference with Business Relationship s


Paragraphs 1 through 41 above as though fully set forth herein.

58. By virtue of the conduct described above, Then has tortiously interfered

with ViSalus' business relationships between ViSalus and its distributors, including Chelsea

Then and Amber Then.

59. Then was fully aware of the business relationships between ViSalus and

its distributors, including the aforementioned distributors, and intentionally and without

justification interfered with those relationships,

60. ViSalus has been damaged as a result of Then's actions through the loss of

its business relationships with its distributors and the loss of potential business from those

13


distributors, all in an amount to be determined at trial.

61 Then acted intentionally, willfully, and with reckless disregard to ViSalus'

tights.

Fourth Cause of Action (Against Ocean Avenue)' Torlious Interference with Business ReIationsh1s


Paragraphs 1 through 41 above as though fully set forth herein.

63. By virtue of the conduct described above, Ocean Avenue has tortiously

interfered with ViSalus' business relationship with Then, and, by encouraging Then to solicit and

recruit other ViSalus distributors, Ocean Avenue has tortiously interfered with the business

relationships between ViSalus and its distributors,

64. Ocean Avenue was fully aware of the business relationship between

ViSalus and Then, and the business relationships between ViSalus and its distributors, and

intentionally and without justification interfered with those relationships. Among other things,

on January 14, 2013, attorneys for ViSalus sent to Ocean Avenue a copy of Then's Non-

Compete Agreement along with similar agreements for two other ViSalus distributors who have

also gone to work for Ocean Avenue in violation of their Non-Compete Agreements (see Exhibit

D attached hereto).

65. ViSalus has been damaged as a result of Ocean Avenue's actions through

the loss of its business relationships with Then and other distributors, and the loss of potential

business from those distributors, all in an amount to be determined at trial.

66. Ocean Avenue acted intentionally, willfully, and with reckless disregard to

ViSalus' rights.

14


WHEREFORE, ViSalus respectfully prays that the Court:

(a) issue temporary, preliminary, and permanent injunctive relief against

Then, and that Then be enjoined and restrained from participating in any way in any Ocean

Avenue network marketing program for a period of one (1). year from the date that Then's

relationship was last terminated with ViSalus plus the period of time that this Court determines

Then was in breach of the Non-Compete Agreement;

(b) issue temporary, preliminary, and permanent injunctive relief against

Then, and that Then as well as her agents, representatives, servants, employees, attorneys,

successors and assigns, and all others in active concert or participation with Then, be enjoined

and restrained from soliciting or recruiting any ViSalus employees or distributors, whether active

or inactive, to participate in any network marketing program, including, but not limited to, Ocean

Avenue, for a period of one (1) year from the date that Then's relationship was terminated with

ViSalus plus the period of time that this Court determines Then was in breach of the non-

solicitation provision of the Agreements;

(c) enter a judgment against Then that she has committed a breaches of the

Non-Compete Agreement and the Non-Solicitation Agreements by her acts and conduct set forth

in this Complaint;

(d) issue temporary, preliminary, and permanent injunctive relief against

Ocean Avenue, and that Ocean Avenue be enjoined and restrained from encouraging, inducing,

rewarding, or otherwise interfering with ViSalus' Non-Compete Agreement with Then;

(e) issue temporary, preliminary,. and permanent injunctive relief against

Ocean Avenue, and that Ocean Avenue be enjoined and restrained from encouraging, inducing,

rewarding, or otherwise interfering with ViSalus' Non-Solicitation Agreements with Then;

15


(1) order Then to pay ViSalus for the damages caused by her unlawful

conduct, in an amount to be determined at trial;

(g) order Ocean Avenue to pay ViSalus for the damages caused by their

unlawful conduct, in an amount to be determined at trial;

(h) award ViSalus exemplary damages;

(i) award ViSalus its costs and reasonable attorneys' fees;

(j) award ViSalus prejudgment interest on any monetary award; and

(k) award ViSal'us such other and further relief as this Court deems just

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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Ircy

L JuMin C. u&r peiaiw of perjury OW pwunt to 29 t 170. dchre as bIkw:

rn Vk Pridrni, Servicemid Supptrt TPntiff ViSalus, Inc.

2: [

ha - ad ti ud ftimpiog Vtrifid C pkuiit FOr lnjurcivv And Other Ric

3,

The fafls statcd in ioing Vrffled Cmpam For Inimaivc And Other Relief are t" trd conec the Fsi of my kftowledge md ftnticn

305TY ME Diw


DATED this 30th day of January 2013.

