EXHIBIT 10.39
ALL SECTIONS WITH TWO ASTERISKS ("**") REFLECT PORTIONS WHICH HAVE BEEN REDACTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION BY HERBALIFE
INTERNATIONAL, INC. AS PART OF A REQUEST FOR CONFIDENTIAL TREATMENT.
SEPARATION AGREEMENT AND GENERAL RELEASE
THIS SEPARATION AGREEMENT AND GENERAL RELEASE is entered into by and
between Xxxxxxxxxxx Pair ("Pair"), and Herbalife International of America,
Inc./Herbalife International, Inc., and/or any affiliate, subsidiary, parent or
any other associated entity of Herbalife International of America,
Inc./Herbalife International, Inc. (collectively, "Herbalife" or "the Company")
effective this 19th day of October, 2001 ("Resignation Date"). Pair and
Herbalife are referred to herein collectively as "the Parties."
RECITALS
A. Pair was employed as Herbalife's President and Chief Executive
Officer, and served as a Director on Herbalife's Board of Directors.
B. Pair and Herbalife agreed that Pair would resign both his employment
and any and all directorships with Herbalife effective October 19, 2001.
C. Pair and Herbalife wish their relationship to end amicably.
NOW, THEREFORE, Pair and Herbalife agree and promise as follows:
A. Consideration.
1. In consideration of Pair's promises as set forth below, Herbalife
will provide Pair with the following consideration and payments in accordance
with the terms set forth herein:
a) Herbalife will pay Pair three million dollars ($3,000,000.00) to
be paid as follows:
(i) One million one hundred and forty thousand dollars
($1,140,000.00, less applicable withholding) to be paid
on October 22, 2001;
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(ii) Eight separate quarterly payments each in the amount of
two hundred and one thousand, five hundred dollars
($201,500.00, less applicable withholding), commencing
with the first such quarterly payment on November 1,
2001, and continuing with successive quarters
thereafter; and,
(iii) A final lump sum payment of two hundred forty eight
thousand dollars ($248,000.00, less applicable
withholding) to be paid simultaneously with the final
quarterly payment referred to herein in Paragraph
1(a)(ii).
b) A full payout of Pair's SERP as of the Resignation Date
($1,152,957.00, less applicable withholding, payable on
October 22, 2001);
c) A full payout of Pair's Deferred Compensation account as of
the Resignation Date ($1,639,645.00, less applicable
withholding, payable on October 22, 2001);
d) A payment of Pair's accrued, unused vacation days as of the
Resignation Date ($443,125.00, less applicable withholding,
payable on October 22, 2001); and,
e) The cost of 18 months of COBRA health, dental and vision
coverage for Pair at the rate currently in effect, grossed up,
including taxes computed at the highest marginal federal and
state income tax rates applied to the amount of this benefit
(but without further tax "gross up" on the amount of this
benefit) payable in a lump sum ($104,850.00, payable on
October 22, 2001). All amounts due under
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Paragraph 1 herein on October 22, 2001, may be paid as an
aggregate sum. All such payments will be made less applicable
withholding;
f) Unless otherwise set forth in this Agreement, Pair's Stock
Options are vested and will be exercisable in accordance with
Herbalife's Stock Option Plan, and applicable law. Pair and
the Company represent and agree that the number and strike
price of vested and unvested stock options Pair holds are
currently set forth in the attached schedule, which is made a
part of this Agreement as Exhibit "A." Notwithstanding the
foregoing, the parties agree as follows:
(i) Vested Options. The parties acknowledge that, pursuant
to the existing terms of Herbalife's stock option plan
and the stock option agreements between Pair and
Herbalife (collectively, the "Stock Option Materials"),
Pair is permitted to exercise stock options vested as of
the date hereof (the "Vested Options") not later than 90
days following the date hereof, subject to the
additional requirements of the Stock Option Materials.
