EXHIBIT
10.27


 


EXECUTION COPY


 


EMPLOYMENT AGREEMENT


 


This
Employment Agreement (the “AGREEMENT”), dated as of April 3, 2003  (the “EFFECTIVE DATE”), is
made and entered into by and among Michael O. Johnson  (“EXECUTIVE”), 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 Executive  by employing Executive in the
capacity and on the terms set  forth below.


 


C.            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 employ Executive and Executive  shall continue in the employ
of the Company for the period commencing  on the Effective Date and ending as provided
in Section 4 hereof (the  “TERM”). Except for any covenants or agreements contained herein which  by their terms are to be
performed or observed following the  termination of the Term, upon the termination
of the Term, this  Agreement and
all of its provisions shall terminate and shall cease to  have any force or effect.


 


2.             Duties.


 


(a)           During
the Term, Executive shall serve as the Chief Executive  Officer of the Company, with
all of the authority, duties and  responsibilities commensurate with such
position and such  other duties
commensurate with his position as are assigned to  Executive from time to time by the Board of
Directors of  Parent (the “BOARD”).
During the Term, Executive shall report  to the Board. With respect to all elections of
directors to  the Board during
the Term, Parent shall nominate, and use its  best efforts to elect, Executive to serve as a
member of both  the Board and as
a non-voting member of the Executive  Committee of the Board. Executive will work
principally in the  Los Angeles,
California offices of the Company, but will also  conduct such business travel as is reasonably
required to  fulfill his
duties hereunder.


 


(b)           During
the Term, Executive shall devote substantially all his  working time, attention,
skill and efforts to the business and  affairs of the Company, and shall not commence
employment with or serve as a consultant to, any  other company; provided, however, the
foregoing shall not  preclude
Executive from devoting a reasonable amount of time  to managing Executive’s investments and
personal affairs and  to charitable
and civic activities (including serving on the  boards of directors of not-for-profit
organizations) and, with


 


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the
consent of the Executive Committee of the Board and so  long as such activities do
not materially interfere with  Executive’s performance of his duties hereunder, serving on  the boards of directors of
for-profit entities.


 


3.             Compensation and Related Matters.


 


(a)           Salary.
During the Term, Executive shall receive a salary at  the per annum rate of Eight Hundred Fifty
Thousand Dollars  ($850,000),
payable semi-monthly 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. Executive’s  base salary may
be increased (but not decreased) and, as  increased from time to time, shall be referred
to as the “BASE  SALARY.”


 


(b)           Expenses.
The Company shall reimburse Executive for all  reasonable travel and other reasonable
out-of-pocket businessexpenses (including all such expenses related to Executive’s  maintenance of his home
office, including all such expenses  related to the procurement and/or maintenance
of a personal  computer,
internet connection, fax and telephone (including  wireless) service) incurred by Executive in
the performance of  his duties under
this Agreement upon evidence of payment and  otherwise in accordance with the Company’s
policies and  procedures in
effect from time to time. In addition, the  Company will pay all reasonable out-of-pocket
attorneys’ fees  and financial
representation costs incurred by Executive in  connection with the evaluation and negotiation
of this  Agreement in an
amount not to exceed $50,000.


 


(c)           Employee
Benefits. During the Term, 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) on terms no
less favorable in  the aggregate
than those applicable to any other senior  executive of the Company, 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.


 


(d)           Life
Insurance. During the Term, the Company will pay all  premiums for a ten-year fixed premium term
life insurance  policy on
Executive’s life in the amount of $10 million issued  by an insurance carrier reasonably acceptable
to Executive, so  long as and to
the extent that Executive is insurable.  Executive shall have the right to designate
both the owner and  the beneficiary
of such term life insurance  policy. Executive agrees to undergo any and all reasonable  physical examinations that
are necessary for the issuance  and/or renewal of said term life insurance
policy. After the  expiration of
the Term, so long as permitted by such insurance  policy terms, Executive may elect to continue
coverage under  such policy at
his own cost.


 


(e)           Bonus.
In addition to the Base Salary, Executive will have the  opportunity to earn an annual
target bonus in such amounts,  and based upon such targets, established annually by the  Board. The annual target
bonus amounts and the target  determination procedures are set forth on Annex A attached  hereto. Any bonus earned
during the Term will be deemed to  have been earned as of the last day of the
relevant calendar  year, but will
be paid following the completion of the  relevant calendar year at such time bonuses
are paid to the  Company’s other
senior executives.


