EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This Employment Agreement (the "AGREEMENT"), dated as of August 20, 2000
(the "EFFECTIVE DATE"), is made and entered by and between Xxxxx X. Xxxxx (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 two (2)
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 Senior Vice President,
Chief Counsel -- Pacific Rim and Latin America of the Company, with
such authority and duties as assigned to him from time to time by
the Board of Directors or the General Counsel 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 General Counsel 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 Five Hundred Thirty-Seven Thousand Five Hundred
Dollars ($537,500), 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.
- 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 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.
- 4 -
(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
- 5 -
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
- 6 -
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
- 7 -
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
- 8 -
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,
- 9 -
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
- 10 -
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
(b) if to the Executive, to:
- 11 -
Xxxxx X. Xxxxx
0000 Xxx Xxxxxx Xxxxx
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.
18. Indemnification. The Company shall, to the maximum extent permitted by
law, indemnify, defend and hold Executive harmless against all expenses,
claims and
- 12 -
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.
- 13 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
HERBALIFE INTERNATIONAL, INC.
By: /s/ XXXXXXXXXXX PAIR
------------------------------------
Name: Xxxxxxxxxxx Pair
Title: President and Chief Executive
Officer
HERBALIFE INTERNATIONAL OF AMERICA, INC.
By: /s/ XXXXXXXXXXX PAIR
------------------------------------
Name: Xxxxxxxxxxx Pair
Title: President and Chief Executive
Officer
EXECUTIVE
/s/ XXXXX X. XXXXX
----------------------------------------
Xxxxx X. Xxxxx
- 14 -
