EXHIBIT 10.32


 


EMPLOYMENT
AGREEMENT


 


This Employment Agreement
(the “AGREEMENT”), dated as of October 6, 2003 is made and entered into by
BRETT R. CHAPMAN (“EXECUTIVE”) and HERBALIFE INTERNATIONAL OF AMERICA, INC., a
California corporation (“COMPANY”). The parties to this Agreement agree as
follows:


 


1.


Employment Term. The Company
shall employ Executive and Executive shall continue in the employ of the
Company for the three-year period starting on October 6, 2003 or an earlier
date if Executive so chooses (the “Employment Term”).


 


2.


Duties. Executive shall serve
in the Los Angeles, California area as General Counsel of the Company, with all
of the authority, duties, and responsibilities commensurate with such position.
Executive shall report only to the Chief Executive Officer or Chairman of the
Company.


 


3.


Compensation and Related
Matters.


 


(a)


Salary. Executive shall
receive a salary at the per annum rate of not less than Four Hundred
Thirty-Five Thousand Dollars ($435,000), payable in accordance with the Company’s
payroll practices for Senior Executives (as defined in Section 3(b) below) and
subject to annual performance review.


 


(b)


Employee Benefits. Executive
and Executive’s qualified dependents shall be entitled to participate in or
receive benefits under each benefit plan or arrangement made available by the
Company to its most senior executives (including its Chief Operating Officer
but specifically excluding its Chief Executive Officer (“Senior Executives”)
including, without limitation, those relating to group medical, dental, vision,
long-term disability, D&O, accidental death and dismemberment, and life
insurance, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and subject to the Company’s right to
modify, amend or terminate any such plan or arrangement with or without prior
notice. Executive shall become eligible to participate in the Company’s 401K
program on January 1, 2004, and Executive shall be eligible to participate in
the Company’s Deferred Compensation program on October 1, 2003 if Executive
commences work on or prior to that date. If Executive commences work after
October 1, 2003, Executive shall be eligible to participate in the Company’s
Deferred Compensation program on January 1, 2004.


 


(c)


Bonus. Executive will be
eligible for a target bonus, but any bonus will be paid following the
completion of the relevant calendar year at such time bonuses are paid to the
Company’s other Senior Executives, and no bonus shall be paid if Executive is
no longer employed by the Company, unless Executive’s employment terminates as
a result of the expiration of the Employment Term, the Executive is terminated
without Cause, or the Executive resigns for Good Reason which will be deemed to
have occurred if Executive terminates his employment because of (i) a material
imposition of Executive’s duties as General Counsel (ii) the imposition of a
requirement that Executive report to a person other than the Chief Executive
Officer or Chairman of the Company, (iii) the breach by the Company in any
respect of any of its obligations under this Agreement, and, in any such case
(but only if correction or


 


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cure is possible), the
failure by the Company to correct or cure the circumstance or breach on which such
resignation is based within 30 days after receiving notice from Executive
describing such circumstance or breach in reasonable detail or (iv) the
relocation of Executive’s primary office location to a location more than 75
miles outside the Los Angeles, California area.


 


i.


For the fiscal year ending
December 31, 2003, the Company shall pay the Executive a cash bonus in the
amount of $75,000.


 


ii.


For the fiscal year ending
after December 31, 2003, if the Company shall achieve the applicable bonus
target set by the Company’s Board of Directors (the “Performance Target”), then
the Company shall pay Executive a cash bonus in an amount equal to one hundred
percent (100%) of Executive’s Target Bonus (as defined below) calculated in
accordance with the Company’s then current bonus plan in effect for its Senior
Executives. The Performance Target utilized for calculating Executive’s bonus
under this Section 3(c)(ii) shall be the same as that utilized in bonus
calculations for all Senior Executives. “Executive’s Target Bonus” shall be in
an amount equal to a minimum of fifty percent (50%) of Executive’s annual
salary for the year with respect to which the bonus is to be paid.


 


(d)


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


 


4.


