EXHIBIT
10.31


 


EMPLOYMENT AGREEMENT


 


This
Employment Agreement (the “AGREEMENT”), dated as of July 31, 2003  is made and entered into by
Gregory L. Probert (“EXECUTIVE”) and HERBALIFE  INTERNATIONAL OF AMERICA, INC., a California
corporation (“COMPANY”). The  parties to this Agreement agree as follows:


 


1.                                       Employment Term.
The Company shall employ Executive and Executive shall  continue in the employ of the
Company for the three-year period from  August 11, 2003 to August 11, 2006.


 


2.                                       Duties.
Executive shall serve in the Los Angeles, California area as an  Executive Vice President of
the Company until December 31, 2003, and  thereafter as the Company’s Chief Operating
Officer, with all of theauthority, duties and responsibilities commensurate with such  positions. Executive shall
report to the Chief Executive Officer.


 


3.                                       Compensation and
Related Matters.


 


(a)                                  Salary. From
August 11, 2003 through December 31, 2003,  Executive shall receive a salary at the per
annum rate of Five  Hundred Twenty
Five Thousand Dollars ($525,000), payable in  accordance with the Company’s payroll
practices for senior  executives.
Starting on January 1, 2004, Executive shall  receive a salary at the per annum rate of not
less than Six  Hundred Eighty
Thousand Dollars ($680,000), payable in  accordance with the Company’s payroll
practices for senior  executives.


 


(b)                                 Employee
Benefits. Executive and Executive’s qualified  dependents 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, D&O, accidental
death and dismemberment,and life insurance), subject to and on a basis consistent with  the terms, conditions and
overall administration of such plans  and subject to the Company’s right to modify,
amend or  terminate any
such plan or arrangement with or without prior  notice. Executive shall become eligible to
participate in the  Company’s 401K
program on January 1, 2004, and Executive shall  be eligible to participate in the Company’s
Deferred  Compensation
program on October 1, 2003.


 


(c)                                  Bonus. Executive
will be eligible for a target bonus, but any  bonus will be paid following the completion of
the relevant  calendar year at
such time bonuses are paid to the Company’s  other senior executives, and no bonus shall be
paid if  Executive is no
longer employed by the Company, unless  Executive’s employment terminates as a result
of the  expiration of
the three-year term of this Agreement, the  Executive is terminated without Cause, or the
Executive  resigns for Good
Reason which will be deemed to have occurred  if Executive terminates his employment because
of (i) a  material
diminution of Executive’s duties as Executive Vice  President or Chief Operating Officer of the
Company, as  applicable, (ii)
the  imposition of a
requirement that Executive report to a person  other than the Chief Executive Officer or
Chairman of the  Company, (iii)
the breach by the Company in any respect of any  of its obligations under this Agreement, and,
in any such case  (but only if
correction or cure is possible), the failure by  the Company to correct or cure the
circumstance or breach on  which such resignation is based within 30 days after receiving  notice from Executive
describing such circumstance or breach  in reasonable detail or (iv) the relocation of
Executive’s  primary office
location to a location more than 75 miles


 


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outside
the Los Angeles, California area.


 


(i)                                     For the fiscal
year ending December 31,  2003, the Company shall pay the Executive a  cash bonus in the amount of 75% of the  applicable annual bonus
calculated in  accordance with
the then-current bonusformula approved by the Company for its most  senior officers.


 


(ii)                                  For each fiscal
year ending after December 31, 2003, the Company shall pay the  Executive a cash bonus in the
amount of 100%  of the
applicable annual bonus calculated in  accordance with the then-current bonus  formula approved by the
Company for its most  senior officers.


 


(d)                                 Vacation.
Executive shall be entitled to three (3) weeks of  vacation during each year, accrued at the rate
of 4.62 hours  per pay period.
Executive will be eligible to use vacation  after six months of continuous employment.