 


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(f)            Vacation.
Executive shall be entitled to five (5) weeks paid  vacation during each year of the Term. 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.


 


(g)           Deductions
and Withholdings. All amounts payable or which  become payable hereunder shall be subject to
all deductions  and withholdings
required by law.


 


4.             Termination.
Executive’s services for the Company and the Term of this Agreement may be
terminated under the following circumstances:


 


(a)           Death.
Executive’s services hereunder shall terminate upon his  death. In the case of
Executive’s death, the Company shall pay  (in accordance with Section 4(h) hereof)
to Executive’s  beneficiaries or
estate, as appropriate, (i) his then current  accrued and unpaid Base Salary through his
date of death as  well as 100% of
any accrued and unpaid bonus for any years  preceding the year of termination (it being
expressly agreed  that Executive
shall have no rights to receive a bonus in  respect of the year in which his death
occurs), and (ii) otherbenefits and payments to which Executive is then entitled  hereunder or pursuant to
Section 4(k).


 


(b)           Disability.
If a Disability (as defined below) of Executive  occurs during the Term, the Board may give
Executive written  notice of its
intention to terminate his employment while  Executive continues to be subject to such
Disability. In such  event, Executive’s
services with the Company shall terminate  as of the date specified in such notice. In
the case of a  termination as a
result of a Disability, the Company shall pay  (in accordance with Section 4(h) hereof)
to Executive (i) his  then current accrued
and unpaid Base Salary through the  effective date of his termination as well as
100% of any  accrued and
unpaid bonus for any years preceding the year of  termination (it being expressly agreed that
Executive shall  have no rights
to receive a bonus in respect of the year in  which termination occurs), and (ii) other
benefits and  payments to
which Executive is then entitled hereunder or  pursuant to Section 4(k). For the purpose
of this Section 4(b), “DISABILITY” shall mean Executive’s inability to
perform  his duties for
the Company on a full-time basis for 180 days  (whether or not consecutive) in any twelve
(12) month period.  During any
period of time in which Executive is prevented from  performing his duties for the Company as a
result of any  physical or
mental incapacitation, but prior to termination of  the Term on account of Executive’s Disability,
Executive shall  receive his full
compensation hereunder as if actively at  work.


 


(c)           Termination
by the Company for Cause. The Board may terminate  Executive’s services hereunder for Cause (as
defined below) at  any time upon
written notice to Executive. In such event,  Executive’s services shall terminate as of the
date specified  in such notice.
In the case of Executive’s termination for  Cause, the Company shall pay (in accordance
with Section 4(h)hereof) to Executive (i) his then current accrued and unpaid  Base Salary through the
effective date of his termination as  well as 100% of any accrued and unpaid bonus
for any years  preceding the
year of termination (it being expressly agreed  that Executive shall have no rights to receive
a bonus in  respect of the
year in which termination occurs) and (ii)  other benefits and payments to which Executive
is then  entitled
hereunder or pursuant to Section 4(k). For purposes  of this Agreement, the Board
shall have “CAUSE” to terminate  Executive’s services hereunder 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


 


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any
crime constituting 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 be
deemed 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.


 


