Exhibit
10.1


 


INDEMNITY AGREEMENT


 


This INDEMNITY AGREEMENT (this “Agreement”) is made as of the
                    
day of                   
, 19   , by and between Herbalife International, Inc., a Nevada
corporation (the “Corporation”), and                     
(“Indemnitee”) with reference to the following:


 


Indemnitee is currently serving as a director and/or officer of the
Corporation or certain of its Affiliates (as hereinafter defined) and the
Corporation wishes Indemnitee to continue in such capacity.  Indemnitee is willing, under circumstances as
set forth below, to continue in such capacity.


 


In addition to the indemnification to which Indemnitee is entitled
pursuant to applicable law, the By-laws of the Corporation and its Affiliates
or separate contract, if applicable, and as additional consideration for
Indemnitee’s service, the Corporation has, in the past, furnished at its
expense directors and officers liability insurance protecting Indemnitee in
connection with such service.  The
Corporation has been advised by its insurance carrier, however, that the
foregoing directors and officers liability insurance may not, in certain
circumstances, provide for the advancement of expenses to which Indemnitee may
be entitled in accordance with the indemnification provisions of applicable
laws and as set forth in the By-laws of the Corporation and its Affiliates or
under separate contract, if applicable.


 


Indemnitee has indicated that he does not regard the indemnities
available under applicable law, the Corporation’s and its Affiliates’ By-laws,
separate contract, if applicable, and the directors and officers liability
insurance in effect as adequate to protect him against the risks associated
with his service to the Corporation and its Affiliates.  Indemnitee may not be willing to continue in
office in the absence of assurances that adequate indemnification is, and will
continue to be, provided.


 


In order to induce Indemnitee to continue to serve as a director and/or
officer of the Corporation and its Affiliates and in consideration for his
continued service, the Corporation hereby agrees to indemnify Indemnitee as
follows:


 


1.                                       Definitions.  As used in this Agreement:


 


(a)                                  The term “Affiliate” shall include any
corporation, partnership, joint venture, trust or other enterprise in which
Indemnitee acts as a director, officer, employee or agent at the direction of
the Corporation.


 
















 


(b)                                 The term “Proceeding” shall include any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that the
Indemnitee is or was a director and/or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of an Affiliate whether or not the Indemnitee is serving in such capacity
at the time any liability or expense is incurred for which indemnification,
reimbursement or advancement of expenses is to be provided under this
Agreement.


 


(c)                                  The term “Expenses” includes, without limitation,
attorneys’ fees, disbursements and retainers, accounting and witness fees,
travel and deposition costs, expenses of investigations, judicial or
administrative proceedings and appeals, amounts paid in settlement by or on
behalf of Indemnitee, and any expenses of establishing a right to
indemnification or to advances of costs and expenses pursuant to this Agreement
or otherwise.  The term “Expenses” does
not include the amount of judgments or fines actually levied against the
Indemnitee.


 


2.                                       Indemnification in Third Party Actions.   The
Corporation shall indemnify Indemnitee if he was or is a party to or is
threatened to be made a party to or is otherwise involved in any Proceeding,
other than an action by or in the right of the Corporation or an Affiliate to
procure a judgment in its favor from such Indemnitee, by reason of the fact
that he is or was a director and/or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of an Affiliate, against Expenses, judgments and/or fines actually
incurred by him in connection with the investigation, defense or appeal of such
Proceeding if the Indemnitee acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.  The
termination of any Proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, does not, of itself,
create a presumption that the Indemnitee did not act in good faith and in a
manner which the Indemnitee reasonably believed to be in or not opposed to the
best interests of the Corporation, or that, with respect to any criminal action
or proceeding, the Indemnitee did not have reasonable cause to believe that his
conduct was unlawful.  To the fullest
extent permitted by applicable law, Indemnitee shall be conclusively presumed
to have met the relevant standards of conduct, as defined by the laws of the
State of Nevada or other applicable jurisdictions, for indemnification pursuant
to this paragraph, unless and until a court of competent jurisdiction, after
all appeals, finally determines to the contrary, and the Corporation shall bear
the burden of proof of establishing by


 


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clear
and convincing evidence that Indemnitee failed to meet such standards of
conduct.  In any event, the Indemnitee
shall be entitled to indemnification from the Corporation to the fullest extent
permitted by applicable law, including, without limitation, any amendments
thereto subsequent to the date of this Agreement that increase the protection
of officers and directors allowable under such laws.


