EX-10.38



 Exhibit 10.38 

FORM OF 2008 RSU  
 HERBALIFE LTD. 
 2005 STOCK INCENTIVE PLAN 

STOCK UNIT AWARD AGREEMENT 
 This Stock Unit Award Agreement (this “Agreement”) is dated as of this 27th day of March, 2008 (the “Grant Date”), and is between Herbalife Ltd., an entity organized
under the laws of the Cayman Islands (the “Company”), and Michael O. Johnson (“Participant”). 

WHEREAS, the Company, by action of the Board and approval of its shareholders established the Herbalife Ltd. 2005 Stock Incentive Plan
(the “Plan”); 
 WHEREAS, Participant is employed by the Company or one or more of its Subsidiaries and the
Company desires to encourage Participant to own Common Shares for the purposes stated in Section 1 of the Plan; 
 WHEREAS,
Participant and the Company have entered into this Agreement to govern the terms of the Stock Unit Award (as defined below) granted to Participant by the Company. 
 NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows: 
 1.
Grant. 
 (a) The Company hereby grants to Participant an Award of 130,480 Stock Units (the “Award”)
in accordance with Section 9 of the Plan and subject to the conditions set forth in this Agreement and the Plan (as amended from time to time). Each Stock Unit represents the right to receive one Common Share (as adjusted from time to time
pursuant to Section 12 of the Plan) subject to the fulfillment of the vesting and other conditions set forth in this Agreement. By accepting the Award, Participant irrevocably agrees on behalf of Participant and Participant’s successors
and permitted assigns to all of the terms and conditions of the Award as set forth in or pursuant to this Agreement and the Plan (as such Plan may be amended from time to time). 

(b) Except as otherwise defined herein, capitalized terms used herein shall have the meanings set forth in the Plan. 

2. Vesting. 

(a) Participant’s Stock Units and rights in and to the Common Shares subject to the Stock Units shall not be vested as of the
Grant Date and shall be forfeitable unless and until otherwise vested pursuant to the terms of this Agreement. Subject to Participant’s continued employment with the Company and/or its subsidiaries or affiliates the Award shall become vested in
accordance with the following schedule: (i) thirty percent (30%) of the Stock Units subject to the Award shall vest on the first anniversary of the Grant Date, (ii) thirty percent (30%) of the Stock Units subject to the Award
shall vest on the second anniversary of the Grant Date, (iii) thirty percent (30%) of the Stock Units subject to the Award shall vest on the third 







 
anniversary of the Grant Date, and (iv) the remaining ten percent (10%) of the Stock Units subject to the Award shall vest on the fourth anniversary of the Grant Date (each such date a
“Vesting Date”). Stock Units that have vested and are no longer subject to forfeiture are referred to herein as “Vested Units.” Stock Units that are not vested and remain subject to forfeiture are referred to herein
as “Unvested Units.” 
 (b) Notwithstanding anything herein or in the Plan to the contrary, upon the
occurrence of a Section 409A Change of Control (as defined below), any Unvested Units shall become fully vested as of immediately prior to the consummation of the Section 409A Change of Control. 

(c) Notwithstanding anything herein or in the Plan to the contrary, in the event of Participant’s termination of employment as
a result of Participant’s death or “Disability” (as defined below), all Unvested Units shall vest as of the date of such termination of employment. 
 (d) Notwithstanding anything herein or in the Plan to the contrary, but subject to Section 2(b) hereof, in the event of Participant’s termination of employment by the Company without
“Cause” or by Participant for “Good Reason” (each as defined below, and the date of such event being referred to in this Section 2(d) as the “Termination Date”), the Unvested Units shall vest as follows:

 (i) the portion of the Unvested Units that would have become vested on the applicable Vesting Date pursuant to
Section 2(a) above next following the Termination Date shall become vested as of the Termination Date on a pro rata basis, calculated by multiplying such portion of the Unvested Units by a fraction, the numerator of which is equal to the number
of months elapsed from the Vesting Date that immediately preceded the Termination Date through and including the month of the Termination Date, and the denominator of which is twelve; 

