EXHIBIT 10.37
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT"), dated effective as of
November 1, 2001 (the "EFFECTIVE DATE"); is made and entered by and between
Xxxxxxx X. Tirelli (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 employ the Executive commencing
effective as of the Effective Date and through and including October 31,
2002 (unless extended by mutual agreement in writing of the parties).
References to the "TERM" shall mean the foregoing employment period plus
any renewal or extension term mutually agreed upon in writing by the
parties. 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 President and
Chief Executive Officer of the Company, with such authority and
duties as assigned to him from time to time by the Board of
Directors of Parent that are consistent with the customary
duties of an officer with such or a similar title. Executive
will work principally in the 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 Board
of Directors 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 Sign-On Bonus. During the Term, the Executive shall
receive a salary at the per annum rate of $900,000, 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." In addition, the Company
shall pay Executive a special sign-on bonus in the amount of
$150,000; such amount will be paid on January 2, 2002.
(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. In
particular, but without limiting the foregoing, the parties
acknowledge that Executive's bonus target for performance in
2002 shall be structured in a manner, and shall afford Executive
the opportunity to earn a bonus at a level, that is
substantially equivalent to that of the Company's previous
President and Chief Executive Officer.
-2-
(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.
-3-
(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 fulltime 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
contenders 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.
(d) Termination by the Executive Without Good Reason. The Executive
may terminate his employment hereunder for other than Good
Reason (as defined
-4-
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 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
-5-
(including, without limitation, reimbursement of amounts under
Section 3) to which the Executive is then entitled hereunder and
(ii) one additional year of Base Salary and Executive's target
bonus for the current year (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 (1) 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) one additional year of Base Salary and
Executive's target bonus for the current year (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. Parent confirms the grant to Executive of stock
options (the "OPTIONS") to acquire 500,000 shares of Parent's
Class B Common Stock, such stock options to have a strike price
of $11.30 per share (the closing sale price of such shares on
the NASDAQ Stock Market on the Effective Date). The parties
agree that the Options will vest in equal monthly installments
over a period of three years commencing on the Option Effective
Date, but will fully accelerate and become immediately
exercisable in the event of a change of control of Parent (as
defined in the stock option agreement evidencing the Options).
Further, in the event of the termination by the Company of
Executive's employment without Cause or Executive's termination
of his employment for Good Reason, Parent agrees that the
Options will fully accelerate and become immediately
exercisable. In the
-6-
event of the termination of Executive's employment for any other
reason, all Options will terminate upon the effective date of
such termination. Except as expressly set forth in this
paragraph, the other terms and conditions of the Options will be
as set forth in Parent's standard form of stock option
agreement, which will be prepared and executed promptly
following the execution and delivery of this Agreement.
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 from calling on or otherwise maintaining
a relationship with Distributors or suppliers of the Company or
any of its subsidiaries during or after the
-7-
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 available 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.
(d) 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 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
-8-
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,
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.
-9-
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 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
-10-
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. Warrant . 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
(b) if to the Executive, to:
Xxxxxxx X. Tirelli
-------------------------------------
-------------------------------------
-11-
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.
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
-12-
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.
-13-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
HERBALIFE INTERNATIONAL, INC.
By: /S/ XXXXXXX XXXXXXX
---------------------------------------
Name:
Title:
HERBALIFE INTERNATIONAL OF AMERICA, INC.
By: /S/ XXXXXXX XXXXXXX
---------------------------------------
Name:
Title:
EXECUTIVE
/S/ XXXXXXX X. TIRELLI
-------------------------------------------
Xxxxxxx X. Tirelli
