EXHIBIT 10.21


 


EMPLOYMENT AGREEMENT


 


This Employment Agreement
(the “AGREEMENT”), dated as of March 10, 2003 (the “EFFECTIVE DATE”), is made
and entered by and between Brian Kane (the  “EXECUTIVE”) and 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”). This
Agreement amends, restates and replaces in its  entirety that certain Employment Agreement among
the parties hereto dated as of  August 20, 2000, as the same may have been
amended or modified.


 


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 or herself 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 continue to employ Executive and  Executive shall continue in the employ of the Company
for the period  commencing on the
Effective Date and ending on the date that is three  (3) years thereafter, unless sooner terminated
in accordance with theprovisions of this Agreement (the “TERM”). After the Term, the parties  may (but shall be under no obligation
to), by written agreement, renew  or extend the term of the Agreement for an additional
period or  periods. The term
of each renewal period of this Agreement is referred  to herein as a “RENEWAL PERIOD”; and references
to the “TERM” shall  mean the period beginning
on the Effective Date and ending on the date  of termination of Executive’s services for the
Company, whether at theend of the Term or a Renewal Term or otherwise in accordance with the  provisions of this Agreement.
Upon expiration of the Term, except as  expressly set forth herein (including in Section 5
and Section 6), 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 a Co-President of  the Company, with such authority and duties as
are assigned to  Executive from time
to time by the Board of Directors of Parent (the “BOARD”) or the Chief  Executive Officer of Parent (“CEO”)
that are substantiallysimilar to the authority and duties currently vested in  Executive by the Board. Each of
the undersigned acknowledges  and agrees that the Company may, subsequent to the Effective Date, hire a
CEO, and that any such CEO hiring may result in a  readjustment of Executive’s title, authority, duties
and  responsibilities
for the Company; provided that in no event  shall Executive’s title, authority, duties and  responsibilities for the Company
be reduced, in the aggregate,  below the level of such title, authority, duties and  responsibilities vested in Executive
in his or her capacity as  the Chief Operating Officer of the Company prior to his or her


 


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promotion
to Co-President. 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 or her duties hereunder. During the
Term,  Executive shall report
to the Board and/or the CEO.


 


(b)           During the Term,
Executive shall devote substantially all his  or her working time, attention, skill and efforts
to the  business and affairs
of the Company, will use his or her best  efforts to promote the success of the Company’s
business, and  shall not enter the
employ of 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.


 


3.             Compensation and Related Matters.


 


(a)           Salary. During the
Term, Executive shall receive a salary at  the per annum rate of Seven Hundred Twelve Thousand
Five  Hundred Dollars ($712,500),
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, 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
business  expenses incurred
by Executive in the performance of his or  her 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.


 


(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


 


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less
favorable than those generally applicable to senior  executives 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. Executive’s
individual participation levels in  the Company’s and its affiliates’ equity compensation  arrangements (including stock
option plans) will be determined  by the Board in its sole discretion. In the event
the Company  or its affiliates
decide to grant Executive any stock options  or other equity compensation, any such stock options
or equity compensation will be made pursuant to separate written  agreements between Executive and
the Company or its affiliates.


 


(d)           Bonus. Notwithstanding
any provision in this Agreement to the  contrary, Executive agrees that he or she shall
cease to be a  participant of and
shall not be entitled to any additional  compensation or payments under the 1994 Performance-Based  Annual Incentive Compensation
Plan (the “1994 PLAN”) for any  period after June 30, 2002 and that the termination
of  participation in
the 1994 Plan will not cause any additional  benefit to be payable to Executive as a result
of such  termination. Executive
and the Board have separately  established Executive’s bonus opportunity and bonus objectives  for the calendar year ended December 31,
2003. For all  calendar years during
the Term following the calendar year  ended December 31, 2003, Executive’s bonus
opportunity will be  not less than the
amount of Executive’s bonus opportunity for  the calendar year ended December 31, 2003,
it being agreed  that Executive’s
individual bonus objectives will be  established on an annual basis by the Board in
its good faith  discretion.


