EXHIBIT
10.10


 


AGREEMENT FOR
RETENTION OF LEGAL SERVICES


 


This AGREEMENT FOR
RETENTION OF LEGAL SERVICES (the “Agreement”) is entered into as of May 20,
2002 by and between Herbalife International of America, Inc./Herbalife
International, Inc. (“Herbalife”) and Robert A. Sandler (“Sandler”). Herbalife
and Sandler will sometimes be referred to herein as the “Parties.”


 


RECITALS


 


A.  Sandler was employed by Herbalife as General
Counsel, Corporate Secretary and Executive Vice President.


 


B.  The Parties wish to enter into this Agreement
for purposes of Sandler providing, and Herbalife obtaining from Sandler legal
advice and services on an as needed basis.


 


C. Simultaneously with
the execution of this Agreement, Herbalife and Sandler are also entering into a
Separation Agreement and General Release. Sandler’s execution of the Separation
Agreement and General Release is a condition precedent to any obligation of
Herbalife under this Agreement.


 


NOW, THEREFORE, Herbalife
and Sandler incorporate the foregoing recitals as part of this Agreement and
further agree as follows:


 


1.  Retention as Attorney.  Herbalife hereby retains Sandler as an
independent contractor for a thirty-six (36) month period beginning May 20,
2002 provided that the Agreement may be terminated prior to the end of such
period as provided in Section 6, below. It is understood and agreed that
as of May 19, 2002 (the “Termination Date”), Sandler will no longer be an
employee of Herbalife for any purpose or on any basis. After the Termination
Date, Sandler is to be compensated only according to the terms of this
Agreement and is not eligible for, and will not receive or accrue, any
employment benefits, such as sick pay, vacation pay, holidays, health, life,
dental, or accident insurance, retirement benefits, or any other benefit which
is now, or may become available to employees of Herbalife. Herbalife is not
responsible for, and will not withhold, any federal, state, or local taxes,
workers’ compensation contributions, unemployment insurance contributions, or
other payroll deductions from Sandler’s compensation as provided hereunder.
Sandler is solely responsible for such matters. Sandler is not entitled to any
rights, benefits, or protections conferred by Herbalife’s personnel practices
or procedures on its employees.


 


2.  Legal Services.  Sandler shall provide Herbalife with legal
advice and perform such legal services as Herbalife may from time to time
request. Sandler shall be available to perform legal services on behalf of
Herbalife for a maximum of fifty (50) hours per month (“maximum hours”).
Sandler shall not be entitled to any fees for any time spent performing legal
services in excess of the maximum hours, without prior written consent by
Herbalife, nor shall Sandler be required to spend time in excess of the maximum
hours performing legal services, without prior written consent by Sandler.
Sandler shall be required to maintain records of the time he spends performing
legal services for Herbalife.


 


3.  Performance of Legal Services.  The nature of the legal services to be
performed shall be at the discretion of Herbalife, and the time and place of
performance of such services shall be as mutually agreed by Herbalife and
Sandler. In the performance of legal services for Herbalife, Sandler shall owe
Herbalife all duties and obligations of an attorney to his client, including
fiduciary duties, a duty to maintain the attorney-client privilege, and a duty
to act only in the best interests of Herbalife.


 


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4.  Consideration.  In consideration of the legal services to be
provided by Sandler hereunder, Herbalife agrees to pay Sandler a consulting fee
of One Million, Eight Thousand Dollars ($1,008,000.00) payable in equal monthly
installments of Twenty Eight Thousand Dollars ($28,000.00) on the 15th day of
each of thirty-six (36) months following Sandler’s Termination Date, with the
first such payment to be made on June 15, 2002.


 


5.  Expenses. 
Sandler’s reasonable, documented expenses incurred in connection with
the performance of legal services hereunder will be paid by Herbalife, provided
that Sandler must first obtain from Herbalife written approval of such
expenses. Herbalife shall not be liable for payment or reimbursement of
expenses for which Sandler does not obtain preapproval.


 


6.  Termination.  This Agreement shall be subject to termination
as follows:


 


(a)  Sandler may terminate this Agreement at any
time upon thirty (30) days’ written notice to Herbalife;


 


(b)  Herbalife may terminate this Agreement at any
time, with or without cause and with or without advance notice; provided that
in the event Sandler is not terminated for cause (as defined below), Herbalife
shall pay Sandler the amounts provided for in Section 8. Herbalife’s right
to terminate this Agreement shall be governed solely by the terms of this
Agreement and may not be modified by any other express or implied practices,
policies or


 


agreements. “Cause,” for
purposes of this Agreement, shall mean (i) the willful and continued failure by
Sandler to substantially perform his duties with Herbalife (other than any such
failure resulting from his incapacity due to death or physical or mental
illness), after a written demand for substantial performance is delivered to
Sandler that specifically identifies the manner in which Herbalife believes
that Sandler has not substantially performed his duties and Sandler’s failure
to substantially cure such failure to perform within thirty (30) days of such
notice, (ii) the willful engaging by Sandler in misconduct which is injurious
to Herbalife, monetarily or otherwise, including, but not limited to, Sandler’s
failure to abide by his obligations as an attorney acting on behalf of his
client, Herbalife or, (iii) Sandler’s final conviction for fraud or of any
felony involving moral turpitude;


 


7.  Rights Upon Sandler’s Death or Disability, or
Termination of the Agreement by Sandler or the Company for Cause. Upon
termination of this Agreement by reason of (a) Sandler’s termination of the
Agreement, (b) Sandler’s death or disability, or (c) for cause, Sandler shall
be entitled to receive only the amount of any accrued but unpaid monthly fees
under this Agreement as of the date of the termination of this Agreement and
Herbalife shall have no further obligation to Sandler.


