UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10-K

FOR ANNUAL AND TRANSITION REPORTS

PURSUANT TO SECTIONS 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

(Mark One)

 
(Mark One)
þANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OFTHE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2011

 ¨For the fiscal year ended December 31, 2010
oTRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OFTHE SECURITIES EXCHANGE ACT OF 1934
For the transition period from          to          

For the transition period from                     to                    

Commission file number: 1-32381

HERBALIFE LTD.

(Exact Name of Registrant as Specified in Its Charter)

Cayman Islands 98-0377871
Cayman Islands98-0377871

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

P.O. Box 309GT

Ugland House, South Church Street

Grand Cayman, Cayman Islands

 (Zip Code)
(Address of Principal Executive Offices) 

(213) 745-0500

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class

  

Name of Each Exchange on Which Registered

Common Shares, par value $0.002$0.001 per share  New York Stock Exchange

Securities registered pursuant to Section 12(g) of the Act:

None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes  þ        No  o¨

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes  o¨        No  þ

Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  þ        No  o¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 ofRegulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes  þ        No  o¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 ofRegulation S-K (§ 229,405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of thisForm 10-K or any amendment to thisForm 10-K.    ¨o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” inRule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  þAccelerated filer  o¨Non-accelerated filer  o¨Smaller reporting company  o¨

(Do not check if a smaller reporting company)

Indicate by check mark whether registrant is a shell company (as defined inRule 12b-2 of the Exchange Act).    Yes  o¨        No  þ

There were 59,051,900116,273,652 common shares outstanding as of February 17, 2011.15, 2012. The aggregate market value of the Registrant’s common shares held by non-affiliates was approximately $2,101$5,688 million as of June 30, 2010,2011, based upon the last reported sales price on the New York Stock Exchange on that date of $46.05.

$57.64.

DOCUMENTS INCORPORATED BY REFERENCE

Portions of the registrant’s Definitive Proxy Statement to be filed with the Securities and Exchange Commission no later than 120 days after the end of the Registrant’s fiscal year ended December 31, 2010,2011, are incorporated by reference in Part III of this Annual Report onForm 10-K.


TABLEOF CONTENTS

TABLE OF CONTENTS
      

Page

 
PART I
Item 1.  

Item 1.

Business   4  

Item 1a.

Risk Factors   Risk Factors27

Item 1b.

Unresolved Staff Comments   2545  

Item 2.

Item 1b.Properties   Unresolved Staff Comments45

Item 3.

Legal Proceedings   4245  

Item 4.

Item 2.Mine Safety Disclosure   Properties4245  
Item 3.
PART II  Legal Proceedings

Item 5.

  42
Item 4.(Removed and Reserved)43
PART II
Item 5.Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases Of Equity Securities   4446  

Item 6.

Selected Financial Data   Selected Financial Data4850  

Item 7.

  Management’s Discussion and Analysis of Financial Condition and Results of Operations   5052  

Item 7a.

  Quantitative and Qualitative Disclosures About Market Risk   7981  

Item 8.

  Financial Statements and Supplementary Data   8485  

Item 9.

  Changes In and Disagreements With Accountants On Accounting and Financial Disclosure   8485  

Item 9a.

Controls and Procedures   Controls and Procedures85

Item 9b.

Other Information   8488  
Item 9b.
PART III  Other Information

Item 10.

  87
PART III
Item 10.Directors, Executive Officers and Corporate Governance   8788  

Item 11.

Executive Compensation   Executive Compensation8788  

Item 12.

  Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters87
Item 13.Certain Relationships and Related Transactions, and Director Independence87
Item 14.Principal Accountant Fees and Services87
PART IV
Item 15.Exhibits and Financial Statement Schedules   88  
Signatures

Item 13.

Certain Relationships and Related Transactions, and Director Independence   13188

Item 14.

Principal Accountant Fees and Services88
PART IV

Item 15.

Exhibits and Financial Statement Schedules89

Signatures

136  


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FORWARD-LOOKING STATEMENTS

This document contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. All statements other than statements of historical fact are “forward-looking statements” for purposes of federal and state securities laws, including any projections of earnings, revenue or other financial items; any statements of the plans, strategies and objectives of management for future operations; any statements concerning proposed new services or developments; any statements regarding future economic conditions or performance; any statements of belief; and any statements of assumptions underlying any of the foregoing. Forward-looking statements may include the words “may,” “will,” “estimate,” “intend,” “continue,” “believe,” “expect” or “anticipate” and any other similar words.

Although we believe that the expectations reflected in any of our forward-looking statements are reasonable, actual results could differ materially from those projected or assumed in any of our forward-looking statements. Our future financial condition and results of operations, as well as any forward-looking statements, are subject to change and to inherent risks and uncertainties, such as those disclosed or incorporated by reference in our filings with the Securities and Exchange Commission. Important factors that could cause our actual results, performance and achievements, or industry results to differ materially from estimates or projections contained in our forward-looking statements include, among others, the following:

any collateral impact resulting from the ongoing worldwide financial “crisis,” including the availability of liquidity to us, our customers and our suppliers or the willingness of our customers to purchase products in a difficult economic environment;

our relationship with, and our ability to influence the actions of, our distributors;

• any collateral impact resulting from the ongoing worldwide financial “crisis,” including the availability of liquidity to us, our customers and our suppliers or the willingness of our customers to purchase products in a recessionary economic environment;
• our relationship with, and our ability to influence the actions of, our distributors;
• improper action by our employees or distributors in violation of applicable law;
• adverse publicity associated with our products or network marketing organization;
• changing consumer preferences and demands;
• our reliance upon, or the loss or departure of any member of, our senior management team which could negatively impact our distributor relations and operating results;
• the competitive nature of our business;
• regulatory matters governing our products, including potential governmental or regulatory actions concerning the safety or efficacy of our products and network marketing program, including the direct selling market in which we operate;
• third party legal challenges to our network marketing program;
• risks associated with operating internationally and the effect of economic factors, including foreign exchange, inflation, disruptions or conflicts with our third party importers, pricing and currency devaluation risks, especially in countries such as Venezuela;
• uncertainties relating to the application of transfer pricing, duties, value added taxes, and other tax regulations, and changes thereto;
• uncertainties relating to interpretation and enforcement of recently enacted legislation in China governing direct selling;
• our inability to obtain the necessary licenses to expand our direct selling business in China;
• adverse changes in the Chinese economy, Chinese legal system or Chinese governmental policies;
• our dependence on increased penetration of existing markets;
• contractual limitations on our ability to expand our business;
• 

improper action by our employees or distributors in violation of applicable law;

adverse publicity associated with our products or network marketing organization;

changing consumer preferences and demands;

our reliance upon, or the loss or departure of any member of, our senior management team which could negatively impact our distributor relations and operating results;

the competitive nature of our business;

regulatory matters governing our products, including potential governmental or regulatory actions concerning the safety or efficacy of our products and network marketing program, including the direct selling market in which we operate;

legal challenges to our network marketing program;

risks associated with operating internationally and the effect of economic factors, including foreign exchange, inflation, disruptions or conflicts with our third party importers, pricing and currency devaluation risks, especially in countries such as Venezuela;

uncertainties relating to the application of transfer pricing, duties, value added taxes, and other tax regulations, and changes thereto;

uncertainties relating to interpretation and enforcement of legislation in China governing direct selling;

our inability to obtain the necessary licenses to expand our direct selling business in China;

adverse changes in the Chinese economy, Chinese legal system or Chinese governmental policies;

our dependence on increased penetration of existing markets;

contractual limitations on our ability to expand our business;

our reliance on our information technology infrastructure and outside manufacturers;


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the sufficiency of trademarks and other intellectual property rights;

product concentration;

changes in tax laws, treaties or regulations, or their interpretation;

taxation relating to our distributors;

• the sufficiency of trademarks and other intellectual property rights;
• product concentration;
• changes in tax laws, treaties or regulations, or their interpretation;
• taxation relating to our distributors;
• product liability claims; and
• whether we will purchase any of our shares in the open markets or otherwise.

product liability claims; and

whether we will purchase any of our shares in the open markets or otherwise.

Additional factors that could cause actual results to differ materially from our forward-looking statements are set forth in this Annual Report onForm 10-K, including under the heading “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and in our Consolidated Financial Statements and the related Notes.

Forward-looking statements in this Annual Report onForm 10-K speak only as of the date hereof, and forward-looking statements in documents attached that are incorporated by reference speak only as of the date of those documents. We do not undertake any obligation to update or release any revisions to any forward-looking statement or to report any events or circumstances after the date hereof or to reflect the occurrence of unanticipated events, except as required by law.

The Company

Unless otherwise noted, the terms “we,” “our,” “us,” “Company” and “Herbalife” refer to Herbalife Ltd. and its subsidiaries. Herbalife is a holding company, with substantially all of its assets consisting of the capital stock of its indirect, wholly-owned subsidiary, Herbalife International.

PART I

Item 1.BUSINESS

GENERAL

We are a global network marketing company that sells weight management, nutritional supplement, energy, sports & fitness products and personal care products. We were founded in 1980 by Mark Hughes. We pursue our mission of “changing people’s lives” by providing a financially rewarding business opportunity to distributors and quality products to distributors and customers who seek a healthy lifestyle. We are one of the largest network marketing companies in the world with net sales of approximately $2.7$3.5 billion for the fiscal year ended December 31, 2010.2011. As of December 31, 2010,2011, we sold our products in 7479 countries through a network of approximately 2.12.7 million independent distributors. In China, in order to comply with local laws and regulations, we sell our products through retail stores, sales representatives, sales employeesofficers and licensed business providers. Licensed business providers are independent service providers. Independent service providers that operate their own business under Chinese law as well as the conditions set forth by us to sell products and provide services to our customers. We believe the quality of our products and the effectiveness of our distribution network, coupled with geographic expansion, and actively engaged distributors, have been the primary reasons for our success throughout our31-year 32-year operating history.

We offer science-based products in four principal categories: weight management, targeted nutrition, energy, sports & fitness and Outer Nutrition. Weight management, targeted nutrition, energy, sports & fitness and Outer Nutrition accounted for 62.1%62.5%, 23.0%22.8%, 4.4%4.9% and 4.7%4.3% of our net sales in fiscal year 2010,2011, respectively. The weight management product portfolio includes meal replacement shakes, weight-loss enhancers, appetite suppressors and a variety of healthy snacks. Our collection of targeted nutrition products includes dietary supplements which contain vitamins, minerals and natural ingredients that support total well-being and long-term good health. The energy, sports & fitness category includes energy and isotonic drinks as well as the Herbalife24 line of products to support a healthy active lifestyle. Our Outer Nutrition products include skin cleansers, moisturizers and lotions with antioxidants, as well as anti-aging products.


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We believe that the direct-selling channel is ideally suited to marketing our products because sales of weight management, nutrition and personal care products are strengthened by ongoing personal contact and education between retail consumers and their distributors. This personal contact maycan enhance consumers’ nutritional and health education as well as motivate consumers to begin and maintain wellness and weight management programs. In addition, many of our distributors use our products themselves, and can therefore provide first-hand testimonials of the effectiveness of our products to consumers, which often serve as a powerful sales tool.

We are focused on building and maintaining our distributor network by offering financially rewarding and flexible career opportunities through sales of quality, innovative and efficacious products to health conscious consumers. We believe the income opportunity provided by our network marketing program appeals to a broad cross-section of people throughout the world, particularly those seeking to supplement family income, start a home business or pursue entrepreneurial, full or part-time employment opportunities. Our distributors, who are independent contractors, can profit from selling our products and can also earn royalties and bonuses on sales made by the other distributors whom they recruit to join their sales organizations.

We enable distributors to maximize their potential by providing a broad array of motivational, educational and support services. We motivate our distributors through our performance-based compensation plan, individual recognition, reward programs and promotions, and participation in local, national and international Company-sponsored sales events such as Extravaganzas. We are committed to providing professionally designedprovide educational training materials that our distributors can use to enhance recruitment and maximize their sales. We and our distributor leadership conduct thousands of training sessions each year throughout the world to educate and motivate our distributors. These training events teach our distributors not only how to develop invaluable business-building and leadership skills, but also how to differentiate our products to consumers. Our corporate-sponsored training events provide a forum for distributors, who otherwise operate independently, to share ideas with us and each other. In addition, we operate an Internet-based Herbalife Broadcasting Network, which delivers worldwide, educational, motivational and inspirational content, including addresses from our Chief Executive Officer, to our distributors. We further aid our distributors by generating additional demand for our products through traditional marketing and public relations activities, such as television ads, sporting event sponsorships and endorsements.

Our Competitive Strengths

We believe that our success stems from our ability to motivate our distributor network through our marketing plan and provide distributors with a unique go to marketgo-to-market strategy that supports sustainable daily consumption of our innovative and efficacious products that appeal to consumer preferences for healthy lifestyles. We have been able to achieve sustained and profitable growth by capitalizing on the following competitive strengths:

Distributor Base

As of December 31, 2010,2011, we had approximately 2.12.7 million distributors, which includesinclude approximately 161,000171,000 China sales representatives, sales officers, and employees.independent service providers. Collectively, we refer to this group as “distributors.” Approximately 483,000548,000 of our 2.12.7 million distributors have become sales leaders, which are comprised of approximately 434,000501,000 sales leaders in the 7378 countries where we use our traditional marketing plan and approximately 49,00047,000 China sales employeesofficers and licensed businessindependent service providers operating under our China marketing plan. Collectively, we refer to this group as “sales leaders.” Due to changes in China’s labor laws, effective in the third quarter of 2011, we no longer have sales employees in China as they have been transitioned to sales officers and independent service providers. We believe thatsegment the distributors who have not attained the sales leader level can be segmented into three general categories based on their product order patterns: discount buyers, small retailers and potential sales leaders. We define discount buyers as customers who have signed up as distributors to enjoyreceive a discount on their purchases; small retailers as product users and sales people who generate modest sales to friends and family; and potential sales leaders as distributors who are proactively developing a business with the intention of qualifying to become a sales leader. In 2010, excluding China, distributor orders for these three general categories were approximately 29%, 57% and 14%, respectively. For the approximately 483,000548,000 sales leaders in our organization, the marketing plan encourages active participation in the business including building down-line sales organizations of their own, which can serve to increase their income and increase our product sales. Sales leaders contribute significantly to our sales.


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Product Portfolio

We are committed to building distributor and customer andloyalty to our brand loyalty by providing a diverse portfolio of health-oriented and wellness products. The breadth of our product offerings enables our distributors to sell a comprehensive package of products designed to simplify weight management and daily nutrition. We continue to introduce new products annually and rigorously review, and if necessary, improve our product formulations, based upon developments in nutrition science or changes in regulation. We believe that the longevity and variety in our product portfolio significantly enhance our distributors’ abilities to build their businesses.

Nutrition Science-Based Product Development

We continue to emphasize and make investments in science-based product development in the fields of weight management, nutrition supplement and personal care. We have a growing internal team of scientists dedicated to continually evaluating opportunities to enhance our existing products and to develop new science-based products. These product development efforts are reviewed by prominent doctors and world-renowned scientists who constitute our Nutrition Advisory Board. In addition, we have provided donations to assist in the establishment of the Mark Hughes Cellular and Molecular Lab at UCLA, or the UCLA Lab, and we continue to rely on theirits expertise. We believe that the UCLA Lab provides opportunities for Herbalife to access cutting-edge science in botanical, herbal and nutrition research. SeeProduct Development below for further information on the Nutrition Advisory Board and UCLA lab. In 2007, Herbalife awarded a research grant to the National Center for Natural Products Research at the University of Mississippi School of Pharmacy, or NCNPR. The grant will allow NCNPR scientists to identify and study the biologically active chemicals found in botanicals, which may be used in the development of future dietary supplementssupplement and skin care products for Herbalife.

Scalable Business Model

Our business model enables us to grow our business with only moderate investment in our infrastructure and other fixed costs. With the exception of our China business, weWe require no Company-employed sales force to market and sell our products. We incur no direct incremental cost to add a new distributor in our existing markets, and our distributor compensation varies directly with sales. In addition, our distributors bear the majority of our consumer marketing expenses, and sales leaders sponsor and coordinate a large share of distributor recruiting and training initiatives. Furthermore, we can readily increase production and distribution of our products as a result of having our own manufacturing facilities and our numerous third party manufacturing relationships as well as our global footprint of in-house distribution centers.

Geographic Diversification

We have a proven ability to establish our network marketing organization in new markets. Since our founding 3132 years ago, we have expanded our presence into 74 countries.79 countries as of December 31, 2011. While sales within our local markets may fluctuate due to economic, market and regulatory conditions, competitive pressures, political and social instability or for Company-specific reasons, we believe that our geographic diversity mitigates our financial exposure to any particular market. We opened twofive new markets during 20102011 and our strategic plan includes a goal of opening several new markets during 2011.

2012.

Our Business Strategy

We believe that our network marketing model is the most effective way to sell our products. Our objective is to increase the recruitment, retention, retailing and productivity of our distributor base by pursuing the following strategic initiatives:

strategies:

Product Strategy

We are committed to providing our distributors with unique, innovative products to help them increase retail sales and recruit new distributors. Our product development is focused on four principal categories: weight management; targeted nutrition, including everyday wellness and healthy aging; energy, sports & fitness and Outer Nutrition that capitalize on the mega trends of obesity and anti-aging. We will augment our product portfolio on an on-going basis with additional science-based products and, as appropriate, will bundle products addressing similar


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health concerns into packages and programs. We are establishingmaintain a core set of products that will beare available in key markets around the world. We are in the process of introducingperiodically introduce new upgraded formulations of existing products to continue to improve the efficacy and product differentiation of our product as compared to products that can be found on the retail shelf. To better support distributors by providing alternative price points, we will expand our product packaging to provideoffer both individual serving sizes and larger sizes of our top selling products. Additionally, each year we plan to have “mega launches”launches of productsand/or programs, coupled with our major events, to generate continued excitement among our distributors, to add to our core set of products and to support our distributor daily methods of operation, or DMOs. These “mega launches”launches will generally target specific market segments deemed strategic to us, such as the recent introduction of our COQ10/Omega 3 linesHerbalife24 sports products that supportsupports our focus on heart health.a healthy, active life style and our branding effort as well. These launches may be specific to certain regions and are not in all instances indicative of a global product launch. To augment the personal testimonials of our distributors and to provide them with independent validation of our product efficacy we successfully completed two sponsored clinical studies in 2008, one sponsored clinical study in 2009, and two sponsored clinical studies in 2010.2010, and one sponsored clinical study in 2011. In addition, we have up to fourseveral clinical studies that are planned for 2011.
2012.

Distributor Strategy

We continue to increase our investmentinvest in events and promotions both in absolute dollars and as a percent of net sales as a catalyst to help our distributors improve the effectiveness and productivity of their businesses. We work with our distributor leaders to globalize best-practice business methods to enable our distributors to improve their penetration in existing markets. We refer to these business methods as DMOs and they include such methods as Nutrition Clubs, Lifestyle Centers/Offices, Weight Loss Challenges, The Total Plan, Super and Mega HOM’s, Roadshows and product sampling. Under our traditional DMO, distributors typically sell to their customers on a somewhat infrequent basis (e.g. monthly) which provides less opportunity for interaction with their customers. Under a daily consumption DMO, distributors interact with their customers on a more frequent basis which enables the distributors to better educate and advise customers about nutrition and the proper use of the products and helps promote daily usage as well, thereby helping our distributors grow their businesses. We are investinginvest in creative product delivery and infrastructure improvements to increase distributor access to product, particularly in daily consumption markets with limited credit card use and poor local delivery services. We have significantly improved BizWorks,offer a business system which assistsvariety of internet and mobile based tools for use by our distributors in buildingthat make it simpler for them to purchase our product, enroll new distributors, manage their businesses more efficiently while better servicingorganizations productivity and service their existing customers. Andcustomers.And finally, to increase brand awareness we and our distributors have entered into numerous marketing alliances around the world with top athletes and sports teams and rolled-outrolled out a style guide and brand asset library so that our distributors have access to the Herbalife brand logo for use in their marketing efforts.

We also plan to continue creating more access points in markets with large geographiesgeographical areas such as the U.S., Russia, India, Mexico and Brazil in order to help support our growth and our daily consumption business models.DMOs. In early 2010, for example, we benefited from ourinitiating a distribution agreement with a large Mexico retailer that was initiated at the beginning of the year.in Mexico. This agreement allows distributors to pick up their product orders at thea customer service counters of at

approximately 302270 locations in approximately 26 Mexican states.states as of December 31, 2011. We believe that by leveraging their distribution system, we are providing distributors with significantly better product access. In India, we are testing a similar distribution arrangement with a local retailer to further support the successful adoption of the Nutrition Club DMO has caused the country to experience significant growth and an increase to our net sales.DMO. We will continue to evaluate if wethe need to increase our sales centers in certain countries in order to support our Company’s growth.

Infrastructure Strategy

In 2003, we embarked upon a strategic initiative to significantly upgrade our technology infrastructure throughout the world.

In 2009, we completed the roll-out of an Oracle enterprise-wide technology solution, which has a scalable and stable open architecture platform, to support our business growth and enhance our efficiency and productivity as well as that of our distributors. We continue to leverage the Oracle platform adding new modules to help support our business growth, improve productivity and support our strategic initiatives. In 20102011 we implemented Oracle’s process manufacturing module in our Souzhou,Lake Forest, California manufacturing facility. Our Suzhou, China plant, and in 2011,manufacturing facility has used this same Oracle module since 2010. In 2012 we plan to implement the same Oracle module in our Lake Forestbotanical extraction facility and, once completed, ourbeing constructed in Changsha, facility.Hunan, China. In addition, we are continually upgrading our Internet-based marketing and distributor services platform with tools such as BizWorks, BizWorks 2.0MyHerbalife.com, iChange, Herbalife Mobile and MyHerbalife.com and we have investedother internet based tools. We continue to invest in business intelligence tools to enable better analysis of our business.business and identify opportunities for growth. In 2010the last two years we introduced Mobile Appsboth mobile and private social networking tools to supportmake it easier for our distributors usingto interact with us and their customers while on the move. We will continue the build out these tools so that we can take advantage of the rapid development of mobile devices to help run their businesses. technology around the globe.

Our “Seed Toto Feed” strategy, which encompasses the entire supply chain, started in August 2009, when we purchased certain assets of Micelle Laboratories, Inc., a Lake Forest, California contract manufacturer of food and nutritional supplements. We purchased these assets in order to strengthen our global manufacturing capabilities.


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capabilities and we completed the modifications to this facility in 2011. This strategy expanded in 2010 with the announcement of a joint venture in Changsha, Hunan, China to build a Botanical Extraction Facilitybotanical extraction facility which will provide improved traceability and processing of our botanical raw materials. materials and is expected to be completed and operational in 2012.

We continue to invest in our employees through comprehensive and global organizational development programs including our new employee orientation training, General Manager Training and our Advanced Leadership Program. We also invest in our Employee Wellness program which includes providing access to our products, subsidy forsubsidizing cafeterias and kitchens, providing access to fitness centers and encouraging annual participation in our Health Assessment program. Through this program we attempt to increase the awareness of living a healthy active lifestyle, which also creates a great philosophical connection to our independent distributors.

Product Overview

For 3132 years, our products have been designed to help distributors and customers from around the world lose weight, improve their health and experience life-changing results. We have built our heritage on developing unique formulas that blend the best of nature with innovative techniques from nutritional science, appealing to the growing base of consumers seeking differentiated products to support a healthier lifestyle.

As of December 31, 2010,2011, we marketed and sold 126138 products encompassing over 4,0004,400 SKUs through our distributors and currently have approximately 2,000 trademarks worldwide. We group our products into four primary categories: weight management, targeted nutrition, energy, sports & fitness and Outer Nutrition. Our products are often sold as part of a program, and therefore our portfolio is comprised of a series of related products designed to simplify weight management and nutrition for our consumers and maximize our distributors’ cross-selling opportunities. These programs target specific consumer market segments, such as women, men, as well as weight-management customers and individuals looking to enhance their overall well-being and support an active, healthy lifestyle.

The following table summarizes our products by product category.