 


(e)           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.


 


(f)            Deductions and Withholdings.
All amounts payable or which  become payable hereunder shall be subject to all deductions  and withholding 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  or her death. In the case of Executive’s death,
the Company  shall pay (in accordance
with Section 4(f) hereof) to  Executive’s beneficiaries or estate, as appropriate,
(i) his  or her then current
accrued and unpaid Base Salary through his  or her 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 except as hereinafter
provided,


 


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Executive
shall have no rights to receive a bonus in respect  of the year in which termination occurs), (ii)
an additional  amount equal to one
year 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(a) shall be deemed to be equal to
one year of Base  Salary), and (iii)
other benefits and payments (including,  without limitation, reimbursement of expenses incurred  conducting Company business pursuant
to Section 3(b)) to which  Executive is then entitled hereunder. Executive,
his  beneficiaries or
his estate, as appropriate, shall be entitled  to no other compensation under this Agreement following,
or as  a result of, a termination
under these circumstances.


 


(b)           Disability.  (i)  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 or  her employment. In
such event, Executive’s services  with the Company shall terminate as of the date
of  such notice. In the
case of a termination as a result  of a Disability, the Company shall pay (in accordance  with Section 4(f) hereof)
to Executive (i) his or her  then current accrued and unpaid Base Salary through  the effective date of his or her
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 one
year 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(b) shall  be deemed to be equal to one year of Base Salary),  and (iii) other benefits and payments
(including,  without limitation,
reimbursement of expenses  incurred conducting Company business pursuant to  Section 3(b)) to which Executive
is then entitled  hereunder. Executive
and his or her beneficiaries, as  appropriate, shall be entitled to no other  compensation under this Agreement
following, or as a  result of, a termination
under these circumstances.


 


(ii)           For the purpose of this Section 4(b), “DISABILITY”  shall mean Executive’s inability
to perform his or  her duties for the
Company on a full-time basis for  120 consecutive days or a total of 180 days in
any  twelve (12) month
period as reasonably determined by  the Board.


 


(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 of


 


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such
notice. In the case of Executive’s termination for Cause,  the Company shall pay (in accordance
with Section 4(f) hereof)  to Executive (i) his or her then current accrued
and unpaid  Base Salary through
the effective date of his or her  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 (including,  without limitation, reimbursement
of expenses incurred  conducting Company
business pursuant to Section 3(b)) to which  Executive is then entitled hereunder. Executive
and his or her  beneficiaries, as
appropriate, shall be entitled to no other  compensation under this Agreement following, or
as a result  of, a termination
under these circumstances. 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
commission of  a felony or any other
act or omission involving dishonesty, disloyalty or fraud with respect to the Company
or any of its  affiliates or any
of their distributors, suppliers or other  material business relations; (ii) conduct by Executive
which  could reasonably
be expected to bring the Company or any of  its affiliates into substantial public disgrace
or disrepute;  (iii) Executive’s
substantial and repeated failure to perform  Executive’s lawful duties as contemplated in Section 2
of this  Agreement; (iv) Executive’s
gross negligence or willful  misconduct with respect to any material aspect of the business  of the Company or any of its affiliates;
(v) Executive’s  failure to comply
in any material respect (including, without  limitation, the making of any certifications required  thereunder) with applicable laws,
including, without  limitation, the Securities
Act of 1933, as amended, the  Securities Exchange Act of 1934, as amended, the  Sarbanes-Oxley Act of 2002, as
amended, or any of the rules  and regulations promulgated under any of the foregoing laws;  or (vi) 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).


