EXHIBIT 10.38
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 Xxxxxxx Xxxxxxx ("Xxxxxxx"), 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 31st day of December, 2001 ("Resignation Date"). Xxxxxxx and
Herbalife are referred to herein collectively as "the Parties."
RECITALS
X. Xxxxxxx was employed as an Herbalife Executive Vice President and its
Chief Financial Officer.
X. Xxxxxxx and Herbalife have agreed that Xxxxxxx will resign his
employment with Herbalife effective December 31, 2001.
X. Xxxxxxx and Herbalife wish their relationship to end amicably.
NOW, THEREFORE, Xxxxxxx and Herbalife agree and promise as follows:
A. Consideration.
1. In consideration of Gerrity's promises as set forth below, Herbalife
will provide Xxxxxxx with the following consideration and payments in accordance
with the terms set forth herein:
a) Herbalife will pay Xxxxxxx one million six hundred thousand
dollars ($1,600,000.00) in four equal installments in the amount
of four hundred thousand dollars ($400,000.00) each, to be paid on
June 30, 2002, September 30, 2002, December 31, 2002, and December
31, 2003. Each quarterly payment will be made less applicable
withholdings.
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b) A full payout of Gerrity's SERP as of the Resignation Date
($1,010,219.00, less applicable withholdings, payable on January
2, 2002);
c) A payout of Gerrity's Deferred Compensation account, the value of
which will be determined as of the Resignation Date. The payout of
Gerrity's Deferred Compensation account will be in a lump sum
($3,052,169.53, payable on January 2, 2002, less applicable
withholdings) in accordance with Gerrity's election under the
Deferred Compensation Plan;
d) A payout of Gerrity's accrued, unused vacation time as of the
Resignation Date (which pursuant to Herbalife records totals
932.84 hours) ($364,390.63, less applicable withholdings, payable
on January 2, 2002); and,
e) The cost of 18 months of COBRA health, dental and vision coverage
for Xxxxxxx 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 ($17,052.84,
payable in a lump sum on January 2, 2002);
f) All amounts under Xxxxxxxxx 0, xxx-xxxxxxxxxx (x), (x), (x) and
(e) herein due on January 2, 2002, may be paid as an aggregate
sum. All such payments will be made less applicable withholdings,
where appropriate;
g) Unless otherwise set forth in this Agreement, Gerrity's vested
Stock Options will be exercisable in accordance with Herbalife's
Stock Option Plan, and applicable law. Xxxxxxx and the Company
represent
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and agree that the number and strike price of vested and unvested
stock options Xxxxxxx 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 Xxxxxxx and
Herbalife (collectively, the "Stock Option Materials"),
Xxxxxxx 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).
(ii) Unvested Options. Herbalife agrees that stock options
held by Xxxxxxx that are not vested as of the date
hereof ("Unvested Options") shall continue to be
outstanding through and including December 31, 2002 (the
"Option Termination Date").**
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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 Xxxxxxx.
2. Xxxxxxx will repay all of his outstanding loan obligations to
Herbalife, if any exist, on the Resignation Date -- which repayment is a
condition precedent to Herbalife's obligation to make any payment to Xxxxxxx
under this Agreement.
3. In partial consideration of Herbalife's covenants in this Agreement,
Xxxxxxx hereby sells, conveys, transfers and assigns, effective as of the
Resignation Date, to Herbalife all of his right, title and interest in and to
all direct and indirect interests held by Xxxxxxx (collectively, the "Xxxxxxx
HOJ Interest") in the capital stock and other securities of Herbalife of Japan
K.K. ("HOJ"), including, without limitation, such interests held by Xxxxxxx (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. In connection with the
foregoing sale, conveyance, transfer and assignment, Xxxxxxx hereby grants to
Herbalife a Power of Attorney to execute any and all instruments necessary to
effectuate the transfer of the Xxxxxxx HOJ Interest. In addition to the
consideration set forth in Paragraph 1 herein, Herbalife will pay Xxxxxxx on or
before January 2, 2002 the sum of four hundred and thirty-one thousand two
hundred and fifty dollars ($431,250.00) for Gerrity's transfer of all interests
in the Xxxxxxx HOJ Interest to Herbalife as set forth herein ("HOJ Payment").
Xxxxxxx hereby relinquishes and waives any and all claims with respect to any
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and all interests, direct or indirect, in the capital stock and other securities
of HOJ, including, without limitation, the Xxxxxxx HOJ Interest. Xxxxxxx
represents and warrants that the Xxxxxxx HOJ Interest includes all direct and
indirect interests held by Xxxxxxx 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, to any other person (including, without
limitation, any spouse or former spouse) or entity in any manner, whether by
contract, operation of law or otherwise, and Xxxxxxx 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 Xxxxxxx HOJ Interest. Xxxxxxx 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 Xxxxxxx.
4. Xxxxxxx agrees that he voluntarily resigned his employment with
Herbalife, and that a press release has been or will be issued so stating.
Xxxxxxx also agrees that he will voluntarily resign all other directorships with
Herbalife, if any exist. Xxxxxxx further agrees that he will not apply for or
seek to enter into any employment with, or act as a distributor for, or engage
in 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. Xxxxxxx agrees that
he will fully cooperate with Herbalife in winding up his pending work and assist
in an orderly transfer of his work to others, and that he will be available to
respond to inquiries about his work. Xxxxxxx further agrees, on behalf of
himself and his legal successors and assigns, to execute such additional
documents and instruments and to take such additional actions as Herbalife may
request from time to time after the date hereof, in order to
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complete, effectuate, perfect and better evidence the agreements of the parties
set forth in this Agreement. Xxxxxxx will also reasonably cooperate with
Herbalife in the defense of any legal, administrative or other legal action
brought by any third party against Herbalife after his departure, in which
event, Herbalife will pay the reasonable cost of legal representation for
Xxxxxxx in connection therewith, except that Herbalife will be relieved of any
such obligation in the event the subject legal, administrative, or other action
involves any allegation of criminal or other improper conduct on the part of
Xxxxxxx.