 


4.                                       Termination
Payment. If Executive is terminated by the Company without  Cause or resigns for Good
Reason before August 11, 2005, Executive will  receive a lump sum severance payment in the
amount of one year’s salary  at Executive’s then-current salary plus bonus. If Executive is  terminated by the Company
without Cause or resigns for Good Reason  between August 11, 2005 and
August 11, 2006, Executive will receive a  lump sum severance payment in the amount of
one year’s salary at  Executive’s
then-current salary. As a precondition to the Company’s  obligation to pay this lump
sum severance, Executive agrees to execute  and deliver to the Company a fully effective
general release in theform attached to this Agreement as Attachment A. During the one-year  period following a
termination without Cause or resignation for Good  Reason, Executive will have no duty to
mitigate. In the event that  Executive has not obtained subsequent employment by one year after a  termination without Cause or
resignation for Good Reason, the Company  will commence paying Executive’s salary in
accordance with the  Company’s
payroll practices for senior executives, through the  remainder of the Employment Term through
August 11, 2006, subject to  Executive’s duty to mitigate, and such
payments shall cease ifExecutive obtains employment or if Executive fails to document to the  Company on a monthly basis
that Executive is making reasonable efforts  to seek employment. For purposes of this
Agreement, the Company shall  have “Cause” to terminate the Executive’s services in the event of any  of the following acts or
circumstances: (i) Executive’s conviction of a  felony or entering a plea of guilty or nolo
contendere to any crimeconstituting a felony (other than a traffic violation or by reason of  vicarious liability); (ii)
Executive’s substantial and repeated failure  to attempt to perform Executive’s lawful
duties as contemplated in  Section 2 of this Agreement, except during periods of physical or
mental  incapacity;
(iii) Executive’s gross negligence or willful misconduct  with respect to any material
aspect of the business of the Company or  any of its affiliates, which negligence or
misconduct has a material  and demonstrable adverse effect on the Company; or (iv) any material  breach of this Agreement or
any material breach of any other written  agreement between Executive and the Company’s
affiliates governing  Executive’s
equity compensation arrangements (i.e., any agreement with  respect to Executive’s stock
and/or stock options of any of the  Company’s affiliates); provided, however, that
Executive shall not bedeemed to have been terminated for Cause in the case of clause (iv)  above, unless any such breach
is not fully corrected prior to the  expiration of the fifteen (15) calendar day
period following delivery  to Executive of the Company’s written notice of its intention to  terminate his employment for
Cause describing the basis therefor in  reasonable detail.


 


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5.                                       Confidential and
Proprietary Information.


 


(a)                                  The parties
agree and acknowledge that during the course of  Executive’s employment, Executive will be
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 affiliates (which includes but  is not limited to all of its business units,
divisions and  affiliates) and
their business, equipment, products and  employees, including, without limitation: the
identities of  the Company’s
and its affiliates’ distributors and customers  and potential distributors and customers
(hereinafter referredto collectively as “DISTRIBUTORS”), including, without  limitation, the identity of
Distributors that Executive  cultivates or maintains while providing services at the  Company or any of its
affiliates using the Company’s or any of  its affiliates’ products, name and
infrastructure, and theidentities 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 affiliates’  business methods, practices, strategies,
forecasts, pricing,  and marketing
techniques; the identities of the Company’s and  its affiliates’ licensors, vendors and other
suppliers and the  identities of
the Company’s and its affiliates’ contact  persons at such licensors, vendors and other
suppliers; the  identities of
the Company’s and its affiliates’ key sales  representatives and personnel and other
employees; advertisingand 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 affiliates
and their business, operations, financial  condition, results of operations and
prospects. Executive  expressly agrees
to use such trade secrets and confidential  information only for purposes of carrying out
his duties for  the Company and
its affiliates as he deems appropriate in his  good faith judgment, 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
affiliates. Executiveshall not at any time, either during the course of his  employment hereunder or after
the termination of suchemployment, use for himself or others, directly or indirectly,  any such trade secrets or
confidential information, and,  except  as required by law, Executive shall not
disclose such trade  secrets or confidential
information, directly or indirectly,  to any other person or entity. 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  Executive, (ii) becomes available to Executive
on a  non-confidential
basis from a source other than the Company or  any of its affiliates, provided that Executive
has no  knowledge that
such source is 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 affiliates  or any other person or entity or (iii) is
approved for release  by the board of
directors of the Company or any of its  affiliates or which the board of directors of
the Company or  any of its
affiliates 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 Executive shall  prepare or receive in the course of his
employment with the


 


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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 affiliates are and shall remain the sole
and exclusive  property of the
Company and its affiliates, as applicable.  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 affiliates and all such
property (except  for any items of
personal property not owned by the Company or  any of its affiliates), materials and
information in his  possession or
under his custody or control upon the  termination of his employment (other than such
materials  received by
Executive solely in his capacity as a shareholder)  or at any other time upon request by the
Company shall be  immediately
turned over to the Company and its affiliates, as  applicable.


