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EXHIBIT 10.32
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT"), dated as of August 20, 2000
(the "EFFECTIVE DATE"), is made and entered by and between Xxxxx Xxxx (the
"EXECUTIVE") and HERBALIFE INTERNATIONAL, INC., a Nevada corporation ("PARENT"),
and HERBALIFE INTERNATIONAL OF AMERICA, INC., a California corporation
("OPERATING COMPANY") (collectively, Parent and Operating Company are referred
to herein as the "COMPANY").
RECITALS
A. The Company is engaged primarily in the distribution of weight
management, nutritional and personal care products through a
"multi-level" marketing system.
B. The Company desires to be assured of the services of the Executive
by employing the Executive in the capacity and on the terms set
forth below.
C. The Executive desires to commit himself to serve the Company on
the terms herein provided.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as follows:
1. Employment Period. The Company shall continue to employ the Executive and
the Executive shall continue in the employ of the Company for the period
commencing on the Effective Date and ending on the date that is three (3)
years thereafter, unless sooner terminated in accordance with the
provisions of this Agreement (the "INITIAL TERM"). After the Initial
Term, the parties may (but shall be under no obligation to), by written
agreement, renew or extend the term of the Agreement for an additional
period or periods. The term of each renewal period of this Agreement is
referred to herein as a "RENEWAL PERIOD"; and references to the "TERM"
shall mean the period beginning on the Effective Date and ending on the
date of termination of Executive's services for the Company, whether at
the end of the Initial Term or a Renewal Term or otherwise in accordance
with the provisions of this Agreement. Upon expiration of the Term,
except as expressly set forth herein (including in Section 5 and Section
6), this Agreement and all of its provisions shall terminate and shall
cease to have any force or effect.
2. Duties
(a) During the Term, the Executive shall serve as Executive Vice
President and Chief Operating Officer of the Company, with such
authority and duties as assigned to him from time to time by the
Board of Directors or Chief Executive Officer of Parent that are
consistent with the customary duties of an officer with such or a
similar title. Executive will work principally in the
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Los Angeles (Century City), California offices of the Company, but
will also conduct such business travel as is reasonably required
to fulfill his duties hereunder. During the Term, Executive shall
report to the Chief Executive Officer of Parent.
(b) During the Term, the Executive shall, during customary business
hours (Monday through Friday), devote substantially all his
working time, attention, skill and efforts to the business and
affairs of the Company, will use his best efforts to promote the
success of the Company's business, and shall not enter the employ
of or serve as a consultant to, any other company, where such
conduct would be inconsistent with, in competition with, or
restrict the Executive from carrying out, his duties to the
Company, without the prior written consent of the Board of
Directors of Parent; provided, however, the foregoing shall not
preclude the Executive from devoting a reasonable amount of time
to managing Executive's investments and personal affairs and to
charitable and civic activities.
3. Compensation and Related Matters
(a) Salary. During the Term, the Executive shall receive a salary at
the per annum rate of Six Hundred Ten Thousand Dollars ($610,000),
payable in bi-weekly installments or otherwise in accordance with
the Company's payroll practices for senior executives. Executive's
annual base salary shall be subject to review from time to time
for possible increases by the Board of Directors of Parent.
Executive's base salary, as increased from time to time, shall be
referred to as the "BASE SALARY."
(b) Expenses. The Company shall reimburse the Executive for all
reasonable travel and other reasonable out-of-pocket business
expenses incurred by the Executive in the performance of his
duties under this Agreement upon evidence of payment and otherwise
in accordance with the Company's procedures in effect from time to
time.
(c) Employee Benefits; Bonus Plans. During the Term, the Executive
shall be entitled to participate in or receive benefits under each
benefit plan or arrangement made available by the Company to its
senior executives (including, without limitation, those relating
to group medical, dental, vision, long-term disability and life
insurance, stock options and automobile allowances) on terms no
less favorable than those generally applicable to senior
executives of the Company, subject to and on a basis consistent
with the terms, conditions and overall administration of such
plans. In addition, during the Term the Executive shall continue
to participate in the cash bonus plans and programs of the Company
(each such plan, a "BONUS PLAN"), with performance goals
established in a manner substantially consistent with past and
current practice and affording the Executive an opportunity to
earn bonuses at levels not materially less favorable to the
Executive than under plans and programs currently in effect.