(d)           Termination
by Executive for Good Reason. Executive may  terminate his services hereunder for Good
Reason (as defined  below); provided
that Executive first gives the Company a  written notice of his intent to terminate for
Good  Reason at least
thirty (30) calendar days prior to the  effective date of any such termination, and,
if Executive has  Good Reason to
terminate his services hereunder, Executive’s  services shall terminate upon such 30th
calendar date. In theevent Executive terminates his employment for Good Reason, the  Company shall pay to
Executive (i) in accordance with Section 4(h) hereof, his then current
accrued and unpaid Base Salary  through the effective date of his termination
as well as 100%  of any accrued
and unpaid bonus for any years preceding the  year of termination (it being expressly agreed
that except as  hereinafter
provided, Executive shall have no rights to  receive a bonus in respect of the year in
which termination  occurs), (ii) in
24 equal monthly installments (with the last  such installment to occur on the second
anniversary of such  termination), an
additional amount equal to two years’ of Base  Salary and Executive’s bonus for the year of
termination (it  being agreed
that Executive’s bonus for the year of  termination to be paid under this
Section 4(d) shall be deemed  to be equal to two years’ of Base Salary), and
(iii) other  benefits and
payments to which Executive is then entitled  hereunder or pursuant to Section 4(k). “GOOD
REASON” shall  mean, without
the Executive’s consent, the occurrence of any  of the following circumstances unless such
circumstances are  fully corrected
prior to the expiration of the fifteen (15)  calendar day period following delivery to the
Company of  Executive’s
notice of intention to terminate his employment  for Good Reason describing such circumstances
in reasonable  detail: (A) an
adverse change in Executive’s title as CEO of  the Company, Executive’s involuntary removal
from the Board or  as a non-voting
member of the Executive Committee of the  Board, or failure of Executive to be elected
to the Board or  as a non-voting
member of the Executive Committee of the Board  at any time during the Term; (B) a substantial
diminution in  Executive’s
duties, responsibilities or authority for the  Company, taken as a whole (except during
periods when  Executive is
unable to perform all or substantially all of  Executive’s duties or responsibilities as a
result of  Executive’s
illness (either physical or mental) or other  incapacity); (C) a change in location of the
Company’s chief  executive office
to a location more than 50 miles from its  current location; or (D) any other material
breach of this  Agreement.
Executive shall be deemed to have waived his rights  to terminate his services hereunder for
circumstances


 


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constituting
Good Reason if he shall not have provided to the  Company a notice of termination within sixty
(60) calendar  days immediately
following his knowledge of the circumstances  constituting Good Reason.


 


(e)           Termination
by Executive Without Good Reason. Executive may  terminate his employment hereunder without
Good Reason;  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 Executive terminates his employment
without Good Reason,  the Company
shall pay to Executive (in accordance with Section 4(h) hereof) (i) his
current accrued and unpaid Base Salary  through the effective date of his termination
as well as 100%  of any accrued
and unpaid bonus for any year preceding the  year of termination (it  being expressly agreed that
Executive shall have no rights to  receive a bonus in respect of the year in
which termination  occurs) and (ii)
other benefits and payments to which  Executive is then entitled hereunder or pursuant
to Section 4(k).


 


(f)            Termination
by the Company Without Cause. The Board may  terminate Executive’s services hereunder
without Cause at any  time upon
written notice to Executive. In such event,  Executive’s services shall terminate as of the
date specified  in such notice.
In the event Executive’s services hereunder  are terminated by the Company without Cause,
the Company shall  pay (in
accordance with Section 4(h) hereof) to Executive (i)  his then current accrued and
unpaid Base Salary through the  effective date of his termination as well as
100% of any  accrued and
unpaid bonus for any years preceding the year of  termination (it being expressly agreed that
except as  hereinafter
provided, Executive shall have no rights to  receive a bonus in respect of the year in
which termination  occurs), (ii) an
additional amount equal to two years’ of Base  Salary and Executive’s bonus for the year of
termination (it  being agreed
that Executive’s bonus for the year of  termination to be paid under this
Section 4(f) shall be deemed  to be equal to two years’ of Base Salary), and
(iii) other  benefits and
payments to which Executive is then entitled  hereunder or pursuant to Section 4(k).


 


(g)           Termination
in Connection with Certain Organic Transactions.  If (i) any transaction described in clause (w)
or (x) of the  definition of “Organic
Transaction” (as such term is defined  in the Company’s Articles of Association as of
the date  hereof) (such
transaction a “Sale Event”) is consummated  pursuant to which Executive’s stock options granted
pursuant  to the Stock
Option Agreement are treated in accordance with  clause (i) or (iii) of the first sentence of
Section 7(b) of  the Stock Option
Agreement, and (ii) either (x) during the  period beginning 90 days prior thereto and
ending 90 days  thereafter,
Executive’s employment terminates pursuant to  Section 4(d) or Section 4(f) hereof
and he retains stock  options granted
pursuant to the Stock Option Agreement, or (y)  Executive delivers a written notice of
resignation to the  Company
concurrent with the consummation of, or during the 90  day period immediately
following, such Sale event, then the  Company shall pay (in accordance with
Section 4(h) hereof) to  Executive (A) his then current accrued and unpaid Base Salary  through the effective date of
his termination as well as 100%  of any accrued and unpaid bonus for any years
preceding the  year of
termination (it being expressly agreed that Executive  shall have no rights to
receive a bonus in respect of the year  in which termination occurs), (B) an additional
amount equal  to the product
of (x) one year of Base Salary multiplied by  (y) the total number of Out-of-the-Money
Tranches (as defined  below), and (C)
other benefits and payments to which Executive