Nothing in this Agreement amends or modifies such
provision(s). If and to the extent that Pair exercises
some or all of the Vested Options on or after January 2,
2002, Herbalife agrees, if so requested by Pair, to make
a loan to Pair (the "Option Loan") in the amount of the
exercise price of the Vested Options that are so
exercised. The Option Loan will (a) be a full recourse
obligation of Pair due and payable on September 1, 2002
(at which time principal and
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all accrued and unpaid interest will be due and payable
in full), (b) bear interest at a per annum rate that is
a fair market value rate taking into account all facts
and circumstances pertaining to the Option Loan at the
time of its making, (c) be prepayable by Pair without
premium or interest, and (d) will be secured by the
shares of Herbalife common stock acquired upon exercise
of the Vested Options and all other obligations owed by
Herbalife to Pair, including, without limitation, the
additional financial obligations owed by Herbalife to
Pair pursuant to the terms of this Agreement. The Option
Loan will be evidenced by a promissory note, and the
security referenced in clause (d) of the preceding
sentence will be evidenced by a security agreement, in
such forms as Herbalife shall prescribe in its sole
discretion.
(ii) Unvested Options. Herbalife agrees that stock options
held by Pair that are not vested as of the date hereof
("Unvested Options") shall continue to be outstanding
through and including September 1, 2002 (the "Option
Termination Date"). Effective as of the Option
Termination Date, to the extent that the vesting of
stock options granted by Herbalife to its employees is
accelerated for employees generally in connection with
a change of control transaction that occurs on or
before the Option Termination Date, then the Unvested
Options will be afforded the same acceleration
treatment as is provided to stock options held by
employees generally.
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Any tax liability resulting from any transaction or
occurrence described in this Paragraph 1(f)(i) and (ii),
will be borne by Pair.
2. Pair will repay all of his outstanding loan obligations to Herbalife.
Specifically, Pair will repay the full amount(s) of principal and interest due
and owing on Herbalife's loans to him evidenced by the Promissory Notes dated
April 10, 2000 and September 25, 2001 (in the aggregate amount of
$1,140,000.00), which amount will be deducted from Herbalife's initial
payment(s) to Pair under Paragraph 1 herein.
3. In partial consideration of Herbalife's covenants in this Agreement,
Pair hereby sells, conveys, transfers and assigns to Herbalife all of his right,
title and interest in and to all direct and indirect interests held by Pair
(collectively, the "Pair HOJ Interest") in the capital stock and other
securities of Herbalife of Japan K.K. ("HOJ"), including, without limitation,
such interests held by Pair (i) pursuant to the Agreement Concerning Share
Allocation Plan for Specific Directors of Herbalife of Japan K.K. dated December
1996, and (ii) through the Herbalife of Japan K.K. Directors Share Allocation
Plan. If and to the extent that the foregoing sale, conveyance, transfer and
assignment is ineffective for any reason (i.e., pursuant to applicable law,
governing contracts or otherwise), then Pair hereby relinquishes and waives any
and all claims with respect to any and all interests, direct or indirect, in the
capital stock and other securities of HOJ. Pair represents and warrants that the
Pair HOJ Interest includes all direct and indirect interests held by Pair in HOJ
at any time, including upon the original formation of the Directors Share
Allocation Plan in 1996, and that no interest therein has been conveyed, except
as set forth below, to any other person (including, without limitation, any
former spouse) or entity in any manner, whether by contract, operation of law or
otherwise, and
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Pair agrees to indemnify Herbalife, HOJ and their respective officers,
directors, affiliates and related persons and entities and hold them harmless
from and against all damages, costs, expenses and losses (including, without
limitation, attorneys' fees) incurred by any of them arising from any claim
asserted by any person or entity claiming to own an interest in the Pair HOJ
Interest. Although Pair retains the obligation to convey all interest in the HOJ
Interest to Herbalife, Pair hereby informs Herbalife that his former spouse has
an interest in the Pair HOJ Interest, but that Pair will be responsible for
transferring to Herbalife all HOJ Interest held by himself, his spouse, or any
other person or entity. Pair makes no other representations or warranties
regarding this conveyance. Any tax liability resulting from any transaction or
occurrence described in this paragraph 3, will be borne by Pair.
4. Pair agrees that he voluntarily resigned his employment with
Herbalife, and that a mutually agreeable press release will be issued so
stating. Pair also agrees that he voluntarily resigned his position as a member
of Herbalife's Board of Directors, and all other directorships with Herbalife.
