EXHIBIT 10.41
SIDE LETTER AGREEMENT
AGREEMENT (this "Agreement") entered into as of the 10th day
of March, 2003, by and among WH Holdings (Cayman Islands) Ltd., a Cayman Islands
company (the "Company"), Xxxxx Xxxx ("Xxxx"), Xxxxx Xxxxxx ("Hannah") and each
of the other shareholders of the Company listed on the signature pages hereto
(each an "Institutional Shareholder" and collectively, the "Institutional
Shareholders").
Reference is made to that certain Shareholders' Agreement
dated as of July 31, 2002, by and among the Company and certain of its
shareholders, including Xxxx, Xxxxxx and the Institutional Shareholders (as the
same may be amended from time to time, the "Shareholders' Agreement").
Capitalized terms used in this Agreement without definition shall have the
meanings ascribed thereto in the Shareholders' Agreement.
Prior to the date hereof, (i) Xxxx purchased an aggregate of
284,091 Preferred Shares and (ii) Hannah purchased an aggregate of 568,182
Preferred Shares, respectively (the "Purchased Shares").
Concurrently with the execution of this Agreement, Xxxx and
Hannah are entering into separate Employment Agreements, of even date herewith,
with Herbalife International, Inc. and Herbalife International of America, Inc.,
which are direct or indirect wholly owned subsidiaries of the Company.
In consideration of, and as a condition to, Xxxx'x and
Hannah's entering into the foregoing Employment Agreements, each of the
undersigned desires to agree to certain modifications to the Shareholders'
Agreement with respect to the Purchased Shares.
Accordingly, each of the undersigned agrees:
1. Repurchase of Purchased Shares. Notwithstanding any
provision to the contrary contained in Section 6 of the Shareholders' Agreement,
each of the undersigned agrees that the Institutional Shareholders and the
Company shall only be entitled to exercise their respective repurchase rights
set forth in Section 6 of the Shareholders' Agreement with respect to the
Purchased Shares upon the termination of the relevant Employee Shareholder
(i.e., either Xxxx or Hannah, as the case may be) for Cause (as defined below)
or due to such Employee Shareholder's resignation (other than upon the
"Retirement" of such Employee Shareholder, as such term is defined in the Option
Agreements). For purposes of this Agreement, "Cause" shall have the meaning
ascribed to such term in any written employment agreement between the relevant
1
Employee Shareholder and one or more of the Company's subsidiaries. The terms
and conditions of this Agreement shall only apply with respect to the Purchased
Shares, and no other capital stock of the Company. Except as expressly set forth
herein, each of the terms and conditions of the Shareholders' Agreement shall
remain and full force and effect in accordance with the terms thereof.
2. Option Agreements. Reference is hereby made to (i)
that certain Non-Statutory Stock Option Agreement, dated as of the date hereof,
by and among the Company and Xxxx and (ii) that certain Non-Statutory Stock
Option Agreement, dated as of the date hereof, by and among the Company and
Hannah (as either of the same may be amended or modified from time to time, the
"Option Agreements"). Each of the undersigned acknowledges and agrees that
Section 3 of the Option Agreements modifies, in certain respects, the terms and
conditions of Section 6 of the Shareholders' Agreement, and each of the
undersigned agrees to be bound by such modifications as if a party to such
Option Agreements.
3. Governing Law; Jurisdiction. The Governing Law
(Section 14) and Jurisdiction (Section 16) provisions of the Shareholders'
Agreement are incorporated by reference herein as if fully set forth herein.
4. 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.
* * * * * * * * *
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
WH HOLDINGS (CAYMAN ISLANDS) LTD.
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Director
WH INVESTMENTS LTD.
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: President
WHITNEY V, L.P.
By: Whitney Equity Partners V, LLC
Its: General Partner
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Managing Member
WHITNEY V, L.P.
By: Whitney Equity Partners V, LLC
Its: General Partner
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Managing Member
CCG INVESTMENTS (BVI), L.P.
CCG ASSOCIATES -- QP, LLC
CCG ASSOCIATES -- AI, LLC
CCG INVESTMENT FUND -- AI, L.P.
CCG AV, LLC - SERIES C
CCG AV, LLC - SERIES E
CCG CI, LLC
By: Golden Gate Capital Management, L.L.C.
Its: Authorized Representative
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
/s/ XXXXX XXXX
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Xxxxx Xxxx
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