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(d) Vacation. The Executive shall be entitled to four (4) weeks
vacation during each year of the Term, unless the vacation
policies for senior executives of the Company provide for a
greater amount of vacation, in which case Executive shall be
entitled to such greater amount. Unused vacation in any year shall
carry over to subsequent years without limitation, unless
otherwise provided in a vacation pay policy that is generally
applicable to the senior executives of the Company.
(e) Deductions and Withholdings. All amounts payable or which become
payable hereunder shall be subject to all deductions and
withholding required by law.
4. Termination. The Executive's services for the Company and the Term of
this Agreement may be terminated under the following circumstances:
(a) Death. The Executive's services hereunder shall terminate upon his
death. In the case of the Executive's death, the Company shall pay
to the Executive's beneficiaries or estate, as appropriate, after
his death, his then current accrued and unpaid Base Salary as well
as 100% of any accrued and unpaid bonus for any years preceding
the year of termination and Executive's target bonus for the year
of termination (collectively the "UNPAID BONUS"), plus an
additional amount equal to one year of Base Salary and Executive's
target bonus for the current year, and other benefits and payments
then due (including, without limitation, reimbursement of amounts
under Section 3) to which the Executive is then entitled
hereunder. Except as provided in Section 4(h) below, Executive and
his beneficiaries as appropriate, shall be entitled to no other
compensation under this Agreement following, or as a result of, a
termination under these circumstances.
(b) Disability
(i) If a Disability (as defined below) of the Executive occurs
during the Term, the Company may give the Executive written
notice of its intention to terminate his employment. In
such event, the Executive's services with the Company shall
terminate on the effective date specified in such notice.
In the case of a termination as a result of a Disability,
the Company shall pay to the Executive after his
termination his then current accrued and unpaid Base Salary
and Unpaid Bonus, plus an additional amount equal to one
year of Base Salary and Executive's target bonus for the
current year, and other benefits and payments then due
(including, without limitation, reimbursement of amounts
under Section 3 to which the Executive is entitled
hereunder). Except as provided in Section 4(h) below,
Executive and his beneficiaries, as appropriate, shall be
entitled to no other compensation under this Agreement
following, or as a result of, a termination under these
circumstances.
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(ii) For the purpose of this subsection 4(b), "DISABILITY" shall
mean the Executive's inability to perform his duties to the
Company on a full-time basis for 120 consecutive days or a
total of 180 days in any twelve month period as reasonably
determined by the Board of Directors.
(c) Termination by the Company for Cause. The Company may terminate
the Executive's services hereunder for Cause (as defined below) at
any time upon written notice to the Executive. In such event, the
Executive's services shall terminate on the effective date
specified in such notice. In the case of the Executive's
termination for Cause, the Company shall promptly pay to the
Executive his then current accrued and unpaid Base Salary and
accrued and unpaid bonus for any years preceding the year of
termination and other benefits and payments then due (including,
without limitation, reimbursement of amounts under Section 3) to
which the Executive is entitled hereunder. Except as provided in
Section 4(h) below, the Executive and his beneficiaries, as
appropriate, shall be entitled to no other compensation under this
Agreement following, or as a result of, a termination under these
circumstances. For purposes of this Agreement, the Company shall
have "CAUSE" to terminate Executive's services hereunder in the
event of any of the following acts or circumstances: (i) acts or
omissions by the Executive which constitute intentional material
misconduct or a knowing violation of a material written policy of
the Company or any of its subsidiaries; (ii) the Executive
personally receiving a benefit in money, property or services from
the Company or any of its subsidiaries or from another person
dealing with the Company or any of its subsidiaries, in material
violation of applicable law or written Company policy; (iii)
willful destruction by Executive of property of the Company or a
subsidiary having a material value to the Company or such
subsidiary; (iv) fraud, embezzlement or theft from the Company, or
comparable dishonest activity committed by Executive against the
Company, or comparable dishonest activity committed by Executive
which might otherwise have a material detrimental effect on the
Company; (v) Executive's conviction of or entering a plea of
guilty or nolo contendere to any crime constituting a felony
involving fraud, embezzlement or moral turpitude (excluding acts
involving a de minimis dollar value and not related to the Company
or a subsidiary, provided that such acts do not otherwise have a
material detrimental effect on the Company); (vi) Executive's
gross failure to discharge Executive's duties (other than due to
physical or mental illness) commensurate with Executive's title
and function or Executive's failure to comply with the lawful
directions of the Board of Directors of Parent, or Executive's
breach of any other provision of this Agreement in any material
respect, in any such case that is not cured within thirty (30)
days after Executive has received written notice thereof from such
Board of Directors; or (vii) a willful and knowing material
misrepresentation to the Board of Directors of Parent.