Pair further agrees that he will not apply or seek to enter into any employment,
distributor or any other business or consulting relationship with Herbalife. He
further acknowledges and agrees that Herbalife has no obligation to enter into
any such relationship, or any other business relationship with him. Pair agrees
that he will fully cooperate with Herbalife in winding up his pending work and
in an orderly transfer of his work to others, and that he will be available to
respond to inquiries about his work. Pair further agrees, on behalf of himself
and his legal successors and assigns, to execute such additional documents and
instruments and take such additional actions as Herbalife may request from time
to time after the date hereof, in order to complete, effectuate, perfect and
better evidence the agreements of the parties set forth in this Agreement. Pair
will also reasonably cooperate with Herbalife in the defense of any legal,
administrative or other legal action brought by any third party against
Herbalife.
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5. Pair's entitlement to the consideration described herein is expressly
contingent upon his execution and delivery of this Agreement to Herbalife. The
consideration set forth in this Agreement fully satisfies and extinguishes any
and all rights Pair may have pursuant to any other Herbalife plan, agreement or
policy, including, but not limited to all agreements, plans, policies and other
arrangements provided by Herbalife or any of its subsidiaries or trusts
sponsored, established or maintained by any of such entities, including, without
limitation, the Employment Agreement dated October 5, 2000, the Senior Executive
Change of Control Plan, the 1994 Performance-Based Annual Incentive Compensation
Plan, the 1992 Executive Incentive Compensation Plan, the 1991 Stock Option
Plan, the Management Deferred Compensation Plan and related trust(s), the Senior
Executive Compensation Plan and related trust(s), the Supplemental Executive
Retirement Plan and related trust(s), the Executive Medical Plan and all other
health insurance and benefit plans, the Executive Long-Term Disability Plan, the
Executive Life Insurance Plan, Herbalife's expense reimbursement plans and
policies, and Herbalife's vacation plan. This paragraph does not affect Pair's
right to purchase COBRA insurance as set forth in Paragraph 1(e).
B. Confidentiality and Non-Disparagement.
6. (a) Pair agrees not to disclose or misappropriate any and all trade
secrets or confidential or proprietary information of Herbalife (collectively
"Protected Information"). Protected Information means all information pertaining
in any manner to the business of Herbalife and its employees, distributors,
suppliers, vendors, customers, manufacturers, sales representatives,
consultants, lawyers, accountants, and business associates. This definition
includes, but is not limited to: (i) information regarding any potential
acquisition or sale of the Company; (ii) information about costs, profits,
markets, sales, financial and marketing data and bids; (iii) plans for business,
marketing, future development and new product concepts; (iv) employee personnel
files and
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information about employee compensation and benefits; (v) identity of and other
business information relating to Herbalife's customers and/or distributors,
past, present or future, together with each such customer's or distributor's
habits or needs; (vi) identity of and other business information relating to
Herbalife's past, present or future vendors, manufacturers and suppliers; and
(vii) design drawings and computer programs.
(b) Pair acknowledges and agrees that use or disclosure of
Protected Information in breach of this Agreement would be difficult to prove.
Therefore, to forestall such disclosure, use, and breach, Pair agrees as
follows:
(i) for a period of one year after his resignation, Pair shall
not, directly or indirectly divert or attempt to divert from
Herbalife any business of any kind in which it is engaged, unless
Pair can show that any action taken in contravention of this
subsection was done without the use in any way of any Protected
Information;
(ii) for a period of one year after his resignation, Pair shall
not, directly or indirectly, solicit for any business purpose any
distributor or vendor of Herbalife, unless Pair can show that any
action taken in contravention of this subsection was done without
the use in any way of any Protected Information;
(iii) for a period of one year after his resignation, Pair shall
not, directly or indirectly, attempt to solicit, induce, or persuade
in any manner any of Herbalife's officers, directors, employees,
agents, suppliers, distributors, and/or independent contractors or
sub-contractors to discontinue any relationship with Herbalife.
(c) In the event of an actual or threatened breach of the
obligations set forth in Paragraph 6(a)-(b), Pair acknowledges that Herbalife
may suffer damages for which monetary compensation will not suffice and,
accordingly, Herbalife shall be
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entitled to injunctive and other equitable relief in addition to any other
rights or remedies that Herbalife may possess or be entitled to pursue.