Respectfully submitted,

JACKSON LEWIS LLP 1155 Peachtree Street, Suite 1000 Atlanta, Georgia 30309 Telephone: (404) 525-8200 Facsimile: (404) 525-1173

By: /s/ Eric R. Magnus • Eric R. Magnus • Georgia Bar No. 801405

[email protected] C. Todd Van Dyke Georgia Bar No. 723420 [email protected] (Admission Pro Hac Vice Pending)

Peter R. Bulmer JACKSON LEWIS LLP 150 North Michigan Ave,, Suite 2500 Chicago, Illinois 60601 Telephone: (312) 787-4949

• Facsimile: (312) 787-4995 Bu1InerPjacksonlewis.com (Admission Pro Hac Vice Pending)

Attorneys for Plaintiff VISALUS • •

•

HOLDINGS, LLC

4821-4026-7026,v. 2


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tW rl un c0cmm1w óJI*I, bt InIacclotnnnttIi M. other aod nle0ra1ane ccnanlcid aithMacc py 1& ma iodit mid iiç*iM to tUO, M4 0n I theanT* sxllm aie

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0cc piepm PF4 to TU cnnwn0naWo MMk Iue10 18thtto ci*thejnnduots y4 eci0 In seqnIn U Jiedv80ci of ndsnocl It t=t IedQjub p. nij &eneot thc$4h Mn Oett$1 00811 a MW OlOd 1011 10

cnn,w0anm aid EOeDtnCeidoMtogn . -- 10 1akaoMcdci ItcitMUeçy is Planan infflle0 ______to acrinO40thal nci have Tendand au t

The vo Iens met YouçItonUmn to cicdMo4e aihas1iithpayLSanto ITfl0h11 rec eai nki0c,ee, oAqo ihol* of 10 Apwodtjucctie Noptotay 14 mf 5kI08 W*rdm A 14 no011iT4nO daltonfurk am tonI 10101 tool u li idayktabann wta0cco nnpnmloelcc - flcc tl1OlL0U..22J2


Exhibit C


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1: -


Exhibit D


QlIad&c Bnja, Riaiin StIcare tKoru47s at Law im

Tel 6a129.200 4wqm Ifiteol Fax 0.5690 MiJeiadMde0j1 UYrA*J ww.aarIarcom Waska DC

James A. Ryan Writer's I)ret Dial; 60222.5706 &Matl; jesquarleacam

January 14, 2013

Mr. Jesse L. Ridctte OCEAN AVENUE 10701 River Front Parkway, #110 South Jordan, UT 84095

RE: ViSalus Nón-CompeteAgrwne,u With CheLea MIe, Thomas Then and Amber Then

Dear Jesse:

Thank you for your e..mail message of December 28, 2012, whieh.1 have f'rwaxded to ViSalus, The holiday season has obviously slowed some of our communications considerably. ViSahs believes there is still a concerted poaching campaign underway, and may well decide to take you up on your offer to idcutif' persons whD am violating their non-solicitation agreements so that you can take proper actions at yonr end to stop it. I will keep you posted on that

The specific purpose of this letter, however, is much narrower. Enclosed are copies of three non-compete agreements between Vialus and its former Promoters Chelsea Nile, Thomas The; and Amber Then. The enclosed agreements prohibit these former ViSalus Promoters from affiliating with Ocean Avenue for a period of one year fo11ong termination of their ViSalus distributorships. Nevertheless, since executing the enclosed cntracts, each of these individuals has violated their contractual obligations by continuing or resuming their affiliation with Ocean Avenue.

QE046121.00009\19221377.1


January 14 2013 Page 2

Of course, ViSaius intends to institute appropriate legal action against these indivdua1s. We are providing the enclosed copies of the agreements in question to you in order to ensure that Oceati Avenue does not inadvertently iuterkre with the rights of ViSa1is under its agreeiaents with Chelsea Nile, Thomas Then and Amber Then.

Sineerely,

4...R" JARJac

Enclosures

I

QI42.00OO919221377+1


C-a-

ot

proaioec JLL?. idon on

F~I oj rmylym

ViSa1us Posflon

To: C.n orart$62n Loo <Corgan12grneflcom>

Dear Chelsea,

We are pleased that you wish to ourrrinue aa VSaus InJpendent Pomoters A you Icnow, there ws and continues to be credible edeice that you enrolled wIth a tompethv networld marketing company called (ka n Avenue. With.your Ocean Avenue narketing Web site taken dawn, arid your turther assurance ihatyou wlllrsign from Ocean Avenue and cease at promoting for that comparry, we ar willing to reinstate you. The terms are simple, Your business will continue u.nInterrtted, subject to all of the same ereernents, polIcies and procedures. H oweVer, we vtilIl require yauto cnflrrn by your counte-slgnaturs below that should you thogse to resign from

V1SaIus or should -you Oe terminatedbyValus, atantifl,e in the future, yi will be suhjecttoa }yearncsn competition provision secWr. to Oiean Anue. ThTs is. not, an atta on Oear Avenue or fts executives perse, It's en honest reogiittion that none øf us want to Ihiethuough thlaexact scenario egah. 50, tobe dear, ghould you leave ViSdius again you wIfl be prohibited from joining Oce ni Avenue for one year, and ViSa iu will enforce that restriction through a ll available means.