 


(c)                                  All inventions,
improvements, trade secrets, reports, manuals,  computer programs, tapes and other ideas and
materials  developed or
invented by 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 affiliates which
result from or  are suggested by
any work Executive may do for the Company or  any of its affiliates or which result from use
of the  Company’s or any
of its affiliates’ premises or property  (collectively, the “DEVELOPMENTS”) shall be
the sole and  exclusive
property the Company and its affiliates, as  applicable. Executive assigns and transfers to
the Company his  entire right and
interest in any such Development, and  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 affiliates may reasonably request, it  being agreed that the preparation of any such
documents shall  be at the
Company’s expense. Nothing in this paragraph applies  to an invention which qualifies fully under
the provisions of  California Labor
Code Section 2870.


 


(d)                                 Following the
termination of Executive’s employment, Executive  will reasonably cooperate with the Company (at
the Company’s  expense, if
Executive reasonably incurs any out-of-pocket  costs with respect thereto) in any defense of
any legal,  administrative
or other action in which the Company or any of  its affiliates or any of their distributors or
other business  relations are a
party or are otherwise involved, so long as  any such matter was related to Executive’s
duties and  activities
conducted on behalf of the Company or its  Subsidiaries.


 


(e)                                  The provisions
of this Section 5 and Section 6 shall survive  any termination of this
Agreement and termination of  Executive’s employment with the Company.


 


6.                                       Non-Solicitation.
Executive acknowledges that in the course of his  employment for the Company he will become
familiar with the Company’s  and its affiliates’ trade secrets and other confidential information  concerning the Company and
its affiliates. Accordingly, Executive  agrees that, during Executive’s employment and
for a period of  twenty-four (24)
months immediately thereafter (the “NONSOLICITATION  PERIOD”), he will not directly or indirectly
through another entity (i)  induce or attempt to induce any employee or Distributor of the Company  or any of its affiliates to
leave the employment of, or cease to  maintain its distributor relationship with,
the Company or such  affiliate, or in
any way interfere with the relationship between the  Company or any such affiliate and any employee
or Distributor thereof,(ii) hire any person who was an employee of the Company or any of its  affiliates at any time during
the Nonsolicitation Period or enter into


 


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a
distributor relationship with any person or entity who was a  Distributor of the Company or
any of its affiliates at any time during  the Nonsolicitation Period, (iii) induce or
attempt to induce anyDistributor, supplier, licensor, licensee or other business relation of  the Company or any of its
affiliates to cease doing business with the  Company or such affiliate, or in any way
interfere with the  relationship
between such Distributor, supplier, licensor, licensee or  business relation and the
Company or any of its affiliates or (iv) use  any trade secrets or other confidential
information of the Company or  any of its affiliates to directly or indirectly participate in any  means or manner in any
competitive business, wherever located.


 


7.                                       Injunctive
Relief. 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  business of the Company and its affiliates and
(c) agree that any  violation of
Section 5 or 6 will result in irreparable injury to the  Company and its affiliates,
the exact amount of which will be difficult  to ascertain and the remedies at law for which
will not be reasonableor adequate compensation to the Company and its affiliates for such a  violation. Accordingly,
Executive agrees that if Executive violates or  threatens to violate 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 seek specific performance and injunctive  relief, without posting bond or other
security, and without the  necessity of proving actual damages. In addition, in the event of a  violation or threatened
violation by Executive of Section 5 or 6 of  this Agreement, the Nonsolicitation Period
will be tolled until such  violation or threatened violation has been duly cured. If, at the time  of enforcement of Sections 5
or 6 of this Agreement, a court holds that  the restrictions stated therein are  unreasonable under
circumstances then existing, the parties hereto  agree that the maximum period, scope or
geographical area reasonable  under such circumstances shall be substituted for the stated period,  scope or area.


 


8.                                       Assignment;
Successors and Assigns. Executive agrees that he shall not  assign, sell, transfer,
delegate or otherwise dispose of, whether  voluntarily or involuntarily, any rights or
obligations under thisAgreement, nor shall Executive’s rights hereunder be subject to  encumbrance of the claims of
creditors. This Agreement may be assigned  by the Company without the consent of
Executive to (a) any entity  succeeding to all or substantially all of the assets or business of the  Company, whether by merger,
consolidation, acquisition or otherwise  (upon which entity the Agreement shall be
binding), or (b) any  affiliate;
provided, however, that in neither case shall the Company be  released from its obligations
hereunder, nor shall any assignment to an  affiliate lessen the Executive’s rights with
respect to his position,duties, responsibilities or authority with respect to the Company.