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(d) Termination by the Executive Without Good Reason. The Executive
may terminate his employment hereunder for other than Good Reason
(as defined below), provided that Executive first -------- gives
the Company a written notice of termination at least fifteen (15)
calendar days prior to the effective date of any such termination.
In the event the Executive terminates his employment for other
than Good Reason, the Company shall pay to the Executive his then
current accrued and unpaid Base Salary and accrued and unpaid
bonus for any year preceding the year of termination and other
benefits and payments then due (including, without limitation,
reimbursement of amounts under Section 3) to which the Executive
is entitled hereunder. Except as provided in Section 4(h) below,
the Executive and his beneficiaries, shall be entitled to no other
compensation under this Agreement following, or as a result of, a
termination under these circumstances.
(e) Good Reason. For purpose of this Agreement, "GOOD REASON" means,
other than with the Executive's consent in writing that such event
or circumstance will not constitute Good Reason, the occurrence of
any of the following: (i) the Company reduces Executive's Base
Salary; (ii) with respect to the Executive, the Company
discontinues any Bonus Plan in which Executive participates
without immediately replacing such Bonus Plan with a plan that is
the substantial economic equivalent of such Bonus Plan, or a
successor to the Company fails or refuses to assume the
obligations of the Company under such Bonus Plan or under a plan
that is the substantial economic equivalent of such Bonus Plan;
(iii) the Company requires Executive to change the location of
Executive's principal office, so that Executive will be based at a
location more than twenty (20) miles from the location of
Executive's principal office as of the Effective Date; (iv) the
Company reduces Executive's responsibilities in any material
respect or directs Executive to report to a person of lower rank
or responsibilities than the person(s) to whom Executive reports
as specified in this Agreement; (v) a successor to the Company
fails or refuses to assume the obligations of the Company under
this Agreement; (vi) the removal of Executive from the position
the Executive holds with the Company pursuant to this Agreement;
(vii) any material decrease or other material adverse change in
the duties, responsibilities or authority of Executive below his
duties and responsibilities contemplated in Section 2; or (viii)
any other material breach by the Company of this Agreement, and
which, with respect to clauses (v), (vii) or (viii) hereof,
continues uncured for thirty (30) days after receipt by the
Company of written notice of breach from the Executive.
(f) Termination by the Company Without Cause. The Company may
terminate the Executive's services hereunder without Cause at any
time upon written notice to the Executive; provided that the
Company first gives Executive a written notice of termination at
least fifteen (15) calendar days prior to the effective date of
any such termination. In such event, the Executive's services
shall terminate on the effective date specified in such notice. In
the event the Executive's services hereunder are terminated by the
Company
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without Cause, the Company shall pay to the Executive (i) his
current accrued and unpaid Base Salary, accrued and unpaid bonus
for any years prior to the year of termination and other benefits
and payments then due (including, without limitation,
reimbursement of amounts under Section 3) to which the Executive
is then entitled hereunder and (ii) Base Salary and target bonus
(using the target bonus amount for the year in which termination
occurs) for the balance of the Term plus one additional year of
Base Salary and target bonus (subject to the Executive's
compliance with the terms of Section 5 and Section 6). In
addition, for two (2) years following the date of termination, the
Company shall continue to afford to the Executive the group
medical, dental, vision, long-term disability and life insurance
and automobile allowance benefits specified in Section 3(c) above.
Except as provided in Section 4(h) below, the Executive and his
beneficiaries, shall be entitled to no other compensation under
this Agreement following, or as a result of, a termination under
these circumstances. Executive shall have no duty to seek to
mitigate the above severance benefits in the event of termination
hereunder without Cause, and any compensation derived by Executive
from alternative employment or otherwise shall not reduce the
Company's obligations hereunder.