 


3.                                       Indemnification in Proceedings By or In the
Name of the Corporation or an Affiliate.  The Corporation shall
indemnify Indemnitee if he was or is a party to or is threatened to be made a
party to or is otherwise involved in any Proceeding by or in the right of the
Corporation or an Affiliate to procure a judgment in its favor from such
Indemnitee by reason of the fact that the Indemnitee is or was a director
and/or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of an Affiliate, against
Expenses actually incurred by the Indemnitee in connection with the
investigation, defense, settlement or appeal of such Proceeding, if the
Indemnitee acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation.  To the fullest extent permitted by applicable
law, Indemnitee shall be conclusively presumed to have met the relevant
standards of conduct, as defined by the laws of the State of Nevada or other
applicable jurisdictions, for indemnification pursuant to this paragraph,
unless and until a court of competent jurisdiction, following all appeals,
finally determines to the contrary, and the Corporation shall bear the burden of
proof of establishing by clear and convincing evidence that Indemnitee failed
to meet such standards of conduct.  In
addition, the Corporation shall indemnify the Indemnitee in a Proceeding by or
on behalf of the Corporation or an Affiliate against judgments in favor of the
Corporation or the Affiliate, against amounts paid by the Indemnitee in
settlement to the Corporation or an Affiliate, and against any claim, issue or
matter as to which the Indemnitee has been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable to the
Corporation or an Affiliate, in the event and to the extent that the court in
which the Proceeding was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances of the
Proceeding, the Indemnitee is fairly and reasonably entitled to indemnification
for such expenses as the court deems proper. 
In  any event, the
Indemnitee shall be entitled to indemnification from the Corporation to the
fullest extent permitted by applicable law, including, without limitation, any
amendments thereto subsequent to the date of this Agreement that increase the
protection of officers and directors allowable under such laws.


 


4.                                       Conclusive Presumption Regarding Standards of
Conduct.  The Indemnitee shall be conclusively presumed
to


 


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have
met the relevant standards of conduct, as defined by the laws of Nevada or
other applicable jurisdictions, for indemnification pursuant to this Agreement,
unless, as soon as is reasonably practicable following notice from the
Indemnitee pursuant to Section 7(a) below, a determination is made that
the Indemnitee has not met such standards (i) by the Board of Directors by a
majority vote of a quorum thereof consisting of directors who were not parties
to the Proceeding in respect of which a claim is made under this Agreement,
(ii) by the stockholders of the Corporation, or (iii) if a majority of a quorum
consisting of directors who were not parties to the Proceeding so orders or if
such a quorum cannot be obtained, then by independent legal counsel in a
written opinion.


 


5.                                       Advance of Expenses. 
Expenses incurred by Indemnitee in connection with any Proceeding shall
be paid by the Corporation promptly as incurred and in advance of any final
disposition of such Proceeding.  To the
extent required under the laws of Nevada or other applicable jurisdictions,
Indemnitee hereby agrees and undertakes to repay such advanced amounts if it is
ultimately determined by a court of competent jurisdiction that Indemnitee is
not entitled to be indemnified pursuant to this Agreement or otherwise.


 


6.                                       Indemnification of Expenses of Successful
Party.  Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee has been successful in defense of
any Proceeding or in defense of any claims, issue or matter therein, on the
merits or otherwise, including the dismissal of a Proceeding without prejudice,
the Corporation shall indemnify the Indemnitee against all Expenses incurred in
connection therewith to the fullest extent permitted by the laws of Nevada or
other applicable jurisdictions, including, without limitation, any amendments
thereto subsequent to the date of this Agreement that increase the protection
of directors and officers allowable under such laws.


 


7.                                       Indemnification Procedure; Determination of
Right to Indemnification.


 


(a)                                  Indemnitee shall notify the Corporation in
writing as soon as reasonably practicable of any claim made against him for
which indemnification will or could be sought under the Corporation’s or an
Affiliate’s By-laws, this Agreement or otherwise.  The omission to so notify the Corporation
will not relieve the Corporation from any liability which it may have to the
Indemnitee otherwise under this Agreement except to the extent the Corporation
has been prejudiced by the failure to so notify the Corporation. Notice to the
Corporation shall be directed to Herbalife International, Inc., 9800 La Cienega
Boulevard, Inglewood, California 90301, attention:  Mark Hughes, Chairman of the Board, Chief
Executive Officer and President.  Notice
shall be deemed received if sent by prepaid mail properly addressed,


 


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the date of such notice being the date
postmarked.  In addition, Indemnitee
shall give the Corporation such information and cooperation as it may
reasonably require and shall be within Indemnitee’s power.


 


(b)                                 If a claim for indemnification or advances
under this Agreement is not paid by the Corporation within 30 days of receipt
of written notice, the rights provided by this Agreement shall be enforceable
by the Indemnitee in any court of competent jurisdiction.  The burden of proving by clear and convincing
evidence that indemnification or advances are not appropriate shall be on the
Corporation.  Neither the failure of the
directors or stockholders of the Corporation or its independent legal counsel
to have made a determination prior to the commencement of such action that
indemnification or advances are proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the directors or stockholders of the Corporation or
independent legal counsel that the Indemnitee has not met the applicable
standard of conduct shall be a defense to the action, affect the burden of
proof, or create a presumption that the Indemnitee has not met the applicable
standard of conduct; rather, it is the parties’ intention that if the
Corporation contests Indemnitee’s right to indemnification or advances, the
question of Indemnitee’s right to indemnification or advances shall be for the
court to decide in accordance with the foregoing.