(ii) in addition to the Unvested Units described in clause (i) above, in the event the Termination Date is on or prior to the
second anniversary of the Grant Date, then an additional number of Unvested Units shall become vested as of the Termination Date equal to fifty percent (50%) of the then-remaining Unvested Units (determined after applying the clause
(i) above); 
 (iii) in addition to the Unvested Units described in clause (i) above, in the event the Termination
Date is after the second anniversary of the Grant Date but on or prior to the third anniversary of the Grant Date, then an additional number of Unvested Units shall become vested as of the Termination Date equal to seventy-five percent (75%) of
the then-remaining Unvested Units (determined after applying the clause (i) above); and 
 (iv) in addition to the
Unvested Units described in clause (i) above, in the event the Termination Date is after the third anniversary of the Grant Date, all Unvested Units shall become vested as of the Termination Date. 

(e) For purposes hereof, the terms “Disability,” “Cause” and “Good Reason” shall
have the meaning set forth in the employment agreement by and between the Company and the Participant dated as of March 27, 2008 (the “Employment Agreement”). 

  
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 (f) For purposes hereof, the term “Section 409A Change in
Control” shall mean the consummation of (i) a “change in the ownership” of the Company, (ii) a “change in the effective control” of the Company or (iii) a “change in the ownership of a substantial
portion of the assets” of the Company (each as defined under Section 409A of the Internal Revenue Code of 1986, as amended). 
 3.
Settlement of Stock Units. 
 (a) Subject to any deferral pursuant to Paragraph 3(b) hereof and subject to the
provisions of Section 20(b) of the Employment Agreement, each Vested Unit will be settled by the delivery of one Common Share (subject to adjustment under Section 12 of the Plan) to Participant or, in the event of Participant’s death,
to Participant’s estate, heir or beneficiary, within thirty (30) days following the applicable Vesting Date; provided that the Participant has satisfied all of the tax withholding obligations described in Paragraph 8, and that
Participant has completed, signed and returned any documents and taken any additional action that the Company deems appropriate to enable it to accomplish the delivery of the Common Shares. 

(b) Subject to the satisfaction all of the tax withholding obligations described in Paragraph 8, Participant may elect to defer the
receipt of any Common Shares issuable pursuant to Vested Units by submitting to the Company an election to defer receipt in the forms attached hereto as Exhibit A. In the event Participant intends to defer the receipt of any Common Shares,
Participant must submit to the Company a deferral election form within thirty (30) days following the Grant Date. Participant hereby represents that Participant understands the effect of any such deferral under relevant federal, state and local
tax laws. 
 (c) The date upon which Common Shares are to be issued under either Paragraph 3(a) or 3(b) above is
referred to as the “Settlement Date.” The issuance of the Common Shares hereunder may be effected by the issuance of a stock certificate, recording shares on the stock records of the Company or by crediting shares in an account
established on Participant’s behalf with a brokerage firm or other custodian, in each case as determined by the Company. Fractional shares will not be issued pursuant to the Award. 

(d) Notwithstanding the above, (i) for administrative or other reasons, the Company may from time to time temporarily suspend
the issuance of Common Shares in respect of Vested Units, (ii) the Company shall not be obligated to deliver any Common Shares during any period when the Company determines that the delivery of shares hereunder would violate any federal, state
or other applicable laws, (iii) the Company may issue Common Shares hereunder subject to any restrictive legends that, as determined by the Company’s counsel, are necessary to comply with securities or other regulatory requirements and
(iv) the date on which shares are issued hereunder may include a delay in order to provide the Company such time as it determines appropriate to address tax withholding and other administrative matters. 

4. Shareholder Rights. Prior to any issuance of Common Shares in settlement of the Award, no Common Shares will be reserved or earmarked for
Participant or Participant’s account nor shall Participant have any of the rights of a stockholder with respect to such Common Shares. Except as set forth in Paragraph 5, the Participant will not be entitled to any privileges of ownership
of the Common Shares (including, without limitation, any voting rights) underlying Vested Units and/or Unvested Units unless and until Common Shares are actually delivered to Participant hereunder. 

