EXHIBIT 10.18


 


INDEMNITY AGREEMENT


 


This INDEMNITY AGREEMENT (this “Agreement”)
is effective as of July 31, 2002, and is by and among WH HOLDINGS (CAYMAN
ISLANDS) LTD. (the “Company”) and WH ACQUISITION CORP. (“WH Acquisition”, and,
together with the Company, the “Indemnifying Parties”), and WHITNEY & CO.,
LLC, WHITNEY V, L.P., WHITNEY STRATEGIC PARTNERS V, L.P., GGC ADMINISTRATION,
L.L.C., GOLDEN GATE PRIVATE EQUITY, INC., CCG INVESTMENTS (BVI), L.P., CCG
ASSOCIATES-AI, LLC, CCG INVESTMENT FUND-AI, LP, CCG AV, LLC-SERIES C, CCG AV,
LLC-SERIES E, CCG ASSOCIATES-QP, LLC and WH INVESTMENTS LTD. (collectively, the
“Indemnified Parties”).


 


WHEREAS, certain of the Indemnified Parties
have entered into a Share Purchase Agreement with the Company dated as of the
date hereof (the “Purchase Agreement”), pursuant to which such Indemnified
Parties will purchase equity securities from the Company;


 


WHEREAS, the proceeds from the sale of such
securities will be used by the Company in connection with the merger (the
“Merger”) of WH Acquisition with and into Herbalife International, Inc.
(“Herbalife”);


 


WHEREAS, it is a condition to the
obligation of such Indemnified Parties to purchase such equity securities that
the Company enter into this Agreement for the benefit of the Indemnified
Parties;


 


NOW, THEREFORE, in consideration of the
investment in the Company by the Indemnified Parties who are acquiring equity
securities of the Company, and for other good and valuable consideration, the
parties agree as follows:


 


1.                                       Indemnification.
Each Indemnifying Parties agrees, jointly and severally, to indemnify and hold
harmless each of the Indemnified Parties and each of their respective officers,
directors, agents, employees, subsidiaries, partners, members, and controlling
persons to the fullest extent permitted by law from and against any and all
losses, claims, damages, expenses (including, without limitation, reasonable
fees, disbursements and other charges of counsel and costs of investigation
incurred by an Indemnified Party in connection therewith) (collectively,
“Liabilities”) resulting from, arising out of, or in any way related to the
Merger or any other transaction or proposed transaction involving the sale or
other disposition or acquisition of Herbalife and/or the business and assets of
Herbalife, regardless of when or where such action is brought (including,
without limitation, the action pending in Superior Court of the State of
California in the County of San Francisco brought by Rosemont Associates Inc.
and Joseph P. Urso against Whitney & Co., LLC, and filed as Case No.
CGC-02-409712). If and to the extent that the foregoing indemnification is
unenforceable for any reason, Indemnifying Parties shall make the maximum
contribution to the payment and satisfaction of such Liabilities that shall be
permissible under applicable law. In connection with the obligation of
Indemnifying Parties to indemnify for expenses as set forth above, each
Indemnifying Parties further agrees, upon presentation of appropriate invoices
containing reasonable detail, to reimburse, without duplication, each
Indemnified Party for all such expenses (including, without limitation,
reasonable fees, disbursements and other charges of counsel and costs of
investigation) incurred by such Indemnified Party as they are incurred by such
Indemnified Party.


 


2.                                       Procedure.
Each Indemnified Party will, promptly after the receipt of notice of the
commencement of any action, investigation, claim or other proceeding against
such Indemnified Party in respect of which indemnity may be sought from the
Indemnifying Parties, notify the Indemnifying Parties in writing of the
commencement thereof. The omission of any Indemnified Party so to notify the
Indemnifying Parties of any such action shall not relieve the Indemnifying
Parties from any liability which it may have to such Indemnified Party unless,
and only to the extent that, such omission results in the Indemnifying Parties’
forfeiture of substantive rights or defenses. In case any such action, claim or
other proceeding shall be brought against any Indemnified Party and it shall


 


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notify the Indemnifying
Parties of the commencement thereof, the Indemnifying Parties shall, without
any reservations of rights, be entitled to assume the defense thereof at their
own expense, with counsel satisfactory to such Indemnified Party in its
reasonable judgment; provided, however, that any Indemnified Party may, at its
own expense, retain separate counsel to participate in such defense.
Notwithstanding the foregoing, in any action, claim or proceeding in which the
Indemnifying Party, on the one hand, and an Indemnified Party, on the other
hand, is, or is reasonably likely to become, a party, such Indemnified Party
shall have the right to employ separate counsel at the Indemnifying Party’s
expense and to control its own defense of such action, claim or proceeding if,
in the reasonable opinion of counsel to such Indemnified Party, a conflict or
potential conflict exists between the Indemnifying Party, on the one hand, and
such Indemnified Party, on the other hand, that would make such separate
representation advisable. The Indemnifying Party agrees that it will not,
without the prior written consent of the Indemnified Party, settle, compromise
or consent to the entry of any judgment in any pending or threatened claim,
action or proceeding relating to the matters contemplated hereby (if any
Indemnified Party is a party thereto or has been actually threatened to be made
a party thereto) unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Party from all liability arising or
that may arise out of such claim, action or proceeding. The Indemnifying Party
shall not be liable for any settlement of any claim, action or proceeding
effected by an Indemnified Party without its written consent, which consent
shall not be unreasonably withheld. The rights accorded to Indemnified Parties
hereunder shall be in addition to any rights that any Indemnified Party may
have at common law, by separate agreement or otherwise.