Product Category

  

Description

  

Representative Products

Product CategoryWeight Management  Description  Representative Products
Weight Management

(62.1%62.5%, 63.0%,62.1% and 62.9%63.0% of net sales for 2011, 2010 and 2009 and 2008, respectively)

  Meal replacement, protein shakes, and supplementation, weight-lossdrink mixes, weight loss enhancers and a variety of healthy snacks  Formula 1 Healthy Meal, Herbal Tea Concentrate, Protein Drink Mix, Personalized Protein Powder,Total Control®,ProlessaDuo and Protein Bars and Snacks
Targeted Nutrition    

(23.0%22.8%, 21.2%23.0%, and 20.9%21.2% of net sales for 2011, 2010 and 2009, and 2008, respectively)

  Dietary and nutritional supplements containing quality herbs, vitamins, minerals and other natural ingredients  Aloe Concentrate, Niteworks®,Garden 7® phytonutrient supplement,Best Defense® for improved immune system, Kids Line,COQ10 Plus
Energy, Sports & Fitness    

(4.4%4.9%, 4.3%4.4%, and 4.2%4.3% of net sales for 2011, 2010 and 2009, and 2008, respectively)

  Products that support a healthy active lifestyle  Herbalife24 product line,Liftoff® energy drink, H(3)H3Otm hydration drinkBulk & Muscle
Outer Nutrition    

(4.7%4.3%, 5.5%4.7%, and 6.2%5.5%, of net sales for 2011, 2010 and 2009, and 2008, respectively)

  Skin cleansers, moisturizers, lotions, shampoosFacial skin care, body care, and conditionershair care  Skin Activator® Anti-Aging anti-aging line,Herbal Aloe Bath and Body Careevery day line,NouriFusion® multivitamin skin care line, Radiant C antioxidant skin care line

Literature, Promotional and Other Products

    

(5.8%5.5%, 6.0%5.8%, and 5.8%6.0% of net sales for 2011, 2010 and 2009, and 2008, respectively)

  Sales aids, informational audiotapes, CDs, DVDs and start-up kits  International Business Packs, BizWorks


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Weight Management

Weight Management is our largest product category representing 62.1%62.5% of our net sales for the year 2010.2011. Formula 1, our best-selling product line, is a healthy meal with soy protein, fiber, botanicals plus essential vitamins minerals, herbs and nutrientsminerals that is available in sevenvarious delicious flavors and canto help support weight management. It has been partthe centerpiece of our basic weight management program for 3132 years and generated approximately 28%29% of our net sales for the year 2010.2011. We continue to be amongst the worldwide leaders ofleader in meal replacements.replacement shakes. Personalized Protein Powder is aand Protein Drink Mix are soy and whey protein productproducts designed as a boostboosts to Formula 1 to personalizeincrease a person’s daily protein intake toand help them achieve their desired weight and shape. Weight-loss enhancers, including Herbal Tea Concentrate,Total Control® andProlessaDuo, address specific challenges associated with dieting, such as lack of energy, hunger and food craving, fluid retention, decreased metabolism and digestive challenges, by building energy, boosting metabolism, curbing appetite and helping to promote weight loss. Healthy snacksSnacks, such as bars and soups, are formulated to provide between-meal nutrition and appetite satisfaction. We expanded the Formula 1 Express Healthy Meal Bar franchise in 2010 by introducing a Super Berry Flavor in EMEA. We providedprovide further segmentation of our leading product with a Formula 1 Allergen Free product line with limited edition, seasonal flavors including Orange Cream and Pumpkin-Spice in the U.S. and we initiated the concept of seasonal flavors with a limited edition Formula 1 Holiday Pumpkin Spice flavorToffee-Apple-Cinnamon in the U.S.Europe, Middle East and Africa, or EMEA region. We also launched Afresh Cardamom Teaexpanded the snack category adding Gourmet Tomato Soup in India.

EMEA region.

Targeted Nutrition

We market numerous dietary and nutritional supplements designed to meet our customers’ specific nutritional needs. Each of theseThese supplements containscontain quality botanicals, vitamins, minerals and other natural ingredients and focusesfocus on specific life stages of our customers, including women, men, children and those with health concerns, including heart health, healthy aging, digestive health, or immune solutions.Niteworks® is a product developed in conjunction with Nobel Laureate in Medicine, Dr. Louis Ignarro, thatwhich supports energy, circulatory and vascular health and enhances blood flow to the heart, brain and other vital organs.Garden 7® designed by Dr. David Heber, head of our Nutrition Advisory Board, is designed to provide the phytonutrient benefits of seven servings of fruits and vegetables and has anti-oxidant and health-boosting properties.Best Defense® is an effervescent drink that helps boost immunity. In 2010,2011, we further expanded distribution of our successful AloeActive Fiber line by introducing our popular Apple flavored Active Fiber Complex in the South and Central America region. Our globalization efforts focused on top sellers such as Herbal Aloe Mango flavoredin the EMEA region;Niteworks® and Herbalifeline in Asia Pacific, EMEA and South and Central America regions and our Aloe Concentrate into Mexico. In 2010, asand Tea products in newly opened markets, Georgia, Belarus, Mongolia, Lebanon, and Ghana. As part of our heart health line,regional strategy, we introduced CoQ10 Pluslaunched Healthy Eye in two key markets in the Asia Pacific region, Korea and Taiwan. In the North America region, we broadened our fast growing mango flavored Herbal Aloe Concentrate by offering a 1/2 gallon option to better meet the needs of U.S. based Nutrition Clubs. Throughout 2011, we continued to upgrade our targeted nutrition portfolio with improved formulations including a re-launch of 21-Day Cleansing Program in the U.S. and as part of our regional product strategy, we launched QuicksparkWoman’s Choice in Austria. We continued to upgrade several targeted nutrition products with more modern formulationsthe U.S. and better efficacy.

Asia Pacific regions.

Energy, Sports & Fitness

We entered into the high growth energy drink category in 2005 with the introduction ofLiftoff®, an innovative, effervescent energy drink containing a proprietary blend of B-vitamins, guarana, ginseng, ginkgo and caffeine to increase energy and improve mental clarity for better performance throughout the day. In 2007, we launched H3Otmtm Fitness Drink to provide rapid hydration and sustained muscle energy plus antioxidant protection for people living a healthy, active lifestyle. In 2008, we introduced H30 Pro in EMEA to provide an isotonic drink to individuals participating in high activity sports.

In 2011, we introduced the Herbalife24 product line in the US and 20 countries throughout EMEA. The Herbalife24 product line is a complete, seven-product program, formulated to meet the nutritional needs of the 24 Hour Athlete®, whether they be a top professional, or amateur fitness enthusiast. The Herbalife24 product line enables athletes to customize their nutrition program based on personal training and competitive demands throughout the day. The entire line was formulated based on peer-reviewed clinical research, collaboration between leading Herbalife scientists, and the input of professional athletes. Each product is certified and tested for substances banned by professional and collegiate athletic governing bodies.

Outer Nutrition

Our Outer Nutrition products complement our weight management and targeted nutrition products and aim to improve the appearance of the body, skin and hair. These products include skin cleansers, toners, moisturizers, and facial masks, shampoos and conditioners, body-wash items and a selection of fragrances for men and women. OurHerbal Aloeline is our distributor’s introductory line providing distributors with cleansers,shampoos, conditioners, lotions and soaps that help sooth the skin.NouriFusion® Multivitamin skin care products are formulated with antioxidant Vitamins A, C and E for a healthy, glowing complexion. In 2006, weWe previously launched a full line of anti-aging products as an extension of our successfulSkin Activator® product, an advanced face cream that contains a collagen-building Glucosamine Complex to reduce the appearance of fine lines and wrinkles. In the past few years, we have launched a number of regional products to address local market needs including a Soft Green Body Care line in Brazil in 2008, the Whitening Serum under the NouriFusion brand in the Asia Pacific region, and the Lively Fragrances perfume line in Brazil in 2009.


9

needs.


Literature, Promotional and Other Products

We also sell literature and promotional materials, including sales aids, informational audiotapes, videotapes, CDs and DVDs designed to support our distributors’ marketing efforts, as well asstart-up kits called “International

Business Packs” for new distributors. In 2006, we introducedWe also offer internet based tools such as BizWorks, a customizable retail website for our distributors to enhance the on-line experience and improve their productivity.

Product Development

We are committed to providing our distributors with unique, innovative, science-based products to help them increase recruitment,recruiting, retention and retailing. We believe this can be best accomplished in part by introducing new products and by upgrading, reformulating and repackaging existing product lines. Our internal team of scientists and product developers collaborate with our Nutrition Advisory Board to formulate, review and evaluate new product ideas. Once a particular market opportunity has been identified, our scientists along with our marketing and sales teams work closely with distributors to effect a successful developmentsuccessfully develop and launch of the product. Our research and development is performed by in-house staff and outside consultants. For all periods presented, research and development costs were expensed as incurred and were not material.

A progressive product development process was deployed in 2010 to accelerate thenew product introduction of new products and to improve the launch of products.product launches. Cross-functional teams from Product Marketing, Product Development, Sciences, Licensing, Manufacturing and Finance were formed and assigned to major product initiatives.

The product development process is a stage-gate process based on “best in class” practices in our industry. The process consists of five stages: identification, feasibility assessment, development, launch, and learn. The project teams obtain approvals from a corporate steering team comprised of key executives in the Company. The process defines each department’s roles and responsibilities and sets clear deliverables for each stage. It creates a succinct process from the beginning of the development cycle to the end.

New product ideas are generated and narrowed down to high potential ideas that fill our business needs and conform to our overall strategy. We test the most promising ideas with distributors and customers using a variety of qualitative and quantitative tools. This testing is followed by a feasibility assessment which includes a review ofreviewing product and package prototypes, product positioning and messaging, designing process, design, analysis ofanalyzing manufacturing issues and providing preliminary financial projections of product sales. The next stage is the development phase in which we finalize the formula, process, manufacturing strategy, product positioning, pricing, labeling and other related matters. The fourth stage is the launch phase in which we prepare promotional and sales materials, complete the supply chain plan, create product and financial forecasts, and complete other final preparations for launch.launch preparations. After the product is launched, we closely track sales performance and the lessons learned so we can update and improve the product development process. In addition, we have significantly increased our investment in clinical studies and in our science program to substantiate claims and the efficacy of our products.

We reorganizedcontinuously reorganize our technical team in 2010 for greater efficiency in product development efficiency as well as to carry out related product development strategies both globally and regionally. During 2010,2011, we added new talents to our technical and scientific teamsprofessionals and additional resources to the Company’s Nutrition Advisory Board.

In 2010, we launched the Herbalife Nutrition Institute. The Institute is an informational resource dedicated to promoting excellence in the field of nutrition. The Institute’s website is our primary communication vehicle, an educational resource for the general public, government agencies, the scientific community, and Herbalife Independent distributors, about good nutrition and basic health. Its mission is to encourage and support research and education on the relationship between good health, balanced nutrition and a healthy active lifestyle. In addition to providing research and education on the website and through sponsored conferences and symposia, the Institute will have associations with major nutrition science organizations.

Part of the Herbalife Nutrition Institute is the Company’s Nutrition Advisory Board. The Nutrition Advisory Board is comprised of leading experts around the world in the fields of nutrition and health who educate Herbalife independent distributors, and in China, sales employees, on the principles of nutrition, physical activity and healthy


10


lifestyle. The Institute and the Nutrition Advisory Board are chaired by David Heber, M.D., Ph.D., director of the Center for Human Nutrition at the University of California, Los Angeles (UCLA).

We believe that it is important to maintaining our relationships with members of our Nutrition Advisory Board and the editorial board of the Herbalife Nutrition Institute that we recognize the time and effort that they expend on our behalf. Each member of our Nutrition Advisory Board, other than Dr. Heber, receives a monthly retainer of up to $5,000, plus up to $3,000 for every day that they appear at a non-southern California distributor event and up to $2,000 for every day that they need to travel to such events. Members of the editorial board of the Herbalife Nutrition Institute are compensated for their time and efforts by receiving a $5,000 annual stipend, except Dr. Lou Ignarro. We do pay a consulting firm, with which Dr. Ignarro is affiliated, a royalty on sales of Niteworks®, certain “healthy heart” products, and other products that we may mutually designate in the future that are, in each case, sold with the aid of Dr. Ignarro’s consulting, promotional or endorsement services, with such amounts totaling $2.9 million, $2.3 million, and $1.9 million, in 2011, 2010, and $2.1 million, in 2010, 2009, and 2008 respectively. Generally, other than the equity awards granted in 2011, 2010 and 2005, Dr. Heber receives no direct compensation from us although we do reimburse him for travel expenses and we do pay to a firm, with which Dr. Heber is affiliated, a quarterly fixed royalty of $75,000.

We have also made contributions to the UCLA Lab. We have invested in this lab since 2002 with total donations of approximately $1.4$1.5 million which includes donations of lab equipment and software. UCLA agreed that the donations would be used for further research and education in the fields of weight management and botanical dietary supplements. In addition, we have made donations from time to time to UCLA to fund research and educational programs. While our direct relationship with UCLA involves clinical studies and research regarding botanical ingredients, we intend to take full advantage of the expertise at UCLA by committing to support research that will further our understanding of the benefits of phytochemicals. Additionally in 2010, we initiated a botanical identification program with UCLA which is intended to help with the operational activities in our Botanical Extractionquality labs in China and the U.S. and in our botanical extraction facility in Changsha, Hunan, China once it is completed and our quality labs in both China and the U.S.

completed.

We believe our focus on nutrition and botanical science and our efforts at combining our internal research and development efforts with the scientific expertise of our Nutrition Advisory Board and the educational skills of the Nutrition Advisory Board and the resources of the UCLA Lab should result in meaningful product differentiation and give our distributors and consumers increased confidence in our products.

Network Marketing Program

General

Our products are distributed through a global network marketing organization comprised of approximately 2.12.7 million independent distributors in 7479 countries as of December 31, 2011, including in China where, due to regulations, our sales are conducted through Company operated retail stores, sales representatives, sales employeesofficers and licensed businessindependent service providers. In China, in the areas where we have a direct selling license, our representatives, licensed businessofficers and independent service providers and employees can sell Herbalife product outside the retail establishments. In addition to helping our distributors achieve their goals of health and wellness through use of our products, we offer our distributors, who are independent contractors, attractive income opportunities. Distributors may earn income on their own sales and can also earn royalties and bonuses on sales made by the distributors in their sales organizations. We believe that our products are particularly well-suited to the network marketing distribution channel because sales of weight management and health and wellness products are strengthened by ongoing personal contact and coaching betweenof retail consumers andby distributors. We believe our continued commitment to developing innovative, science-based products will enhance our ability to attract new distributors as well as increase the productivity and retention of existing distributors. Furthermore, our international sponsorship program, which permits distributors to sponsor distributors in other countries where we are licensed to do business and where we have obtained required product approvals, provides a significant advantage to our distributors in developing and growing their businesses. China has its own unique marketing program.

On July 18, 2002, we entered into an agreement with our distributors that no material changes adverse to the distributors will be made to our marketing plan without their consent and that we will continue to distribute

Herbalife products exclusively through our independent distributors. We believe that this agreement has


11


strengthened our relationship with our existing distributors, improved our ability to recruit new distributors and generally increased the long-term stability of our business.

Structure of the Network Marketing Program

To become a distributor in most markets, a person must be sponsored by an existing distributor and must purchase an International Business Pack, or IBP. The IBP is a distributor kit available in local languages. The product and literature contents in the kits vary slightly to meet individual market needs. An example is the large size U.S. IBP, which costs $90.95 and includes a canister of Formula 1 shake mix, two bottles of nutritional supplements, Herbal Concentrate (Tea),Liftoff® (an energy drink), and Hand Sanitizer, along with a handy tote, booklets describing us, our compensation plan and rules of conduct, various training and promotional materials, distributor applications and a product catalog. The smaller U.S. version costs $54.95 and includes sample products, a handy tote, and essentially the same print and promotional materials as included in the larger kit version. To become a sales leader, or qualify for a higher level, including the Qualified Producer level introduced in October 2009, distributors must achieve specified volumes of product sales or earn certain amounts of royalty overrides during specified time periods and must re-qualify for the levels once each year. To attain sales leader status, a distributor generally must be responsible for sales of products representing at least 4,000 volume points in one month or 2,500 volume points in two consecutive months. An additional optional qualification, introduced globally in October 2009, allows for a distributor to achieve sales leader level by personally placing orders with Herbalife that accumulate to 5,000 Volume Pointsvolume points within 12 months. China has its own unique marketing program.

Volume points are point values assigned to each of our products that are usually equal in all countries and are essentiallycountries. We assign a Volume Point value to a product when it is first introduced into the market. The specific number of Volume Points assigned to a product is based on a Volume Point to U.S. dollar ratio that we use for the suggested retail pricevast majority of U.S.new products. Sales leaders may then attain higher levels (consisting of the World Team, the Global Expansion Team, the Millionaire Team, the President’s Team, the Chairman’s Club and the Founders Circle), and earn increasing amounts of royalty overrides based on sales in their downline organizations and, for members of our Global Expansion Team and above, earn production bonuses on sales in their downline organizations.

The following table sets forth the number of our sales leaders and sales leader retention rates as of each of the following re-qualification periods:

                         
  At the End of February 
  Number of Sales Leaders  Sales Leader Retention Rate 
  2010  2009  2008  2010  2009  2008 
 
North America  64,668   63,726   64,383   43.3%  42.2%  43.5%
Mexico  47,068   50,099   60,685   50.4%  45.2%  44.4%
South & Central America  51,060   67,876   67,808   34.1%  32.2%  34.7%
EMEA  47,080   53,371   59,446   51.9%  48.7%  46.6%
Asia Pacific (excluding China)  75,635   59,631   57,355   38.6%  35.1%  34.3%
                         
Total Sales Leaders  285,511   294,703   309,677   43.0%  40.3%  41.0%
China Sales Employees  27,415   29,684   25,294             
                         
Worldwide Total Sales Leaders  312,926   324,387   334,971             
                         

   At the End of February 
   Number of Sales Leaders   Sales Leader Retention
Rate
 
   2011   2010   2009   2011  2010  2009 

North America

   72,152     64,668     63,726     48.6  43.3  42.2

Mexico

   54,526     47,068     50,099     57.9  50.4  45.2

South & Central America

   50,288     51,060     67,876     47.3  34.1  32.2

EMEA

   49,696     47,080     53,371     58.6  51.9  48.7

Asia Pacific (excluding China)

   90,822     75,635     59,631     38.4  38.6  35.1
  

 

 

   

 

 

   

 

 

     

Total Sales Leaders

   317,484     285,511     294,703     48.9  43.0  40.3

China

   30,543     27,415     29,684      
  

 

 

   

 

 

   

 

 

     

Worldwide Total Sales Leaders

   348,027     312,926     324,387      
  

 

 

   

 

 

   

 

 

     

In February of each year, we remove from the rank of sales leader those individuals who did not satisfy the sales leader qualification requirements during the preceding twelve months. Distributors who meet the sales leader requirements at any time during the year are promoted to sales leader status at that time, including any sales leaders who were removed, but who subsequently re-qualified. For the latest twelve month re-qualification period ending January 2011,2012, approximately 49%52% of our sales leaders, excluding China, re-qualified. Typically,

distributors who purchase our product for personal consumption or for short term weight loss or income goals may stay with us for several months to one year while sales leaders who have committed time and effort to build a sales organization generally stay for longer periods. We rely on certifications from the selling distributors as to the amount and source of product sales to other distributors which are not directly verifiable by us. For sales leaders to re-qualify and retain their distributor organization and associated earnings, they need to earnaccumulate 4,000 volume points in one month or 2,500 volume points in


12


each of two consecutive months. In order to increasepromote retailing of our products, we have modified our re-qualification criteria to provide that any distributor that earnssales leaders who accumulate at least 5,0004,000 volume points in anythe 12-month period can re-qualify as a sales leader and retain a discount of 50% from suggested retail prices, but will forfeit their distributor organization and associated earnings.
Effective the requalification period ending January 2012, we have further enhanced our re-qualification program for any sales leaders who achieve 10,000 volume points or more within the 12 month period to re-qualify and retain a discount of 50% and their distributor organization and associated earnings.

Distributor Earnings

Distributor earnings are derived from several sources. First, distributors may earn profits by purchasing our products at wholesale prices, which are discounted 25% to 50% from suggested retail prices depending on the distributors’ level within our distributor network, and selling our products to retail customers or to other distributors. Second, distributors who sponsor other distributors and establish their own sales organizations may earn (1) royalty overrides, up to 15% of product retail sales in the aggregate, (2) production bonuses, up to 7% of product retail sales in the aggregate and (3) the Mark Hughes bonus, up to 1% of product retail sales in the aggregate. Royalty overrides and bonuses together with the distributor allowances represent the potential earnings to distributors of up to approximately 73% of retail sales. Each distributor’s success is dependent on two primary factors: (1) the time, effort and commitment a distributor puts into his or her Herbalife business and (2) the product sales made by a distributor and his or her sales organization.

Distributors, with the exception of China, earn the right to receive royalty overrides upon attaining the level of sales leader and above, and production bonuses upon attaining the level of Global Expansion Team and above. Once a distributor becomes a sales leader, he or she has an incentive to qualify, by earning specified amounts of royalty overrides, as a member of the Global Expansion Team, the Millionaire Team or the President’s Team, and thereby receivereceives production bonuses of up to 7%. We believe that the right of distributors to earn royalty overrides and production bonuses contributes significantly to our ability to retain our most productive distributors.

Many of our non-sales leader distributors join Herbalife to obtain a 25% discount on our products and become a discount consumer or have a part-time retail income goal in mind. We do not track the retail income of these distributors.

Under the regulations published by the Chinese Government, direct selling companies are limited to the payment of gross compensation to direct sellers of up to a maximum 30% of the revenue they generate through their own sales of products to consumers. We have incurred and will continue to incur substantial ongoing additional costs relating to the inclusion in the China business model of Company operated retail stores, sales representatives, sales employeesofficers and licensed businessindependent service providers and Company provided training and certification procedures for sales personnel, features not common elsewhere in our traditional business model.

Distributor Motivation and Training

We believe that motivation and training are key elements in distributor success and that we and our distributor sales leaders have established a consistent schedule of events to support these needs. We and our distributor leadership conduct thousands of training sessions annually on local, regional and global levels to educate and motivate our distributors. Every month, there are hundreds ofone-day Success Training Seminars held throughout the world. Annually, in each major territory or region, there is athree-day World Team School that focuses on product and business development and is typically attended by 2,000 to 10,000 distributors. Additionally, we

host an Extravaganza at which our distributors from the region can come to learn about new products, expand their skills and celebrate their success. In 2010,2011, we held Extravaganzas in key markets such as Brazil, Ecuador, Singapore, Ukraine, Italy, Sweden, Macau,Argentina, Colombia, Thailand, Belarus, Spain, Turkey, South Africa, Mexico, China and the United States. In addition to these training sessions, we have our own “Herbalife Broadcast Network” on the Internet that we use to provide distributors continual training and the most current product and marketing information.

Distributor reward and recognition is a significant factor in motivating our distributors. In 2010, 2009, and 2008 we invested approximately $101.6 million, $84.1 million, and $89.6 million, respectively,We invest in regional and worldwide events and promotions to motivate our distributors to achieve and exceed both sales and recruiting goals. An example of our worldwide promotions areis the Active World Team Promotion. The Active World Team Promotion provides cash and recognition incentives to distributors who achieve all three requirements for becoming a World Team Member and thus have proven themselves adept at building a well-balanced business. Additionally, our Regional


13


Vacation Promotions were in place in China, Brazil, Asia-Pacific, North America, Mexico, South America/Central America, Russia and Europe. These promotions provided trips for over 4,000 qualifying distributors to go on vacations or cruises in various locations worldwide.

Geographic Presence

As of December 31, 2010,2011, we conducted business in 7479 countries throughout the world. The following chart sets forth the countries in which we currently operate inoperated as of December 31, 2010,2011, organized in the Company’s six geographic regions, and the year in which we commenced operations.