 


(c)                                  The Indemnitee’s Expenses incurred in
connection with any Proceeding concerning his right to indemnification or
advances in whole or in part pursuant to this Agreement or otherwise shall also
be indemnified by the Corporation regardless of the outcome of such a
Proceeding, unless a court of competent jurisdiction determines that each of
the material assertions made by the Indemnitee in the Proceeding was not made
in good faith or was frivolous.


 


8.                                       Choice of Indemnitee’s Counsel in
Indemnification Proceedings.  With respect to any Proceeding for which
indemnification is requested, Indemnitee shall have the right to select and
employ his own counsel in his sole and absolute discretion, and the Corporation
shall advance the actual fees and expenses of such counsel in accordance with
the terms of this Agreement.


 


9.                                       Rights Not Exclusive. 
Nothing herein shall be deemed to diminish or otherwise restrict
Indemnitee’s right to indemnification under any provision of the By-laws of the
Corporation or any Affiliate, separate contract (if applicable), or the laws of
Nevada or other applicable jurisdictions, including, without limitation, any
amendments to such laws subsequent to the date of this Agreement that increase
the protection of officers and directors allowable under such laws.


 


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10.           Successors,
Assigns, etc.  This Agreement shall inure to the benefit of and be binding upon
the Corporation, its successors and assigns, including, without limitation, any
entity which may acquire all or substantially all of the Corporation’s assets
and business and any corporation with which the Corporation may be merged, and
Indemnitee, his heirs, executors, administrators and legal representatives.


 


11.                                 No Waiver of Rights.  All
waivers hereunder must be made in writing and failure by either party hereto at
any time to require the other party’s performance of any obligation under this
Agreement shall not affect the right subsequently to require performance of
that obligation. Any waiver of any breach of any provision of this Agreement
shall not be construed as a waiver of any continuing or succeeding breach of
such provision or a waiver or modification of the provision.


 


12.                                 Severability.  The
parties hereto expressly agree and contract that it is not the intention of any
of them to violate any public policy, statutory or common laws, rules,
regulations, treaties or decisions of any government or agency thereof.  If any paragraph, sentence, clause, word or
combination thereof in this Agreement is judicially or administratively
interpreted or construed as being in violation of any such provisions of any
jurisdiction, then (i) such paragraphs, sentences, words, clauses or
combinations thereof shall be inoperative in each such jurisdiction and the
remainder of this Agreement shall remain binding upon the parties hereto in
each such jurisdiction, (ii) to the fullest extent permitted under applicable
law, there shall be automatically added to this Agreement a provision or
provisions as similar to such invalid, illegal or unenforceable provision or
provisions, both in terms and in effect, as may be possible and be valid, legal
and enforceable, (iii) the Corporation shall indemnify Indemnitee to the
fullest extent permitted by any applicable portion of this Agreement that shall
not have been invalidated, and (iv) this Agreement as a whole shall be
unaffected elsewhere.


 


13.                                 Continuation of Indemnification.  The
indemnification under this Agreement shall continue as to Indemnitee even
though he may have ceased to be a director and/or officer and shall inure to
the benefit of the heirs and personal representatives of Indemnitee.


 


14.                                 Coverage of Indemnification.  The indemnification under this
Agreement shall cover Indemnitee’s service as a director and/or officer and all
of his acts in such capacity, whether prior to or on or after the date of this
Agreement.


 


15.                                  Amendments.  No amendment, waiver,
modification, termination or cancellation of this Agreement shall be effective
unless in writing signed by the party against whom


 


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enforcement is
sought.  The indemnification rights
afforded to the Indemnitee hereby are contract rights and may not be
diminished, eliminated or otherwise affected by amendments to the Corporation’s
or its Affiliates’ By-laws, Articles of Incorporation, charter documents, other
agreements, including without limitation directors and officers insurance
policies, or the laws of the State of Nevada or other applicable jurisdictions.


 


16.                                 Duplicate
Copies.  This Agreement may be
executed in duplicate copies and each duplicate copy shall constitute an
original instrument, but all such separate duplicate copies shall constitute
only one and the same instrument.


 


17.                                 Law
to Govern.  Notwithstanding the fact
that Indemnitee’s right to indemnification may be governed by the laws of the
state of Nevada or other applicable law, the validity, construction and
enforceability of this Agreement shall be governed by the law of California,
regardless of whether either of the parties shall not be or hereafter becomes a
resident of another state or country, except as to any matters which are
required to be governed by laws of any other jurisdiction.


 


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


 


 


	
   

  	
  “CORPORATION”

  
	
   

  	
   

  
	
   

  	
  HERBALIFE
  INTERNATIONAL, INC.,

  
	
   

  	
  a
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  “INDEMNITEE”

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
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