Piese return this letter with a notarled slgnetur ta

Vlsalus ompllarbce Desrtrrei1t

340 E. BIg Beaver , Ste. 400 Troy MI 48083

Ycu msend a copy to Lth&iiiu.

Best regards,

VISa lusCCMPLNCE I O iLLl 7 i4 -

340 E . liçj goawr ld. Suite 400, Troy. M 4B08 I fax 077

f repct fr other FrQmatr5 and tn ntt rtt I m our ahiUty to rve everytfl hi cnfidc, we zsk that you repe eu w*s ami nt cammuMcate thLs rns& gthin- Prcr. Wo wU cornmuntcale drctty with aiy prtes irwolved Ln this mttr

1r2


l2#I41

Subjeot: VSaluaPoltlo,

From: ViSalus Conipliance (Damp anevisala.coni)

To: thomaa,thenyahoo.00rn;

Date: Thursday, December 18, 2012 6 ,64 PM

Dear Thomas,

We are pleased that you wish ta tontinue as ViSalus Independent Promoters. As you know, there and corrtlntzes to be credIble evidence that you enrolled with a competIng network marketing company ceiled Ocean Avenue. With your Ocean Avenue marketing Web site taken down, arni your Iwliter assurance that yot will resign from Ocean Avenue and cease all promoting for that company, we are willing to reinstate you. The terms are simple. Your business will continue uninterrupted, s bJect to all of the same agreement polIcies and procedures. Ilowever, we will reqtire you to confirm by your counter-signatures below that should you dmseto resign from VISa lus t or should you be terminated by VlSaIus, at jM time in the future, you witi be ubect to a one 1) year non-competition prevision specific to Pman Avenue. This Is not en attack on Ocean Avenue or Its eecutives perse, it's an honest recognition that none of us want to Nve through this exact scenario again. So, to be clear, should you leave ViSaJu& again you will be pro roitadfrorh Joining Ocean Avenue far one 1) year, and VISalus will enforce that restriction through all available means.

Please return this letter with a notarized signature 10

Visaks Compliance Department 340 C. Big Beaver, Ste. 400 Tray, Mi4083

You may send a copy to co lnc 4sdIus. cpm

Best regards,

#oms

IT — —

ViSa lue COMPLL,NC COMMITTEE bilo1urn I .com011anoe selut.cot I 248704.2180 340 E. 8g Beaer td ulta 400 Tray, Vi 48063 1 fax $77,847,0238. 5 NctayP

• RObSJ RNoi )t : ? ',ri'F Ei*waa

"Out of respeit for oth•ef P'om*ters and to matntatn your trust .%n our abitity to serve everyore In confidence, we ak that you respect our wishes and not communIcate this message to other Promoters. We wIR communicate directly with any parties irwotved In this rnatter *

aIutbLank Ill


PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158

0 355 Personal Inury - efProperty2l USC 281 0 423 Withdrawal • Product Liability 0 690 Other 28 USC 157

13 367HealtbCare/ Pbarn,acostica] .

Personal Injury Cl 820 Copyrights Product Liability El 830 Patent

O 368 Asbearos Personal 0 844) Trademailc Injury Product _____

• Liability

PERSONAL PROPERTY 13 71') Pan Labor S1na4rde 0 261 HIA (1 3955) 13 170 Other Fraud Act 13 8452 Black Lung (923)

13 37l Truth inLending 0 720LaboelMunngennmil 0 843 DIWCJD1WW(405(g))

o 380 Other Personal R&atioaio 0 664 SSID Title XVI Properly Dan,ale • 0 740 Railway Labor Act 13 865 rtST (405())

O 385 Property D')lnage Cl 751 family and Medical Product Liability Leave Act

PERSONAL I14JUI6Y 13 :110 Airplane 13 3 It Airplane Product

Liability 13 320 Assault, Libel Sr

Slander O 330 Fedora] Employers

Liability o 349 Marine o 345 Marine Product

Liability 1] 3M Motor Vehicle Ci 355 Motor Vhic1r

Product Liability O 3611 Other Personal

Irtury o 342 Personal Injury -

o 790 Other Labor Litigation O 191 Employee Retirement

lettne Security Act 13 670 Taxes (U.S. Pleintiff of Liefendani)