Country

  Year
Entered
 

North America

  Year
CountryEntered
North America

USA

   1980  

Canada

   1982  

Jamaica

   1999  

Aruba

   2010  

Mexico

   1989  

South and Central America

  

Dominican Republic

   1994  

Venezuela

   1994  

Argentina

   1994  

Brazil

   1995  

Chile

   1997  

Panama

   2000  

Colombia

   2001  

Bolivia

   2004  

Costa Rica

   2006  

Peru

   2006  

El Salvador

   2007  

Ecuador

   2008  

Honduras

   2008  

Nicaragua

   2008  

Guatemala

   2008  

Paraguay

   2009  

Asia Pacific

  

Australia

   1983  

New Zealand

   1988  

Japan

1989

Country

Year
Entered

Hong Kong

1992

Philippines

1994

Taiwan

1995

South Korea

1996

Thailand

1997

Indonesia

1998

India

1999

Macau

2002

Singapore

2003

Malaysia

2006

Vietnam

2009

China

2001

EMEA

United Kingdom

1984

Spain

   1989  
Hong Kong

Israel

1989

France

1990

Germany

1990

Portugal

   1992  
Philippines

Czech Republic

1992

Italy

1992

Netherlands

1993

Belgium

   1994  
Taiwan

Poland

1994

Denmark

1994

Sweden

1994

Russia

1995

Country

Year
Entered

Austria

   1995  

Switzerland

1995

South KoreaAfrica

1995

Norway

1995

Finland

1995

Greece

   1996  
Thailand1997
Indonesia

Turkey

   1998  
India

Botswana

1998

Lesotho

1998

Namibia

1998

Swaziland

1998

Iceland

   1999  
Macau

Slovak Republic

1999

Cyprus

2000

Ireland

2000

Country

Year
Entered

Croatia

2001

Latvia

   2002  
Singapore

Ukraine

2002

Estonia

   2003  
Malaysia2006
Vietnam2009
China
2001

Lithuania

Year
CountryEntered
EMEA
United Kingdom1984
Spain1989
Israel1989
France1990
Germany1990
Portugal1992
Czech Republic1992
Italy1992
Netherlands1993
Belgium1994
Poland1994
Denmark1994
Sweden1994
Russia1995
Austria1995
Switzerland1995
South Africa1995
Norway1995
Finland1995
Greece1996
Turkey1998
Botswana1998
Lesotho1998
Namibia1998
Swaziland1998
Iceland1999
Slovak Republic1999
Cyprus2000
Ireland2000
Croatia2001
Latvia2002
Ukraine2002
Estonia   2003  
Lithuania2003

Hungary

   2005  

Zambia

   2007  

Romania

   2008  

Bulgaria

   2010  

Georgia

2011

Belarus

2011

Lebanon

2011

Mongolia

2011

Ghana

2011
 



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The following table shows net sales by geographic region.
                     
              Number of
 
  Net Sales  Percent of
  Countries
 
  Year Ended December 31,  Total Net Sales
  December 31,
 
Geographic Region 2010  2009  2008  2010  2010 
  (In millions)       
 
North America $614.1  $529.0  $496.9   22.5%  4 
Mexico  334.0   263.0   352.2   12.2%  1 
South & Central America  390.4   366.9   383.6   14.3%  16 
EMEA  527.8   504.2   570.7   19.3%  38 
Asia Pacific  683.5   509.2   410.8   25.0%  14 
China  184.4   152.3   145.0   6.7%  1 
                     
Worldwide $2,734.2  $2,324.6  $2,359.2   100.0%  74 
                     

Geographic Region

  Net Sales   Percent of
Total  Net Sales
2011
  Number  of
Countries
December  31,
2011
 
  Year Ended December 31,    
  2011   2010   2009    
   (In millions)        

North America

  $698.6    $614.1    $529.0     20.2  4  

Mexico

   436.9     334.0     263.0     12.7  1  

South & Central America

   554.4     390.4     366.9     16.0  16  

EMEA

   615.2     527.8     504.2     17.8  43  

Asia Pacific

   938.6     683.5     509.2     27.2  14  

China

   210.8     184.4     152.3     6.1  1  
  

 

 

   

 

 

   

 

 

   

 

 

  

 

 

 

Worldwide

  $3,454.5    $2,734.2    $2,324.6     100.0  79  
  

 

 

   

 

 

   

 

 

   

 

 

  

 

 

 

The top six countries worldwide represented approximately 62.3%61.6%, 59.4%62.3%, and 58.0%59.4% of net sales in 2011, 2010, 2009, and 2008,2009, respectively. For financial data by segment see Note 10,Segment Information, to the notes to our consolidated financial statements.

Consolidated Financial Statements.

In many instances, after entering a new country, we experience an initial period of rapid sales growth in sales as new distributors are recruited, that is then followed by a decline in sales.sales decline. We believe that a significant factor affecting theseexisting markets is the opening of other new markets within the same geographic region or within the same or similar language or cultural bases. Some distributors tend to focus their attention on the business opportunities provided by these newer markets instead of developing their established sales organizations in existing markets to focus on driving deeper penetration. Additionally, in some instances, we have become aware that certain sales in certain existing markets were attributable to purchasers who distributed our products in countries that had not yet been opened. When these countries were opened, the sales in existing markets shifted to the newly opened markets, resulting in a decline in sales in the existing markets. To the extent we decide to open new markets in the future, we will continue to seek to minimize the impact on distributor focus in existing markets while ensuring that adequate distributor support services and introduction of daily consumption-based DMO’s,consumption DMOs, along with other Herbalife systems are in place to support growth while maintaining prior sales levels within the region.

Manufacturing and Distribution

The majority of our weight management, nutritional and personal care products are manufactured for us by third party manufacturing companies. We own proprietary formulations for substantially all of our weight management products and dietary and nutritional supplements. We source our products from multiple manufacturers, with our top three suppliers accounting for approximately 42%36% of our product purchases in 2010.total worldwide demand. In addition, many of our products can be made available from a secondary vendor if necessary. We work closely with our vendors in an effort to achieve the highest quality standards and product availability. We have established excellent relationships with our contract manufacturers and continue to obtain improvements in product quality and product delivery.

We completed the modifications to our manufacturing facility in Lake Forest, California in the second quarter of 2011 in order to increase capability and capacity. We also self-manufacture weight management, nutritional and personal care products for the China market in our Suzhou, China manufacturing facility to whichfacility. For the full year 2011, we recently made modifications. In addition, we are currently making modifications toself manufactured approximately 20% of our recently acquired manufacturing facility in Lake Forest, California in order to increase capability and capacity. Following completion of these modifications, we expect to increase our self manufacturing in the future to approximately 40% of ourtotal worldwide demand. In the current era of increasing regulatory scrutiny we are transforming our supply chain to become more vertically integrated, including building relationships all the way back to the source farms and enteringfarms. We have entered into a joint venture to build a botanical extraction facility in Changsha, Hunan, China by the end of 2011.which will be completed during 2012. We call this initiative “Seed to Feed.”

We also have made significant investments in our own state of the art quality control labs in the U.S. and China at which we routinely test products from our owned facilities and from our contract manufacturers and raw material vendors. We have established excellent relationships with our contract manufacturers and continue to obtain improvements in product quality and product delivery. Some of our key input materials such as soy and whey proteins, fructose and packaging materials are subject to pricing fluctuations driven by commodities pricing. We are


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confident that we can mitigate potential cost increases of these materials with our cost reduction program and, when necessary, by raising the prices of our products.

In order to coordinate and manage the manufacturing of our products, we utilize a significant demand planning and forecasting process that is directly tied to our production planning and purchasing systems. Using this sophisticated Oracle-based planning software and process allows us to maintain our inventory at levels that are adequate to support the growth in our business and provide exceptional service to distributors while minimizing working capital and inventory obsolescence.

Our global distribution system features centralized and decentralized distribution and telephone ordering systems coupled with storefront distributor service centers. Our major distribution warehouses have automated“pick-to-light” “pick-to-light” systems which consistently deliver high order accuracy and inspection of every shipment before it is sent to delivery. Shipping and processing standards for orders placed are either the same day or the following business day. We are currently upgrading the software and hardware in our largest distribution centers to support future business growth as well as support the ongoing shift to daily consumption business modelsDMOs which leadslead to more frequent and smaller orders.

Our products are distributed to foreign markets either directly from the facilities of our contract manufacturers or from our Los Angeles, Memphis or Venray, Netherlands distribution centers. Products are distributed in the United States market from our Los Angeles distribution center, our Memphis distribution center or from our sales centers in Dallas, New York, Chicago, Phoenix, Houston and Tracy, California. Products distributed globally are generally transported by truck, cargo ship or plane to our international markets and are warehoused in either one of our foreign distribution centers or a contracted third party warehouse and distribution center. After the products arrive in a foreign market, distributors purchase the products from the local distribution center or the associated sales center. Generally, the products manufactured in Europe are shipped to a centralized warehouse facility, from which delivery by truck, ship or plane to other international markets occurs.

Product Return and Buy-Back Policies

In most markets, our products include a customer satisfaction guarantee. Under this guarantee any customer who is not satisfied with a Herbalife product for any reason may return it or any unused portion of it within 30 days of purchase to their distributor from whom it was purchased for a full refund from the distributor or credit toward the purchase of another Herbalife product. If they return the products to us on a timely basis, the distributor may obtain replacement product from us for such returned products. In addition, in most jurisdictions,

we maintain a buy-back program pursuant to which we will repurchase products sold to a distributor. The buyback program has certain terms and conditions that may vary by market, but generally requires a distributor provided that the distributor resigns as an Herbalife distributor, returns the productto resign their distributorship and return unused products or sales materials which are unopened and in marketable condition generally within a twelve months of original purchase and meets certain documentation and other requirements.month period. We believe this buy-back policy addresses a number of the regulatory and compliance issues pertaining to network marketing, in that it offers monetary protection to distributors who want to exit their Herbalife business. Product returns and buy-back expenses were approximately 0.4%, 0.5%0.4%, and 0.8%0.5% of retail sales for the years ended December 31, 2011, 2010 2009 and 2008,2009, respectively. The decline in thesmall product return and buy-back percentage was primarily due to the global emphasis on daily consumption DMOs, which provide a more sustainable business foundation for our distributors.

Management Information, Internet and Telecommunication Systems

In order to facilitate our continued growth and support distributor activities, we continually upgrade our applications, infrastructure and telecommunication systems. These systems include: (1) three data centers located in Colorado Springs, Hong Kong, and Venray, Netherlands, which connect our international markets through a dedicated wide area network that provides on-line, real-time computer connectivity and access to our global Oracle Enterprise Resource Planning (ERP) platform as well as legacy operating systems and other key transactional and analytical systems; (2) local area networks of personal computers within our markets, serving our regional administrative staffs; (3) an internationale-mail system through which our employees communicate; (4) a standardized Avaya Northern Telecom Meridian telecommunication system in most of our markets; and (5) Internet websites to provide a variety of online services for distributors such as status of qualifications, meeting announcements, product information, application forms, educational materials and, in select markets including the


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United States, sales ordering capabilities. These systems are designed to provide, among other things, financial and operating data for management, timely and accurate product ordering, royalty override payment processing, inventory management and detailed distributor records. We intend to continue to invest in these systems in order to strengthen our operating platform and support the future growth of our business.

Regulation

General

In both our United States and foreign markets, we are affected by extensive laws, governmental regulations, administrative determinations, court decisions and similar constraints. Such laws, regulations and other constraints exist at the federal, state or local levels in the United States and at all levels of government in foreign jurisdictions, including regulations pertaining to: (1) the formulation, manufacturing, packaging, labeling, distribution, importation, sale and storage of our products; (2) product claims and advertising, including direct claims and advertising by us, as well as claims and advertising by distributors, for which we may be held responsible; (3) our network marketing program; (4) transfer pricing and similar regulations that affect the level of U.S. and foreign taxable income and customs duties; and (5) taxation of our independent distributors (which in some instances may impose an obligation on us to collect the taxes and maintain appropriate records).

; and (6) currency exchange and repatriation.

Products

In the United States, the formulation, manufacturing, packaging, storing, labeling, promotion, advertising, distribution and sale of our products are subject to regulation by various governmental agencies, including (1) the Food and Drug Administration, or FDA, (2) the Federal Trade Commission, or FTC, (3) the Consumer Product Safety Commission, or CPSC, (4) the United States Department of Agriculture, or USDA, (5) the Environmental Protection Agency, or EPA, (6) the United States Postal Service, (7) United States Customs and Border Patrol, and (8) the Drug Enforcement Administration. Our activities also are regulated by various agencies of the states, localities and foreign countries in which our products are manufactured, distributed and sold. The FDA, in particular, regulates the formulation, manufacture and labeling ofover-the-counter, or OTC, drugs, conventional foods, dietary supplements, and cosmetics such as those distributed by us. FDA regulations require us and our

suppliers to meet relevant current good manufacturing practice, or cGMP, regulations for the preparation, packing and storage of foods and OTC drugs. Herbalife has implemented enhancements, modifications and improvements to its manufacturing and corporate quality processes and believes we are compliant with the FDA’s cGMP final rule with respect to dietary supplements sold by Herbalife in the United States. The final cGMP rule has resulted in additional costs. See item 1A —Risk Factorsfor further discussion regarding the promulgated cGMP regulations. If we were to be found not in compliance with cGMP regulations, it could have a material adverse effect on our results of operations and financial statements.

Most OTC drugs are subject to FDA Monographs that establish labeling and composition requirements for these products. Those of our products which are classified as OTC drugs must comply with these Monographs, and our manufacturers must list all products with the FDA and follow cGMP.cGMP rules. Our cosmetic products are regulated for safety by the FDA, which requires that ingredients meet industry standards for non-allergenicity and non-toxicity. Performance claims for cosmetics may not be “therapeutic.”

The U.S. Dietary Supplement Health and Education Act of 1994, or DSHEA, revised the provisions of the Federal Food, Drug and Cosmetic Act, or FFDCA, concerning the composition and labeling of dietary supplements and, we believe, the revisions are generally favorable to the dietary supplement industry. The legislation created a new statutory class of dietary supplements. This new class includes vitamins, minerals, herbs, amino acids and other dietary substances for human use to supplement the diet, and the legislation grandfathers, with some limitations, dietary ingredients that were on the market before October 15, 1994. A dietary supplement that contains a dietary ingredient that was not on the market before October 15, 1994 will require evidence of a history of use or other evidence of safety establishing that it is reasonably expected to be safe. During July, 2011, the FDA promulgated its New Dietary Ingredient Notification Draft Guidance, or the draft Guidance, representing the agency’s current thinking on this subject. On October 13, 2011, Herbalife submitted its comments to the FDA suggesting six ways that it believes would make the draft Guidance more workable for the Company and for the agency while others in the industry have called for the agency to withdraw the draft Guidance. The FDA is evaluating these comments and it is uncertain what form a final Guidance would take. Manufacturers or marketers of dietary supplements in the United States and certain other jurisdictions that make product performance claims, including structure/function claims, must have substantiation in their possession that the statements are truthful and not misleading. ShouldDepending on the form of any final Guidance issued by the FDA promulgate guidance on the use of New Dietary Ingredients, the Company may be


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required to substantiate that so-called “grandfathered” ingredients used in our products were actually used in commerce in food prior to the passage of DSHEA on October 15, 1994. The majority of the products marketed by us in the United States are classified as conventional foods or dietary supplements under the FFDCA. Internationally, the majority of products marketed by us are classified as foods or food supplements.

In January 2000, the FDA issued a regulation that defines the types of statements that can be made concerning the effect of a dietary supplement on the structure or function of the body pursuant to DSHEA. Under DSHEA, dietary supplement labeling may bear structure or function claims, which are claims that the products affect the structure or function of the body, without prior FDA approval, but with notification to the FDA. They may not bear a claim that they can prevent, treat, cure, mitigate or diagnose disease (a disease claim). The regulation describes how the FDA distinguishes disease claims from structure/function claims. During 2004, the FDA issued guidance, paralleling an earlier guidance from the FTC, defining a manufacturer’s obligations to substantiate structure/function claims. The FDA also issued a Structure/Function Claims Small Entity Compliance Guide. In addition, the agency permits companies to use FDA-approved full and qualified health claims for products containing specific ingredients that meet stated requirements.

As a marketer of dietary and nutritional supplements and other products that are ingested by consumers, we are subject to the risk that one or more of the ingredients in our products may become the subject of regulatory action. A number of states restricted the sale of dietary supplements containing botanical sources of ephedrine alkaloids. We stopped sales of dietary supplements containing botanical sources of ephedrine alkaloids due to a shift in consumer preference for “ephedra free products” and a significant increase in products liability insurance premiums for products containing botanical sources of ephedrine group alkaloids. On December 31, 2002, we ceased sales ofThermojetics® original green herbal tablets containing ephedrine alkaloids derived from Chinese

Ma huang, as well asThermojetics® green herbal tablets andThermojetics® gold herbal tablets (the latter two containing the herbSida cordifoliawhich is another botanical source of ephedrine alkaloids). On February 6, 2004, the FDA published a rule finding that dietary supplements containing ephedrine alkaloids present an unreasonable risk of illness or injury under conditions of use recommended or suggested in the labeling of the product, or, if no conditions of use are suggested in the labeling, under ordinary conditions of use, and are therefore adulterated.

The FDA’s decision to ban ephedra triggered a significant reaction by the national media, some of whom are calling for the repeal or amendment of DSHEA. These media view supposed “weaknesses” within DSHEA as the underlying reason why ephedra was allowed to remain on the market. We have been advised that DSHEA opponents in Congress may use this anti-DSHEA momentum to advance new legislation during the 112th Congress to amend or repeal DSHEA or to regulate specific product types or the use of specific ingredients. If this should occur we believe that the DSHEA opponents may propose one or more of the following: (1) premarket approval for safety and effectiveness of dietary ingredients; (2) specific premarket review of dietary ingredient stimulants; (3) reversal of the burden of proof standard which now rests on the FDA; and (4) a redefining of “dietary ingredient” to remove either botanicals or selected classes of ingredients now treated as dietary ingredients.

On December 22, 2007, a law went into effect in the United States mandating the reporting of all serious adverse events occurring within the United States which involve dietary supplements or OTC drugs. We believe that we are in full compliance with this law having promulgated and implemented a worldwide procedure governing adverse event identification, investigation and reporting which is managed by our Global Product Science, Safety and Compliance department in collaboration with our Regulatory Affairs department, our Medical Affairs department and our Distributor Relations Call Centers. As a result of our receipt of adverse event reports, we may from time to time elect, or be required, to remove a product from a market, either temporarily or permanently.

On June 25, 2007, the FDA published its final rule regulating current good manufacturing practices, or cGMP, for dietary supplements. This final rule became effective on August 24, 2007. The final rule requires that companies establish written procedures governing: (1) personnel, (2) plant and equipment cleanliness, (3) lab and testing, (4) packaging and labeling, and (5) distribution. The FDA also required 100 percent identity testing of all incoming raw materials, although an interim final rule enables companies to petition for an exemption from the 100 percent testing requirement if they can demonstrate the existence of an appropriate statistical sampling program. The cGMPs help ensure that dietary supplements and dietary ingredients are not adulterated with contaminants or impurities, and are labeled to accurately reflect the active ingredients and other ingredients in the products. We have


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evaluated the final cGMP rule with respect to its potential impact upon the various contract manufacturers that we use to manufacture our products, some of which might not have met the new standards. It is important to note that the final cGMP rule, in an effort to limit disruption, included a three-year phase-in for small businesses. The final cGMP rule has resulted in additional costs. See Item 1A —Risk Factorsfor further discussion regarding the promulgated cGMP regulations.

Some of the products marketed by us are considered conventional foods and are currently labeled as such. Within the United States, this category of products is subject to the Nutrition, Labeling and Education Act, or NLEA, and regulations promulgated under the NLEA. The NLEA regulates health claims, ingredient labeling and nutrient content claims characterizing the level of a nutrient in the product. The ingredients added to conventional foods must either be generally recognized as safe by experts, or GRAS, or be approved as food additives under FDA regulations.

In foreign markets, prior to commencing operations and prior to making or permitting sales of our products in the market, we may be required to obtain an approval, license or certification from the relevant country’s ministry of health or comparable agency. Where a formal approval, license or certification is not required, we nonetheless seek a favorable opinion of counsel regarding our compliance with applicable laws. Prior to entering a new market in which a formal approval, license or certificate is required, we work extensively with local authorities in order to obtain the requisite approvals. The approval process generally requires us to present each

product and product ingredient to appropriate regulators and, in some instances, arrange for testing of products by local technicians for ingredient analysis. The approvals may be conditioned on reformulation of our products, or may be unavailable with respect to some products or some ingredients. Product reformulation or the inability to introduce some products or ingredients into a particular market may have an adverse effect on sales. We must also comply with product labeling and packaging regulations that vary from country to country. Our failure to comply with these regulations can result in a product being removed from sale in a particular market, either temporarily or permanently.

In 2005 Herbalife voluntarily elected to withdraw its Sesame & Herb tablet product from the Israeli market. This product, which has been on the market since 1989, was sold only in Israel. Herbalife’s voluntary decision to withdraw this product accompanied the initiation of a review by the Israeli Ministry of Health of anecdotal case reports of individuals having varying liver conditions when it was reported that a small number of these individuals had consumed Herbalife products. Herbalife scientists and medical doctors have closely cooperated with the Ministry of Health to facilitate this review. No regulatory action has been taken by the Israeli Ministry of Health or by any of the 2425 other regulatory agencies around the world which have looked into related matters.

The FTC, which exercises jurisdiction over the advertising of all of our products, has in the past several years instituted enforcement actions against several dietary supplement companies and against manufacturers of weight loss products generally for false and misleading advertising of some of their products. These enforcement actions have often resulted in consent decrees and monetary payments by the companies involved. In addition, the FTC has increased its scrutiny of the use of testimonials, which we also utilize, as well as the role of expert endorsers and product clinical studies. Although we have not been the target of FTC enforcement action for the advertising of our products, we cannot be sure that the FTC, or comparable foreign agencies, will not question our advertising or other operations in the future. It is unclear whether the FTC will subject our advertisements to increased surveillance to ensure compliance with the principles set forth in its published advertising guidance.

In Europe, where an EU Health Claim regulation is in effect, the European Food Safety Authority, or EFSA, issued opinions following its review of a number of proposed claims dossiers. IfESFA’s opinions, which have been accepted by the European Commission, the EFSA’s opinions couldwill have a limiting effect on the use of certain nutrition-specific claims made for our products. Such an outcome could have an adverse effect on existing product “wellness,” “well-being” and “good for you” claims presently made on existing product labeling, literature and advertising. Herbalife is currently seeking regulatory support for its current product claims while preparing for the possibility that based on limited acceptance of our claims by EFSA we may be precluded from continued use of such product claims.

In some countries, regulations applicable to the activities of our distributors also may affect our business because in some countries we are, or regulators may assert that we are, responsible for our distributors’ conduct. In these countries, regulators may request or require that we take steps to ensure that our distributors comply with local regulations. The types of regulated conduct include: (1) representations concerning our products; (2) income


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representations made by usand/or distributors; (3) public media advertisements, which in foreign markets may require prior approval by regulators; and (4) sales of products in markets in which the products have not been approved, licensed or certified for sale.

In some markets, it is possible that improper product claims by distributors could result in our products being reviewed by regulatory authorities and, as a result, being classified or placed into another category as to which stricter regulations are applicable. In addition, we might be required to make labeling changes.

We are unable to predict the nature of any future laws, regulations, interpretations or applications, nor can we predict what effect additional governmental regulations or administrative orders, when and if promulgated, would have on our business in the future. They could, however, require: (1) the reformulation of some products not capable of being reformulated; (2) imposition of additional record keeping requirements; (3) expanded documentation of the properties of some products; (4) expanded or different labeling; (5) additional scientific substantiation regarding product ingredients, safety or usefulness;and/or (6) additional distributor compliance surveillance and enforcement action by us. Any or all of these requirements could have a material adverse effect on our results of operations and financial condition.

All of our officers and directors are subject to a permanent injunction issued in October 1986 pursuant to the settlement of an action instituted by the California Attorney General, the State Health Director and the Santa Cruz County District Attorney. We consented to the entry of this injunction without in any way admitting the allegations of the complaint. The injunction prevents us and our officers and directors from making specified claims in future advertising of our products and required us to implement some documentation systems with respect to payments to our distributors. At the same time, the injunction does not prevent us from continuing to make specified claims concerning our products that have been made and are being made, provided that we have a reasonable basis for making the claims.