(g) Termination by the Executive for Good Reason. The Executive may
terminate his employment hereunder for Good Reason. In the event
the Executive terminates his employment for Good Reason, the
Company shall pay to the Executive (i) his current accrued and
unpaid Base Salary, accrued and unpaid bonus for any years prior
to the year of termination and other benefits and payments then
due (including, without limitation, reimbursement of amounts under
Section 3) to which the Executive is then entitled hereunder and
(ii) Base Salary and target bonus (using the target bonus amount
for the year in which termination occurs) for the balance of the
Term plus one additional year of Base Salary and target bonus
(subject to the Executive's compliance with the terms of Section 5
and Section 6). In addition, for two (2) years following the date
of termination, the Company shall continue to afford to the
Executive the group medical, dental, vision, long-term disability
and life insurance and automobile allowance benefits specified in
Section 3(c) above. Except as provided in Section 4(h) below, the
Executive and his beneficiaries, as appropriate, shall be entitled
to no other compensation under this Agreement following, or as a
result of, a termination under these circumstances. Executive
shall have no duty to seek to mitigate the above severance
benefits in the event of termination hereunder with Good Reason,
and any compensation derived by Executive from alternative
employment or otherwise shall not reduce the Company's obligations
hereunder.
(h) Stock Options. In the event of the termination by the Company of
Executive's employment without Cause, the Company agrees that all
stock options to purchase Parent's capital stock previously and
hereafter granted to Executive but not exercised on or prior to
the date of termination of Executive's services to the Company,
shall remain duly and validly issued
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and outstanding, shall continue to vest in accordance with any
vesting schedule set forth in the stock option agreements
evidencing all or part of such stock options and shall remain
and/or become exercisable pursuant to the terms of such stock
options and the plans relating thereto as if such termination of
employment had not occurred. In the event of the termination of
Executive's employment for any other reason, all unvested options
will terminate upon the effective date of such termination.
5. Confidential and Proprietary Information.
(a) The parties agree and acknowledge that during the course of the
Executive's employment, the Executive has been given and will have
access to and be exposed to trade secrets and confidential
information in written, oral, electronic and other forms regarding
the Company and its subsidiaries (which includes but is not
limited to all of its business units, divisions and subsidiaries)
and its business, equipment, products and employees, including,
without limitation: the identities of the Company's and its
subsidiaries' distributors and customers and potential
distributors and customers (hereinafter referred to collectively
as "DISTRIBUTORS"), including, without limitation, the identity of
Distributors the Executive cultivates or maintains while providing
services at the Company or any of its subsidiaries using the
Company's, or any of its subsidiaries' products, name and
infrastructure, and the identities of contact persons with respect
to those Distributors; the particular preferences, likes, dislikes
and needs of those Distributors and contact persons with respect
to product types, pricing, sales calls, timing, sales terms,
rental terms, lease terms, service plans, and other marketing
terms and techniques; the Company's and its subsidiaries' business
methods, practices, strategies, forecasts, pricing, and marketing
techniques; the identities of the Company's and its subsidiaries'
licensors, vendors and other suppliers and the identities of the
Company's and its subsidiaries' contact persons at such licensors,
vendors and other suppliers; the identities of the Company's and
its subsidiaries' key sales representatives and personnel and
other employees; advertising and sales materials; research,
computer software and related materials; and other facts and
financial and other business information concerning or relating to
the company or any of its subsidiaries and its business,
operations, financial condition, results of operations and
prospects. The Executive expressly agrees to use such trade
secrets and confidential information only for purposes of carrying
out his duties for the Company and its subsidiaries, and not for
any other purpose, including, without limitation, not in any way
or for any purpose detrimental to the Company or any of its
subsidiaries. The Executive shall not at any time, either during
the course of his employment hereunder or after the termination of
such employment, use for himself or others, directly or
indirectly, any such trade secrets and confidential information,
and, except as required by law, the Executive shall not disclose
such trade secrets and confidential information, directly or
indirectly, to any other person or entity; provided that the
obligations under this sentence will not be construed to restrict
the Executive
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from calling on or otherwise maintaining a relationship with
Distributors or suppliers of the Company or any of its
subsidiaries during or after the termination of the Executive's
employment with the Company. Trade secret and confidential
information hereunder shall not include any information which (i)
is already in or subsequently enters the public domain, other than
as a result of any direct or indirect disclosure by the Executive,
(ii) becomes available to the Executive on a non-confidential
basis from a source other than the Company or any of its
subsidiaries, provided that such source is not subject to a
confidentiality agreement or other obligation of secrecy or
confidentiality (whether pursuant to a contract, legal or
fiduciary obligation or duty or otherwise) to the Company or any
of its subsidiaries or any other person or entity or (iii) is
approved for release by the Company or any of its subsidiaries or
which the Company or any of its subsidiaries makes available to
third parties without an obligation of confidentiality.