 


9.                                       Governing Law;
Jurisdiction and Venue. This Agreement shall be  governed, construed, interpreted and enforced
in accordance with thesubstantive 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 of this  Agreement should ever be adjudicated by a
court of competent  jurisdiction to
be unenforceable, then such provision shall be deemed  reformed to the maximum
extent permitted by applicable law, and the  invalidity or unenforceability of any
provision shall not affect the  validity or enforceability of any other
provision of this Agreement.


 


11.                                 Warranty. As an
inducement to the Company to enter into this Agreement,  Executive represents and
warrants that he is not a party to any other  agreement or obligation for personal services,
and that there exists noimpediment or restraint, contractual or otherwise, on his power, right


 


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or
ability to enter into this Agreement and to perform his duties and  obligations hereunder.


 


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:


 


(a)                                  If to the
Company:


 


Herbalife
International of America, Inc.

1800 Century Park East

Los Angeles, California 90067


Attention: Members of the Compensation Committee of
the Board

of Directors


Telecopy:
(310) 557-3906


 


with
a copy to:


 


Herbalife
International of America, Inc.

1800 Century Park East

Los Angeles, California 90067

Attention: General Counsel

Telecopy: (310) 557-3906


 


(b)                                 if to Executive,
to:


 


Gregory
L. Probert

1440 St. Albans Rd.

San Marino, California 91108


 


with
a copy to:


 


Cathy
J. Frankel, Esq.

Moses & Singer LLP

1301 Avenue of the Americas

New York, New York 10019-6076


 


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.                                 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.


 


14.                                 Entire
Agreement. The terms of this Agreement are intended by the  parties to be the final
expression of their agreement with respect to  the subject matter hereof and this Agreement
supersedes (and may not be  contradicted by, modified or supplemented by) any prior or  contemporaneous agreement,
written or oral, with respect thereto, with  the sole exception of the Non-Statutory Stock
Option Agreement. Theparties further intend that this Agreement shall constitute the  complete and exclusive
statement of its terms and that no extrinsic  evidence whatsoever may be introduced in any
judicial, administrativeor other legal proceeding to vary the terms of this Agreement.


 


15.                                 Amendments;
Waivers. This Agreement may not be modified, amended, or  terminated except by an
instrument in writing, signed by Executive and  a duly authorized representative of 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


 


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power
provided herein or by law or in equity.


 


16.                                 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 beennegotiated 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.


 


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


 


	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory L. Probert

  	
   

  
	
   

  	
   

  	
  Gregory L. Probert

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL OF AMERICA, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Michael O. Johnson

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Michael O. Johnson

  
	
   

  	
   

  
	
   

  	
  Title: CEO

  



 


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ATTACHMENT A


 


AGREEMENT AND GENERAL RELEASE


 


Agreement
and General Release (“AGREEMENT”), by and among  Gregory L. Probert (“EXECUTIVE” and referred
to herein as “you”) and HERBAL  LIFE INTERNATIONAL OF AMERICA, INC., a
California corporation (the “COMPANY”).


 


1.                                       In exchange for
your waiver of claims against the Company  Entities (as defined below) and compliance
with other terms and conditions of  this Agreement, upon the effectiveness of this
Agreement, the Company agrees to  provide you with the payments and benefits
provided in Section 4 of your  Employment Agreement with the Company.


 