  
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 5. Dividend Equivalent Rights. From and after the Grant Date and unless and until the Award is
forfeited or otherwise transferred back to the Company, Participant will be credited with additional Stock Units having a value equal to dividends declared by the Company, if any, with record dates that occur prior to the settlement of the Award as
if the Common Shares underlying the Award had been issued and outstanding, based on the Fair Market Value of a Common Share on the applicable dividend payment date. Any such additional Stock Units shall be considered part of the Award and shall also
be credited with additional Stock Units as dividends, if any, are declared, and shall be subject to the same restrictions and conditions as the Stock Units subject to the Award with respect to which they were credited (including, but not limited to,
the forfeiture provisions set forth in Paragraph 6). Notwithstanding the foregoing, no such additional Stock Units will be credited with respect to any dividend declared by the Company in connection with which the Award is adjusted pursuant to
Section 12 of the Plan. 
 6. Effect of Termination of Employment. Notwithstanding anything to the contrary in the Plan, and except
as provided in Sections 2(b), 2(c) and 2(d) hereof, upon a termination of Participant’s employment with the Company for any reason, the Unvested Units shall be forfeited by Participant and cancelled and surrendered to the Company without
payment of any consideration to Participant. 
 7. Adjustments of Common Shares and Awards. Subject to Section 12(a) of the Plan, in
the event of any change in the outstanding Common Shares by reason of an acquisition, spin-off or reclassification, recapitalization or merger, combination or exchange of Common Shares or other corporate exchange, Change of Control or similar event,
the Committee shall adjust appropriately the number or kind of shares or securities subject to the Award and make such other revisions to the Award as it deems are equitably required. 
 8. Withholding Taxes. 
 (a) Participant is liable and responsible for
all taxes owed in connection with the Award, regardless of any action the Company takes with respect to any tax withholding obligations that arise in connection with the Award. The Company does not make any representation or undertaking regarding
the treatment of any tax withholding in connection with the grant, vesting or settlement of the Award or the subsequent sale of Common Shares issuable pursuant to the Award. The Company does not commit and is under no obligation to structure the
Award to reduce or eliminate Participant’s tax liability. 
 (b) Prior to any event in connection with the Award
(e.g., vesting or payment in respect of the Award) that the Company determines may result in any domestic or foreign tax withholding obligation, whether national, federal, state or local, including any social tax obligation (the “Tax
Withholding Obligation”), Participant is required to arrange for the satisfaction of the amount of such Tax Withholding Obligation in a manner acceptable to the Company. 

  
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 (c) Unless the Committee provides otherwise, at any time not less than five
(5) business days before any Tax Withholding Obligation arises (e.g., a Settlement Date), Participant shall notify the Company of Participant’s election to pay Participant’s Tax Withholding Obligation by wire transfer, cashier’s
check or by authorizing the Company to withhold a portion of the Common Shares that would otherwise be issued to Participant as a result of the settlement of the Stock Units or by tendering Common Shares (either actually or by attestation)
previously acquired, or other means permitted by the Company. In such case, Participant shall satisfy his or her tax withholding obligation by paying to the Company on such date as it shall specify an amount that the Company determines is sufficient
to satisfy the expected Tax Withholding Obligation by (i) wire transfer to such account as the Company may direct, (ii) delivery of a cashier’s check payable to the Company, Attn: General Counsel, at the Company’s principal
executive offices, or such other address as the Company may from time to time direct, (iii) authorizing the Company to withhold a portion of the Common Shares that would otherwise be issued to Participant as a result of the settlement of the
Stock Units or by tendering Common Shares (either actually or by attestation) previously acquired, or (iv) such other means as the Company may establish or permit (including by means of a “same day sale” program developed under
Regulation T as promulgated by the Federal Reserve Board to the extent permitted by the Company and applicable law). Participant agrees and acknowledges that prior to the date the Tax Withholding Obligation arises, the Company will be required
to estimate the amount of the Tax Withholding Obligation and accordingly may require the amount paid to the Company under this Paragraph 8(c) to be more than the minimum amount that may actually be due and that, if Participant has not delivered or
otherwise provided payment of a sufficient amount to the Company to satisfy the Tax Withholding Obligation (regardless of whether as a result of the Company underestimating the required payment or Participant failing to timely make the required
payment), the additional Tax Withholding Obligation amounts shall be satisfied by such other means as the Committee deems appropriate. 
 9.
Securities Law Compliance. Participant understands that the Company is under no obligation to register for resale the Common Shares issued upon settlement of the Award. The Company may impose such restrictions, conditions or limitations as it
determines appropriate as to the timing and manner of any resales by Participant or other subsequent transfers by Participant of any Common Shares issued as a result of or under this Award, including without limitation (i) restrictions under an
insider trading policy, (ii) restrictions that may be necessary in the absence of an effective registration statement under the Securities Act of 1933, as amended, covering the Award and/or the Common Shares underlying the Award and
(iii) restrictions as to the use of a specified brokerage firm or other agent for such resales or other transfers. Any sale of the Common Shares must also comply with other applicable laws and regulations governing the sale of such shares.