Network Marketing Program

Our network marketing program is subject to a number of federal and state regulations administered by the FTC and various state agencies as well as regulations in foreign markets administered by foreign agencies. Regulations applicable to network marketing organizations generally are directed at ensuring that product sales ultimately are made to consumers and that advancement within our organization is based on sales of the organization’s products rather than investments in the organization or other non-retail sales related criteria. For instance, in some markets, there are limits on the extent to which distributors may earn royalty overrides on sales generated by distributors that were not directly sponsored by the distributor. When required by law, we obtain regulatory approval of our network marketing program or, when this approval is not required, the favorable opinion of local counsel as to regulatory compliance. Nevertheless, we remain subject to the risk that, in one or more markets, our marketing system could be found not to be in compliance with applicable regulations. Failure by us to comply with these regulations could have a material adverse effect on our business in a particular market or in general.

On April 12, 2006, the FTC issued a notice of proposed rulemaking which, if implemented in its originally proposed form, would have regulated sellers of “business opportunities” in the United States. As originally proposed this rule would have applied to us and, if adopted in its originally proposed form, could have adversely affected our U.S. business. On March 18, 2008 the FTC issued a revised proposed rule and, as indicated in December, 2011, the announcement accompanying the proposedFTC issued its final rule. This final rule the revised proposal does not attempt to cover multilevel marketing companies such as Herbalife. If the revised rule is implemented as it is now proposed we believe that it would not significantly impact our U.S. business. Based on information currently available, we anticipate that the rule may become final within a year.

The FTC has approved revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, or Guides, which became effective on December 1, 2009. Although the Guides are not binding, they explain how the FTC interprets Section 5 of the FTC Act’s prohibition on unfair or deceptive acts or practices. Consequently, the FTC could bring a Section 5 enforcement action based on practices that are inconsistent with the Guides. Under the revised Guides, advertisements that feature a consumer and convey his or her atypical experience with a product or service are required to clearly disclose the results that consumers can generally expect. In contrast to the


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1980 version of the Guides, which allowed advertisers to describe atypical results in a testimonial as long as they included a disclaimer such as “results not typical”, the revised Guides no longer contain such a safe harbor. The revised Guides also add new examples to illustrate the long-standing principle that “material connections” between advertisers and endorsers (such as payments or free products), connections that consumers might not expect, must be disclosed. Herbalife has adapted its practices and rules regarding the practices of its independent distributors to comply with the revised Guides. However, it is possible that our use, and that of our independent distributors, of testimonials in the advertising and promotion of our products, including but not limited to our weight management products and of our income opportunity will be significantly impacted and therefore might negatively impact our sales.

We also are subject to the risk of private party challenges to the legality of our network marketing program. For example, inWebster v. Omnitrition International, Inc., 79 F.3d 776 (9th Cir. 1996), the multi-level marketing program of Omnitrition International, Inc., or Omnitrition, was successfully challenged in a class action by Omnitrition distributors who alleged that Omnitrition was operating an illegal “pyramid scheme” in violation of federal and state laws. We believe that our network marketing program satisfies the standards set forth in the Omnitrition case and other applicable statutes and case law defining a legal network marketing system, in part based upon significant differences between our marketing system and that described in the Omnitrition case.

We are also subject to the risk of private party challenges to the legality of our network marketing program. The

Some multi-level marketing programs of other companies have been successfully challenged in the past, and in a current lawsuit, allegationswhile other challenges to multi-level marketing programs of other companies have been made challenging the legality of our network marketing program in Belgium.defeated. In 2004 Test Ankoop-Test Achat, a Belgian consumer protection organization, sued Herbalife International Belgium, S.V., or HIB, on August 26, 2004, allegingchallenging the legality of our network marketing program in Belgium. On November 23, 2011, the Brussels Commercial Court rendered a judgment that HIB violated Article 84is in violation of the Belgian Fair Tradelaw on Unfair Commercial Practices Act by engaging inestablishing, operating or promoting a pyramid selling,i.e., establishingscheme where a networkconsumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of professional or non-professional sales people who hope to make a profit more throughother consumers into the expansion of that networkscheme rather than throughfrom the sale or consumption of products to end-consumers.products. The plaintiff is seekingcourt ordered cessation of the violation, and a penalty payment of €25,000 (equalEUR 5,000 per infringement (limited to approximately $33,000 asa total amount of December 31, 2010) per purported violation as well as costspenalty payments of EUR 250,000) starting two months from the official notification of the trial. Forjudgment. HIB has not yet been officially notified of the year ended December 31, 2010, our net sales in Belgium were approximately $16.8 million. Currently,judgment. The Company believes the lawsuittrial court’s judgment is inflawed legally and factually and plans to appeal the pleading stage. The plaintiffs filed their initial brief on September 27, 2005. We filed a reply brief on May 9, 2006judgment. Nonetheless, the Company is exploring various relatively minor clarifications and on December 9, 2008 plaintiffs filed a responsive brief and on June 24, 2009 we filed a reply brief. An oral hearing was held on November 3, 2010. The court issued an interim judgment on November 24, 2010 orderingchanges to ensure compliance with the parties to address a change intrial court’s decision pending the underlying Belgian statute. A hearing is scheduled for March 2, 2011. Anappeal procedure. This or other adverse judicial determinationdeterminations with respect to our network marketing program, or in proceedings not involving us directly but which challenge the legality of multi-level marketing systems, in Belgium or in any other market in which we operate, could negatively impact our business. We believe that we have meritorious defensesbasis to the suit.

appeal this judgment.

It is an ongoing part of our business to monitor and respond to regulatory and legal developments, including those that may affect our network marketing program. However, the regulatory requirements concerning network marketing programs do not include bright line rules and are inherently fact-based. An adverse judicial determination with respect to our network marketing program could have a material adverse effect onto our business.financial condition and operating results. An adverse determination could: (1) require us to make modifications to our network marketing program, (2) result in negative publicity or (3) have a negative impact on distributor morale. In addition, adverse rulings by courts in any proceedings challenging the legality of multi-level marketing systems, even in those not involving us directly, could have a material adverse effect on our operations.

Transfer Pricing and Similar Regulations

In many countries, including the United States, we are subject to transfer pricing and other tax regulations designed to ensure that appropriate levels of income are reported as earned by our U.S. or local entities and are taxed accordingly. In addition, our operations are subject to regulations designed to ensure that appropriate levels of customs duties are assessed on the importation of our products.

Although we believe that we are in substantial compliance with all applicable regulations and restrictions, we are subject to the risk that governmental authorities could audit our transfer pricing and related practices and assert that additional taxes are owed. For example, we are currently subject to pending or proposed audits that are at various levels of review, assessment or appeal in a number of jurisdictions involving transfer pricing issues, income


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taxes, duties, value added taxes, withholding taxes and related interest and penalties in material amounts. In some circumstances, additional taxes, interest and penalties have been assessed, and we will be required to appeal or litigate to reverse the assessments. We have taken advice from our tax advisors and believe that there are substantial defenses to the allegations that additional taxes are owed, and we are vigorously defending against the imposition of additional proposed taxes. The ultimate resolution of these matters may take several years, and the outcome is uncertain.

In the event that the audits or assessments are concluded adversely to us, we may or may not be able to offset or mitigate the consolidated effect of foreign income tax assessments through the use of U.S. foreign tax credits. Currently, we anticipate utilizing the majority of our foreign tax credits in the year in which they arise with the unused amount carried forward. Because the laws and regulations governing U.S. foreign tax credits are complex and subject to periodic legislative amendment, we cannot be sure that we would in fact be able to take advantage of any foreign tax credits in the future. As a result, adverse outcomes in these matters could have a material impact on our financial condition and operating results.

Other Regulations

We also are subject to a variety of other regulations in various foreign markets, including regulations pertaining to social security assessments, employment and severance pay requirements, import/export regulations and antitrust issues. As an example, in many markets, we are substantially restricted in the amount and types of rules and termination criteria that we can impose on distributors without having to pay social security assessments on behalf of the distributors and without incurring severance obligations to terminated distributors. In some countries, we may be subject to these obligations in any event.

Our failure to comply with these regulations could have a material adverse effect on our business in a particular market or in general. Assertions that we failed to comply with regulations or the effect of adverse regulations in one market could adversely affect us in other markets as well by causing increased regulatory scrutiny in those other markets or as a result of the negative publicity generated in those other markets.

Compliance Procedures

As indicated above, Herbalife, our products and our network marketing program are subject, both directly and indirectly through distributors’ conduct, to numerous federal, state and local regulations, both in the United States and foreign markets. Beginning in 1985, we began to institute formal regulatory compliance measures by developing a system to identify specific complaints against distributors and to remedy any violations of Herbalife’s rules by distributors through appropriate sanctions, including warnings, suspensions and, when necessary, terminations. In our manuals, seminars and other training programs and materials, we emphasize that distributors are prohibited from making therapeutic claims for our products.

Our general policy regarding acceptance of distributor applications from individuals who do not reside in one of our markets is to refuse to accept the individual’s distributor application. From time to time, exceptions to the policy are made on acountry-by-country basis.

In order to comply with regulations that apply to both us and our distributors, we conduct considerable research into the applicable regulatory framework prior to entering any new market to identify all necessary licenses and approvals and applicable limitations on our operations in that market. Typically, we conduct this research with the assistance of local legal counsel and other representatives. We devote substantial resources to obtaining the necessary licenses and approvals and bringing our operations into compliance with the applicable limitations. We also research laws applicable to distributor operations and revise or alter our distributor manuals and other training materials and programs to provide distributors with guidelines for operating a business, marketing and distributing our products and similar matters, as required by applicable regulations in each market. We are, however, unable to monitor our sales leaders and distributors effectively to ensure that they refrain from distributing our products in countries where we have not commenced operations, and we do not devote significant resources to this type of monitoring.


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In addition, regulations in existing and new markets often are ambiguous and subject to considerable interpretive and enforcement discretion by the responsible regulators. Moreover, even when we believe that we and our distributors are initially in compliance with all applicable regulations, new regulations regularly are being added and the interpretation of existing regulations is subject to change. Further, the content and impact of regulations to which we are subject may be influenced by public attention directed at us, our products or our network marketing program, so that extensive adverse publicity about us, our products or our network marketing program may result in increased regulatory scrutiny.

It is an ongoing part of our business to anticipate and respond to new and changing regulations and to make corresponding changes in our operations to the extent practicable. Although we devote considerable resources to maintaining our compliance with regulatory constraints in each of our markets, we cannot be sure that (1) we would be found to be in full compliance with applicable regulations in all of our markets at any given time or (2) the regulatory authorities in one or more markets will not assert, either retroactively or prospectively or both, that our operations are not in full compliance. These assertions or the effect of adverse regulations in one market

could negatively affect us in other markets as well by causing increased regulatory scrutiny in those other markets or as a result of the negative publicity generated in those other markets. These assertions could have a material adverse effect on us in a particular market or in general. Furthermore, depending upon the severity of regulatory changes in a particular market and the changes in our operations that would be necessitated to maintain compliance, these changes could result in our experiencing a material reduction in sales in the market or determining to exit the market altogether. In this event, we would attempt to devote the resources previously devoted to such market to a new market or markets or other existing markets. However, we cannot be sure that this transition would not have an adverse effect on our business and results of operations either in the short or long-term.

Trademarks and Proprietary Formulas

We use the umbrella trademarks Herbalife and the Tri-Leaf design worldwide, and protect several other trademarks and trade names related to our products and operations, such asNiteworks®, Nourifusion®,andLiftoff®. Our trademark registrations are issued through the United States Patent and Trademark Office, or USPTO, and comparable agencies in the foreign countries. We consider our trademarks and trade names to be an important factor in our business. We also take care in protecting the intellectual property rights of our proprietary formulas by restricting access to our formulas within the Company to those persons or departments that require access to them to perform their functions, and by requiring our finished goods-suppliers and consultants to execute supply and non-disclosure agreements that seek to contractually protect our intellectual property rights. Disclosure of these formulas, in redacted form, is also necessary to obtain sanitary registrations in many countries. We also make efforts to protect some unique formulations under patent law. We strive to protect all new product developments as the confidential trade secrets of the Company and its inventor employees. However, despite our efforts, we may be unable to prevent third parties from infringing upon or misappropriating our proprietary rights.

Competition

The business of marketing weight management and nutrition products is highly competitive. This market segment includes numerous manufacturers, distributors, marketers, retailers and physicians that actively compete for the business of consumers both in the U.S. and abroad. The market is highly sensitive to the introduction of new products or weight management plans, including various prescriptions and over the counter drugs that may rapidly capture a significant share of the market. As a result, our ability to remain competitive depends in part upon the successful introduction of new products. In addition, we anticipate that we will be subject to increasing competition in the future from sellers that utilize electronic commerce. We cannot be sure of the impact of electronic commerce or that it will not adversely affect our business.

We are subject to significant competition for the recruitment of distributors from other network marketing organizations, including those that market weight management products, nutritional supplements and personal care products, as well as other types of products. Some of our competitors are substantially larger than we are, and have considerably greater financial resources than we have. Our ability to remain competitive depends, in significant part, on our success in recruiting and retaining distributors through an attractive compensation plan and other incentives. We believe that our production bonus program, international sponsorship program and other


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compensation and incentive programs provide our distributors with significant earning potential. However, we cannot be sure that our programs for recruitment and retention of distributors will be successful.

Executive Officers of the Registrant

The table sets forth certain information regarding each person who serves as an executive officer of the Company.

Name

Age   

Position with the Company

Michael O. Johnson

   
NameAgePosition with the Company
Michael O. Johnson57    56

Chief Executive Officer, Director,

Chairman of the Board

Desmond Walsh

   Chief Executive Officer, Director,
Chairman of the Board
Desmond Walsh5354    President

Richard Goudis

   4950    Chief Operating Officer

Brett R. Chapman

   5556    General Counsel and Corporate Secretary

John DeSimone

   4445    Chief Financial Officer

Michael O. Johnsonis Chairman and Chief Executive Officer of the Company. Mr. Johnson joined the Company in April 2003 as Chief Executive Officer and became Chairman of the Board in May 2007. Before joining the Company Mr. Johnson spent 17 years with The Walt Disney Company, where he most recently served as President of Walt Disney International, and also served as President of Asia Pacific for The Walt Disney Company and President of Buena Vista Home Entertainment. Mr. Johnson has also previously served as a publisher ofAudio Timesmagazine, and has directed the regional sales efforts of Warner Amex Satellite Entertainment Company for three of its television channels, including MTV, Nickelodeon and The Movie Channel. Mr. Johnson formerly served as a director of Univision Communications, Inc., a television company serving Spanish-speaking Americans, and served on the Board of Regents for Loyola High School of Los Angeles. Mr. Johnson received his Bachelor of Arts in Political Science from Western State College.

Desmond Walshis the President of the Company and has held this position since January 2010. Mr. Walsh joined the Company in January 2004 as Senior Vice President, Worldwide Distributor Sales and was promoted to Executive Vice President for Worldwide Operations and Sales in April 2008. From 2001 to 2004, Mr. Walsh served as the Senior Vice President of the commercial division of DMX Music. Prior to DMX Music, Mr. Walsh spent five years as Vice President and General Manager of Supercomm, Inc., a subsidiary of the Walt Disney Company. Mr. Walsh also previously served in management positions at MovieQuik Systems, a division of The Southland Corporation (now 7-Eleven) and at Commtron Corporation, a leading consumer electronics and video distribution company. Mr. Walsh received his Bachelor of Laws degree from the University of London.

Richard Goudisis Chief Operating Officer of the Company and has held this position since January 2010. Mr. Goudis joined the Company in June 2004 as Chief Financial Officer after serving as the Chief Operating Officer of Rexall Sundown, a Nasdaq 100 company that was sold to Royal Numico in 2000, from 1998 to 2001. After the sale to Royal Numico, Mr. Goudis had operations responsibility for all of Royal Numico’s U.S. investments, including General Nutrition Centers, or GNC, Unicity International and Rexall Sundown. From 2002 to May 2004, Mr. Goudis was a partner at Flamingo Capital Partners, a firm he founded in 2002. Mr. Goudis also previously worked at Sunbeam Corporation and Pratt & Whitney. Mr. Goudis graduated from the University of Massachusetts with a degree in Accounting and he received his MBA from Nova Southeastern University.

Brett R. Chapmanis General Counsel and Corporate Secretary of the Company and has held these positions since October 2003. Before joining the Company in October 2003, Mr. Chapman spent thirteen years at The Walt Disney Company, most recently as its Senior Vice President and Deputy General Counsel, with responsibility for all legal matters relating to Disney’s Media Networks Group, including the ABC Television Network, the company’s cable properties including The Disney Channel and ESPN, and Disney’s radio and internet businesses. Prior to working at The Walt Disney Company, Mr. Chapman was an associate at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP. Mr. Chapman received his Bachelor of Science and Master of Science in Business Administration from California State University, Northridge and his Juris Doctorate from Southwestern University School of Law.

John DeSimoneis Chief Financial Officer of the Company and has held this position since January 2010. Mr. DeSimone joined the Company in November 2007 as Senior Vice President — Finance and was promoted to


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the position of Senior Vice President — Finance & Distributor Operations in December 2008. From June 2004 through October 2007, Mr. DeSimone served as the Chief Executive Officer of Mobile Ventures, LLC (formerly known as Autoware, Inc.), an automotive aftermarket accessory distributor and retailer. Prior to working at Mobile Ventures, LLC, Mr. DeSimone previously served as the Controller, Vice President of Finance and Chief Financial Officer of Rexall Sundown, Inc., a multinational manufacturer and distributor of nutritional supplements and sports nutrition products that was publicly traded while Mr. DeSimone served as its Controller and Vice President of Finance. Mr. DeSimone received his Bachelor of Science in Business Administration from Bryant College (now known as Bryant University).

Employees

As of December 31, 2010,2011, we had approximately 4,5005,100 employees. In China, as of December 31, 2010, we also had labor contracts with approximately 49,000 employed sales representatives. These numbers do not include our distributors, who are independent contractors rather than employees. Except for some employees in Mexico and in certain European countries, none of our employees are members of any labor union, and we have never experienced any business interruption as a result of any labor disputes.

Available Information

Our Internet website address iswww.Herbalife.com.We make available free of charge on our website our Annual Reports onForm 10-K, Quarterly Reports onForm 10-Q, Current Reports onForm 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, as soon as reasonably practical after we file such material with, or furnish it to, the Securities and Exchange Commission, or SEC. This information is also available in print to any shareholder who requests it, with any such requests addressed to Investor Relations, 800 West Olympic Blvd., Suite 406, Los Angeles, CA 90015. Certain of these documents may also be obtained by calling the SEC at1-800-SEC-0330. The SEC also maintains an Internet website that contains reports, and other information regarding issuers that file electronically with the SEC atwww.sec.gov.We also make available free of charge on our website our Corporate Governance Guidelines, our Code of Business Conduct and Ethics, and the Charters of our Audit Committee, Nominating and Corporate Governance, and NominatingCompensation Committee and Compensation Committee.

of our Board of Directors.

Item 1A. RISK FACTORS

The worldwide financial and economic “crisis” could negatively impact our access to credit and the sales of our products and could harm our financial condition and operating results.

We are closely monitoring various aspects of the current worldwide financial and economic “crisis” and its potential impact on us, our liquidity, our access to capital, our operations and our overall financial condition. While we have historically met our funding needs utilizing cash flow from operating activities and while we believe we will have sufficient resources to meet current debt service obligations in a timely manner, no assurances can be given that the current overall downturn in the world economy will not significantly adversely impact us and our business operations. We note economic and financial markets are fluid and we cannot ensure that there will not be in the near future a material adverse deterioration in our sales or liquidity.

While our current senior secured variable credit facility can also be used to support our current liquidity requirements, increases in interest rates could negatively affect the cost of financing our operations if our future borrowings were to increase.

Our failure to establish and maintain distributor relationships for any reason could negatively impact sales of our products and harm our financial condition and operating results.

We distribute our products exclusively through approximately 2.12.7 million independent distributors, and we depend upon them directly for substantially all of our sales. To increase our revenue, we must increase the

number of, or the productivity of, our distributors. Accordingly, our success depends in significant part upon our ability to recruit, retain and motivate a large base of distributors. The loss of a significant number of distributors for any reason could negatively impact sales of our products and could impair our ability to attract new distributors. In our efforts to attract and retain distributors, we compete with other network marketing organizations, including those in the weight management, dietary and nutritional supplement and personal care and cosmetic product industries. Our


25


operating results could be harmed if our existing and new business opportunities and products do not generate sufficient interest to retain existing distributors and attract new distributors.

Our distributor organization has a high turnover rate, which is a common characteristic found in the direct selling industry. In light of this fact, we have our sales leaders re-qualify annually in order to maintain a more accurate count of their numbers. For the latest twelve month re-qualification period ending January 2011,2012, approximately 49%52% of our sales leaders, excluding China, re-qualified. Distributors who purchase our product for personal consumption or for short-term income goals may stay with us for several months to one year. Sales leaders who have committed time and effort to build a sales organization will generally stay for longer periods. Distributors have highly variable levels of training, skills and capabilities. The turnover rate of our distributors, and our operating results, can be adversely impacted if we, and our senior distributor leadership, do not provide the necessary mentoring, training and business support tools for new distributors to become successful sales people in a short period of time.

We estimate that, of our approximately 2.12.7 million independent distributors, we had approximately 483,000548,000 sales leaders as of December 31, 2010.2011. These sales leaders, together with their downline sales organizations, account for substantially all of our revenues. Our distributors, including our sales leaders, may voluntarily terminate their distributor agreements with us at any time. The loss of a group of leading sales leaders, together with their downline sales organizations, or the loss of a significant number of distributors for any reason, could negatively impact sales of our products, impair our ability to attract new distributors and harm our financial condition and operating results.

Since we cannot exert the same level of influence or control over our independent distributors as we could were they our own employees, our distributors could fail to comply with our distributor policies and procedures, which could result in claims against us that could harm our financial condition and operating results.

Excluding our China sales employees, our

Our distributors are independent contractors and, accordingly, we are not in a position to directly provide the same direction, motivation and oversight as we would if distributors were our own employees. As a result, there can be no assurance that our distributors will participate in our marketing strategies or plans, accept our introduction of new products, or comply with our distributor policies and procedures.

Extensive federal, state and local laws regulate our business, products and network marketing program. Because we have expanded into foreign countries, our policies and procedures for our independent distributors differ due to the different legal requirements of each country in which we do business. While we have implemented distributor policies and procedures designed to govern distributor conduct and to protect the goodwill associated with Herbalife trademarks and tradenames, it can be difficult to enforce these policies and procedures because of the large number of distributors and their independent status. Violations by our independent distributors of applicable law or of our policies and procedures in dealing with customers could reflect negatively on our products and operations and harm our business reputation. In addition, it is possible that a court could hold us civilly or criminally accountable based on vicarious liability because of the actions of our independent distributors.

Adverse publicity associated with our products, ingredients or network marketing program, or those of similar companies, could harm our financial condition and operating results.

The size of our distribution force and the results of our operations may be significantly affected by the public’s perception of the Company and similar companies. This perception is dependent upon opinions concerning:

• 

the safety and quality of our products and ingredients;

• the safety and quality of similar products and ingredients distributed by other companies;
• our distributors;
• our network marketing program; and
• the direct selling business generally.


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the safety and quality of similar products and ingredients distributed by other companies;

our distributors;

our network marketing program; and

the direct selling business generally.

Adverse publicity concerning any actual or purported failure of our Company or our independent distributors to comply with applicable laws and regulations regarding product claims and advertising, good manufacturing practices, the regulation of our network marketing program, the licensing of our products for sale in our target markets or other aspects of our business, whether or not resulting in enforcement actions or the imposition of penalties, could have an adverse effect on the goodwill of our Company and could negatively affect our ability to attract, motivate and retain distributors, which would negatively impact our ability to generate revenue. We cannot ensure that all distributors will comply with applicable legal requirements relating to the advertising, labeling, licensing or distribution of our products.