Termination Payment. If
Executive is terminated by the Company without Cause or resigns for Good Reason
before the expiration of the Employment Term, Executive will receive a lump sum
severance payment in the amount of one year’s salary at Executive’s
then-current salary. As a precondition to the Company’s obligation to pay this
lump sum severance, Executive agrees to execute and deliver to the Company a
fully effective general release in the form attached to this Agreement as
Attachment A. During the one-year period following a termination without Cause
or resignation for Good Reason, Executive will have no duty to mitigate. In the
event that Executive has not obtained subsequent employment by one year after a
termination without Cause or resignation for Good Reason, the Company will
commence paying Executive’s salary in accordance with the Company’s payroll
practices for Senior Executives, through the remainder of the Employment Term,
subject to Executive’s duty to mitigate, and such payments shall cease if
Executive obtains comparable employment or if Executive fails to document to
the Company on a monthly basis that Executive is making reasonable efforts to
seek comparable employment. For purposes of this Agreement, the Company shall
have “Cause” to terminate the Executive’s services in the event of any of the
following acts or circumstances: (i) Executive’s conviction of a felony or
entering a plea of guilty or nolo contendere to any 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 gross negligence or willful 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


 


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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 therefore
in reasonable detail.


 


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 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 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 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 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


 


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exclusive property of the
Company and its affiliates, as applicable. Executive shall not remove from the
Company’s premises any such physical property, the original or any reproduction
of any such materials nor the information contained therein except for the
purposes of carrying out his duties to the Company or any of its affiliates and
all such property (except for any items of personal property not owned by the
Company or any of its affiliates), materials and information in his possession
or under his custody or control upon the termination of his employment (other
than such materials received by Executive solely in his capacity as a
shareholder) or at any other time upon request by the Company shall be
immediately turned over to the Company and its affiliates, as applicable.


 


(c)


All inventions improvements.
trade secrets, reports, manuals, computer programs, tapes and other ideas and
materials developed or invented by Executive during the period of his
employment, either solely or in collaboration with others, which relate to the
actual or anticipated business or research of the Company or any of its
affiliates which result from or are suggested by any work Executive may do for
the Company or any of its affiliates or which result from use of the Company’s
or any of its affiliates’ premises or property (collectively, the “DEVELOPMENTS”)
shall be the sole and exclusive property the Company and its affiliates, as
applicable. Executive assigns and transfers to the Company his entire right and
interest in any such Development, and Executive shall execute and deliver any
and all documents and shall do and perform any and all other acts and things
necessary or desirable in connection therewith that the Company or any of its
affiliates may reasonably request, it being agreed that the preparation of any
such documents shall be at the Company’s expense. Nothing in this paragraph
applies to an invention which qualifies fully under the provisions of California
Labor Code Section 2870.


 


(d)


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


 


(e)


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


 


6.


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


 


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any trade secrets or other
confidential information of the Company or any of its affiliates to directly or
indirectly participate in any means or manner in any competitive business,
wherever located.


 


7.


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


 


8.


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


 


9.


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


 


11.


Warranty. As an inducement to
the Company to enter into this Agreement, Executive represents and warrants
that he is not a party to any other agreement or obligation for personal
services, and that there exists no impediment or restraint, contractual or
otherwise, on his power, right or ability to enter into this Agreement and to
perform his duties and obligations hereunder.


 


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12.


Notices. All notices,
requests, demands and other communications which are required or may be given
under this Agreement shall be in writing and shall be deemed to have been duly
given when received if personally delivered; when transmitted if transmitted by
telecopy, electronic or digital transmission method upon receipt of telephonic
or electronic confirmation; the day after it is sent, if sent for next day
delivery to a domestic address by recognized overnight delivery service  (e.g., Federal Express); and upon receipt, if
sent by certified or registered mail, return receipt requested. In each case
notice will be sent to:


 


(a)


If to the Company:


 


Herbalife International of America, Inc.