7. Pair agrees to return to Herbalife by October 22, 2001, any and all
documents, books, manuals, drawings, lists, writings, computer records and other
tangible Company property in his possession or control, including, but not
limited to the Herbalife pass key in his possession (including all copies
thereof) which he procured during or in connection with his employment with
Herbalife. Pair acknowledges that all such material is the property of Herbalife
solely and that Pair has no right, title, or interest in or to such materials.
Pair further acknowledges that his conduct pursuant to this paragraph is
material consideration for the payment referenced above. Notwithstanding the
foregoing, Pair may retain the articles set forth on the schedule attached
hereto as Exhibit "B."
8. For and in consideration for Herbalife's commitments, Pair agrees and
promises not to disclose the substance, contents, amounts or terms of this
Agreement, except to Pair's legal, tax or financial advisors, or if compelled to
do so by law or federal or state tax authorities or other agencies, in which
event Pair must notify Herbalife's legal department to allow it to assert
Herbalife's rights under the law or this Agreement. Pair's tax and financial
advisors shall not be privy to any part or terms of this Agreement other than
financial information. In the event Pair reveals any terms of this Agreement as
permitted in this Paragraph 8, said person or persons to whom such information
is disclosed shall be instructed and must agree that this is a private Agreement
and that the terms of this Agreement may not be revealed to any other person for
any reason whatsoever. Pair acknowledges that his promises of confidentiality,
as set forth herein, are material and essential consideration for Herbalife's
promises and agreements herein.
9. Pair agrees not to make any personal or business disparagement of any
present, former or future Herbalife officer, director, employee or distributor.
Pair also
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agrees not to disparage Herbalife or any past, present or future Herbalife
products. This provision prohibits Pair from, among other things, saying
anything negative or critical regarding Herbalife or the foregoing individuals
(as individuals or in any other capacity) or products. Pair is also prohibited
from speaking or communicating in any manner (whether orally or in writing)
regarding Herbalife, or the foregoing individuals (as individuals or in any
other capacity) or products in any regard. Pair may not give any interview, or
make comment orally or in writing, to any press or media regarding Herbalife or
any of the foregoing individuals (as individuals or in any other capacity) or
products.
10. In addition to and not in limitation of the provisions of
paragraphs 6, 7, 8 and 9 of this Agreement, Pair agrees that he will not,
directly or indirectly through one or more other entities, persons or
instrumentalities, during the period commencing on the date hereof and ending
on the date that is two (2) years thereafter, except in his capacity as a
Trustee of the Xxxx Xxxxxx Family Trust, (i) make any contact or engage in any
communication with any representative of ** or any other third party (including
any affiliate or related person of any of the foregoing) involved in any manner
in the transaction currently proposed between Herbalife and **; (ii) effect or
seek, offer or propose (whether publicly or otherwise) to effect, or cause or
participate in or in any way assist any other person to effect or seek, offer or
propose (whether publicly or otherwise) to effect or participate in, (A) any
acquisition of any securities (or any beneficial ownership thereof) or assets of
Herbalife or any of its subsidiaries (except solely the exercise of Vested
Options and Unvested Options, as such terms are defined and as provided in
paragraph 1(f) of this Agreement); (B) any tender or exchange offer, merger or
other business combination involving Herbalife or any of its subsidiaries; (C)
any recapitalization, restructuring, liquidation, dissolution or other
extraordinary transaction with respect to Herbalife or any of its subsidiaries;
or (D) any solicitation of proxies (as such terms are used in the proxy rules of
the Securities and Exchange Commission) or consents to vote any voting
securities of Herbalife; (iii) otherwise act, alone or in concert with others,
to seek to control or influence the management, Board of Directors or policies
of Herbalife; (iv) take any action which might require Herbalife to make a
public announcement regarding any of the types of matters described in this
paragraph; or (v) enter into any discussions or arrangements with any third
party with respect to any of the foregoing.
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11. To the extent Pair violates the terms of paragraphs 6, 7, 8, 9 or 10
herein, it will be impracticable for Herbalife to prove its monetary damages.
For that reason, in addition to any other legal or equitable remedies to which
Herbalife would be entitled (including money damages), in the event of Pair's
breach of the terms of paragraphs 6, 7, 8, 9 or 10, Herbalife will be entitled
to liquidated damages against Pair in the amount of one million dollars
($1,000,000.00).