 


3.                                       Assignability.
This Agreement may not be assigned by any party without the prior written
consent of the other parties hereto. This Agreement shall be enforceable by,
and shall inure to the benefit of, the parties hereto and their successors and
permitted assigns, and no others.


 


4.                                       Consent to
Jurisdiction and Service. Each of the parties hereby absolutely and irrevocably
consent and submit to the jurisdiction of the courts in the State of New York
and the Federal court located in New York, New York in connection with any
actions or proceedings brought against any of the parties (or each of them)
arising out of or relating to this Agreement. In any such action or proceeding,
the parties each hereby absolutely and irrevocably (i) waives any objection to
jurisdiction or venue, (ii) waives personal service of any summons, complaint,
declaration or other process, and (iii) agree that the service thereof may be
made by certified or registered first-class mail directed to such party.


 


5.                                       Modifications.
This Agreement may not be altered or modified without the express written
consent of the parties hereto. No course of conduct shall constitute a waiver
of any of the terms and conditions of this Agreement, unless


 


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such waiver is specified
in writing, and then only to the extent so specified. A waiver of any of the
terms and conditions of this Agreement on one occasion shall not constitute a
waiver of the other terms of this Agreement, or of such terms and conditions on
any other occasion.


 


6.                                       Binding
Effect. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective permitted successors and assigns.


 


7.                                       Invalid
Provisions. If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws, such provision shall be fully
severable. This Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this Agreement.


 


8.                                       Effective
Date. This Agreement shall be and become effective and binding pursuant to its
terms after execution as of the date first above written. It is understood and
agreed that said date shall be the effective date even though that date may be
a date other or different than the actual date of execution.


 


9.                                       New York
Law to Govern. This Agreement shall be deemed and construction to be made under
and shall be construed and interpreted in accordance with the laws of the State
of New York. It is agreed that it is both the intent and the desire of the
parties that wherever possible each provision of this Agreement shall be given
a judicial construction and interpretation so as to be effective and valid
under New York law, but if any provision of this Agreement shall be construed
or prohibited by or determined invalid under the laws of the State of New York,
such provision shall be ineffective to the extent of such prohibition or
invalidity only, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.


 


10.                                 Counterparts.
This Agreement may be executed simultaneously or otherwise in one or more
identical counterparts, each of which shall be deemed and construed as an
original, and all of which shall be construed together to constitute one and
the same document. Confidentiality. The existence, content and terms of this
Agreement are and shall remain confidential and shall not be disclosed by any
party to any third party without the prior consent of the other parties, except
to the extent required: (i) to enforce its terms in a court of law; or (ii) by
subpoena from any third party, provided, however, that Indemnified Party shall
be afforded notice of any such subpoena and an opportunity to quash it.


 


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IN WITNESS WHEREOF, the parties have
executed this Indemnity Agreement or caused the same to be executed by their
duly authorized representatives, as of the date first hereinabove.


 


	
  WH HOLDINGS (CAYMAN ISLANDS) LTD.

  	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Steven E. Rodgers

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Steven E. Rodgers

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  	
   

  
	
   

  	
   

  
	
  WH ACQUISITION CORP. 

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Steven E. Rodgers

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Steven E. Rodgers

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WH INVESTMENTS LTD.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Steven E. Rodgers

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Steven E. Rodgers

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WHITNEY & CO., LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Daniel J. O’Brien

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Daniel J. O’Brien

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Partner

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WHITNEY V. L.P. 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BY:

  	
  WHITNEY EQUITY PARTNERS V, LLC

  	
   

  
	
   

  	
  ITS GENERAL PARTNER

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Daniel J. O’Brien

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Daniel J. O’Brien

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Member

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WHITNEY STRATEGIC PARTNERS V, L.P.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BY:

  	
  WHITNEY EQUITY PARTNERS V, LLC 

  	
   

  	
   

  
	
   

  	
  ITS GENERAL PARTNER

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Daniel J. O’Brien

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Daniel J.O’Brien

  	
   

  	
   

  
	
   

  	
  Title: 

  	
  Managing Member

  	
   

  	
   

  
												



 


CCG ADMINISTRATION, L.L.C.


CCG INVESTMENTS (BVI), L.P.


CCG ASSOCIATES - QP, LLC


CCG ASSOCIATES - AI, LLC


CCG INVESTMENT FUND - AI, LP


CCG AV, LLC - SERIES C


CCG AV, LLC 
- SERIES E


 


	
  By:

  	
  Golden Gate Capital Management, L.L.C.

  	
   

  
	
  Its:

  	
  Authorized Representative

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jesse Rogers

  	
   

  	
   

  
	
  Name:

  	
  Jesse Rogers

  	
   

  	
   

  
	
  Its:

  	
  Managing Director

  	
   

  	
   

  
					



 


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