 


(d)           Termination by Executive.
Executive may terminate his or her  employment hereunder for any reason or no 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 or her employment, the Company shall
pay (in  accordance with Section 4(f)
hereof) to Executive (i) his or  her current accrued and unpaid Base Salary through
the  effective date of
his or her 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  (including,


 


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without
limitation, reimbursement of expenses incurred  conducting Company business pursuant to Section 3(b))
to which  Executive is then
entitled hereunder. Executive and his or her  beneficiaries, as applicable, shall be entitled
to no other  compensation under
this Agreement following, or as a result  of, a termination under these circumstances.


 


(e)           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 of such  notice. In the event
Executive’s services hereunder are  terminated by the Company without Cause, and subject
to  Executive’s compliance
with the terms of Section 5 and Section 6 herein, the Company shall pay
(in accordance with Section 4(f) hereof) to Executive (i) his or her 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 one
year 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(e) shall be deemed to be equal to
one year of Base  Salary), and (iii)
other benefits and payments (including,  without limitation, reimbursement of expenses incurred  conducting Company business pursuant
to Section 3(b)) to which  Executive is then entitled hereunder. In addition,
during the  one (1) year period
immediately following the date of  termination, the Company shall continue to afford
to Executive  the group medical,
dental, vision, long-term disability and  life insurance specified in Section 3(c) above.
Executive and  his or her beneficiaries,
as applicable, shall be entitled to  no other compensation under this Agreement following,
or as a  result of, a termination
under these circumstances. Executive  shall have no duty to seek to mitigate the above
severance  benefits in the event
of termination hereunder without Cause,  and, subject to Executive’s compliance with Section 5
and  Section 6 herein,
any compensation derived by Executive from  alternative employment or otherwise shall not reduce
the  Company’s obligations
hereunder.


 


(f)            Payments to Executive.
Subject to Executive’s continuing  compliance with the provisions of Section 5
and Section 6  herein, any amounts
payable to Executive upon his or her  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.


 


(g)           Resignation of Offices.
Promptly following any termination of  Executive’s employment with the Company (other
than by reason  of Executive’s death),


 


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Executive
shall promptly deliver to the Company reasonably  satisfactory written evidence of Executive’s resignation
as a  member of the board
of directors and/or any office (e.g.,  office of Co-President) 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(g).


 


(h)           Release. As a precondition
to the Company’s obligations to  make any of the payments specified in Sections
4(a), 4(b) or  4(e) of this Agreement,
Executive or his or her guardian,  estate or heirs, as appropriate, shall execute
and deliver to  the Company an enforceable
and fully effective (i.e., there  shall be no further unsatisfied conditions to the  effectiveness thereof) general
release in form and substance  reasonably satisfactory to the Company.


 


(i)            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 has been 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 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 and other suppliers
and the  identities of the
Company’s and its affiliates’ contact  persons at such licensors, vendors and other


 


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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, 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. Executive
shall not at any time, either during the  course of his or her employment hereunder or after
the  termination of such
employment, use for himself or herself 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 such source
is not  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 or her
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 or
her 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 or her possession or under his or her custody
or  control upon the
termination of his or her employment shall be  immediately turned over to the Company and its
affiliates, as  applicable.


 


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(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 or  her 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  or her 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.


 


(d)           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 or she has become and will continue
to  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 twelve (12) months  immediately thereafter (the “NONSOLICITATION
PERIOD”), he or  she 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 orattempt to induce any Distributor, supplier, licensor,  licensee or other business relation
of the Company or any ofits 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  (including, without limitation, making any negative
statements  or communications
about 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 todirectly or indirectly participate in any means or manner in  any Competitive Business, wherever


 


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located.
“COMPETITIVE BUSINESS” means the development,  marketing, distribution or sale of 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  2% 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)           As long as Executive
is employed by the Company, Executive  agrees that he or she will not, except with the
express  written consent of
the Board, become engaged in, render  services for, or permit his or her name to be used
in  connection with any
business other than the business 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., Herbalife International, Inc. 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 difficultto ascertain and the remedies at law for which will not be reasonable  or adequate compensation to the
Company and its affiliates for such a  violation. Accordingly, Executive agrees that if
Executive violates orthreatens 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