(b) All physical property and all notes, memoranda, files, records,
writings, documents and other materials of any and every nature,
written or electronic, which the Executive shall prepare or
receive in the course of his employment with the Company and which
relate to or are useful in any manner to the business now or
hereafter conducted by the Company or any of its subsidiaries are
and shall remain the sole and exclusive property of the Company
and its subsidiaries, as applicable. The Executive shall not
remove from the Company's premises any such physical property, the
original or any reproduction of any such materials nor the
information contained therein except for the purposes of carrying
out his duties to the Company or any of its subsidiaries and all
such property (except for any items of personal property not owned
by the Company or any of its subsidiaries), materials and
information in his possession or under his custody or control upon
the termination of his employment shall be immediately turned over
to the Company and its subsidiaries, as applicable.
(c) All inventions, improvements, trade secrets, reports, manuals,
computer programs, tapes and other ideas and materials developed
or invented by the Executive during the period of his employment,
either solely or in collaboration with others, which relate to the
actual or anticipated business or research of the Company or any
of its subsidiaries which result from or are suggested by any work
the Executive may do for the Company or any of its subsidiaries or
which result from use of the Company's or any of its subsidiaries'
premises or property (collectively, the "DEVELOPMENTS") shall be
the sole and exclusive property the Company and its subsidiaries,
as applicable. The Executive assigns and transfers to the Company
his entire right and interest in any such Development, and the
Executive shall execute and deliver any and all documents and
shall do and perform any and all other acts and things necessary
or desirable in connection therewith that the Company or any of
its subsidiaries may reasonably request. This paragraph does not
apply to any inventions which the Executive made prior to his
employment by the Company (all of which, if any exist, are listed
on Exhibit
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A, which the Executive has attached hereto), or to any inventions
that the Executive develops entirely on his own time without using
any of the Company's or its subsidiaries' equipment, suppliers,
facilities or confidential information and which do not relate to
the Company's and its subsidiaries' business, anticipated research
and development, or the work the Executive performs for the
Company.
(d) The provisions of this Section 5 shall survive any termination of
this Agreement and termination of the Executive's employment with
the Company.
6. No Solicitation of Distributors, Sales Representatives, Licensors or
Employees; Noncompetition During the Term.
(a) During the Term and for a period of twelve (12) months thereafter,
except pursuant to Executive's duties as an employee of the
Company, the Executive shall not, directly or indirectly, call
upon, solicit, divert, take away or accept, or attempt to call
upon, solicit, divert, take away or accept, business of a type the
same or similar to the business as conducted by the Company or any
of its subsidiaries from any of the Distributors, sales
representatives and personnel, licensors of the Company or any of
its subsidiaries or similar entities or persons upon whom he
called or whom he solicited or to whom he catered or with whom he
became acquainted after entering the employ of the Company.
(b) The Executive acknowledges and agrees that he has gained and
during the time of his employment with the Company, will gain,
valuable information about the identity, qualifications and
on-going performance of the employees of the Company and its
subsidiaries. During the Term and for a period of twelve (12)
months thereafter, except pursuant to Executive's duties as an
employee of the Company, the Executive shall not directly or
indirectly (i) hire, employ, offer employment to, or seek to hire,
employ or offer employment to, any of the Company's or any of its
subsidiaries' employees with whom he had contact prior to such
termination of employment (or any such person who was an employee
of the Company or any such subsidiary within three months
preceding such activity by the Executive), (ii) solicit or
encourage any such employee (or any such person who was an
employee of the Company or any such subsidiary within three months
preceding such activity by the Executive) to seek or accept
employment with any other person or entity or (iii) disclose any
information, except as required by law, about such employee (or
any such person who was an employee of the Company or any such
subsidiary within three months preceding such activity by the
Executive) to any prospective employer.