5. Gerrity'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 Xxxxxxx 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 August 20, 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 Gerrity's right to purchase COBRA insurance as set
forth in Paragraph 1(e).
B. Confidentiality and Non-Disparagement.
6. (a) Xxxxxxx agrees not to disclose or misappropriate any and all
trade secrets or confidential or proprietary information of Herbalife
(collectively "Protected
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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) **; (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
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) Xxxxxxx 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, Xxxxxxx agrees as
follows:
(i) for a period of one year after his resignation, Xxxxxxx
shall not, directly or indirectly divert or attempt to divert from
Herbalife any business of any kind in which it is engaged, unless
Xxxxxxx 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, Xxxxxxx
shall not, directly or indirectly, solicit for any business purpose
any distributor or vendor of Herbalife, unless Xxxxxxx 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, Xxxxxxx
shall not, directly or indirectly, attempt to solicit, induce, or
persuade in any manner any of
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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), the parties acknowledge that there
may be damages for which monetary compensation will not suffice and,
accordingly, the parties shall be entitled to injunctive and other equitable
relief in addition to any other rights or remedies they may possess or be
entitled to pursue.
7. Xxxxxxx agrees to return to Herbalife by the Resignation Date, 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. Xxxxxxx acknowledges that all such material is the property of
Herbalife solely and that Xxxxxxx has no right, title, or interest in or to such
materials. Xxxxxxx further acknowledges that his conduct pursuant to this
paragraph is material consideration for the payment referenced above.
8. For and in consideration for Herbalife's commitments, Xxxxxxx agrees
and promises not to disclose the substance, contents, amounts or terms of this
Agreement, except to Gerrity's legal, tax or financial advisors, or if compelled
to do so by court order or federal or state tax authorities or other agencies,
in which event Xxxxxxx must immediately notify Herbalife's legal department to
allow it to assert Herbalife's rights under the law or this Agreement. Gerrity's
tax and financial advisors shall not be privy to any part or terms of this
Agreement other than financial information. In the event Xxxxxxx 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
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any other person for any reason whatsoever. Xxxxxxx acknowledges that his
promises of confidentiality, as set forth herein, are material and essential
consideration for Herbalife's promises and agreements herein.
9. Xxxxxxx agrees not to make any personal or business disparagement of
any present, former or future Herbalife officer, director, employee or
distributor. Xxxxxxx also agrees not to disparage Herbalife or any past, present
or future Herbalife products. This provision prohibits Xxxxxxx from, among other
things, saying anything negative or critical regarding Herbalife or the
foregoing individuals (as individuals or in any other capacity) or products.
10. **
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11. To the extent Xxxxxxx 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 Gerrity's
breach of the terms of paragraphs 6, 7, 8, 9 or 10, Herbalife will be entitled
to liquidated damages against Xxxxxxx in the amount of one million dollars
($1,000,000.00).
12. Nothing in this Agreement shall prevent Xxxxxxx from: (a) disclosing
information or documents in response to court order. In the event Xxxxxxx is
subject to any such court order, Xxxxxxx 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. Xxxxxxx, 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 Xxxxxxx, 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 Xxxxxxx, 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 Gerrity's
employment, including, but not limited to, his job performance. Notwithstanding
the foregoing, either Party may state Gerrity's duration of employment and job
titles at Herbalife.
C. Further Agreements and Representations.
14. Xxxxxxx 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 Xxxxxxx further agrees that he will not file or initiate any claim, action,
charge, complaint or suit of any kind against any Employer Released Party.
Xxxxxxx 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 Xxxxxxx 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.
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15. Any dispute regarding any aspect of this Agreement ("arbitrable
dispute"), shall be submitted to arbitration in Los Angeles, California, before
an experienced 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 Xxxxxxx 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.
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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 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
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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.
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 Xxxxxxx materially breaches this Agreement, he will be
entitled to no further consideration under the Agreement and will return to
Herbalife all consideration paid to him under the Agreement prior to the breach.
24. (a) For and in consideration of the promises and commitments set
forth herein, Xxxxxxx 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 Gerrity'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
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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 "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. Xxxxxxx 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
August 20, 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.
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(b) For and in consideration of Gerrity'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 releases and discharges Xxxxxxx
and his heirs, successors, assigns, representatives and estate (collectively,
the "Xxxxxxx 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 Xxxxxxx 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 Gerrity'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 Xxxxxxx 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:
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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.
26. Age Discrimination Claims. Xxxxxxx 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. Xxxxxxx 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 Xxxxxxx. The terms of this paragraph 26 are
applicable only to Gerrity's waiver of Age Discrimination in Employment Act
claims. Revocation of Gerrity's waiver of such claims pursuant to this paragraph
26 will not revoke Gerrity's other promises, releases, waivers and agreements
herein, including, but not limited to, all releases and waivers contained in
paragraphs 24(a) and 25 herein, all of
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which will remain in full force and effect. In the event Xxxxxxx 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 Xxxxxxx prior to any such revocation, will serve as good
and valuable consideration for Gerrity'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: Dec 26 2001 By: /s/ XXXXXXX XXXXXXX
---------------------------- --------------------------------
Xxxxxxx Xxxxxxx
DATED: 12-26-01 HERBALIFE INTERNATIONAL OF
---------------------------- AMERICA, INC./HERBALIFE
INTERNATIONAL
By: /s/ XXXXXXX X. TIRELLI
-------------------------------
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