 


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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 undercircumstances 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 or she  shall not assign, sell, transfer, delegate or otherwise
dispose of,  whether voluntarily
or involuntarily, any rights or obligations under  this Agreement, nor shall Executive’s rights hereunder
be subject to  encumbrance of the
claims of creditors. 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. Nothing in  this Agreement shall prevent the
consolidation or merger of the Company  with or into any other entity, or the sale by the
Company of all or anyportion of its properties or assets, or the assignment by the Company  of this Agreement and the performance
of its obligations hereunder to  any successor in interest or any affiliated entity,
and Executive  hereby consents to
any and all such assignments. Subject to the  foregoing, this Agreement shall be binding upon
and shall inure to thebenefit 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.


 


9.             Governing Law; Jurisdiction
and Venue. This Agreement shall be  governed, construed, interpreted and enforced in
accordance with the  substantive 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 by  applicable law, as determined by such court in
such action, then suchprovisions shall be deemed reformed to the maximum time or other  limitations permitted by applicable
law, the parties herebyacknowledging 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 provisions  of 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 portionsor aspects


 


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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 or she
is not a party to anyother agreement or obligation for personal services, and that there  exists no impediment or restraint,
contractual or otherwise, on his or  her power, right or ability to enter into this
Agreement and to performhis or her duties and obligations hereunder. As an inducement to  Executive to enter into this Agreement,
Company represents and warrants  that the person signing this Agreement for the
Company has been dulyauthorized to do so by all necessary corporate action and has the  corporate power and authority
to execute this Agreement on the  Company’s behalf. The execution and delivery of
this Agreement and theconsummation of the transactions contemplated have been duly and  effectively authorized by all
necessary corporate action of the  Company.


 


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 deliveryto 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:
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


 


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Telecopy:
(310) 557-3906


 


(c)           if to Executive,
to:


 


c/o
Herbalife International, Inc.


1800
Century Park East


Los
Angeles, California 90067


Telecopy:
(310) 557-3906


 


(d)           with a copy to:


 


Troy
& Gould Professional Corporation


1801
Century Park East, 16th Floor


Los
Angeles, California 90067


Attention:
Dale E. Short


Telecopy:
(310) 201-4746


 


or
to such other place and with other copies as either party may designate as to itself,
himself or herself 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 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 exclusivestatements 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. Executive
further acknowledges  that this Agreement
supersedes any prior agreement with respect to the  subject matter hereof (including without limitation,
Executive’s  employment agreement
with the Company dated August 20, 2000, as the  same may have been amended). Further, Executive
acknowledges that he orshe has been paid his benefit under the Herbalife International, Inc.  Senior Executive Change in Control
Plan and that, upon such payment to  Executive, such plan was terminated in accordance
with its terms.


 


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16.           Amendments; Waivers.
This Agreement may not be modified, amended, or  terminated except by an instrument in writing,
approved by the Boardand 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  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 ofany 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 in  equity.


 


17.           Representation of
Counsel; Mutual Negotiation. Each party has had the  opportunity to be represented by counsel of its
choice in negotiatingthis Agreement. This Agreement shall therefore be deemed to have been  negotiated 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.
Executive shall be indemnified by the Company to the  maximum extent permissible from time to time under
the Nevada General  Corporation Law,
including with respect to advancement of expenses.


 


19.           Suit to Enforce.
In any action or proceeding to enforce any provision  of this Agreement, the prevailing party shall be
entitled, in additionto other remedies, to recover its, his or her attorney’s fees and costs  of suit.


 


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


 


	
   

  	
  HERBALIFE
  INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Carol Hannah

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Carol Hannah

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   Co-President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERBALIFE INTERNATIONAL
  OF AMERICA, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Carol Hannah

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Carol Hannah

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   Co-President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Brian Kane

  	
   

  
	
   

  	
   

  	
    Brian
  Kane

  	
   

  
									



 


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