(c) During the Term and for a period of twelve months thereafter, the
Executive will not promote, participate, engage or have any other
interest in any business which is competitive with the business of
the Company or any of its subsidiaries, whether Executive is
acting as owner, partner, stockholder, employee, broker, agent,
principal, trustee, corporate officer, director,
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consultant or in any other capacity; provided, however, that this
Agreement will not prevent Executive from holding for investment
up to 3% of any class of stock or other securities of a publicly
held company.
7. Injunctive Relief. The Executive and the Company (a) intend that the
provisions of Sections 5 and 6 be and become valid and enforceable, (b)
acknowledge and agree that the provisions of Sections 5 and 6 are
reasonable and necessary to protect the legitimate interests of the
Company and its business and (c) agree that any violation of Section 5 or
6 will result in irreparable injury to the Company and its subsidiaries,
the exact amount of which will be difficult to ascertain and the remedies
at law for which will not be reasonable or adequate compensation to the
Company and its subsidiaries for such a violation. Accordingly, the
Executive agrees that if the Executive violates the provisions of Section
5 or 6, in addition to any other remedy which may be available at law or
in equity, the Company shall be entitled to specific performance and
injunctive relief, without posting bond or other security, and without
the necessity of proving actual damages.
8. Assignment; Successors and Assigns. The Executive agrees that he shall
not assign, sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, any rights or obligations under this
Agreement, nor shall the Executive's rights hereunder be subject to
encumbrance of the claims of creditors. Any purported assignment,
transfer, delegation, disposition or encumbrance in violation of this
Section 8 shall be null and void and of no force or effect. Nothing in
this Agreement shall prevent the consolidation or merger of the Company
with or into any other entity, or the sale by the Company of all or any
portion of its properties or assets, or the assignment by the Company of
this Agreement and the performance of its obligations hereunder to any
successor in interest or any affiliated entity, and the Executive hereby
consents to any and all such assignments. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective heirs, legal representatives, successors,
and permitted assigns, and, except as expressly provided herein, no other
person or entity shall have any right, benefit or obligation under this
Agreement as a third party beneficiary or otherwise.
9. Governing Law; Jurisdiction and Venue. This Agreement shall be governed,
construed, interpreted and enforced in accordance with the substantive
laws of the State of California without regard to the conflicts of law
principles thereof. Suit to enforce this Agreement or any provision or
portion thereof may be brought in the federal or state courts located in
Los Angeles, California.
10. Severability of Provisions. In the event that any provision or any
portion thereof should ever be adjudicated by a court of competent
jurisdiction to exceed the time or other limitations permitted by
applicable law, as determined by such court in such action, then such
provisions shall be deemed reformed to the maximum time or other
limitations permitted by applicable law, the parties hereby acknowledging
their desire that in such event such action be taken. In addition to the
above, the provisions of this Agreement are severable, and the invalidity
or unenforceability of any provision or provisions of this Agreement or
portions thereof shall not affect the validity or enforceability of any
other provision, or portion of this Agreement, which
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shall remain in full force and effect as if executed with the
unenforceable or invalid provision or portion thereof eliminated.
Notwithstanding the foregoing, the parties hereto affirmatively
represent, acknowledge and agree that it is their intention that this
Agreement and each of its provisions are enforceable in accordance with
their terms and expressly agree not to challenge the validity or
enforceability of this Agreement or any of its provisions, or portions or
aspects thereof, in the future. The parties hereto are expressly relying
upon this representation, acknowledgement and agreement in determining to
enter into this Agreement.