12. Nothing in this Agreement shall prevent Pair from: (a) disclosing
information or documents in response to court order. In the event Pair is
subject to any such court order, Pair shall immediately so inform Herbalife's
legal department, and if applicable, those individuals as enumerated in
Paragraph 8 who are involved, so as to allow Herbalife and such individuals to
assert its, his or her rights under law or this Agreement; (b) responding
truthfully to any inquiry initiated by a government agency or entity; (c)
disclosing information in proceedings to enforce the terms of this Agreement; or
(d) testifying truthfully or providing truthful information under oath in any
legal, administrative or other proceeding. Pair, however, is prohibited from
instituting, encouraging or cooperating in any act or omission which gives rise
to any request for disclosure described in this Paragraph 12. It will not be a
violation of this Agreement for
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either party to reveal the existence of the confidentiality and
non-disparagement provisions contained herein.
13. Herbalife agrees not to disparage Pair, provided, however, that this
Paragraph 13 may be enforced against Herbalife only as to statements made by
Herbalife employees who are Executive Vice President level and above.
Additionally, nothing in this paragraph 13 shall prohibit Herbalife from
responding to court process regarding Pair, nor from giving truthful testimony
or information in any proceeding or in response to lawful subpoena or inquiry by
any agency or court. Neither party shall be prohibited from rebutting
disparagement made or instigated by the other, and any such rebuttal will not be
a violation of the non-disparagement clauses herein at Paragraphs 9 and 13.
Neither Party shall make any representation regarding any aspect of Pair's
employment, including, but not limited to, his job performance. Notwithstanding
the foregoing, either Party may state Pair's duration of employment and job
titles at Herbalife.
C. Further Agreements and Representations.
14. Pair represents and warrants that he has not filed or initiated any
claim, action, charge, complaint or suit of any kind against Herbalife or any
Employer Released Party (as that term is defined in Paragraph 24 herein), and
Pair further agrees that he will not file or initiate any claim, action, charge,
complaint or suit of any kind against any Employer Released Party. Pair agrees
that he will not assist, encourage, or cooperate with any other person or entity
in instituting, prosecuting or obtaining any subpoena, document request, inquiry
or investigation regarding Herbalife, or in making or asserting any claim or
action against Herbalife, and Pair further agrees that he will not assist,
encourage, permit or authorize any other person or entity to institute a claim
or action on his behalf or as part of a class action against Herbalife, or any
Employer Released Party.
15. Any dispute regarding any aspect of this Agreement ("arbitrable
dispute"), shall be submitted to arbitration in Los Angeles, California, before
an experienced
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arbitrator licensed to practice law in California and selected in accordance
with the rules of the American Arbitration Association. Except as set forth in
Paragraph 6(c) herein, this shall be the exclusive remedy for any such claim or
dispute, and Herbalife shall pay all administrative and arbitrator's costs and
fees associated with any such arbitration proceeding. Any such arbitration shall
be conducted in accordance with California law regarding arbitration of
employment claims. All substantive and procedural law will apply in the
arbitration as if the parties were in Court. The arbitrator will provide a
written decision, sufficiently detailed to be reviewed by a Court of law. Each
party will bear its own attorneys' fees in arbitration. This provision is an
explicit waiver of any right to a trial by jury. Should any party to this
Agreement hereafter institute any legal action or administrative proceeding
against the other with respect to any claim waived by this Agreement or pursue
any arbitrable dispute by any method other than said arbitration (except as set
forth in paragraph 6(c) herein), the responding party shall be entitled to
recover from the initiating party all damages, costs, expenses and attorneys'
fees incurred as a result of such action.
16. It is understood and agreed that this is a compromise settlement of
potential disputed claims, and the furnishing of the consideration for this
Agreement shall not be deemed or construed as an admission of liability,
responsibility or wrongdoing by Herbalife or Pair for any purpose, all of which
liability, responsibility or wrongdoing are hereby denied. It is further agreed
and understood that this Agreement is being entered into solely for the purpose
of avoiding expense and inconvenience.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
18. Should any provision of this Agreement or any portion thereof, be
declared or be determined by any court to be illegal or invalid, the validity of
the remaining parts, terms or provisions shall not be affected thereby and said
illegal or
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invalid part, term or provision shall be automatically conformed to the law, if
possible, or deemed not to be part of the Agreement.