 10. Assignment or Transfer Prohibited. The Award (whether or not vested) may not be assigned or transferred otherwise than by will or
by the laws of descent and distribution; provided, however, Participant may assign or transfer the Award to the extent permitted under the Plan, provided that the Award shall be subject to all the terms and condition of the Plan, this Agreement and
any other terms required by the Committee as a condition to such transfer. Neither the Award nor any right hereunder shall be subject to attachment, execution or other similar process. In the event of any attempt by Participant to alienate, assign,
pledge, hypothecate or otherwise dispose of the Award or any right hereunder, except as provided for herein, or in the event of the levy or any attachment, execution or similar process upon the rights or interests hereby conferred, the Company may
terminate the Award by notice to Participant, and the Award shall thereupon become null and void. 

  
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 11. Committee Authority. Any question concerning the interpretation of this Agreement or the Plan,
any adjustments required to be made under this Agreement or the Plan, and any controversy that may arise under this Agreement or the Plan shall be determined by the Committee in its sole and absolute discretion. All decisions by the Committee shall
be final and binding. 
 12. Application of the Plan. The terms of this Agreement are governed by the terms of the Plan, as it exists on
the date of hereof and as the Plan is amended from time to time. In the event of any conflict between the provisions of this Agreement and the provisions of the Plan, the terms of the Plan shall control, except as expressly stated otherwise herein.
As used herein, the term “Section” generally refers to provisions within the Plan, and the term “Paragraph” refers to provisions of this Agreement. 
 13. No Right to Continued Employment. Nothing in the Plan, in this Agreement or any other instrument executed pursuant thereto or hereto shall confer upon Participant any right to continued
employment with the Company or any of its Subsidiaries or affiliates. 
 14. Further Assurances. Each party hereto shall cooperate with
each other party, shall do and perform or cause to be done and performed all further acts and things, and shall execute and deliver all other agreements, certificates, instruments, and documents as any other party hereto reasonably may request in
order to carry out the intent and accomplish the purposes of this Agreement and the Plan. 
 15. Entire Agreement. This Agreement and the
Plan together set forth the entire agreement and understanding between the parties as to the subject matter hereof and supersede all prior oral and written and all contemporaneous or subsequent oral discussions, agreements and understandings of any
kind or nature. 
 16. Successors and Assigns. The provisions of this Agreement will inure to the benefit of, and be binding on, the
Company and its successors and assigns and Participant and Participant’s legal representatives, heirs, legatees, distributees, assigns and transferees by operation of law, whether or not any such person will have become a party to this
Agreement and agreed in writing to join herein and be bound by the terms and conditions hereof. 
 [signature page
follows] 

  
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 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
above written. 
  

									
		 		 	HERBALIFE LTD.
				
	/s/ Michael O. Johnson	 		 	By:	 	/s/ Brett R. Chapman
	Michael O. Johnson	 		 		 	Name: Brett R. Chapman
		 		 		 		 	Title: General Counsel


  
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