In addition, our distributors’ and consumers’ perception of the safety and quality of our products and ingredients as well as similar products and ingredients distributed by other companies can be significantly influenced by media attention, publicized scientific research or findings, widespread product liability claims and other publicity concerning our products or ingredients or similar products and ingredients distributed by other companies. For example, in May 2008 public allegations were made that certain of our products contain excessive amounts of lead thereby triggering disclosure and labeling requirements under California Proposition 65. Following an investigation, these allegations were publicly withdrawn by the allegations initiator. While we have confidence in our products because they fall within FDA suggested guidelines as well as applicable state regulations for the amount of lead that consumers can safely ingest and do not believe they trigger disclosure or labeling requirements under California Proposition 65, negative publicity such as this can disrupt our business. Adverse publicity, whether or not accurate or resulting from consumers’ use or misuse of our products, that associates consumption of our products or ingredients or any similar products or ingredients with illness or other adverse effects, questions the benefits of our or similar products or claims that any such products are ineffective, inappropriately labeled or have inaccurate instructions as to their use, could lead to lawsuits or other legal challenges and could negatively impact our reputation, the market demand for our products, or our general business.

From time to time we receive inquiries from government agencies and third parties requesting information concerning our products. We fully cooperate with these inquiries including, when requested, by the submission of detailed technical dossiers addressing product composition, manufacturing, process control, quality assurance, and contaminant testing. We understand that such materials are undergoing review by regulators in certain markets. In the course of one such inquiry the Spanish Ministry of Health electedFurther, we periodically respond to issue a press release, or communicado, to inform the public of a then on-going inquiry and dialogue with our Company. Upon completion of its review of Herbalife products distributed in Spain, the Spanish Ministry of Health withdrew its communicado in April 2009.requests from regulators for additional information regarding product-specific adverse events. We are confident in the safety of our products when used as directed. However, there can be no assurance that regulators in these or other markets will not take actions that might delay or prevent the introduction of new products, or require the reformulation or the temporary or permanent withdrawal of certain of our existing products from their markets.

Adverse publicity relating to us, our products or our operations, including our network marketing program or the attractiveness or viability of the financial opportunities provided thereby, has had, and could again have, a negative effect on our ability to attract, motivate and retain distributors. In the mid-1980’s, our products and marketing program became the subject of regulatory scrutiny in the United States, resulting in large part from

claims and representations made about our products by our independent distributors, including impermissible therapeutic claims. The resulting adverse publicity caused a rapid, substantial loss of distributors in the United States and a corresponding reduction in sales beginning in 1985. We expect that negative publicity will, from time to time, continue to negatively impact our business in particular markets.

Our failure to appropriately respond to changing consumer preferences and demand for new products or product enhancements could significantly harm our distributor and customer relationships and product sales and harm our financial condition and operating results.

Our business is subject to changing consumer trends and preferences, especially with respect to weight management products. Our continued success depends in part on our ability to anticipate and respond to these changes, and we may not respond in a timely or commercially appropriate manner to such changes. Furthermore, the nutritional supplement industry is characterized by rapid and frequent changes in demand for products and new product introductions and enhancements. Our failure to accurately predict these trends could negatively impact


27


consumer opinion of our products, which in turn could harm our customer and distributor relationships and cause the loss of sales. The success of our new product offerings and enhancements depends upon a number of factors, including our ability to:

accurately anticipate customer needs;

innovate and develop new products or product enhancements that meet these needs;

• accurately anticipate customer needs;
• innovate and develop new products or product enhancements that meet these needs;
• successfully commercialize new products or product enhancements in a timely manner;
• price our products competitively;
• manufacture and deliver our products in sufficient volumes and in a timely manner; and
• differentiate our product offerings from those of our competitors.

successfully commercialize new products or product enhancements in a timely manner;

price our products competitively;

manufacture and deliver our products in sufficient volumes and in a timely manner; and

differentiate our product offerings from those of our competitors.

If we do not introduce new products or make enhancements to meet the changing needs of our customers in a timely manner, some of our products could be rendered obsolete, which could negatively impact our revenues, financial condition and operating results.

Due to the high level of competition in our industry, we might fail to retain our customers and distributors, which would harm our financial condition and operating results.

The business of marketing weight management and nutrition products is highly competitive and sensitive to the introduction of new products or weight management plans, including various prescription drugs, which may rapidly capture a significant share of the market. These market segments include numerous manufacturers, distributors, marketers, retailers and physicians that actively compete for the business of consumers both in the United States and abroad. In addition, we anticipate that we will be subject to increasing competition in the future from sellers that utilize electronic commerce. Some of these competitors have longer operating histories, significantly greater financial, technical, product development, marketing and sales resources, greater name recognition, larger established customer bases and better-developed distribution channels than we do. Our present or future competitors may be able to develop products that are comparable or superior to those we offer, adapt more quickly than we do to new technologies, evolving industry trends and standards or customer requirements, or devote greater resources to the development, promotion and sale of their products than we do. For example, if our competitors develop other diet or weight loss treatments that prove to be more effective than our products, demand for our products could be reduced. Accordingly, we may not be able to compete effectively in our markets and competition may intensify.

We are also subject to significant competition for the recruitment of distributors from other network marketing organizations, including those that market weight management products, dietary and nutritional supplements and personal care products as well as other types of products. We compete for global customers and distributors

with regard to weight management, nutritional supplement and personal care products. Our competitors include both direct selling companies such as NuSkin Enterprises, Nature’s Sunshine, Alticor/Amway, Melaleuca, Avon Products, Oriflame, Tupperware and Mary Kay, as well as retail establishments such as Weight Watchers, Jenny Craig, General Nutrition Centers, Wal-Mart and retail pharmacies.

In addition, because the industry in which we operate is not particularly capital intensive or otherwise subject to high barriers to entry, it is relatively easy for new competitors to emerge who will compete with us for our distributors and customers. In addition, the fact that our distributors may easily enter and exit our network marketing program contributes to the level of competition that we face. For example, a distributor can enter or exit our network marketing system with relative ease at any time without facing a significant investment or loss of capital because (1) we have a low upfront financial cost to become a Herbalife distributor, (2) we do not require any specific amount of time to work as a distributor, (3) we do not insist on any special training to be a distributor and (4) we do not prohibit a new distributor from working with another company. Our ability to remain competitive therefore depends, in significant part, on our success in recruiting and retaining distributors through an attractive compensation plan, the maintenance of an attractive product portfolio and other incentives. We cannot ensure that our programs for recruitment and retention of distributors will be successful and if they are not, our financial condition and operating results would be harmed.


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We are affected by extensive laws, governmental regulations, administrative determinations, court decisions and similar constraints both domestically and abroad, and our failure or our distributors’ failure to comply with these constraints could lead to the imposition of significant penalties or claims, which could harm our financial condition and operating results.

In both domestic and foreign markets, the formulation, manufacturing, packaging, labeling, distribution, importation, exportation, licensing, sale and storage of our products are affected by extensive laws, governmental regulations, administrative determinations, court decisions and similar constraints. Such laws, regulations and other constraints may exist at the federal, state or local levels in the United States and at all levels of government in foreign jurisdictions. There can be no assurance that we or our distributors are in compliance with all of these regulations. Our failure or our distributors’ failure to comply with these regulations or new regulations could disrupt our distributors’ sale of our products, or lead to the imposition of significant penalties or claims and could negatively impact our business. In addition, the adoption of new regulations or changes in the interpretations of existing regulations may result in significant compliance costs or discontinuation of product sales and may negatively impact the marketing of our products, resulting in significant loss of sales revenues.

In April 2006, the FTC issued a notice of proposed rulemaking which, if implemented in its originally proposed form, would have regulated all sellers of “business opportunities” in the United States. As originally proposed this rule would have applied to us and, if adopted in its originally proposed form, could have adversely impacted our U.S. business. On March 18, 2008, the FTC issued a revised proposed rule and as indicated in December, 2011 the announcement accompanying the proposedFTC issued its final rule. This final rule the revised proposal does not attempt to cover multilevel marketing companies such as Herbalife. If the revised rule were implemented as it is now proposed, we believe that it would not significantly impact our U.S. business. Based on information currently available, we anticipate that the rule may become final within the year.

The FTC has approved revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising, or Guides, which became effective on December 1, 2009. Although the Guides are not binding, they explain how the FTC interprets Section 5 of the FTC Act’s prohibition on unfair or deceptive acts or practices. Consequently, the FTC could bring a Section 5 enforcement action based on practices that are inconsistent with the Guides. Under the revised Guides, advertisements that feature a consumer and convey his or her atypical experience with a product or service will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides, which allowed advertisers to describe atypical results in a testimonial as long as they included a disclaimer such as “results not typical”, the revised Guides no longer contain such a safe harbor. The revised Guides also add new examples to illustrate the long-standing principle that “material connections” between advertisers and endorsers (such as payments or free products), connections that consumers might not expect, must be disclosed. Herbalife has revised its marketing materials to be compliant with the revised Guides. However, it is possible that our use, and that of our independent distributors, of

testimonials in the advertising and promotion of our products, including but not limited to our weight management products and of our income opportunity will be significantly impacted and therefore might negatively impact our sales.

Governmental regulations in countries where we plan to commence or expand operations may prevent or delay entry into those markets. In addition, our ability to sustain satisfactory levels of sales in our markets is dependent in significant part on our ability to introduce additional products into such markets. However, governmental regulations in our markets, both domestic and international, can delay or prevent the introduction, or require the reformulation or withdrawal, of certain of our products. During the second quarter of 2008 the Spanish Ministry of Health issued a press release, or communicado, informing the public of a then on-going inquiry into the safety of our Company’s products sold in Spain. Upon completion of its review of Herbalife products distributed in Spain, the Spanish Ministry of Health withdrew its communicado. Any such regulatory action, whether or not it results in a final determination adverse to us, could create negative publicity, with detrimental effects on the motivation and recruitment of distributors and, consequently, on sales.

The

We are subject to FDA has published its final rulerules for current good manufacturing practice, or cGMPs, affectingfor the manufacture, packing, labeling and holding of dietary supplements distributed in the United States. Under dietary supplement cGMPs, manufacturers must qualify ingredient suppliers in order to use their products in dietary supplements. One of the many requirements of the cGMP final rule is that the manufacturer conduct 100 percent identity testing on all dietary ingredients used in the


29


manufacture of dietary supplements or petition the FDA for an exemption from this requirement. We are unaware of any company having submitted such a petition. Herbalife has implemented a comprehensive quality assurance program that is designed to maintain compliance with the cGMPs for dietary supplements manufactured by or on behalf of Herbalife for distribution in the United States. However, if Herbalife should be found not to be in compliance with cGMPs for the products it self-manufactures it could negatively impact our reputation and ability to sell our products even after any such situation had been rectified. Further, if contract manufacturers whose products bear Herbalife labels fail to comply with the cGMPs, this could negatively impact Herbalife’s reputation and ability to sell its products even though Herbalife is not directly liable under the cGMPs for such compliance. For example, in September 2009 one of Herbalife’s contract manufacturers, Coats International, received a FDA cGMP 483 inspection report noting a number of compliance deficiencies involving its manufacturing of two aloe-based products. Subsequently, in April 2010 Coats International received a FDA issued warning letter. Both of these letters generated publicity within the trade media. Coats International has taken remedial action to comply with the cGMP requirements. Further, inIn complying with the dietary supplement cGMPs, we have experienced increases in some product costs as a result of the necessary increase in testing of raw ingredients and finished products and this may cause us to seek alternate suppliers.

Our network marketing program could be found to be not in compliance with current or newly adopted laws or regulations in one or more markets, which could prevent us from conducting our business in these markets and harm our financial condition and operating results.

Our network marketing program is subject to a number of federal and state regulations administered by the FTC and various state agencies in the United States as well as regulations on direct selling in foreign markets administered by foreign agencies. We are subject to the risk that, in one or more markets, our network marketing program could be found not to be in compliance with applicable law or regulations. Regulations applicable to network marketing organizations generally are directed at preventing fraudulent or deceptive schemes, often referred to as “pyramid” or “chain sales” schemes, by ensuring that product sales ultimately are made to consumers and that advancement within an organization is based on sales of the organization’s products rather than investments in the organization or other non-retail sales-related criteria. The regulatory requirements concerning network marketing programs do not include “bright line” rules and are inherently fact-based and, thus, we are subject to the risk that these laws or regulations or the enforcement or interpretation of these laws and regulations by governmental agencies or courts can change. The failure of our network marketing program to comply with current or newly adopted regulations could negatively impact our business in a particular market or in general.

We are also subject to the risk of private party challenges to the legality of our network marketing program. TheSome multi-level marketing programs of other companies have been successfully challenged in the past, and in a current lawsuit allegationswhile other challenges to multi-level marketing programs of other companies have been made challenging the legality of our network marketing program in Belgium.defeated. In 2004 Test Ankoop-Test Achat, a Belgian consumer protection organization, sued Herbalife International Belgium, S.V., or HIB, on August 26, 2004, allegingchallenging the legality of our network marketing program in Belgium. On November 23, 2011, the Brussels Commercial Court rendered a judgment that HIB violated Article 84is in violation of the Belgian Fair Tradelaw on Unfair Commercial Practices Act by engaging inestablishing, operating or promoting a pyramid selling,i.e., establishingscheme where a networkconsumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of professional or non-professional sales people who hope to make a profit more throughother consumers into the expansion of that networkscheme rather than throughfrom the sale or consumption of products to end-consumers.products. The plaintiff is seekingcourt ordered cessation of the violation, and a penalty payment of €25,000 (equalEUR 5,000 per infringement (limited to approximately $33,000 asa total amount of December 31, 2010) per purported violation as well as costspenalty payments of EUR

250,000) starting two months from the official notification of the trial. Forjudgment. HIB has not yet been officially notified of the year ended December 31, 2010, our net sales in Belgium were approximately $16.8 million.judgment. The plaintiffs filed their initial brief on September 27, 2005Company believes the trial court’s judgment is flawed legally and on May 9, 2006 we filed a reply brief. On December 9, 2008 plaintiffs filed a responsive brieffactually and on June 24, 2009 we filed a reply brief. An oral hearing was held on November 3, 2010. The Court issued an interim judgment on November 24, 2010 orderingplans to appeal the partiesjudgment. Nonetheless, the Company is exploring various relatively minor clarifications and changes to address a change inensure compliance with the underlying Belgian statute. A hearing is scheduled for March 2, 2011. Antrial court’s decision pending the appeal procedure. This or other adverse judicial determinationdeterminations with respect to our network marketing program, or in proceedings not involving us directly but which challenge the legality of multi-level marketing systems, in Belgium or in any other market in which we operate, could negatively impact our business. We believe that we have meritorious defensesbasis to the suit.

On April 16, 2007 Herbalife International of America, Inc. filed a Complaint in the United States District Court for the Central District of California against certain former Herbalife distributors who had left the Company to join a competitor. The Complaint alleged breach of contract, misappropriation of trade secrets, intentional interference with prospective economic advantage, intentional interference with contract, unfair competition, constructive trust and fraud and seeks monetary damages, attorney’s fees and injunctive relief (Herbalife International of America, Inc. v. Robert E. Ford, et al). The court entered a Preliminary Injunction against the defendants enjoining them from


30

appeal this judgment.


further useand/or misappropriation of the Company’s trade secrets on December 11, 2007. Defendants appealed the court’s entry of the Preliminary Injunction to the U.S. Court of Appeals for the Ninth Circuit. That court affirmed, in relevant part, the Preliminary Injunction. On December 3, 2007 the defendants filed a counterclaim alleging that the Company had engaged in unfair and deceptive business practices, intentional and negligent interference with prospective economic advantage, false advertising and that the Company was an endless chain scheme in violation of California law and seeking restitution, contract rescission and an injunction. Both sides engaged in discovery and filed cross motions for Summary Judgment. On August 25, 2009 the court granted partial summary judgment for Herbalife on all of defendants’ claims except the claim that the Company is an endless chain scheme which under applicable law is a question of fact that can only be determined at trial. The court denied defendants’ motion for Summary Judgment on Herbalife’s claims for misappropriation of trade secrets and breach of contract. On May 5, 2010, the District Court granted summary judgment for Herbalife on defendants’ endless chain-scheme counterclaim. Herbalife voluntarily dismissed its remaining claims, and on May 14, 2010 the District Court issued a final judgment dismissing all of the parties’ claims. On June 10, 2010 the defendants appealed from that judgment and on June 21, 2010 Herbalife cross-appealed. The Company believes that there is merit to its appeal, and it will prevail upon both its appeal as well as the defendant’s appeal.
A substantial portion of our business is conducted in foreign markets, exposing us to the risks of trade or foreign exchange restrictions, increased tariffs, foreign currency fluctuations, disruptions or conflicts with our third party importers and similar risks associated with foreign operations.

Approximately 78%80% of our net sales for the year ended December 31, 2010,2011, were generated outside the United States, exposing our business to risks associated with foreign operations. For example, a foreign government may impose trade or foreign exchange restrictions or increased tariffs, which could negatively impact our operations. We are also exposed to risks associated with foreign currency fluctuations. For instance, purchases from suppliers are generally made in U.S. dollars while sales to distributors are generally made in local currencies. Accordingly, strengthening of the U.S. dollar versus a foreign currency could have a negative impact on us. Although we engage in transactions to protect against risks associated with foreign currency fluctuations, we cannot be certain any hedging activity will effectively reduce our exchange rate exposure. Additionally we may be negatively impacted by conflicts with or disruptions caused or faced by our third party importers, as well as conflicts between such importers and local governments or regulating agencies. Our operations in some markets also may be adversely affected by political, economic and social instability in foreign countries. As we continue to focus on expanding our existing international operations, these and other risks associated with international operations may increase, which could harm our financial condition and operating results.

Currency restrictions enacted by the Venezuelan government in 2003 have become more restrictive and have impacted the ability of our subsidiary in Venezuela, or Herbalife Venezuela, to obtain U.S. dollars in exchange for Venezuelan Bolivars, or Bolivars, at the official foreign exchange rates from the Venezuelan government and its foreign exchange commission, CADIVI. The application and approval processes have been intermittently delayed and the timing and ability to obtain U.S. dollars at the official exchange rates remains uncertain. In certain instances, we have made appropriate applications through CADIVI for approval to obtain U.S. dollars so that Herbalife Venezuela can pay for imported products and an annual dividend, at the official exchange rate. As an alternative exchange mechanism, we have also participated in certain bond offerings from the Venezuelan government and from Petróleos de Venezuela, S.A. or PDVSA, a Venezuelan state-owned petroleum company, where we effectively purchased bonds with our Bolivars and then sold the bonds for U.S. dollars. In other instances, we have also used a lawful but less favorablealternative legal exchange mechanisms for currency exchanges, such as the legal parallel market mechanism for currency exchange. Inwhich was discontinued in May 2010, this less favorable parallel market was discontinued.

2010.

In June 2010, the Venezuelan government introduced additional regulations under a newly regulated system, SITME, which is controlled by the Central Bank of Venezuela. SITME provides a mechanism to exchange Bolivars into U.S. dollars through the purchase and sale of U.S. dollar denominated bonds issued in Venezuela. However, SITME is only available in certain limited circumstances. Specifically, SITME can only be used for product purchases and it is not available for other matters such as the payment of dividends. Also, SITME can only be used for amounts of up to $50,000 per day and $350,000 per month and is generally only available to the extent that the applicant has not exchanged and received U.S. dollars via the CADIVI process within the previous 90 days. While we currently plan to continue to import products into Venezuela and exchange Bolivars for U.S. dollars based on the exchange mechanisms prescribed by the Venezuelan government, if the current currency restrictions are not lifted


31


or eased, our product supplies in the Venezuelan market may be limited and we may make changes to Herbalife Venezuela’s operations each of which could negatively impact our business.

If the foreign currency restrictions in Venezuela intensify or do not improve, we may be required to deconsolidate Herbalife Venezuela for U.S. GAAP purposes and would be subject to the risk of impairment. If any of

these events were to occur it could result in a negative impact to our consolidated earnings. See Item 7,Management’s Discussion and Analysis of Financial Condition and Results of Operations,within thisour 2011 Annual Report on Form 10K, for a further discussion on Venezuela.

Our expansion in China is subject to general, as well as industry-specific, economic, political and legal developments and risks in China and requires that we utilize a different business model from that which we use elsewhere in the world.

Our expansion of operations into China is subject to risks and uncertainties related to general economic, political and legal developments in China, among other things. The Chinese government exercises significant control over the Chinese economy, including but not limited to controlling capital investments, allocating resources, setting monetary policy, controlling foreign exchange and monitoring foreign exchange rates, implementing and overseeing tax regulations, providing preferential treatment to certain industry segments or companies and issuing necessary licenses to conduct business. Accordingly, any adverse change in the Chinese economy, the Chinese legal system or Chinese governmental, economic or other policies could have a material adverse effect on our business in China and our prospects generally.

In August 2005, China published regulations governing direct selling (effective December 1, 2005) and prohibiting pyramid promotional schemes, (effective November 1, 2005), and a number of administrative methods and proclamations were issued in September 2005 and in September 2006. These regulations require us to use a business model different from that which we offer in other markets. To allow us to operate under these regulations, we have created and introduced a model specifically for China. In China, we have Company-operated retail stores that sell through employed sales personnel tocan directly serve customers and preferred customers. We provide training and certification procedures for sales personnel in China. We also have non-employee sales representatives who sell through our retail stores. Our sales representatives are permitted by the terms of our direct selling licenses to sell away from fixed retail locations in the provinces of Jiangsu, Guangdong, Shandong, Zhejiang, Guizhou, Beijing, Fujian, Sichuan, Hubei, Shanxi, Shanghai, Jiangxi, Liaoning, Jilin, Henan, and Chongqing. We have also engaged independent service providers that meet both the requirements to operate their own business under Chinese law as well as the conditions set forth by Herbalife to sell products and provide services to Herbalife customers. These features are not common to the business model we employ elsewhere in the world, and based on the direct selling licenses we have received and the terms of those which we hope to receive in the future to conduct a direct selling enterprise in China, our business model in China will continue in some part to incorporate such features. The direct selling regulations require us to apply for various approvals to conduct a direct selling enterprise in China. The process for obtaining the necessary licenses to conduct a direct selling business is protracted and cumbersome and involves multiple layers of Chinese governmental authorities and numerous governmental employees at each layer. While direct selling licenses are centrally issued, such licenses are generally valid only in the jurisdictions within which related approvals have been obtained. Such approvals are generally awarded on local and provincial bases, and the approval process requires involvement with multiple ministries at each level. Our participation and conduct during the approval process is guided not only by distinct Chinese practices and customs, but is also subject to applicable laws of China and the other jurisdictions in which we operate our business, including the U.S., as well as our internal code of ethics. There is always a risk that in attempting to comply with local customs and practices in China during the application process or otherwise, we will fail to comply with requirements applicable to us in China itself or in other jurisdictions, and any such failure to comply with applicable requirements could prevent us from obtaining the direct selling licenses or related local or provincial approvals. Furthermore, we rely on certain key personnel in China to assist us during the approval process, and the loss of any such key personnel could delay or hinder our ability to obtain licenses or related approvals. For all of the above reasons, there can be no assurance that we will obtain additional direct-selling licenses, or obtain related approvals to expand into any or all of the localities or provinces in China that are important to our business. Our inability to obtain, retain, or renew any or all of the licenses or related approvals that are required for us to operate in China could negatively impact our business.


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Additionally, although certain regulations have been published with respect to obtaining such approvals,and operating under such approvals and otherwise conducting business in China, other regulations are pending and there iscontinues to be uncertainty regarding the interpretation and enforcement of Chinese regulations. The regulatory environment in China is evolving, and officials in the Chinese government exercise broad discretion in deciding

how to interpret and apply regulations. We cannot be certain that our business model will continue to be deemed by national or local Chinese regulatory authorities to be compliant with any such regulations. The Chinese government rigorously monitors the direct selling market in China, and in the past has taken serious action against companies that the government believed were engaging in activities they regarded to be in violation of applicable law, including shutting down their businesses and imposing substantial fines. As a result, there can be no guarantee that the Chinese government’s current or future interpretation and application of the existing and new regulations will not negatively impact our business in China, result in regulatory investigations or lead to fines or penalties against us or our Chinese distributors.