 


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is
then entitled hereunder or pursuant to Section 4(k). For  purposes of this
Section 4(g), an “Out-of-the-Money Tranche”  shall be any one of the five tranches included
in the stock  option granted
to Executive as of the Effective Date pursuant  to the Stock Option Agreement which do not
result in any  proceeds paid  or payable to Executive in
connection with such Sale Event.  “Stock Option Agreement” means that certain
Non-Statutory  Stock Option
Agreement between WH Holdings (Cayman Islands)  Ltd. and Executive of even date herewith. The
severance  benefit set
forth in this Section 4(g) shall be in addition to  the severance benefit set
forth in Section 4(d) or Section 4(f) hereof, as applicable, if such
severance benefit would be  payable to Executive in accordance with the terms of Section 4(d)
or Section 4(f) hereof.


 


(h)           Payments
to Executive; No Duty to Mitigate. Any amounts  payable to Executive upon his termination of
employment under  this
Section 4 shall be paid at such times as such amounts  would have otherwise been
payable to Executive had Executive’s  employment not been terminated. Executive
shall have no duty  to seek to
mitigate the above severance benefits set forth in  this Section 4, and any compensation
derived by Executive from  alternative employment or otherwise shall not reduce the  Company’s obligations
hereunder.


 


(i)            Resignation
of Offices. Promptly following any termination of  Executive’s employment with the Company (other
than by reason  of Executive’s
death), Executive shall promptly deliver to the  Company reasonably satisfactory written evidence
of  Executive’s
resignation as a member of the board of directors,  any committee thereof and/or any office (e.g.,
office of Chief  Executive
Officer) with the Company or any of its affiliates.  The Company shall be entitled to withhold
payment of any  amounts
otherwise due pursuant to this Section 4 until  Executive has complied with the provisions of
this Section 4(i).


 


(j)            Release.
As a precondition to the Company’s obligations to  make any of the payments specified in Sections
4(d), 4(f) or  4(g) of this Agreement,
Executive or his guardian, estate or  heirs, as appropriate, shall execute and
deliver to the  Company a fully
effective (i.e., there shall be no further  unsatisfied conditions to the effectiveness
thereof) general  release in the
form attached hereto as Annex B.


 


(k)           Employee
Benefit Plan Rights. Following any termination of  Executive’s employment with the Company, any
rights that may  exist in
Executive’s favor to payment of any amount under any  employee benefit plan or arrangement of the
Company other than  those set forth
in this Agreement shall be made in accordance  with the terms and conditions of any such
employee benefit  plan or
arrangement.


 


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 referred to collectively as “DISTRIBUTORS”),  including, without
limitation, the identity of Distributors  that Executive cultivates or maintains while
providing


 


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services
at the Company or any of its affiliates using the  Company’s or any of its affiliates’ 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 affiliates’ business methods, practices, strategies,  forecasts, pricing, and
marketing techniques; the identities  of the Company’s and its affiliates’
licensors, vendors andother 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; 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 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 forany other purpose, including, without limitation, not in any  way or for any purpose
detrimental to the Company or any of  its affiliates. 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 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  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)  shall be
immediately turned over to the Company and its


 


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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, itbeing agreed that the preparation of any such documents shall  be at the Company’s expense.


 


(d)           Following
the termination of the Term, 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.


 


(a)           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 the Term 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 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 any Distributor, 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 informationof the Company or any of its affiliates to directly or  indirectly participate in any
means or manner in anyCompetitive Business, wherever located. “COMPETITIVE BUSINESS”  means the development,
marketing, distribution or sale of


 


8
















 


weight
management products, nutritional supplements or  personal care products through multi-level
marketing or other  direct selling
channels. “PARTICIPATE” includes any direct or  indirect interest in any enterprise, whether
as an officer,  director,
employee, partner, sole proprietor, agent,  representative, independent contractor,
executive, franchisor,franchisee, creditor, owner, distributor or otherwise;  provided that the foregoing
activities shall not include the  passive ownership (i.e., Executive does not
directly or  indirectly
participate in the business or management of the  applicable entity) of less than 5% of the
stock of a  publicly-held
corporation whose stock is traded on a national  securities exchange and which is not primarily
engaged in a  Competitive
Business.