2.                                       (a)                                  In consideration
for the payments and benefits to be  provided to you pursuant to paragraph 1 above,
you, for yourself and for your  heirs, executors, administrators, trustees,
legal representatives and assigns  (hereinafter referred to collectively as “RELEASORS”),
forever release and  discharge the
Company and its past, present and future parent entities,  subsidiaries, divisions,
affiliates and related business entities, successors  and assigns, assets, employee benefit plans or
funds (including, without  limitation, each of Whitney & Co., L.L.C., Golden Gate Private Equity,
Inc., any  investment fund
managed by either of them and any affiliate of any of the  aforementioned persons or
entities), and any of its or their respective past,  present and/or future directors, officers,
fiduciaries, agents, trustees,  administrators, employees and assigns, whether
acting on behalf of the Company  or in their individual capacities
(collectively the “COMPANY ENTITIES”) from any  and all claims, suits, demands, causes of
action, covenants, obligations, debts,  costs, expenses, fees and liabilities of any
kind whatsoever in law or equity,  by statute or otherwise, whether known or
unknown, vested or contingent,  suspected or unsuspected and whether or not
concealed or hidden (collectively,  the “CLAIMS”), which you ever had, now have,
or may have against any of the  Company Entities by reason of any act,
omission, transaction, practice, plan,  policy, procedure, conduct, occurrence, or
other matter related in any way to  your employment by (including, but not limited
to, termination thereof) the  Company Entities up to and including the date on which you sign this
Agreement,  except as
provided in subsection (c) below.


 


(b)                                 Without limiting
the generality of the foregoing,  this Agreement is intended to and shall
release the Company Entities from any  and all claims, whether known or unknown,
which Releasors ever had, now have, or  may have against the Companies Entities
arising out of your employment or  termination thereof, including, but not
limited to: (i) any claim under the Age  Discrimination in Employment Act, Title VII of
the Civil Rights Act of 1964, the  Americans with Disabilities Act, the Employee
Retirement Income Security Act of  1974 (excluding claims for accrued, vested
benefits under any employee benefit  or pension plan of the Company Entities
subject to the terms and conditions of  such plan and applicable law), the Family and
Medical Leave Act, the Worker  Adjustment and Retraining Notification Act of 1988, or the Fair Labor
Standards  Act of 1938, in
each case as amended; (ii) any claim under the California Fair  Employment and Housing Act,
the California Labor Code, the California Family  Rights Act, or the California Pregnancy
Disability Leave Law; (iii) any other  claim (whether based on federal, state, or
local law (statutory or decisional),  rule, regulation or ordinance) relating to or
arising out of your employment,  the terms and conditions of such employment,
the termination of such employment, including, but not limited to, breach of  contract (express or
implied), wrongful discharge, detrimental reliance,  defamation, emotional distress or compensatory
or punitive damages; and (iv) any  claim for attorneys’ fees, costs,
disbursements and/or the like.


 


(c)                                  Notwithstanding
the foregoing, nothing in this  Agreement shall be a waiver of claims: (1)
that may arise after the date on  which you sign this Agreement; (2) with
respect to your right to enforce your  rights that survive termination under the
Employment Agreement or any other  written agreement entered into between you and
the Company (including, without  limitation, any equity grants or agreements);
(3) regarding rights ofindemnification, receipt of legal fees and directors and officers
liability  insurance to
which you are entitled under the Employment Agreement, the


 


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Company’s
Certificate of Incorporation or By-laws, pursuant to any separate  writing between you and the
Company or pursuant to applicable law; (4) relating  to any claims for accrued, vested benefits
under any employee benefit plan or  pension plan of the Company Entities subject
to the terms and conditions of such  plan and applicable law; or (5) as a
stockholder or optionholder of the Company.


 


(d)                                 In signing this
Agreement, you acknowledge that you  intend that this Agreement shall be effective
as a bar to each and every one of  the Claims hereinabove mentioned or implied.
You expressly consent that this  Agreement shall be given full force and effect
according to each and all of its  express terms and provisions, including those
relating to unknown, unsuspected  or unanticipated Claims (notwithstanding any
state statute that expressly limits  the effectiveness of a general release of
unknown, unsuspected or unanticipated  Claims), if any, as well as those relating to
any other Claims hereinabove  mentioned or implied. You acknowledge and agree that this waiver is an
essential  and material
term of this Agreement, and the Company is entering into this  Agreement in reliance on such
waiver. You further agree that if you bring your  own Claim in which you seek damages against
any Company Entity, or if you seek  to recover against any Company Entity in any
Claim brought by a governmental  agency on your behalf, the releases set forth
in this Agreement shall serve as a  complete defense to such Claims, and you shall
reimburse each Company Entity for  any attorneys’ fees or expenses or other fees
and expenses incurred in defending  any such Claim; provided, however, if a class
action claim or governmental claim  is brought on your behalf, your obligations
will be limited to (i) opting out of  such action or claim at the first available
opportunity and (ii) turning over  any and all damage awards or other proceeds
received in connection therewith to  the Company, it being agreed that you shall
not be liable to the Company for any  attorneys’ fees or expenses or other fees or
expenses in the case of any such  class action claim or governmental claim.