Chinese regulations prevent persons who are not Chinese nationals from engaging in direct selling in China. We cannot guarantee that any of our distributors living outside of China or any of our sales representatives employed sales personnel or independent service providers in China have not engaged or will not engage in activities that violate our policies in this market, or that violate Chinese law or other applicable law, and therefore result in regulatory action and adverse publicity.

China enacted a labor contract law which took effect January 1, 2008 and on September 18, 2008 an implementing regulation took effect. On October 28, 2010 China enacted a social insurance law that will comecame into effect on July 1, 2011. We have reviewed and will continue to review our employment contracts and contractual relations with employees in China, which include certain of our employed sales personnel, and have transferred those employed sales personnel into independent service providers and have made and will make such other changes as we believe to be necessary or appropriate to bring these contracts and contractual relations into compliance with these laws and their implementing regulations. In addition, we continue to monitor the situation to determine how these laws and regulations will be implemented in practice. There is no guarantee that these laws will not adversely impact us, require us to change our treatment of our employed sales personnel, or cause us to change our operating plan for China or otherwise have an adverse impact on our business operations in China.

If our operations in China are successful, we may experience rapid growth in China, and there can be no assurances that we will be able to successfully manage rapid expansion of manufacturing operations and a rapidly growing and dynamic sales force. There also can be no assurances that we will not experience difficulties in dealing with or taking employment related actions (such as hiring, terminations and salary administration, including social benefit payments) with respect to our employed sales personnel, particularly given the highly regulated nature of the employment relationship in China. If we are unable to effectively manage such growth and expansion of our retail stores and manufacturing operations, or our employed sales personnel, our government relations may be compromised and our operations in China may be harmed.

Our China business model, particularly with regard to sales management responsibilities and remuneration, differs from our traditional business model. There is a risk that such changes and transitions may not be understood by our distributors or employees, may be viewed negatively by our distributors or employees, or may not be correctly utilized by our distributors or employees. If that is the case, our business could be negatively impacted.

If we fail to further penetrate existing markets or successfullyand expand our business into new markets, then the growth in sales of our products, along with our operating results, could be negatively impacted.

The success of our business is to a large extent contingent on our ability to continue to grow by entering newfurther penetrate existing markets and further penetrating existingto a much less extent enter into new markets. Our ability to further penetrate existing markets or to successfully expand our business into additional countries in Eastern Europe, Southeast Asia, South America or elsewhere, to the extent we believe that we have identified attractive geographic expansion opportunities in the future, is subject to numerous factors, many of which are out of our control.

In addition, government regulations in both our domestic and international markets can delay or prevent the introduction, or require the reformulation or withdrawal, of some of our products, which could negatively impact our business, financial condition and results of operations. Also, our ability to increase market penetration in certain countries may be limited by the finite number of persons in a given country inclined to pursue a direct selling


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business opportunity or consumers willing to purchase Herbalife products. Moreover, our growth will depend upon improved training and other activities that enhance distributor retention in our markets. While we

have recently experienced significant growth in certain of our markets, we cannot assure you that such growth levels will continue in the immediate or long term future. Furthermore, our efforts to support growth in such international markets could be hampered to the extent that our infrastructure in such markets is deficient when compared to our more developed markets, such as the U.S. Therefore, we cannot assure you that our general efforts to increase our market penetration and distributor retention in existing markets will be successful. If we are unable to continue to expand into new markets or further penetrate existing markets, our operating results could suffer.

Our contractual obligation to sell our products only through our Herbalife distributor network and to refrain from changing certain aspects of our marketing plan may limit our growth.

We are a party to an agreement with our distributors that provides assurances that we will not sell Herbalife products through any distribution channel other than our network of independent Herbalife distributors. Thus, we are contractually prohibited from expanding our business by selling Herbalife products through other distribution channels that may be available to our competitors, such as over the internet, through wholesale sales, by establishing retail stores or through mail order systems. Since this is an open-ended commitment, there can be no assurance that we will be able to take advantage of innovative new distribution channels that are developed in the future.

In addition, this agreement with our distributors provides that we will not change certain aspects of our marketing plan without the consent of a specified percentage of our distributors. For example, our agreement with our distributors provides that we may increase, but not decrease, the discount percentages available to our distributors for the purchase of products or the applicable royalty override percentages, includingroll-ups, and production and other bonus percentages available to our distributors at various qualification levels within our distributor hierarchy. We may not modify the eligibility or qualification criteria for these discounts, royalty overrides and production and other bonuses unless we do so in a manner to make eligibilityand/or qualification easier than under the applicable criteria in effect as of the date of the agreement. Our agreement with our distributors further provides that we may not vary the criteria for qualification for each distributor tier within our distributor hierarchy, unless we do so in such a way so as to make qualification easier.

Although we reserved the right to make these changes to our marketing plan without the consent of our distributors in the event that changes are required by applicable law or are necessary in our reasonable business judgment to account for specific local market or currency conditions to achieve a reasonable profit on operations, there can be no assurance that our agreement with our distributors will not restrict our ability to adapt our marketing plan to the evolving requirements of the markets in which we operate. As a result, our growth may be limited.

We depend on the integrity and reliability of our information technology infrastructure, and any related inadequacies may result in substantial interruptions to our business.

Our ability to provide products and services to our distributors depends on the performance and availability of our core transactional systems. We upgraded our back office systems globally to the Oracle Enterprise Suite which is supported by a robust hardware and network infrastructure. The Oracle Enterprise Suite is a scalable and stable solution that provides a solid foundation upon which we are building our next generation Distributor facing Internet toolset. While we continue to invest in our information technology infrastructure, there can be no assurance that there will not be any significant interruptions to such systems or that the systems will be adequate to meet all of our future business needs.

The most important aspect of our information technology infrastructure is the system through which we record and track distributor sales, volume points, royalty overrides, bonuses and other incentives. We have encountered, and may encounter in the future, errors in our software or our enterprise network, or inadequacies in the software and services supplied by our vendors, although to date none of these errors or inadequacies has had

a meaningful adverse impact on our business. Any such errors or inadequacies that we may encounter in the future may result in substantial interruptions to our services and may damage our relationships with, or cause us to lose, our distributors if the errors or inadequacies impair our ability to track sales and pay royalty overrides, bonuses and other incentives, which would harm our financial condition and operating results. Such errors may be expensive or difficult to correct in a timely manner, and we may have little or no control over whether any inadequacies in software or services supplied to us by third parties are corrected, if at all.


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Our ability to effectively manage our network of independent distributors, and to ship products, and track royalty and bonus payments on a timely basis, depends significantly on our information systems. The failure of our information systems to operate effectively, or a breach in security of these systems, could adversely impact the promptness and accuracy of our product distribution and transaction processing. We could be required to make significant additional expenditures to remediate any such failure, problem or breach.

Anyone that is able to circumvent our security measures could misappropriate confidential or proprietary information, including that of third parties such as our independent distributors, cause interruption in our operations, damage our computers or otherwise damage our reputation and business. We may need to expend significant resources to protect against security breaches or to address problems caused by such breaches. Any actual security breaches could damage our reputation and expose us to a risk of loss or litigation and possible liability under various laws and regulations. In addition, employee error or malfeasance or other errors in the storage, use or transmission of any such information could result in a disclosure to third parties. If this should occur we could incur significant expenses addressing such problems. Since we collect and store distributor and vendor information, including credit card information, these risks are heightened.

Since we rely on independent third parties for the manufacture and supply of certain of our products, if these third parties fail to reliably supply products to us at required levels of quality and which are manufactured in compliance with applicable laws, including the dietary supplement cGMPs, then our financial condition and operating results would be harmed.

The majority of our products are manufactured at third party contract manufacturers, with the exception of our products sold in China, which are manufactured in our Suzhou China facility, and certain of our top selling products which are starting to be manufacturedproduced in our manufacturing facility located in Lake Forest, California. It is the Company’s intention to expand the capacity of this recently acquired manufacturing facility to produce additional products for our North America and international markets. We cannot assure you that our outside contract manufacturers will continue to reliably supply products to us at the levels of quality, or the quantities, we require, and in compliance with applicable laws, including under the FDA’s cGMP regulations. While we are not presently aware of any current liquidity issues with our suppliers, we cannot assure you that they will not experience financial hardship as a result of the current global financial crisis.

Our supply contracts generally have a two-year term. Except for force majeure events such as natural disasters and other acts of God, and non-performance by Herbalife, our manufacturers generally cannot unilaterally terminate these contracts. These contracts can generally be extended by us at the end of the relevant time period and we have exercised this right in the past. Globally we have overapproximately 40 suppliers of our products. For our major products, we have both primary and secondary suppliers. Our major suppliers include Nature’s Bounty (U.S.) and Fine Foods (Italy) for meal replacements, protein powders and nutritional supplements, Valentine Enterprises (U.S.) for meal replacements and protein powders and PharmaChem Labs (U.S.) for teas andNiteworks®. Additionally we use contract manufacturers in India, Brazil, Korea, Japan and Germany to support our global business. In the event any of our contract manufacturers were to become unable or unwilling to continue to provide us with products in required volumes and at suitable quality levels, we would be required to identify and obtain acceptable replacement manufacturing sources. There is no assurance that we would be able to obtain alternative manufacturing sources on a timely basis. An extended interruption in the supply of products would result in the loss of sales. In addition, any actual or perceived degradation of product quality as a result of reliance on contract manufacturers may have an adverse effect on sales or result in increased product returns and buybacks. Also, as we experience ingredient and product price pressure in the areas of soy, fructose, dairy products, plastics, and transportation

reflecting global economic trends, we believe that we have the ability to mitigate some of these cost increases through improved optimization of our supply chain coupled with select increases in the retail prices of our products.

If we fail to protect our trademarks and tradenames, then our ability to compete could be negatively affected, which would harm our financial condition and operating results.

The market for our products depends to a significant extent upon the goodwill associated with our trademark and tradenames. We own, or have licenses to use, the material trademark and trade name rights used in connection with the packaging, marketing and distribution of our products in the markets where those products are sold. Therefore, trademark and trade name protection is important to our business. Although most of our trademarks are registered in the United States and in certain foreign countries in which we operate, we may not be successful in asserting trademark or trade name protection. In addition, the laws of certain foreign countries may not protect our intellectual property rights to the same extent as the laws of the United States. The loss or infringement of our trademarks or tradenames could impair the goodwill associated with our brands and harm our reputation, which would harm our financial condition and operating results.

Unlike in most of the other markets in which we operate, limited protection of intellectual property is available under Chinese law. Accordingly, we face an increased risk in China that unauthorized parties may attempt to copy or otherwise obtain or use our trademarks, copyrights, product formulations or other intellectual property. Further, since Chinese commercial law is relatively undeveloped, we may have limited legal recourse in the event we encounter significant difficulties with intellectual property theft or infringement. As a result, we cannot assure you that we will be able to adequately protect our product formulations or other intellectual property.

We permit the limited use of our trademarks by our independent distributors to assist them in the marketing of our products. It is possible that doing so may increase the risk of unauthorized use or misuse of our trademarks in markets where their registration status differs from that asserted by our independent distributors, or they may be used in


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association with claims or products in a manner not permitted under applicable laws and regulations. Were this to occur it is possible that this could diminish the value of these marks or otherwise impair our further use of these marks.

If our distributors fail to comply with labeling laws, then our financial condition and operating results would be harmed.

Although the physical labeling of our products is not within the control of our independent distributors, our distributors must nevertheless advertise our products in compliance with the extensive regulations that exist in certain jurisdictions, such as the United States, which considers product advertising to be labeling for regulatory purposes.

Our products are sold principally as foods, dietary supplements and cosmetics and are subject to rigorous FDA and related legal regimens limiting the types of therapeutic claims that can be made for our products. The treatment or cure of disease, for example, is not a permitted claim for these products. While we train our distributors and attempt to monitor our distributors’ marketing materials, we cannot ensure that all such materials comply with applicable regulations, including bans on therapeutic claims. If our distributors fail to comply with these restrictions, then we and our distributors could be subjected to claims, financial penalties, mandatory product recalls or relabeling requirements, which could harm our financial condition and operating results. Although we expect that our responsibility for the actions of our independent distributors in such an instance would be dependent on a determination that we either controlled or condoned a noncompliant advertising practice, there can be no assurance that we could not be held vicariously liable for the actions of our independent distributors.

If our intellectual property is not adequate to provide us with a competitive advantage or to prevent competitors from replicating our products, or if we infringe the intellectual property rights of others, then our financial condition and operating results would be harmed.

Our future success and ability to compete depend upon our ability to timely produce innovative products and product enhancements that motivate our distributors and customers, which we attempt to protect under a combination of copyright, trademark and trade secret laws, confidentiality procedures and contractual provisions. However, our products are generally not patented domestically or abroad, and the legal protections afforded by common law and contractual proprietary rights in our products provide only limited protection and may be time-consuming and expensive to enforceand/or maintain. Further, despite our efforts, we may be unable to prevent third parties from infringing upon or misappropriating our proprietary rights or from independently developing non-infringing products that are competitive with, equivalent toand/or superior to our products.

Monitoring infringementand/or misappropriation of intellectual property can be difficult and expensive, and we may not be able to detect every infringement or misappropriation of our proprietary rights. Even if we do detect infringement or misappropriation of our proprietary rights, litigation to enforce these rights could cause us to divert financial and other resources away from our business operations. Further, the laws of some foreign countries do not protect our proprietary rights to the same extent as do the laws of the United States.

Additionally, third parties may claim that products or marks that we have independently developed or which bear certain of our trademarks infringe upon their intellectual property rights and there can be no assurance that one ofor more of our products or marks will not be found to infringe upon third party intellectual property rights in the future. For example, in a pending action in the U.S. federal courts, the adidas companies have alleged that certain uses of Herbalife’s Tri-Leaf device mark upon sports apparel items infringe upon their “Trefoil” mark associated with such goods. They have also alleged that such uses of Herbalife’s Tri-Leaf device and certain Herbalife trademark applications constitute a breach of a 1998 agreement between the parties. We are contesting theseThe trademark claims and all claims for money damages have been dismissed, but the trial court has twice granted partial summary judgment in favor of adidas on its breach of contract claim, and adidas may seek further rulings compelling changes in the way that Herbalife displays its Tri-leaf device. We continue to contest adidas’ interpretation of the 1998 agreement and are considering an appeal of the partial summary judgments once a final order compelling action by Herbalife is entered. We do not believe that we have breached the 1998 agreement, nor that we are infringing on any third party intellectual property rights, nor do we believerights. Nevertheless it remains possible that the 1998 agreement should be interpreted as alleged by adidas. Nevertheless it is possible that an adverse judgment on one or more claimstrial court might issue, awarding damages and/oraward injunctive relief to adidas that could limit Herbalife’s ability to display its Tri-Leaf mark in connection with certain sports apparel, sports equipment, or sports-related marketing and services.


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Since one of our products constitutes a significant portion of our retail sales, significant decreases in consumer demand for this product or our failure to produce a suitable replacement should we cease offering it would harm our financial condition and operating results.

Our Formula 1 meal replacement product constitutes a significant portion of our sales, accounting for approximately 29%, 28% of net sales for the fiscal year ended December 31, 2010,, and approximately 29% of net sales for the fiscal years ended December 31, 2011, 2010, and 2009, and 2008.respectively. If consumer demand for this product decreases significantly or we cease offering this product without a suitable replacement, then our financial condition and operating results would be harmed.

If we lose the services of members of our senior management team, then our financial condition and operating results could be harmed.

We depend on the continued services of our Chairman and Chief Executive Officer, Michael O. Johnson, and our current senior management team as they work closely with the senior distributor leadership to create an environment of inspiration, motivation and entrepreneurial business success. Although we have entered into employment agreements with certain members of our senior management team, and do not believe that any of them are planning to leave or retire in the near term, we cannot assure you that our senior managers will remain

with us. The loss or departure of any member of our senior management team could adversely impact our distributor relations and operating results. If any of these executives do not remain with us, our business could suffer. Also, the loss of key personnel, including our regional and country managers, could negatively impact our ability to implement our business strategy, and our continued success will also be dependent on our ability to retain existing, and attract additional, qualified personnel to meet our needs. We currently do not maintain “key person” life insurance with respect to our senior management team.

The covenants in our existing indebtedness limit our discretion with respect to certain business matters, which could limit our ability to pursue certain strategic objectives and in turn harm our financial condition and operating results.

Our credit facility contains numerous financial and operating covenants that restrict our and our subsidiaries’ ability to, among other things:

pay dividends, redeem share capital or capital stock and make other restricted payments and investments;

incur or guarantee additional debt;

• pay dividends, redeem share capital or capital stock and make other restricted payments and investments;
• incur additional debt or issue preferred shares;
• impose dividend or other distribution restrictions on our subsidiaries;
• create liens on our and our subsidiaries’ assets;
• engage in transactions with affiliates;
• guarantee other indebtedness; and
• merge, consolidate or sell all or substantially all of our assets and the assets of our subsidiaries.

impose dividend or other distribution restrictions on our subsidiaries;

create liens on our and our subsidiaries’ assets;

engage in transactions with affiliates; and

merge, consolidate or sell all or substantially all of our assets and the assets of our subsidiaries.

In addition, our credit facility requires us to meet certain financial ratios and financial conditions. Our ability to comply with these covenants may be affected by events beyond our control, including prevailing economic, financial and industry conditions. Failure to comply with these covenants could result in a default causing all amounts to become due and payable under our credit facility, which is secured by substantially all of our domestic assets, against which the lenders thereunder could proceed to foreclose.

If we do not comply with transfer pricing, customs duties, VAT, and similar regulations, then we may be subjected to additional taxes, duties, interest and penalties in material amounts, which could harm our financial condition and operating results.

As a multinational corporation, in many countries including the United States we are subject to transfer pricing and other tax regulations designed to ensure that our intercompany transactions are consummated at prices that have not been manipulated to produce a desired tax result, that appropriate levels of income are reported as earned by our United States or local entities, and that we are taxed appropriately on such transactions. In addition, our operations are


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subject to regulations designed to ensure that appropriate levels of customs duties are assessed on the importation of our products. We are currently subject to pending or proposed audits that are at various levels of review, assessment or appeal in a number of jurisdictions involving transfer pricing issues, income taxes, customs duties, value added taxes, withholding taxes, sales and use and other taxes and related interest and penalties in material amounts. For example, we are currently appealing tax assessments in Spain, Brazil, and Mexico. In some circumstances, additional taxes, interest and penalties have been assessed and we will be required to pay the assessments or post surety, in order to challenge the assessments.

The imposition of new taxes, even pass-through taxes such as VAT, could have an impact on our perceived product pricing and therefore a potential negative impact on our business. We have reserved in the consolidated financial statements an amount that we believe represents the most likely outcome of the resolution of these disputes, but if we are incorrect in our assessment we may have to pay the full amount asserted which could potentially be material. Ultimate resolution of these matters may take several years, and the outcome is uncertain. If the United States Internal Revenue Service or the taxing authorities of any other jurisdiction were to

successfully challenge our transfer pricing practices or our positions regarding the payment of income taxes, customs duties, value added taxes, withholding taxes, sales and use, and other taxes, we could become subject to higher taxes and our revenue and earnings could be adversely affected.

On May 7, 2010, we received an administrative assessment from13, 2011, the Mexican Tax Administration Service issued a resolution nullifying a prior assessment in an amount equivalent to approximately $93$82 million, translated at the period ended spot rate, for various items, the majority of which was VAT allegedly owed on certain of our products imported into Mexico during years 2005 and 2006. ThisSince, the Mexican Tax Administration Service can re-issue some or all of the original assessment, is subjectthe Company commenced litigation in the Tax Court of Mexico in August 2011 to interest and inflationary adjustments.dispute the assertions made by the Mexican Tax Administration Service in the case. The Company didexpects to receive a response to this litigation from the Mexican Tax Administration. In December 2011, the Mexican Tax Administration commenced a tax audit of one of the Company’s Mexican subsidiaries for the period from January to September 2007. This tax audit is in the initial stages.

The Company has not recordrecognized a provisionloss as the Company, based on its analysis and guidance from its advisors, does not believe a loss would be probable if the assessment is probable.re-issued or if any additional assessment is issued. Further, we are currently unable to reasonably estimate a possible loss or range of loss that could result from an unfavorable outcome in respect to thisif the assessment was re-issued or any additional assessments that maywere to be issued for these or other periods. We believe that we have meritorious defenses and are vigorously pursuingif the appeal, but final resolution of this matter could take several years.assessment is re-issued or would have meritorious defenses if any additional assessment is issued. Any adverse outcomes in these matters could have a material impact on our financial condition and operating results.

Changes in tax laws, treaties or regulations, or their interpretation could adversely affect us.

A change in applicable tax laws, treaties or regulations or their interpretation could result in a higher effective tax rate on our worldwide earnings and such change could be significant to our financial results. Tax legislative proposals intending to eliminate some perceived tax advantages of companies that have legal domiciles outside the U.S. but have certain U.S. connections have repeatedly been introduced in the U.S. Congress. If these proposals are enacted, the result would increase our effective tax rate and could have a material adverse effect on the Company’s financial condition and results of operations.

We may be held responsible for certain taxes or assessments relating to the activities of our distributors, which could harm our financial condition and operating results.

Our distributors are subject to taxation, and in some instances, legislation or governmental agencies impose an obligation on us to collect taxes, such as value added taxes, and to maintain appropriate records. In addition, we are subject to the risk in some jurisdictions of being responsible for social security, and similarwithholding or other taxes with respect to payments to our distributors. For example, in both Spain and Brazil the Company received a tax assessment from the authorities for withholding taxes and related items in connection with payments made to distributors in those countries in prior periods. The Company has appealed both assessments and believes it has meritorious defenses in both instances. In addition, in the event that local laws and regulations or the interpretation of local laws and regulations change to require us to treat our independent distributors as employees, or that our distributors are deemed by local regulatory authorities in one or more of the jurisdictions in which we operate to be our employees rather than independent contractors under existing laws and interpretations, we may be held responsible for social security, withholding and related taxes in those jurisdictions, plus any related assessments and penalties, which could harm our financial condition and operating results.

We may incur material product liability claims, which could increase our costs and harm our financial condition and operating results.

Our products consist of vitamins, minerals and botanicals and other ingredients that are classified as foods or dietary supplements and are not subject to pre-market regulatory approval in the United States. Our products

could contain contaminated substances, and some of our products contain some ingredients that do not have long histories of human consumption. We rely upon published raw material, single ingredient, clinical studies and conduct limited clinical studies on some key products but not all products. Previously unknown adverse reactions resulting from


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human consumption of these ingredients could occur. As a marketer of dietary and nutritional supplements and other products that are ingested by consumers or applied to their bodies, we have been, and may again be, subjected to various product liability claims, including that the products contain contaminants, the products include inadequate instructions as to their uses, or the products include inadequate warnings concerning side effects and interactions with other substances. It is possible that widespread product liability claims could increase our costs, and adversely affect our revenues and operating income. Moreover, liability claims arising from a serious adverse event may increase our costs through higher insurance premiums and deductibles, and may make it more difficult to secure adequate insurance coverage in the future. In addition, our product liability insurance may fail to cover future product liability claims, thereby requiring us to pay substantial monetary damages and adversely affecting our business. Finally, given the higher level of self-insured retentions that we have accepted under our current product liability insurance policies, which are as high as approximately $10 million, in certain cases we may be subject to the full amount of liability associated with any injuries, which could be substantial.

Several years ago, a number of states restricted the sale of dietary supplements containing botanical sources of ephedrine alkaloids and on February 6, 2004, the FDA banned the use of such ephedrine alkaloids. Until late 2002, we had soldThermojetics® original green herbal tablets,Thermojetics® green herbal tablets andThermojetics® gold herbal tablets, all of which contained ephedrine alkaloids. Accordingly, we run the risk of product liability claims related to the ingestion of ephedrine alkaloids contained in those products. Currently, we have been named as a defendant in product liability lawsuits seeking to link the ingestion of certain of the aforementioned products to subsequent alleged medical problems suffered by plaintiffs. Although we believe that we have meritorious defenses to the allegations contained in these lawsuits, and are vigorously defending these claims, there can be no assurance that we will prevail in our defense of any or all of these matters.