 


(b)           Except
as otherwise provided in Section 2(b), as long as  Executive is employed by the
Company, Executive agrees that he  will not, except with the express written
consent of the  Board, become
engaged in, render services for, or permit his  name to be used in connection with any
business other than thebusiness of the Company and its affiliates.


 


(c)           Executive
has agreed to be bound by the covenants contained in  this Section 6 for the purpose of
preserving for the Company’s  and its affiliates’ benefit the goodwill, confidential and  proprietary information and
going concern value of the Company  and its affiliates and their respective business  opportunities, and to protect
the value of the capital stock  of the Company acquired by WH Holdings (Cayman
Islands) Ltd.  pursuant to that
certain Agreement and Plan of Merger dated  April 10, 2002, by and among WH Holdings
(Cayman Islands)  Ltd., Parent and
WH Acquisition Corp. WH Holdings (Cayman  Islands) Ltd. and each of its  affiliates are intended third
party beneficiaries of the  provisions of Sections 5 and 6 of this Agreement.


 


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 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


 


9
















 


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. In  the case of an assignment
other than by operation of law, the Company  shall promptly deliver to Executive a written
assumption of the  Agreement and
the obligations hereunder by such entity. 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. 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.
Notwithstanding the foregoing, in the  event of Executive’s death, his beneficiaries
or estate, as  appropriate,
shall be entitled to all amounts Executive would have  otherwise received hereunder.
In the event the Company transfers all or  any substantial portion (i.e., more than 50%
of the fair market valuethereof, as determined by the Board in good faith) of its assets to any  of its  affiliates, the Company shall
cause such affiliate to sign a  counterpart copy of this Agreement as a
primary obligor hereunder, it  being agreed that no such assignment shall release the Company from any  of its obligations hereunder.


 


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 or any  portion thereof should ever
be adjudicated by a court of competent  jurisdiction to exceed the time or other
limitations permitted byapplicable 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 provisionsof this Agreement or portions thereof shall not affect the validity or  enforceability of any other
provision, or portion of this Agreement,  which 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,  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  or ability to enter into this
Agreement and to perform his duties and  obligations hereunder. As an inducement to
Executive to enter into this  Agreement, the 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 toexecute 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.


 


10
















 


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, Inc.


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


 


(b)           with
a copy to:


Herbalife
International, Inc.


Herbalife
International of America, Inc.


1800
Century Park East


Los
Angeles, California 90067


Attention:
General Counsel


Telecopy:
(310) 557-3906


 


(c)           if
to Executive, to:


 


his
home address on record with the Company


 


(d)           with a copy to:


 


Proskauer
Rose LLP


1585
Broadway


New
York, NY 10036


Telecopy:
(212) 969-2900


Attention:
Michael S. Sirkin, Esq.


 


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 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. The  parties 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, 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 Board  and signed by Executive and a member of the
Board other than Executive.  As an exception to the foregoing, the parties acknowledge and agree  that the Company shall have
the right, in its sole discretion, to


 


11
















 


reduce
the scope of any covenant or obligation of Executive set forth  in Sections 5 or 6 of this
Agreement or any portion thereof, effective  immediately upon receipt by 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 inequity.


 


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 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.


 


18.           Indemnification.
The Company hereby covenants and agrees to indemnify  Executive and hold him harmless to the fullest
extent permitted by  applicable laws
and under the By-laws of the Company against and in  respect to any and all actions, suits,
proceedings, claims, demands,  judgments, losses, damages and reasonable out-of-pocket costs and  expenses (including
reasonable out-of-pocket attorney’s fees and  expenses) resulting from Executive’s good
faith performance of hisduties and obligations with the Company or any of its affiliates or as  the fiduciary of any benefit
plan of the Company or its affiliates. To  the extent permitted by applicable laws, the
Company, within 30 days of  presentation of invoices, shall reimburse Executive for all reasonable  out-of-pocket legal fees and
disbursements reasonably incurred by  Executive in connection with any such
indemnifiable matter; provided,  however, that Executive shall consult with the
Company prior to  selecting his
counsel and shall obtain the Company’s approval, which  approval shall not be
unreasonably withheld, of such counsel. In  addition, the Company shall cover Executive
under its directors andofficers liability insurance policy both during the term of this  Agreement and during the
six-year period thereafter in the same amount  and to the same extent, if any, as the Company
covers its other  officers and
directors during any such period of time.