 


8.  Rights Upon Termination by Company other than
for Cause. In the event Herbalife terminates this Agreement both (a) prior to
the date thirty-six (36) months after the Termination Date, and (b) other than
for cause, disability or death, Sandler shall receive a sum equal to the amount
he would have otherwise been entitled to receive under Section 4 of this
Agreement from the date of such termination of this Agreement to the date
thirty-six (36) months after the Termination Date. Such amount shall be paid to
Sandler in one lump sum within thirty (30) days of termination of this
Agreement pursuant to this paragraph 8.


 


9.  Confidentiality.  Sandler agrees not to disclose or
misappropriate any and all trade secrets or confidential or proprietary
information of Herbalife (collectively “Protected Information”). Protected
Information means all information pertaining in any manner to the business of
Herbalife and its employees, distributors, suppliers, vendors, customers,
manufacturers, sales representatives, consultants, lawyers, accountants, and
business associates. This definition includes, but is not limited to: (i)
information about costs, profits, markets, sales, financial and marketing data
and bids; (ii) plans for business, marketing, future development and new
product concepts; (iii) employee personnel files and information about employee
compensation and benefits; (iv)


 


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identity of and other
business information relating to Herbalife’s customers and/or distributors,
past, present or future, together with each such customer’s or distributor’s
habits or needs; (v) identity of and other business information relating to
Herbalife’s past, present or future vendors, manufacturers and suppliers; and
(vi) design drawings and computer programs.


 


10.  Ethical Obligations.  Because Sandler will be providing legal
advice and services to Herbalife, and in that capacity will be privy to highly
confidential and privileged information, and because during the period of this
Agreement Sandler will owe all duties of an attorney to a client with regard to
the work conducted by Sandler on behalf of Herbalife, during the period of this
Agreement, Sandler shall not engage in any activity competitive with Herbalife,
or in any other manner act to the detriment of Herbalife or Herbalife’s
business interests, management or owner(s).


 


11.  Additional Instruments.  The parties hereto shall execute any further
or additional instruments and they will perform any acts which may be
reasonably necessary or appropriate in order to effectuate and carry out the
purposes of this Agreement.


 


12.  Execution in Counterparts.  This Agreement may be executed in one or more
counterparts, each of which may be executed by one or more of the parties
hereto, with the same force and effect as though all the parties who executed
such counterparts had executed but one instrument, and each counterpart shall
be deemed a duplicate original.        
13. Modification and Amendments. No provision of this Agreement may be
modified or amended except by a writing executed by the party sought to be charged
with such modification or amendment.


 


14.  Notices. 
All notices and communications pursuant to this Agreement shall be in
writing and shall be delivered in person or mailed by certified mail, return
receipt requested, postage prepaid:


 




	
  To Herbalife:

  	
   

  	
  Herbalife International of America, Inc.

  
	
   

  	
   

  	
  1800 Century Park East, 14th Floor

  
	
   

  	
   

  	
  Los Angeles, California 90067

  
	
   

  	
   

  	
  Attention:   Timothy
  Swenney

  
	
   

  	
   

  	
   

  
	
  To Sandler:

  	
   

  	
  Robert A. Sandler

  
	
   

  	
   

  	
  222 North Canon Drive

  
	
   

  	
   

  	
  Beverly Hills, CA  90210

  
	
   

  	
   

  	
   

  
	
  With Copies to:

  	
   

  	
  Marcus A. Torrano, Esq.

  
	
   

  	
   

  	
  Morrison & Foerster LLP

  
	
   

  	
   

  	
  555 West Fifth Street, Suite 3500

  
	
   

  	
   

  	
  Los Angeles, California 90013-1024

  






 


or to such other address
as any party may, from time to time, designate by written notice hereunder. If
delivered in person, such notice shall be effective immediately; if mailed,
such


 


notice shall be effective
seventy-two (72) hours after deposit, postage prepaid, in the United States
Postal Service mail.


 


15.  Entire Agreement.  This Agreement constitutes and embodies the
full and complete understanding and agreement of the parties hereto relating to
the subject matter hereof and supersedes any and all prior understandings or
agreements, whether oral or in writing, between the parties hereto or their
predecessors.


 


16.  Severability.


 


16.1  Severable. 
The provisions of this Agreement are severable and, in the event that
any provision hereof shall be found by any court to be unenforceable, in whole
or in part, the remainder of this Agreement shall


 


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nonetheless remain
enforceable and binding upon Herbalife and Sandler.


 


16.2  Enforcement. 
To the extent that any provision hereof is deemed unenforceable by
virtue of its scope in terms of area, business activity prohibited and/or
length of time, but could be enforceable by reducing the scope of area,
business activity prohibited or length of time, Sandler and Herbalife agree
that same shall be enforced to the fullest extent permissible under the laws
and public policies applied in the jurisdiction in which enforcement is sought,
and that Herbalife shall have the right, in its sole discretion, to modify such
invalid or unenforceable provision to the extent required to be valid and
enforceable. Sandler agrees to be bound by any promise or covenant imposing the
maximum duty permitted by law which is subsumed within the terms of any
provision hereof, as though it were separately articulated in and made a part
of this Agreement, that may result from striking or modifying any of the
provisions hereof.


 


17.  Assignment. 
This Agreement shall inure to the benefit of Sandler and Herbalife and
their respective successors and heirs. Neither party may assign any rights or
obligations hereunder without the prior written consent of the other party. Any
attempted assignment in contravention of this Section shall be null and
void and of no effect.


 


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


 


	
   

  	
  HERBALIFE INTERNATIONAL OF AMERICA,

  INC./HERBALIFE INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ROBERT A. SANDLER

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Robert A. Sandler

  



 


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