We are subject to, among other things, requirements regarding the effectiveness of internal controls over financial reporting. In connection with these requirements, we conduct regular audits of our business and operations. Our failure to identify or correct deficiencies and areas of weakness in the course of these audits could adversely affect our financial condition and operating results.

We are required to comply with various corporate governance and financial reporting requirements under the Sarbanes-Oxley Act of 2002, as well as new rules and regulations adopted by the SEC, the Public Company Accounting Oversight Board and the New York Stock Exchange. In particular, we are required to include management and auditor reports on the effectiveness of internal controls over financial reporting as part of our annual reports onForm 10-K, pursuant to Section 404 of the Sarbanes-Oxley Act. We expect to continue to spend significant amounts of time and money on compliance with these rules. Our failure to correct any noted weaknesses in internal controls over financial reporting could result in the disclosure of material weaknesses which could have a material adverse effect upon the market value of our stock.

On a regular and on-going basis, we conduct audits through our internal audit department of various aspects of our business and operations. These internal audits are conducted to insure compliance with our policies and to strengthen our operations and related internal controls. The Audit Committee of our Board of Directors regularly reviews the results of these internal audits and, when appropriate, suggests remedial measures and actions to correct noted deficiencies or strengthen areas of weakness. There can be no assurance that these internal audits will uncover all material deficiencies or areas of weakness in our operations or internal controls. If left undetected and uncorrected, such deficiencies and weaknesses could have a material adverse effect on our financial condition and results of operations.

From time to time, the results of these internal audits may necessitate that we conduct further investigations into aspects of our business or operations. In addition, our business practices and operations may periodically be investigated by one or more of the many governmental authorities with jurisdiction over our worldwide

operations. In the event that these investigations produce unfavorable results, we may be subjected to fines, penalties or loss of licenses or permits needed to operate in certain jurisdictions, any one of which could have a material adverse effect on our financial condition or operating results.


39


Holders of our common shares may face difficulties in protecting their interests because we are incorporated under Cayman Islands law.

Our corporate affairs are governed by our amended and restated memorandum and articles of association, by the Companies Law (2010 Revision)Revision, as amended), or the Companies Law, and the common law of the Cayman Islands. The rights of our shareholders and the fiduciary responsibilities of our directors under Cayman Islands law are not as clearly established as under statutes or judicial precedent in existence in jurisdictions in the United States. Therefore, shareholders may have more difficulty in protecting their interests in the face of actions by our management or board of directors than would shareholders of a corporation incorporated in a jurisdiction in the United States, due to the comparatively less developed nature of Cayman Islands law in this area.

Shareholders of Cayman Islands exempted companies such as Herbalife have no general rights under Cayman Islands law to inspect corporate records and accounts or to obtain copies of lists of our shareholders. Our directors have discretion under our articles of association to determine whether or not, and under what conditions, our corporate records may be inspected by our shareholders, but are not obliged to make them available to our shareholders. This may make it more difficult for you to obtain the information needed to establish any facts necessary for a shareholder motion or to solicit proxies from other shareholders in connection with a proxy contest.

A shareholder can bring a suit personally where its individual rights have been, or are about to be, infringed. Where an action is brought to redress any loss or damage suffered by us, we would be the proper plaintiff, and a shareholder could not ordinarily maintain an action on our behalf, except where it was permitted by the courts of the Cayman Islands to proceed with a derivative action. Our Cayman Islands counsel, Maples and Calder, is not aware of any reported decisions in relation to a derivative action brought in a Cayman Islands court. However, based on English authorities, which would in all likelihood be of persuasive authority in the Cayman Islands, a shareholder may be permitted to bring a claim derivatively on the Company’s behalf, where:

a company is acting or proposing to act illegally or outside the scope of its corporate authority;

the act complained of, although not acting outside the scope of its corporate authority, could be effected only if authorized by more than a simple majority vote; or

• a company is acting or proposing to act illegally or outside the scope of its corporate authority;
• the act complained of, although not acting outside the scope of its corporate authority, could be effected only if authorized by more than a simple majority vote; or
• those who control the company are perpetrating a “fraud on the minority”.

those who control the company are perpetrating a “fraud on the minority”.

Provisions of our articles of association and Cayman Islands corporate law may impede a takeover or make it more difficult for shareholders to change the direction or management of the Company, which could reduce shareholders’ opportunity to influence management of the Company.

Our articles of association permit our board of directors to issue preference shares from time to time, with such rights and preferences as they consider appropriate. Our board of directors could authorize the issuance of preference shares with terms and conditions and under circumstances that could have an effect of discouraging a takeover or other transaction.

In addition, our articles of association contain certain other provisions which could have an effect of discouraging a takeover or other transaction or preventing or making it more difficult for shareholders to change the direction or management of our Company, including a classified board, the inability of shareholders to act by written consent, a limitation on the ability of shareholders to call special meetings of shareholders and advance notice provisions. As a result, our shareholders may have less input into the management of our Company than they might otherwise have if these provisions were not included in our articles of association.

The Cayman Islands have provisions under the Companies Law (2010 Revision) to facilitate mergers and consolidations between Cayman Islands companies and non-Cayman Islands companies. These provisions, contained within Part XVA of the Companies Law, (2010 Revision), are broadly similar to the merger provisions as provided for under Delaware Law.

There are however a number of important differences that could impede a takeover. First, the thresholdsthreshold for approval of the merger plan by shareholders areis higher. The thresholds are (a) a shareholder resolution by majority in number representing 75% in value of the shareholders voting together as one class or (b) if the shares to be issued to each shareholder in the consolidated or surviving company are to have the same rights and economic value as the


40


shares held in the constituent company,threshold is a special resolution of the shareholders (being 662/3% 2/3% of those present in person or by proxy and voting) voting together with such other authorization, if any, as one class.
As it is not expected thatmay be specified in the shares would have the same rights and economic value following a takeover by wayarticles of merger, it is expected that the first test is the one which would commonly apply. This threshold essentially has three requirements: “a majority in number” of the shareholders of the Company must approve the transaction, such approving majority must hold at least 75% “in value” of all the outstanding shares and the shareholders must vote together as one class.
association.

Additionally, the consent of each holder of a fixed or floating security interest (in essence a documented security interest as opposed to one arising by operation of law) is required to be obtained unless the Grand Court of the Cayman Islands waives such requirement.

The merger provisions contained within Part XVA of the Companies Law (2010 Revision) do contain shareholder appraisal rights similar to those provided for under Delaware law. Such rights are limited to a merger under Part XVA and do not apply to schemes of arrangement as discussed below.

The Companies Law (2010 Revision) also contains separate statutory provisions that provide for the merger, reconstruction and amalgamation of companies. Those are commonly referred to in the Cayman Islands as “schemes of arrangement.”

The procedural and legal requirements necessary to consummate these transactions are more rigorous and take longer to complete than the procedures typically required to consummate a merger in the United States. Under Cayman Islands law and practice, a scheme of arrangement in relation to a solvent Cayman Islands company must be approved at a shareholders’ meeting by a majority of each class of the company’s shareholders who are present and voting (either in person or by proxy) at such meeting. The shares voted in favor of the scheme of arrangement must also represent at least 75% of the value of each relevant class of the company’s shareholders present and voting at the meeting. The convening of these meetings and the terms of the amalgamation must also be sanctioned by the Grand Court of the Cayman Islands. Although there is no requirement to seek the consent of the creditors of the parties involved in the scheme of arrangement, the Grand Court typically seeks to ensure that the creditors have consented to the transfer of their liabilities to the surviving entity or that the scheme of arrangement does not otherwise materially adversely affect creditors’ interests. Furthermore, the court will only approve a scheme of arrangement if it is satisfied that:

the statutory provisions as to majority vote have been complied with;

the shareholders who voted at the meeting in question fairly represent the relevant class of shareholders to which they belong;

• the statutory provisions as to majority vote have been complied with;
• the shareholders who voted at the meeting in question fairly represent the relevant class of shareholders to which they belong;
• the scheme of arrangement is such as a businessman would reasonably approve; and
• the scheme of arrangement is not one that would more properly be sanctioned under some other provision of the Companies Law.

the scheme of arrangement is such as a businessman would reasonably approve; and

the scheme of arrangement is not one that would more properly be sanctioned under some other provision of the Companies Law.

If the scheme of arrangement is approved, the dissenting shareholder would have no rights comparable to appraisal rights, which would otherwise ordinarily be available to dissenting shareholders of U.S. corporations, providing rights to receive payment in cash for the judicially determined value of the shares.

In addition, if an offer by a third party to purchase shares in us has been approved by the holders of at least 90% of our outstanding shares (not including such a third party) pursuant to an offer within a four-month period of making such an offer, the purchaser may, during the two months following expiration of the four-month period, require the holders of the remaining shares to transfer their shares on the same terms on which the purchaser acquired the first 90% of our outstanding shares. An objection can be made to the Grand Court of the Cayman Islands, but this is unlikely to succeed unless there is evidence of fraud, bad faith, collusion or inequitable treatment of the shareholders.


41


There is uncertainty as to shareholders’ ability to enforce certain foreign civil liabilities in the Cayman Islands.

We are incorporated as an exempted company with limited liability under the laws of the Cayman Islands. A material portion of our assets are located outside of the United States. As a result, it may be difficult for our shareholders to enforce judgments against us or judgments obtained in U.S. courts predicated upon the civil liability provisions of the federal securities laws of the United States or any state of the United States.

We have been advised by our Cayman Islands counsel, Maples and Calder, that although there is no statutory enforcement in the Cayman Islands of judgments obtained in the United States, the courts of the Cayman Islands will — based on the principle that a judgment by a competent foreign court imposes upon the judgment debtor an obligation to pay the sum for which judgment has been given — recognize and enforce a foreign judgment of a court of competent jurisdiction if such judgment is final, for a liquidated sum, not in respect of taxes or a fine or penalty, is not inconsistent with a Cayman Islands judgment in respect of the same matters, and was not obtained in a manner, and is not of a kind, the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands. There is doubt, however, as to whether the Grand Court of the Cayman Islands will (1) recognize or enforce judgments of U.S. courts predicated upon the civil liability provisions of the federal securities laws of the United States or any state of the United States, or (2) in original actions brought in the Cayman Islands, impose liabilities predicated upon the civil liability provisions of the federal securities laws of the United States or any state of the United States, on the grounds that such provisions are penal in nature.

The Grand Court of the Cayman Islands may stay proceedings if concurrent proceedings are being brought elsewhere.

Item 1B.UNRESOLVED STAFF COMMENTS

None.

Item 2.PROPERTIES

As of December 31, 2010,2011, we leased all of our physical properties. During 2008, we relocated many of ourOur corporate executive offices toare located in the LA Live complex in downtown Los Angeles, California, where we currently occupy approximately 65,000 square feet under a lease expiring in 2018. We also lease approximately 316,000 square feet of general office space in Torrance, California, with terms expiring in 2016, for our North America and South America regional headquarters, including some of our corporate support functions. Additionally, we lease warehouse facilities in Los Angeles, California and Memphis, Tennessee of approximately 82,000149,000 square feet and 130,000 square feet, respectively. The Los Angeles and Memphis lease agreements have terms through June 2011July 2021 and December 2016, respectively. In Lake Forest, California, we also lease warehouse, manufacturing plant and office space of approximately 123,000 square feet under leases expiring in 2019 and 2020. In Venray, Netherlands, we lease our European centralized warehouse of approximately 150,000 square feet under an arrangement expiring in June 2020 for which we have a renewal option. In Guadalajara, Mexico we lease approximately 82,000123,000 square feet of warehouseoffice space with the term of the lease expiring in January 2015.2018. We also lease warehouse, manufacturing plant and office space in a majority of our other geographic areas of operation. We believe that our existing facilities are adequate to meet our current requirements and that comparable space is readily available at each of these locations.

Item 3.LEGAL PROCEEDINGS

The Company is from time to time engaged in routine litigation. The Company regularly reviews all pending litigation matters in which it is involved and establishes reserves deemed appropriate by management for these litigation matters when a probable loss estimate can be made.

As a marketer of dietary and nutritional supplements and other products that are ingested by consumers or applied to their bodies, the Company has been and is currently subjected to various product liability claims. The effects of these claims to date have not been materialinformation set forth under Note 7,Contingencies, to the Company, and the reasonably possible range of exposure on currently existing claims is not material to the Company. The Company believes that it has meritorious defenses


42


to the allegations containedConsolidated Financial Statements, included in the lawsuits. The Company currently maintains product liability insurance with an annual deductible of $10 million.
On April 16, 2007, Herbalife International of America, Inc. filed a Complaint in the United States District Court for the Central District of California against certain former Herbalife distributors who had left the Company to join a competitor. The Complaint alleged breach of contract, misappropriation of trade secrets, intentional interference with prospective economic advantage, intentional interference with contract, unfair competition, constructive trust and fraud and seeks monetary damages, attorney’s fees and injunctive relief (Herbalife International of America, Inc. v. Robert E. Ford, et al). The court entered a Preliminary Injunction against the defendants enjoining them from further useand/or misappropriation of the Company’s trade secrets on December 11, 2007. Defendants appealed the court’s entry of the Preliminary Injunction to the U.S. Court of Appeals for the Ninth Circuit. That court affirmed, in relevant part, the Preliminary Injunction. On December 3, 2007, the defendants filed a counterclaim alleging that the Company had engaged in unfair and deceptive business practices, intentional and negligent interference with prospective economic advantage, false advertising and that the Company was an endless chain scheme in violation of California law and seeking restitution, contract rescission and an injunction. Both sides engaged in discovery and filed cross motions for Summary Judgment. On August 25, 2009, the court granted partial summary judgment for Herbalife on all of defendants’ claims except the claim that the Company is an endless chain scheme which under applicable law is a question of fact that can only be determined at trial. The court denied defendants’ motion for Summary Judgment on Herbalife’s claims for misappropriation of trade secrets and breach of contract. On May 5, 2010, the District Court granted summary judgment for Herbalife on defendants’ endless chain-scheme counterclaim. Herbalife voluntarily dismissed its remaining claims, and on May 14, 2010, the District Court issued a final judgment dismissing all of the parties’ claims. On June 10, 2010 the defendants appealed from that judgment and on June 21, 2010, Herbalife cross-appealed. The Company believes that there is merit to its appeal, and it will prevail upon both its appeal as well as the defendant’s appeal.
Certain of the Company’s subsidiaries have been subject to tax audits by governmental authorities in their respective countries. In certain of these tax audits, governmental authorities are proposing that significant amounts of additional taxes and related interest and penalties are due. The Company and its tax advisors believe that there are substantial defenses to their allegations that additional taxes are owed, and the Company is vigorously contesting the additional proposed taxes and related charges. On May 7, 2010, the Company received an administrative assessment from the Mexican Tax Administration Service in an amount equivalent to approximately $93 million, translated at the period ended spot rate, for various items, the majority of which was Value Added Tax allegedly owed on certain of the Company’s products imported into Mexico during the years 2005 and 2006. This assessment is subject to interest and inflationary adjustments. On July 8, 2010, the Company initiated a formal administrative appeal process. In connection with the appeal of the assessment, the Company may be required to post bonds for some or all of the assessed amount. Therefore, in July 2010, the Company entered into agreements with certain insurance companies to allow for the potential issuance of surety bonds in support of its appeal of the assessment. Such surety bonds, if issued, would not affect the availability of the Company’s existing credit facility. The Company did not record a provision as the Company, based on analysis and guidance from its advisors, does not believe a loss is probable. Further, the Company is currently unable to reasonably estimate a possible loss or range of loss that could result from an unfavorable outcome in respect to this assessment or any additional assessments that may be issued for these or other periods. The Company believes that it has meritorious defenses and is vigorously pursuing the appeal, but final resolutionItem 15 of this matter could take several years.
These matters may take several years to resolve. While the Company believes it has meritorious defenses, it cannot be sure of their ultimate resolution. Although the Company has reserved amounts for certain matters that the Company believes represent the most likely outcome of the resolution of these related disputes, if the CompanyReport, is incorrect in the assessment, the Company may have to record additional expenses, when it becomes probable that an increased potential liability is warranted.
incorporated herein by reference.

Item 4.(REMOVED AND RESERVED)MINE SAFETY DISCLOSURE


43Not applicable.


PART II

Item 5.MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Information with Respect to our Common Shares

On April 28, 2011, our shareholders approved a two-for-one stock split, or the stock split, of our common shares. One additional common share was distributed to our shareholders on or around May 17, 2011, for each common share held on May 10, 2011. All references within this Annual Report, including the financial statements and related notes, to number of shares and per share amounts have been retrospectively adjusted for all periods presented to reflect the stock split.

Our common shares are listed on the New York Stock Exchange, or NYSE, and trade under the symbol “HLF.” The following table sets forth the range of the high and low sales prices for our common shares in each of the relevant fiscal quarters presented, based upon quotations on the NYSE consolidated transaction reporting system.

         
Quarter Ended High  Low 
 
March 31, 2010 $46.70  $37.06 
June 30, 2010 $53.00  $42.33 
September 30, 2010 $60.65  $44.95 
December 31, 2010 $71.29  $59.50 
         
Quarter Ended High  Low 
 
March 31, 2009 $23.46  $12.12 
June 30, 2009 $31.98  $14.71 
September 30, 2009 $35.87  $28.92 
December 31, 2009 $44.43  $31.47 

Quarter Ended

  High   Low 

March 31, 2011

  $41.26    $31.26  

June 30, 2011

  $58.72    $40.32  

September 30, 2011

  $63.35    $48.40  

December 31, 2011

  $63.40    $47.50  

Quarter Ended

  High   Low 

March 31, 2010

  $23.35    $18.53  

June 30, 2010

  $26.50    $21.17  

September 30, 2010

  $30.33    $22.48  

December 31, 2010

  $35.65    $29.75  

The market price of our common shares is subject to fluctuations in response to variations in our quarterly operating results, general trends in the market for our products and product candidates, economic and currency exchange issues in the foreign markets in which we operate as well as other factors, many of which are not within our control. In addition, broad market fluctuations, as well as general economic, business and political conditions may adversely affect the market for our common shares, regardless of our actual or projected performance.

The closing price of our common shares on February 17, 2011,15, 2012, was $68.34.$59.58. The approximate number of holders of record of our common shares as of February 17, 201115, 2012 was 801.772. This number of holders of record does not represent the actual number of beneficial owners of our common shares because shares are frequently held in “street name” by securities dealers and others for the benefit of individual owners who have the right to vote their shares.


44


Performance Graph

Our common shares began trading on the NYSE on December 16, 2004. Set forth below is information comparing the cumulative total shareholder return and share price appreciation plus dividends on our common shares with the cumulative total return of the S&P 500 Index and a market weighted index of publicly traded peers over the five year period ended December 31, 2010.2011. The graph assumes that $100 is invested in each of our common shares, the S&P 500 Index and the index of publicly traded peers on December 31, 20052006 and that all dividends were reinvested. The publicly traded companies in the peer group are Avon Products, Inc., Nature’s Sunshine Products, Inc., Tupperware Corporation, Nu Skin Enterprises Inc., USANA Health Sciences Inc., Weight Watchers International, Inc. and Mannatech, Inc.

Comparison of Cumulative Five Year Total Return

                               
   12/31/05  12/31/06  12/31/07  12/31/08  12/31/09  12/31/10
Herbalife Ltd.   $100.00   $123.49   $125.66   $69.37   $134.14   $230.05 
S&P 500 Index  $100.00   $115.79   $122.16   $76.96   $97.33   $111.99 
Peer Index  $100.00   $114.20   $126.98   $81.69   $115.80   $119.06 
                               


45


    12/31/06   12/31/07   12/31/08   12/31/09   12/31/10   12/31/11 

Herbalife Ltd.

  $100.00    $101.76    $56.18    $108.62    $186.29    $285.48  

S&P 500 Index

  $100.00    $105.49    $66.46    $84.05    $96.71    $98.76  

Peer Index

  $100.00    $111.19    $71.53    $101.40    $104.25    $95.81  

Information with Respect to Dividends

During the second quarter of 2007, the Company’s board of directors adopted a regular quarterly cash dividend program. The Company’s board of directors authorized a $0.20$0.10 per common share dividend each quarter from the adoption of the program through the second quarter of 2010. On August 2, 2010, the Company’s board of directors approved an increase in the quarterly cash dividend to $0.25$0.13 per common share, an increase of $0.05$0.03 per common share from prior quarters. On May 2, 2011, the Company announced that its board of directors approved an increase in the quarterly cash dividend to $0.20 per common share, an increase of $0.07 per common share from prior quarters. The aggregate amount of dividends paid and declared during fiscal year 2011, 2010, 2009, and 20082009 was approximately $85.5 million, $53.7 million, and $48.7 million, and $50.7 million, respectively.

The declaration of future dividends is subject to the discretion of the Company’s board of directors and will depend upon various factors, including the Company’s net earnings, financial condition, restrictions imposed by the Company’s current credit agreement,facility entered into on March 9, 2011, or the New Credit Facility, and the terms of any other indebtedness that may be outstanding, cash requirements, future prospects and other factors deemed relevant by theits board of directors. For example, the senior credit facility entered into on July 21, 2006, as amended,The New Credit Facility permits payments of dividends as long as no default or event of default exists and the sum ofconsolidated leverage ratio specified in the amounts paid with respect to dividends and share repurchases doesNew Credit Facility is not exceed the sum of $450.0 million plus 75% of cumulative consolidated net income from the first quarter of 2007 to the last day of the quarter most recently ended prior to the date of dividend. There is no guarantee that the board of directors will not terminate the quarterly dividend program.

exceeded.

Information with Respect to Securities Authorized for Issuance Under Equity Compensation Plans

The following table sets forth as of December 31, 2010,2011, information with respect to (a) number of securities to be issued upon exercise of outstanding options, warrants and rights, (b) the weighted average exercise price of outstanding options, warrants and rights and (c) the number of securities remaining available for future issuance under equity compensation plans.

             
        Number of Securities
 
  Number of Securities
     Remaining Available for
 
  to be Issued
  Weighted Average
  Future Issuance Under
 
  Upon Exercise of
  Exercise Price of
  Equity Compensation Plans
 
  Outstanding Options,
  Outstanding Options,
  (Excluding Securities
 
  Warrants and Rights  Warrants and Rights  in Column (a))(2) 
  (a)  (b)  (c) 
 
Equity compensation plans approved by security holders(1)  6,970,212  $28.75   1,833,174 
Equity compensation plans not approved by security holders         
Total  6,970,212  $28.75   1,833,174 

   Number of Securities
to  be Issued
Upon Exercise of
Outstanding Options,
Warrants and Rights
   Weighted Average
Exercise  Price of
Outstanding Options,
Warrants and Rights
   Number of  Securities
Remaining Available for
Future Issuance Under
Equity Compensation Plans
(Excluding  Securities
in Column (a))(2)
 
   (a)   (b)   (c) 

Equity compensation plans approved by security holders(1)

   9,109,900    $22.54     6,943,158  

Equity compensation plans not approved by security holders

               

Total

   9,109,900    $22.54     6,943,158  

(1)Consists of five plans: The WH Holdings (Cayman Islands) Ltd. Stock Incentive Plan, the WH Holdings (Cayman Islands) Ltd. Independent Directors Stock Incentive Plan, the Herbalife Ltd. 2004 Stock Incentive Plan, the Amended and Restated Herbalife Ltd. 2005 Stock Incentive Plan, and the Amended and Restated Herbalife Ltd. Independent Directors Deferred Compensation and Stock Unit Plan. In February 2008, a shareholder approved Employee Stock Purchase Plan was implemented. The terms of these plans are summarized in Note 9,Share-Based Compensation,to the notes to our consolidated financial statements.Consolidated Financial Statements.

(2)Includes 941,7331.9 million common shares available for future issuance under the shareholder approved Employee Stock Purchase Plan which was implemented in February 2008.