 


(e)                                  Without limiting
the generality of the foregoing, you  waive all rights under California Civil Code
Section 1542, which provides:


 


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 HISSETTLEMENT WITH THE DEBTOR.


 


3.                                       (a)                                  This Agreement
is not intended, and shall not be  construed, as an admission that any of the
Company Entities has violated any  federal, state or local law (statutory or
decisional), ordinance or regulation,  breached any contract or committed any wrong
whatsoever against you.


 


(b)                                 Should any
provision of this Agreement require  interpretation or construction, it is agreed
by the parties that the entity  interpreting or constructing this Agreement
shall not apply a presumption  against one party by reason of the rule of construction that a document
is to be  construed more
strictly against the party who prepared the document.


 


4.                                       For two years
from and after the date of your employment  termination, you agree not to make any
derogatory, negative or disparaging  public statement about any Company Entity, or
to make any public statement (or  any statement likely to become public) that
could reasonably be expected to  adversely affect or disparage the reputation,
or, to the extent applicable,  business or goodwill of any Company Entity, it being agreed and understood
that  nothing herein
shall prohibit you (a) from disclosing that you are no longer  employed by the Company, (b)
from responding truthfully to any governmental  investigation or inquiry related thereto,
whether by the Securities and Exchange  Commission or other governmental entity or any
other law, subpoena, court order  or other compulsory legal process or any
disclosure requirement of the  Securities and Exchange Commission, or (c) from making traditional
competitive  statements in
the course of promoting a competing business, so long as any  statements made by you
described in this clause (c) are not based on  confidential information obtained during the
course of your employment with the  Company. The Company agrees that it will not
make any derogatory, negative or  disparaging public statement about you in an
authorized press release or  authorized public announcement.


 


5.                                       This Agreement
is binding upon, and shall inure to the benefit


 


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of,
the parties and their respective heirs, executors, administrators,  successors and assigns.


 


6.                                       This Agreement
shall be construed and enforced in accordance  with the laws of the State of California
applicable to agreements made and to be  performed entirely within such State.


 


7.                                       You acknowledge
that your obligations pursuant to Sections 5,  6 and 7 of the Employment Agreement survive
the termination of your employment  in accordance with the terms thereof.


 


8.                                       You acknowledge
that you: (a) have carefully read this  Agreement in its entirety; (b) have had an
opportunity to consider for at least  twenty-one (21) days the terms of this
Agreement; (c) are hereby advised by the  Company in writing to consult with an attorney
of your choice in connection with  this Agreement; (d) fully understand the
significance of all of the terms and  conditions of this Agreement and have
discussed them with your independent legal  counsel, or have had a reasonable opportunity
to do so; (e) have had answered to  your satisfaction by your independent legal
counsel any questions you have asked  with regard to the meaning and significance of
any of the provisions of this  Agreement; and (f) are signing this Agreement voluntarily and of your
own free  will and agree
to abide by all the terms and conditions contained herein.


 


9.                                       You understand
that you will have at least twenty-one (21)  days from the date of receipt of this
Agreement to consider the terms and  conditions of this Agreement. You may accept
this Agreement by signing it and  returning it to the Company’s General Counsel
at the address specified pursuant  to Section 12 of the Employment Agreement
on or before
                 .
After  executing this
Agreement, you shall have seven (7) days (the “REVOCATION  PERIOD”) to revoke this
Agreement by indicating your desire to do so in writing  delivered to the General
Counsel at the address above by no later than 5:00 p.m.  on the seventh (7th) day
after the date you sign this Agreement. The effective  date of this Agreement shall
be the eighth (8th) day after you sign the  Agreement (the “AGREEMENT EFFECTIVE DATE”). If
the last day of the Revocation  Period falls on a Saturday, Sunday or holiday,
the last day of the Revocation  Period will be deemed to be the next business
day. In the event you do not  accept this Agreement as set forth above, or in the event you revoke this  Agreement during the
Revocation Period, this Agreement, including but not  limited to the obligation of the Company to
provide the payments and benefits  provided in paragraph 1 above, shall be deemed
automatically null and void.


 


	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Gregory L. Probert

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL OF AMERICA, INC.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


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