0 871 IRS—Third Party 26 USC 7619

Cl 465 Other Immigration Actions

0 440 Other Civil Rights Habeas Curpuast 0441 Voting 0 463 Allen Detainee

0 442 Employment 0 510 Motions to Vacate O 443 Uauaingl Scntcricc

Accommodations 13 5140 General O 445 Amer. w/Ditabililits. 13 535 Death Penalty

Eniptaymetit Other; 13 445 Amer wlDiaabiliiion - 0 540 Mwrdumi,t Sr Other

Other 3 5 5 Civil Righis 13 442 Education 0 $55 Prison Condition

0 S6l3 Civil Dalainoc- Conditions of Confinement

o III Insurance

13 120 Manne O 130 Miller Act 13 141 Nrgolisblt Instrument 13 ISO Recovery of Overpayment

dr Enfcroemout cf]udgme O 151 Medicare Act 13 152 Recovery of Defet,Itr,l

• Student Loans (Excludes Veterans)

O 153 Recovery of Overpayment of Veteran's Beneflis

O 161) Stockboldart Suits 191) Other Contract

13 195 Contract Product Liability

13 196pmscknio

o 210 Land Condemnation 13 220 Foreclosure 13 230 Rcnt Lease; drEjectment 13 240 Tarts to Land 13 245 Tort Product Liability O 290 All Other Real Property

El 375 False Claims Act 0 400 State Reapportionment O 410 Antitrust o 430 Banks and l3enkirig O 450 Crmunercc o 460 Deportation Cl 470 Racketeer InOneticed and

Corrupt Orpaninatronu 13 400 Consumer Credit Cl 4110 CabklSat TV O 655 SncurifleulCommoditieij

Exchange Cl S99 Other Statutory Actions 13 891 Agricultural Acts O 693 Eav'rcnrnmstsl Matters 0 895 Freedom of lnibrmatian

Act Cl 8116 Arbitration 0 999 Administrative Procedura

Aci/Reitw or Appeal of Agaticy Decision

0 950 Cunitiratienlity of State Statutes

IS 44 (Rev. 12112) CIVIL COVER SHEET The JS 44 clvi] cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pIeadins or other papers as required bylaw, except as provided by local rules ofcourL This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of ittitiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)

I. (a) PLAINTIFFS VISALUS, INC.

(b) County of Residence of Pirat Listed Plaintiff

(ERLEPTJN US PLAINTIFF CAITES)

DEFENDANTS AMBER THEN and OCEAN AVENUE LLC

County of Residence of First Listed Defondani Chatham (IN US PLAINTIFF CASES OWL F)

NOTE: TN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Narer, Ad,fresr, and Ialuphoire Ntmber) Jackson Lewis LLP, 1155 Peachtree Street, NE, Suite 1000 Atlanta, Geor0ia 30309, 404-525-8200

1L BASIS OF JURISDICTION (Place an X' in One Sax Only)

Cl I U.S. (5cvenimeifl

133 FedelQuenlion

Plaintiff

(US. Gocermrrrirl Na! e Part>

Attorneys (If Knower)

Cv4 13-0 III. CITIZENSHIP OF PRINCIPAL PARTIES (Place on T in One J3oxfbr PksIC1ET

(Ier Diversify Cases Only) and One 5osfr IJeIEnttsni) PT? DE) PT? DEF

Citizen of This State 0 1 19 I Incorporated or Principal Place 0 4 34 afflusinese In This State

O 2 US. Government

4 Diversity

CilisenofAcother Stale 13 2 0 2 9 5

Defendant

(]nt&cate Clitsenthip ofPanie.i in Rem III)

of Business In Another SteEn

Citizen or Subject of a 0 3 Cl 3 Forolite Nation 0 6 13 6

Fsreiis Coanlr11

[V. Bar

V. ORIGIN (P/acres 'r'inone flax OprlR)

I Original 13 2 Removed from 13 3 Remanded from 0 4 Rinatated or 0 5 Transferred from 0 6 Multidistrict

Proceeding State Court Appellate Court Reopened Another District Litigation fuse cdv)

under which you are Cling (Do net cltu jurlrdkrlenal #iuretee sir/eec

VI. CAUSE OF ACTION 3nef description of cause: Breach of contract and

VII. REQUESTED IN J CHECK IF 11-113 IS CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:

COMPLAINT UNDER. RULE 23, FR.Cv,P. 75,500.00 JURY DEMAND: A Yes 13 No

VIII. RELATED CASE(S)

I (See iflslh.wlkms.):

F ANY fUDGE POCKET NUMBER

DATE • SIGNATURE OF ATTORNEY OF RECORD

01130/2013 Is/ Eric R. Magnus . •

FOR OFPTCE USE ONLY

RECEIPT 4 AMOUNT APPLYING TFP JUDOIt - MAO. JUDGE


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