 


19.           Arbitration.
Except in any instance where equitable relief is  specifically authorized hereunder, any dispute
arising under or in  connection with
this Agreement shall be resolved by binding arbitration  conducted before one (1)
arbitrator sitting in Los Angeles, California  or such other location agreed by the parties
hereto, in accordance with  the rules and regulations of the American Arbitration Association.  Judgment upon the award
rendered by the arbitrator may be entered in  any court having jurisdiction thereof. At the
discretion of the  arbitrator, the
prevailing party in such arbitration may be ordered to  pay the reasonable out-of-pocket
costs and legal fees and disbursements  incurred by the non-prevailing party in such
arbitration and  preparation
therefor, provided that such costs do not exceed $100,000.


 


20.           Joint
and Several Liability. Each of Parent and the Operating Company  shall be jointly and
severally liable for the obligations of the other  under this Agreement.


 


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


 


	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ MICHAEL O. JOHNSON

  	
   

  
	
   

  	
   

  	
  Michael O. Johnson

  
	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL, INC.

  



 


12
















 


	
   

  	
  By:

  	
  /s/ BRIAN L. KANE

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Brian L. Kane

  
	
   

  	
   

  
	
   

  	
  Title: Co-President

  
	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL OF AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BRIAN L. KANE

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Brian L. Kane

  
	
   

  	
   

  
	
   

  	
  Title: Co-President

  
					



 


13
















 


ANNEX A


 


BONUS TARGETS AND TARGET BONUS AMOUNTS


 


DECEMBER 31,
2003:


 


For
the year ended December 31, 2003, Executive shall be entitled to a bonus
in  an amount equal
to the greater of (i) $850,000 and (ii) an amount equal to the  2003 EBITDA Bonus. The 2003
EBITDA Bonus shall be equal to (A) if 2003 EBITDA is  greater than or equal to 114.6% of the 2003
Plan EBITDA, $1,700,000; (B) if 2003  EBITDA is greater than or equal to 107.3% and
less than 114.6% of 2003 Plan  EBITDA, $1,487,500; (C) if 2003 EBITDA is greater than or equal to 100%
and less  than 107.3% of
2003 Plan EBITDA, $1,275,000; (D) if 2003 EBITDA is greater than  or equal to 95% and less than
100% of 2003 Plan EBITDA, $956,250; (E) if 2003  EBITDA is greater than or equal to 90% and
less than 95% of 2003 Plan EBITDA,  $637,500; (F) if 2003 EBITDA is greater than
or equal to 85% and less than 90%  of 2003 Plan EBITDA, $478,550; (G) if 2003
EBITDA is greater than or equal to  80% and less than 85% of 2003 Plan EBITDA,
$318,750; and (H) if 2003 EBITDA is  less than 80% of 2003 Plan EBITDA, $0.


 


Executive’s
2003 bonus shall not be prorated as a result of Executive’s employment for less
than 12 months during calendar 2003.


 


For
purposes of computing EBITDA, such amount includes the impact of the management
bonus plan, and excludes all equity sponsor monitoring fees and expenses.


 


2004
AND BEYOND:


 


For
the year ended December 31, 2004 and each subsequent year during the Term,  Executive shall be entitled
to a bonus, if earned, in an amount equal to the sum  of (i) the EBITDA Bonus, if any and (ii) the
Alternative Performance Bonus (as  set forth on the table below), if any.
Executive shall have earned a bonus based  upon the achievement by WH Intermediate
Holdings Ltd. and each of its  consolidated subsidiaries of EBITDA and the actual performance in the  Alternative Performance
Target(s) (as defined below), as determined based on the  audited financial statements
for the relevant year, in the percentages set forth  in the table on the following page. “Alternative
Performance Target(s)” means  one or more alternative metrics (i.e., other than EBITDA) set annually
by the  Board (such as
growth in net sales, for example) after consultation with  Executive, and determined by
reference to the Board-approved Plan (the “Plan”)  for the relevant year. The Board shall deliver
written notice to Executive of  the Alternative Performance Target(s) no later
than January 31st of the relevant  calendar year.