19. The Parties to this Agreement acknowledge that they have entered
into this Agreement voluntarily, without coercion and based upon their judgment
and not in reliance upon any representation or promises made by the other party
other than those contained therein. This Agreement constitutes the entire
agreement among the Parties regarding the subject matter hereof and shall be
deemed a fully integrated agreement, which recites the sole consideration for
the promises exchanged herein. The Parties have read this Agreement, and they
are fully aware of its contents and of its legal effect and acknowledge that all
promises, waivers and agreements herein are knowing and voluntary. The Parties
also acknowledge that they have had the opportunity to consult and have
consulted with counsel with regard to that Agreement.
20. If any action is brought to enforce or interpret any provision of
the Agreement or the rights or obligations of any party hereunder, to the extent
not prohibited by California law, the prevailing party shall be entitled to
recover, as an element of such party's costs of suit, and not as damages, all
attorneys', accountants and other expert fees and costs incurred or sustained by
such prevailing party in connection with such action, including, without
limitation, legal fees and costs. The "prevailing party" shall be defined as the
party who is entitled to recover her/its costs of suit.
21. The Parties hereby agree to make, execute and deliver such other
instruments or documents, and to do or cause to be done such further or
additional acts, as reasonably may be necessary to effectuate the purposes or to
implement the terms of this Agreement. This Agreement may not be modified or
cancelled, nor may any provision with respect to it be waived, except in a
writing signed by the Parties.
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22. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective heirs, legal representatives, successors and
assigns.
23. Notwithstanding the provisions of Paragraph 11 herein, and in
addition thereto, if Pair materially breaches this Agreement, he will be
entitled to no further consideration and will return to Herbalife all
consideration paid to him under the Agreement prior to the breach.
24. For and in consideration of the promises and commitments set forth
herein, Pair on behalf of himself, his descendants, ancestors, dependents,
heirs, executors, administrators, assigns and successors, covenants not to xxx,
and fully and forever releases and discharges Herbalife and its and their
parent(s), affiliates, successors, divisions, assigns, distributors,
subsidiaries, and the estate of Xxxx Xxxxxx and/or the Xxxx Xxxxxx Family Trust,
together with its or their past and present directors, officers, agents,
representatives, consultants, insurers, attorneys, current and previous
employees, and stockholders (collectively, "Employer Released Parties"), from
all claims, liabilities, demands, rights, liens, agreements, contracts,
covenants, actions, suits, obligations, debts, costs, expenses, attorneys' fees,
damages, judgments, orders, liabilities and causes of action known or unknown,
which he may have or claim to have against the Employer Released Parties prior
to the date of execution of this Release Agreement, including but not limited to
any and all rights and claims arising out of Pair's employment or termination of
employment with Herbalife, or any other transactions, occurrences, acts or
omissions or any loss, damage or injury whatsoever, known or unknown, suspected
or unsuspected, resulting from any act or omission by or on the part of the
Employer Released Parties, committed or omitted prior to the date of the
Agreement, including, but not limited to, any and all rights and claims whether
based on tort, contract (implied or express) or any federal, state or local law,
statute or regulation (collectively, the
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"Released Claims"). By way of example, and not in limitation of the foregoing,
the Released Claims shall include any claims based upon or related to the Civil
Rights Act of 1964, Title VII, as amended, the California Fair Employment and
Housing Act, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Family and Medical Leave Act, the California Family Rights
Act, the California State or United States Constitutions, the California Labor,
and Civil or Business and Professions Codes, any and all tort claims, including,
but not limited to, negligence, retaliation, violation of public policy,
intentional or negligent infliction of emotional distress, discrimination,
harassment, wrongful termination, invasion of privacy or defamation. Pair also
explicitly acknowledges and agrees that this Agreement releases and waives any
rights or claims he may have pursuant to any other Herbalife plan, agreement or
policy, including, but not limited to, all agreements, plans, policies and other
arrangements provided by Herbalife or any of its subsidiaries or trusts
sponsored, established or maintained by any of such entities, including, without
limitation, the Employment Agreement dated October 5, 2000, the Senior Executive
Change of Control Plan, the 1994 Performance-Based Annual Incentive Compensation
Plan, the 1992 Executive Incentive Compensation Plan, the 1991 Stock Option
Plan, the Management Deferred Compensation Plan and related trust(s), the Senior
Executive Compensation Plan and related trust(s), the Supplemental Executive
Retirement Plan and related trust(s), the Executive Medical Plan and all other
health insurance and benefit plans, the Executive Long-Term Disability Plan, the
Executive Life Insurance Plan, Herbalife's expense reimbursement plans and
policies, and Herbalife's vacation plan.