11. Warranty. As an inducement to the Company to enter into this Agreement,
the Executive represents and warrants that he is not a party to any other
agreement or obligation for personal services, and that there exists no
impediment or restraint, contractual or otherwise, on his power, right or
ability to enter into this Agreement and to perform his duties and
obligations hereunder. As an inducement to the Executive to enter into
this Agreement, Company represents and warrants that the person signing
this Agreement for the Company has been duly authorized to do so by all
necessary corporate action and has the corporate power and authority to
execute this Agreement on the Company's behalf. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated have been duly and effectively authorized by all necessary
corporate action of the Company.
12. Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally
delivered; when transmitted if transmitted by telecopy, electronic or
digital transmission method upon receipt of telephonic or electronic
confirmation; the day after it is sent, if sent for next day delivery to
a domestic address by recognized overnight delivery service (e.g.,
Federal Express); and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice will be sent to:
If to the Company:
(a) Herbalife International, Inc.
Herbalife International of America, Inc.
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with a copy to:
Irell & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
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(b) if to the Executive, to:
Xxxxx Xxxx
000 Xxxxx Xxxxxxxx Xxxxx
Xxxx 000X
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
or to such other place and with other copies as either party may
designate as to itself or himself by written notice to the others.
13. Cumulative Remedies. All rights and remedies of either party hereto are
cumulative of each other and of every other right or remedy such party
may otherwise have at law or in equity, and the exercise of one or more
rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
14. Counterparts. This Agreement may be executed in several counterparts,
each of which will be deemed to be an original, but all of which together
shall constitute one and the same Agreement.
15. Entire Agreement. The terms of this Agreement are intended by the parties
to be the final expression of their agreement with respect to the
employment of the Executive by the Company and supersede, and may not be
contradicted by, modified or supplemented by, evidence of any prior or
contemporaneous agreement. The parties further intend that this Agreement
shall constitute the complete and exclusive statements of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative or other legal proceeding to vary the terms of this
Agreement.
16. Amendments; Waivers. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, approved by the Company
and signed by the then existing parties hereto. As an exception to the
foregoing, the parties acknowledge and agree that the Company shall have
the right, in its sole discretion, to reduce the scope of any covenant or
obligation of the Executive set forth in Sections 5 or 6 of this
Agreement or any portion thereof, effective immediately upon receipt by
the Executive of written notice thereof from the Company. No waiver of
any of the provisions of this Agreement, whether by conduct or otherwise,
in any one or more instances, shall be deemed to be construed as a
further, continuing or subsequent waiver of any such provision or as a
waiver of any other provision of this Agreement. No failure to exercise
and no delay in exercising any right, remedy or power hereunder shall
preclude any other or further exercise of any other right, remedy or
power provided herein or by law or in equity.
17. Representation of Counsel; Mutual Negotiation. Each party has had the
opportunity to be represented by counsel of its choice in negotiating
this Agreement. This Agreement shall therefore be deemed to have been
negotiated and prepared at the joint request, direction and construction
of the parties, at arm's-length, with the advice and participation of
counsel, and shall be interpreted in accordance with its terms without
favor to any party.
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18. Indemnification. The Company shall, to the maximum extent permitted by
law, indemnify, defend and hold Executive harmless against all expenses,
claims and liabilities, including reasonable attorney's fees, judgments,
fines, settlements and other amounts actually incurred in connection with
any action or proceeding, arising by reason of Executive's employment by
the Company other than to the extent that Executive has acted in a manner
inconsistent with a written Company policy or otherwise which would
entitle the Company to terminate the Executive for Cause hereunder. The
Company shall also advance to Executive any reasonable expenses incurred
in defending any such proceeding (subject to the qualifications in the
immediately preceding sentence) to the maximum extent permitted by law.
19. Suit to Enforce. In any action or proceeding to enforce any provision of
this Agreement, the prevailing party shall be entitled, in addition to
other remedies, to recover its or his attorney's fees and costs of suit.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
HERBALIFE INTERNATIONAL, INC.
By:
------------------------------------
Name: Xxxxxxxxxxx Pair
Title: President and Chief Executive
Officer
HERBALIFE INTERNATIONAL OF
AMERICA, INC.
By:
------------------------------------
Name: Xxxxxxxxxxx Pair
Title: President and Chief Executive
Officer
EXECUTIVE
------------------------------
Xxxxx Xxxx
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15
Exhibit A
Inventions Made Prior to Employment
None
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