1800 Century Park East


Los Angeles, California 90067


Attention: Members of the
Compensation Committee of the Board of Directors


Telecopy: (310) 557-3906


 


with a copy to:


 


Herbalife
International of America, Inc. 1800 Century Park East Los Angeles, California
90067 Attention: Chief Executive Officer Telecopy: (310) 557-3906


 


(b)


if to Executive, to:


 


Brett R. Chapman


5054 Royal Vista Court


Thousand Oaks, California
91362


 


with a copy to:


 


Cathy J. Frankel, Esq.


Moses & Singer LLP


1301 Avenue of the Americas


New York, New York 10019-6076


 


or to such other place and with other copies as either party may
designate as to itself or himself by written notice to the others.


 


13.


Counterparts. This Agreement
may be executed in several counterparts, each of which will be deemed to be an
original, but all of which together shall constitute one and the same
Agreement.


 


14.


Entire Agreement. The terms
of this Agreement are intended by the parties to be the final expression of
their agreement with respect to the subject matter hereof and this Agreement
supersedes (and may not be contradicted by, modified or supplemented by) any prior
or contemporaneous agreement, written or oral, with respect thereto, with the
exception of the Non-Statutory Stock Option Agreement and the Shareholders’
Agreement. 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.


 


15.


Amendments: Waivers. This
Agreement may not be modified, amended, or terminated except by an instrument
in writing, signed by Executive and a duly authorized representative of the
Company. No waiver of any of the provisions of this Agreement, whether by
conduct or otherwise, in anyone 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


 


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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.


 


16.


Representation of Counsel:
Mutual Negotiation. Each party has had the opportunity to be represented by
counsel of its choice in negotiating this Agreement. This Agreement shall
therefore be deemed to have 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.


 


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


 


	
  EXECUTIVE

  
	
   

  
	
   

  	
   

  
	
  By: Brett R.
  Chapman

  
	
   

  
	
  HERBALIFE
  INTERNATIONAL OF AMERICA, INC.

  
	
   

  
	
   

  	
   

  
	
  By: Michael O.
  Johnson

  
	
  Title: Chief
  Executive Officer

  



 


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ATTACHMENT
A


 


Agreement
and General Release


 


Agreement and General Release (“AGREEMENT”), by and among BRETT R.
CHAPMAN (“EXECUTIVE” and referred to herein as “you”) and HERBALIFE
INTERNATIONAL OF AMERICA, INC., a California corporation (the “COMPANY”).


 


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


 


2.             (a)    In consideration for the payments and
benefits to be provided to you pursuant to paragraph 1 above, you, for yourself
and for your heirs, executors, administrators, trustees, legal representatives,
and assigns (hereinafter referred to collectively as “RELEASORS”), FOREVER
RELEASE AND DISCHARGE THE Company and its past, present and future parent
entities, subsidiaries, divisions, affiliates and related business entities,
successors and assigns, assets, employee benefit plans or funds (including,
without limitation, each of Whitney & Co., LLC, 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, suites, 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 form any 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 Restraining
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/of 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 algal fees and directors and
officers liability insurance to which you are entitled under the Employment
Agreement, the Company’s Certificate of


 


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


 


5.             This Agreement is
binding upon, and shall inure to the benefit of, the parties and their
respective heirs, executors, administrators, successors and assigns.


 


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


 


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


 


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


 


9.             You understand that
you will have at least twenty-one (21) days from the date of receipt of this
Agreement to consider the terms and conditions of this Agreement. You may
accept this Agreement by signing it and returning it to the Company’s Chief
Executive Officer 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 Chief Executive
Officer 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:

  	
   

  	
   

  
	
   

  	
  Brett R. Chapman

  	
   

  
	
   

  
	
  HERBALIFE
  INTERNATIONAL OF AMERICA, INC.

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  
	
   

  
	
  QuickLinks

  
	
   

  
	
  EMPLOYMENT
  AGREEMENT

  
	
  ATTACHMENT A
  Agreement and General Release

  
				



 


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