 


A-1
















 


	
  If the Company

  achieves this

  percentage of

  EBITDA as set forth

  in the Plan

  	
   

  	
  Executive
  shall be

  awarded an EBITDA

  Bonus equal to the

  product of

  Executive’s Base

  Salary and this

  factor:

  	
   

  	
  If the
  Company

  achieves this

  percentage of the

  Alternative

  Performance Target as

  determined by

  reference to the Plan

  	
   

  	
  Executive
  shall be

  awarded an

  Alternative

  Performance Bonus

  equal to the product

  of Executive’s Base

  Salary and this factor:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than or equal to 114.6%

  	
   

  	
  1.5

  	
   

  	
  Greater than or equal
  to 114.6%

  	
   

  	
  0.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than or equal to 107.3% and less than 114.6%

  	
   

  	
  1.3125

  	
   

  	
  Greater than or equal
  to 107.3 and less than 114.6%

  	
   

  	
  0.4375

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than or equal to 100% and less than 107.3%

  	
   

  	
  1.125

  	
   

  	
  Greater than or equal
  to 100 and less than 107.3%

  	
   

  	
  0.375

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than or equal to 95% and less than 100%

  	
   

  	
  0.84375

  	
   

  	
  Greater than or equal
  to 95 and less than 100%

  	
   

  	
  0.28125

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than or equal to 90% and less than 95%

  	
   

  	
  0.5625

  	
   

  	
  Greater than or equal
  to 90 and less than 95%

  	
   

  	
  0.1875

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than or equal to 85% and less than 90%

  	
   

  	
  0.42225

  	
   

  	
  Greater than or equal
  to 85 and less than 90%

  	
   

  	
  0.14075

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Greater
  than or equal to 80% and less than 85%

  	
   

  	
  0.28125

  	
   

  	
  Greater than or equal
  to 80 and less than 85%

  	
   

  	
  0.09375

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Less
  than 80%

  	
   

  	
  0

  	
   

  	
  Less than 80

  	
   

  	
  0

  	
   

  



 


Notwithstanding
any provision in this Agreement to the contrary, (a) in no event  shall the bonus earned by
Executive for any calendar year (including 2003) be  greater than 200% of Executive’s Base Salary,
and (b) seventy-five percent (75%)  of the Executive’s overall annual bonus
potential shall be attributable to the  EBITDA Bonus, and twenty-five percent (25%) of
the Executive’s overall annual  bonus potential shall be attributable to the
Alternative Performance Bonus.


 
















 


ANNEX B


 


AGREEMENT AND GENERAL RELEASE


 


Agreement
and General Release (“AGREEMENT”), by and among  Michael O. Johnson (“EXECUTIVE” and referred
to herein as “you”), 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”).


 


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, dated
               ,
2003 (the “EMPLOYMENTAGREEMENT”) in accordance with the terms and conditions of
Section 4 of theEmployment Agreement.


 


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 of  indemnification, receipt of legal fees and
directors and officers liability  insurance to which you are entitled under the
Employment Agreement, the  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
HIS SETTLEMENT 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 employmenttermination, each of the undersigned agrees not to make any derogatory,
negative  or disparaging
public statement about the other party hereto (or, as applicable,  any other Company Entity, or
members of your family) 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 of the undersigned (i.e., the
Company or  any other
Company Entity, on the one hand, or you or your family, on the other  hand), it being agreed and
understood that nothing herein shall prohibit any  party (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.


 


5.             This Agreement is binding upon, and
shall inure to the benefit  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 4,  5, 6 and 7 of the Employment Agreement survive
the termination of youremployment 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 Parent’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:

  	
  /s/ MICHAEL O. JOHNSON

  	
   

  
	
   

  	
   

  	
  Michael O. Johnson

  
	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BRIAN L. KANE

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Brian L. Kane

  
	
   

  	
   

  
	
   

  	
  Title: Co-President

  
	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL OF AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BRIAN L. KANE

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: Brian L. Kane

  
	
   

  	
   

  
	
   

  	
  Title: Co-President