(b) For and in consideration of Pair's commitments and promises,
Herbalife, on behalf of itself, its parent and subsidiary corporations, and its
affiliates, shareholders, officers, employees, successors and assigns
(collectively, Herbalife), covenants not to xxx as to any claims released by
this Agreement and fully and forever
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releases and discharges Pair and his heirs, successors, assigns, representatives
and estate (collectively, the "Pair Releasees"), from any and all claims,
liabilities, demands, rights, liens, agreements, contracts, covenants, actions,
suits, obligations, debts, costs, expenses, attorneys' fees, damages, judgments,
orders, liabilities, and causes of action, known or unknown, which Herbalife may
have or claim to have against the Pair Releasees prior to the date of the
execution of this Agreement, including but not limited to any and all rights and
claims arising out of Pair's employment or termination of employment with
Herbalife, or any other transactions, occurrences, acts or omissions or any
loss, damage or injury whatsoever, known or unknown, suspected or unsuspected,
resulting from any act or omission by or on the part of the Pair Releasees,
committed or omitted prior to the date of the Agreement, including, but not
limited to, any and all rights and claims whether based on tort, contract
(implied or express) or any federal, state or local law, statute or regulation
(collectively, the "Released Claims").
25. Except for the obligations created by or arising from this
Agreement, the Parties understand that this is a full and final release covering
all unknown and unanticipated injuries, debts, claims, or damages to either
party, which may have arisen or may arise in connection with any act or omission
by either party released herein prior to the date of execution of this
Agreement. For that reason, the parties waive any and all rights or benefits
which they may have pursuant to Section 1542 of the California Civil Code, which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO
CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH
IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
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26. Age Discrimination Claims. Pair understands and agrees that: (i)
certain terms of this Agreement constitute a waiver of any rights or claims he
might have under the Age Discrimination in Employment Act, as amended by the
Older Workers Benefit Protection Act, 29 U.S.C. Sections 612-634; (ii) he
has received consideration beyond that to which he was previously entitled;
(iii) he has been advised to consult with an attorney regarding the terms of
this Agreement which constitute a waiver of Age Discrimination in Employment Act
claims; and (iv) he has been offered the opportunity to evaluate the terms of
his waiver of claims under the Age Discrimination in Employment Act for not less
than twenty-one (21) days. Pair may revoke his waiver of Age Discrimination in
Employment Act claims (by written notice to Herbalife's counsel) for a period of
seven (7) days after his execution of this Agreement, and his waiver of such
claims shall become enforceable only upon the expiration of this revocation
period without prior revocation by Pair. The terms of this paragraph 26 are
applicable only to Pair's waiver of Age Discrimination in Employment Act claims.
Revocation of Pair's waiver of such claims pursuant to this paragraph 26 will
not revoke Pair's other promises, releases, waivers and agreements herein, all
of which will remain in full force and effect. In the event Pair revokes his
waiver of Age Discrimination in Employment Act claims, he will not be entitled
to any further consideration under this Agreement as of the date of revocation.
Consideration paid to Pair prior to any such revocation, will serve as good and
valuable consideration for Pair's other promises, waivers and releases contained
herein.
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27. This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. By way of example and not in
limitation, this Agreement shall not be construed in favor of the party
receiving a benefit nor against the party responsible for any particular
language in this Agreement.
DATED: 10/19/01 By: /s/ XXXXXXXXXXX PAIR
---------------------------- ---------------------------------------
Xxxxxxxxxxx Pair
DATED: 10/19/01 HERBALIFE INTERNATIONAL OF
AMERICA, INC./HERBALIFE
INTERNATIONAL, INC.
By: /s/ XXXXX XXXXXX
--------------------------------------
Xxxxx Xxxxxx
Executive Vice President
19