46


Information with Respect to Purchases of Equity Securities by the Issuer

On April 17, 2009, the Company’s share repurchase program adopted on April 18, 2007 expired pursuant to its terms. On April 30, 2009, the Company announced that its board of directors authorized a new program for the Company to repurchase up to $300 million of Herbalife common shares during the next two years, at such times and prices as determined by the Company’s management. On May 3, 2010, the Company’s board of directors approved an increase to the share repurchase authorization from $300 million to $1 billion. In addition, the Company’s board of directors approved the extension of the expiration date of the share repurchase program from April 2011 to December 2014. As of December 31, 2010,2011 the approximate dollar value of shares that could be repurchased under the Company’s share repurchase program was approximately $776.7$477.9 million.

The following is a summary of our repurchases of common shares during the three months ended December 31, 2010:

                 
        Total Number
    
        of Shares
  Approximate Dollar
 
        Purchased as
  Value of Shares
 
  Total Number
  Average Price
  Part of Publicly
  that May Yet be
 
  of Shares
  Paid per
  Announced
  Purchased Under the
 
Period Purchased  Share  Plans or Programs  Plans or Programs 
 
October 1 — October 31          $826,688,278 
November 1 — November 30  507,742  $67.71   507,742  $792,309,246 
December 1 — December 31  225,271  $69.34   225,271  $776,688,953 
                 
Total  733,013  $68.21   733,013  $776,688,953 
                 


47

2011:


Period

  Total Number
of  Shares
Purchased
   Average Price
Paid  per
Share
   Total Number
of  Shares
Purchased as
Part of  Publicly
Announced
Plans or Programs
   Approximate Dollar
Value  of Shares
that May Yet be
Purchased Under the
Plans or Programs
 

October 1 — October 31

                 $527,867,644  

November 1 — November 30

   907,025    $55.12     907,025    $477,868,180  

December 1 — December 31

                 $477,868,180  
  

 

 

     

 

 

   

Total

   907,025    $55.12     907,025    $477,868,180  
  

 

 

     

 

 

   

Item 6.SELECTED FINANCIAL DATA

The following table sets forth certain of our historical financial data. We have derived the selected historical consolidated financial data for the years ended December 31, 2011, 2010, 2009, 2008, 2007 and 20062007 from our audited financial statements and the related notes. Not all periods shown below are discussed in this Annual Report onForm 10-K. The selected consolidated historical financial data set forth below are not necessarily indicative of the results of future operations and should be read in conjunction with the discussion under Item 7 —Management’s Discussion and Analysis of Financial Condition and Results of Operations, and the historical consolidated financial statements and accompanying notes included elsewhere in this document.

                     
  Year Ended December 31, 
  2010  2009  2008  2007  2006 
     (In thousands except per share data)    
 
Income Statement Data:
                    
Net sales $2,734,226  $2,324,577  $2,359,213  $2,145,839  $1,885,534 
Cost of sales  558,811   493,134   458,396   438,382   380,338 
                     
Gross profit  2,175,415   1,831,443   1,900,817   1,707,457   1,505,196 
Royalty overrides  900,248   761,501   796,718   760,110   675,245 
Selling, general and administrative expenses(1)  887,655   773,911   771,847   634,190   573,005 
                     
Operating income(1)  387,512   296,031   332,252   313,157   256,946 
Interest expense, net  7,417   5,103   13,222   10,573   39,541 
                     
Income before income taxes  380,095   290,928   319,030   302,584   217,405 
Income taxes  89,562   87,582   97,840   111,133   74,266 
                     
Net income $290,533  $203,346  $221,190  $191,451  $143,139 
                     
Earnings per share                    
Basic $4.88  $3.32  $3.47  $2.75  $2.02 
Diluted $4.67  $3.22  $3.36  $2.63  $1.92 
Weighted average shares outstanding                    
Basic  59,502   61,221   63,785   69,497   70,814 
Diluted  62,256   63,097   65,769   72,714   74,509 
Other Financial Data:
                    
Retail sales(2) $4,306,262  $3,690,061  $3,811,159  $3,511,003  $3,100,205 
Net cash provided by (used in):                    
Operating activities  380,402   285,056   272,988   270,811   184,447 
Investing activities  (69,136)  (71,322)  (84,964)  (43,390)  (66,808)
Financing activities  (254,480)  (213,327)  (205,067)  (203,511)  (55,044)
Depreciation and amortization  68,621   62,437   48,732   35,115   29,995 
Capital expenditures(3)  68,125   60,128   106,813   49,027   66,870 


48


Prior periods in the table below have been adjusted for the stock split and change in accounting principle as described in Note 2,Basis of Presentation, to the Consolidated Financial Statements.

   Year Ended December 31, 
   2011  2010  2009  2008  2007 
   (In thousands except per share data) 

Income Statement Data:

      

Net sales

  $3,454,537   $2,734,226   $2,324,577   $2,359,213   $2,145,839  

Cost of sales

   680,084    558,811    493,134    458,396    438,382  
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Gross profit

   2,774,453    2,175,415    1,831,443    1,900,817    1,707,457  

Royalty overrides

   1,137,560    900,248    761,501    796,718    760,110  

Selling, general and administrative expenses(1)

   1,074,623    887,655    773,911    771,847    634,190  
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Operating income(1)

   562,270    387,512    296,031    332,252    313,157  

Interest expense, net

   2,491    7,417    5,103    13,222    10,573  
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Income before income taxes

   559,779    380,095    290,928    319,030    302,584  

Income taxes

   147,201    80,880    87,582    97,840    111,133  
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Net income

  $412,578   $299,215   $203,346   $221,190   $191,451  
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Earnings per share

      

Basic

  $3.51   $2.51   $1.66   $1.73   $1.38  

Diluted

  $3.30   $2.37   $1.61   $1.68   $1.32  

Weighted average shares outstanding

      

Basic

   117,540    119,004    122,442    127,570    138,994  

Diluted

   124,846    126,495    126,194    131,538    145,428  

Other Financial Data:

      

Retail sales(2)

  $5,427,844   $4,306,262   $3,690,061   $3,811,159   $3,511,003  

Net cash provided by (used in):

      

Operating activities

   509,331    389,084    285,056    272,988    270,811  

Investing activities

   (92,086  (69,136  (71,322  (84,964  (43,390

Financing activities

   (337,799  (263,162  (213,327  (205,067  (203,511

Depreciation and amortization

   71,853    68,621    62,437    48,732    35,115  

Capital expenditures(3)

   90,855    68,125    60,128    106,813    49,027  

                     
  As of December 31, 
  2010  2009  2008  2007  2006 
     (In thousands except per share data)    
 
Balance Sheet Data:
                    
Cash and cash equivalents $190,550  $150,801  $150,847  $187,407  $154,323 
Receivables, net  85,612   76,958   70,002   58,729   51,758 
Inventories  182,467   145,962   134,392   128,648   146,036 
Total working capital  124,770   83,536   82,869   111,478   132,215 
Total assets  1,232,220   1,146,050   1,121,318   1,067,243   1,016,933 
Total debt  178,166   250,333   351,631   365,152   185,438 
Shareholders’ equity(4)  487,212   359,311   241,731   182,244   353,890 
Cash dividends per common share  0.90   0.80   0.80   0.60    

   As of December 31, 
   2011   2010   2009   2008   2007 
   (In thousands except per share data) 

Balance Sheet Data:

          

Cash and cash equivalents

  $258,775    $190,550    $150,801    $150,847    $187,407  

Receivables, net

   89,660     85,612     76,958     70,002     58,729  

Inventories

   247,696     182,467     145,962     134,392     128,648  

Total working capital

   220,130     124,770     83,536     82,869     111,478  

Total assets

   1,446,209     1,232,220     1,146,050     1,121,318     1,067,243  

Total debt

   203,621     178,166     250,333     351,631     365,152  

Shareholders’ equity(4)

   560,188     487,212     359,311     241,731     182,244  

Cash dividends per common share

   0.73     0.45     0.40     0.40     0.30  

(1)The years ended December 31, 2009, 2008, and 2007 include severance and 2006 includerelated expenses associated with restructuring activities of approximately $1.3 million, $6.7 million, and $5.8 million, and $7.5 million of severance and related expenses, respectively, associated with restructuring.respectively.

(2)Retail sales represent the gross sales amount reflected on our invoices to our distributors. We do not receive the full retail sales amount. “Product sales” represent the actual product purchase price paid to us by our distributors, after giving effect to distributor discounts referred to as “distributor allowances,” which total approximately 50% of suggested retail sales prices. Distributor allowances as a percentage of sales may vary by country depending upon regulatory restrictions that limit or otherwise restrict distributor allowances. “Net sales” represents product sales and shipping & handling revenues.
Retail sales data is discussed in greater detail in Item 7 —Management’s Discussion and Analysis of Financial Condition and Results of Operations. Our use of retail sales reflects the fundamental role of “retail sales” in our accounting systems, internal controls and operations, including the basis upon which the distributors are being paid. In addition, information in daily and monthly reports reviewed by our management includes retail sales data.

Retail sales data is discussed in greater detail in Item 7 —Management’s Discussion and Analysis of Financial Condition and Results of Operations. Our use of retail sales reflects the fundamental role of “retail sales” in our accounting systems, internal controls and operations, including the basis upon which the distributors are being paid. In addition, information in daily and monthly reports reviewed by our management includes retail sales data.

The following represents the reconciliation of retail sales to net sales for each of the periods set forth above:

                     
  Year Ended December 31, 
  2010  2009  2008  2007  2006 
        (In thousands)       
 
Retail sales $4,306,262  $3,690,061  $3,811,159  $3,511,003  $3,100,205 
Distributor allowance  (1,968,769)  (1,696,444)  (1,778,866)  (1,658,569)  (1,472,527)
                     
Product sales  2,337,493   1,993,617   2,032,293   1,852,434   1,627,678 
Shipping & handling revenues  396,733   330,960   326,920   293,405   257,856 
                     
Net sales $2,734,226  $2,324,577  $2,359,213  $2,145,839  $1,885,534 
                     

   Year Ended December 31, 
   2011  2010  2009  2008  2007 
   (In thousands) 

Retail sales

  $5,427,844   $4,306,262   $3,690,061   $3,811,159   $3,511,003  

Distributor allowance

   (2,483,122  (1,968,769  (1,696,444  (1,778,866  (1,658,569
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Product sales

   2,944,722    2,337,493    1,993,617    2,032,293    1,852,434  

Shipping & handling revenues

   509,815    396,733    330,960    326,920    293,405  
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Net sales

  $3,454,537   $2,734,226   $2,324,577   $2,359,213   $2,145,839  
  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

(3)Includes acquisition of property, plant and equipment from capitalized leases and other long-term debt of $0.4 million, $0.4 million, $18.2 million, $7.1 million, and $2.6$7.1 million, for the years ended December 31, 2011, 2009, 2008, 2007, and 2006,2007, respectively.

(4)During the years ended December 31, 2011, 2010, 2009, 2008 and 2007, we paid an aggregate $85.5 million, $53.7 million, $48.7 million, $50.7 million and $41.5 million in dividends, respectively, and repurchased $298.8 million, $150.1 million, $73.2 million, $137.0 million and $365.8 million of our common shares through open market purchases, respectively. During the year ended December 31, 2006 we did not declare any dividends or repurchase any of our common shares.

49


Item 7.MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

You should read the following discussion and analysis in conjunction with Item 6 — Selected Financial Data and our consolidated financial statements and related notes, each included elsewhere in this Annual Report onForm 10-K.

Overview

We are a global network marketing company that sells weight management products, nutritional supplements, energy, sports & fitness products and personal care products. We pursue our mission of “changing people’s lives” by providing a financially rewarding business opportunity to distributors and quality products to distributors and their customers who seek a healthy lifestyle. We are one of the largest network marketing companies in the world with net sales of approximately $2.7$3.5 billion for the year ended December 31, 2010.2011. As of December 31, 2010,2011, we sold our products in 7479 countries through a network of approximately 2.12.7 million independent distributors. In China, we sell our products through retail stores, sales representatives, sales officers and independent service providers. Due to changes in China’s labor laws, effective in the third quarter of 2011, we no longer have sales employees and licensed businessin China as they have been transitioned into independent service providers. We believe the quality of our products and the effectiveness of our distribution network, coupled with geographic expansion, havehas been the primary reasons for our success throughout our31-year 32-year operating history.

Our products are grouped in four principal categories: weight management, targeted nutrition, energy, sports & fitness and Outer Nutrition, along with literature and promotional items. Our products are often sold in programs that are comprised of a series of related products and literature designed to simplify weight management and nutrition for consumers and maximize our distributors’ cross-selling opportunities.

Industry-wide factors that affect us and our competitors include the global obesity epidemic and the aging of the worldwide population, which are driving demand for nutrition and wellness-related products along with the global increase in under and unemployment which can affect the recruitment and retention of distributors seeking part time or full time income opportunities.

While we are closely monitoringcontinue to monitor the current global economicfinancial crisis, we remain focused on the opportunities and challenges in retailing of our products, recruiting and retaining distributors, improving distributor productivity, opening new markets, further penetrating existing markets, globalizing successful distributor methodsDistributor Methods of operationOperation, or DMO, such as Nutrition Clubs and Weight Loss Challenges, introducing new products and globalizing existing products, developing niche market segments and further investing in our infrastructure. Management remains intently focused onalso continues to monitor the Venezuela market and especially the limited ability to repatriate cash.

We report revenue from our six regions:

North America;

Mexico;

• North America, which consists of the U.S., Canada and Jamaica;
• Mexico;
• South and Central America;
• EMEA, which consists of Europe, the Middle East and Africa;
• Asia Pacific (excluding China), which consists of Asia, New Zealand and Australia; and
• China.

South and Central America;

EMEA, which consists of Europe, the Middle East and Africa;

Asia Pacific (excluding China); and

China.

Volume Points by Geographic Region

A key non-financial measure we focus on is Volume Points on a Royalty Basis, or Volume Points, which is essentially our weighted unitaverage measure of product sales volume. It isVolume Points, which are unaffected by exchange rates or price increases, are used by management as a useful measure that we rely on as it excludes the impact of foreign currency fluctuations, changesproxy for sales trends because in retail pricing, and ignores the differences generated by varying retail pricing across geographic markets. The Volume Point measure, in the aggregate and in each region, can be a measure of our sales volume as well as of sales volume trends. In general, an increase in Volume Points in a particular geographic region or country indicates an increase in our sales volume which results in an increase in our


50


local currency net sales;sales while a decrease in Volume Points in a particular geographic region or country indicates a decrease in our sales volume, which results in decreasing local currency net sales.
                         
  For the Year Ended December 31, 
  2010  2009  % Change  2009  2008  % Change 
     (Volume points in millions) 
 
North America  888.5   779.9   13.9%  779.9   750.4   3.9%
Mexico  563.0   493.4   14.1%  493.4   545.9   (9.6)%
South & Central America  427.4   412.0   3.7%  412.0   430.6   (4.3)%
EMEA  486.6   466.4   4.3%  466.4   497.1   (6.2)%
Asia Pacific (excluding China)  723.6   570.7   26.8%  570.7   438.7   30.1%
China  144.2   115.3   25.1%  115.3   115.9   (0.5)%
                         
Worldwide  3,233.3   2,837.7   13.9%  2,837.7   2,778.6   2.1%
                         

We assign a Volume Point value to a product when it is first introduced into the market. The specific number of Volume Points assigned to a product is based on a Volume Point to U.S. dollar ratio that we use for the vast majority of new products. If a product is available in different quantities then the various sizes will have different Volume Point values. If a new product is not introduced in or otherwise expected to be sold in the U.S., we will determine the Volume Point value for that product based on a review of various factors in the regions and countries in which we will market the product, including the Volume Point to local currency ratio of existing products in the relevant countries. In general, once assigned, a Volume Point value is consistent in each region and country and does not change from year to year. The reason volume points are used in the manner described above is that we use volume points for distributor qualification and recognition purposes and therefore attempts to keep volume points for a similar or like product consistent on a global basis. However, because Volume Points are a function of value rather than product type or size, they are not a reliable measure for product mix. As an example, an increase in Volume Points in a specific country or region could mean a significant increase in sales of less expensive product or a marginal increase in sales of an expensive product.

   For the Year Ended December 31, 
   2011   2010   % Change  2010   2009   % Change 
   (Volume points in millions) 

North America

   987.1     888.5     11.1  888.5     779.9     13.9

Mexico

   704.5     563.0     25.1  563.0     493.4     14.1

South & Central America

   569.9     427.4     33.3  427.4     412.0     3.7

EMEA

   545.0     486.6     12.0  486.6     466.4     4.3

Asia Pacific (excluding China)

   961.6     723.6     32.9  723.6     570.7     26.8

China

   153.8     144.2     6.7  144.2     115.3     25.1
  

 

 

   

 

 

    

 

 

   

 

 

   

Worldwide

   3,921.9     3,233.3     21.3  3,233.3     2,837.7     13.9
  

 

 

   

 

 

    

 

 

   

 

 

   

Average Active Sales Leaders by Geographic Region

With the continued expansion of daily consumption business modelsDMOs in our different markets, we believe the Average Active Sales Leaderaverage active sales leader metric, which represents the monthly average number of sales leaders that place an order from us in a given quarter, is a useful metric. We rely on this metric as an indication of the engagement level of sales leaders in a given region. Changes in the Average Active Sales Leaderaverage active sales leader metric may be indicative of the current momentum in a region as well as the potential for higher annual retention levels and future sales growth through utilization of daily consumption based Daily Methods of Operations, or DMOs.

                         
  For the Year Ended December 31,  For the Year Ended December 31, 
  2010  2009  % Change  2009  2008  % Change 
 
North America  49,305   43,299   13.9%  43,299   40,811   6.1%
Mexico  38,084   34,545   10.2%  34,545   36,969   (6.6)%
South & Central America  28,821   27,935   3.2%  27,935   27,163   2.8%
EMEA  33,531   32,594   2.9%  32,594   33,349   (2.3)%
Asia Pacific (excluding China)  35,899   28,529   25.8%  28,529   25,563   11.6%
China  6,848   5,920   15.7%  5,920   5,762   2.7%
Worldwide(1)  185,774   166,625   11.5%  166,625   163,326   2.0%

   For the Year Ended December 31,  For the Year Ended December 31, 
   2011   2010   % Change  2010   2009   % Change 

North America

   56,741     49,305     15.1  49,305     43,299     13.9

Mexico

   47,697     38,084     25.2  38,084     34,545     10.2

South & Central America

   34,938     28,821     21.2  28,821     27,935     3.2

EMEA

   38,607     33,531     15.1  33,531     32,594     2.9

Asia Pacific (excluding China)

   48,195     35,899     34.3  35,899     28,529     25.8

China

   8,814     6,848     28.7  6,848     5,920     15.7

Worldwide(1)

   227,308     185,774     22.4  185,774     166,625     11.5

(1)Worldwide Average Active Sales Leadersaverage active sales leaders may not equal the sum of the Average Active Sales Leadersaverage active sales leaders in each region due to the calculation being an average of Sales Leaderssales leaders active in a period, not a summation.summation, and the fact that some sales leaders are active in more than one region but are counted only once in the worldwide amount.
Number of New Sales Leaders by Geographic Region during the Reporting Period
We also focus on the number of distributors qualified as new sales leaders under our compensation system. Excluding China, distributors qualify for sales leader status based on their Volume Points. The changes in the total number of sales leaders or changes in the productivity of sales leaders may cause Volume Points to increase or decrease. The fluctuation in the number of new sales leaders has historically been a general indicator of the level of distributor recruitment. Given our ongoing transition to daily consumption DMOs coupled with the changes in our marketing plan implemented in late 2009, we are evaluating the usefulness of this measure to our ongoing business. The additional optional qualification introduced globally from the changes in our marketing plan has contributed to the increase in the number of new sales leaders.


51


                         
  For the Year Ended December 31, 
  2010  2009  % Change  2009  2008  % Change 
 
North America  41,171   38,248   7.6%  38,248   43,517   (12.1)%
Mexico  25,473   21,826   16.7%  21,826   26,046   (16.2)%
South & Central America  24,977   29,052   (14.0)%  29,052   45,416   (36.0)%
EMEA  20,979   21,722   (3.4)%  21,722   27,132   (19.9)%
Asia Pacific (excluding China)  61,190   51,912   17.9%  51,912   40,905   26.9%
                         
Total New Sales Leaders  173,790   162,760   6.8%  162,760   183,016   (11.1)%
New China Sales Employees  24,875   23,003   8.1%  23,003   26,262   (12.4)%
                         
Worldwide Total New Sales Leaders  198,665   185,763   6.9%  185,763   209,278   (11.2)%
                         
Number of Sales Leaders and Retention Rates by Geographic Region as of Re-qualification Period

Our compensation system requires each sales leader to re-qualify for such status each year, prior to February, in order to maintain their 50% discount on productproducts and be eligible to receive royalty payments. In February of each year, we demote from the rank of sales leader those distributors who did not satisfy the re-qualification requirements during the preceding twelve months. The re-qualification requirement does not apply to new sales leaders (i.e., those who became sales leaders subsequent to the January re-qualification of the prior year).

             
Sales Leaders Statistics (Excluding China) 2010  2009  2008 
  (In thousands) 
 
January 1 total sales leaders  431.3   456.9   451.6 
January & February new sales leaders  21.2   20.6   28.6 
Demoted sales leaders (did not re-qualify)  (165.9)  (181.4)  (167.7)
Other sales leaders (resigned, etc)  (1.1)  (1.4)  (2.8)
             
End of February total sales leaders  285.5   294.7   309.7 
             

Sales Leaders Statistics (Excluding China)

  2011  2010  2009 
   (In thousands) 

January 1 total sales leaders

   434.2    431.3    456.9  

January & February new sales leaders

   28.9    21.2    20.6  

Demoted sales leaders (did not re-qualify)

   (144.8  (165.9  (181.4

Other sales leaders (resigned, etc)

   (0.8  (1.1  (1.4
  

 

 

  

 

 

  

 

 

 

End of February total sales leaders

   317.5    285.5    294.7  
  

 

 

  

 

 

  

 

 

 

The distributor statistics below further highlight the calculation for retention.

             
Sales Leaders Retention (Excluding China) 2010  2009  2008 
  (In thousands) 
 
Sales leaders needed to re-qualify  290.9   304.0   284.0 
Demoted sales leaders (did not re-qualify)  (165.9)  (181.4)  (167.7)
             
Total re-qualified  125.0   122.6   116.3 
             
Retention rate  43.0%  40.3%  41.0%
             

Sales Leaders Retention (Excluding China)

  2011  2010  2009 
   (In thousands) 

Sales leaders needed to re-qualify

   283.2    290.9    304.0  

Demoted sales leaders (did not re-qualify)

   (144.8  (165.9  (181.4
  

 

 

  

 

 

  

 

 

 

Total re-qualified

   138.4    125.0    122.6  
  

 

 

  

 

 

  

 

 

 

Retention rate

   48.9  43.0  40.3
  

 

 

  

 

 

  

 

 

 

The table below reflects the number of sales leaders as of February of the year indicated (subsequent to the annual re-qualification date) and sales leader retention rate by year and by region.

                         
  Number of Sales Leaders  Sales Leaders Retention Rate 
  2010  2009  2008  2010  2009  2008 
 
North America  64,668   63,726   64,383   43.3%  42.2%  43.5%
Mexico  47,068   50,099   60,685   50.4%  45.2%  44.4%
South & Central America  51,060   67,876   67,808   34.1%  32.2%  34.7%
EMEA  47,080   53,371   59,446   51.9%  48.7%  46.6%
Asia Pacific (excluding China)  75,635   59,631   57,355   38.6%  35.1%  34.3%
                         
Total Sales leaders  285,511   294,703   309,677   43.0%  40.3%  41.0%
China Sales Employees  27,415   29,684   25,294             
                         
Worldwide Total Sales Leaders  312,926   324,387   334,971             
                         

52


   Number of Sales Leaders   Sales Leaders Retention Rate 
   2011   2010   2009     2011      2010      2009   

North America

   72,152     64,668     63,726     48.6  43.3  42.2

Mexico

   54,526     47,068     50,099     57.9  50.4  45.2

South & Central America

   50,288     51,060     67,876     47.3  34.1  32.2

EMEA

   49,696     47,080     53,371     58.6  51.9  48.7

Asia Pacific (excluding China)

   90,822     75,635     59,631     38.4  38.6  35.1
  

 

 

   

 

 

   

 

 

     

Total Sales leaders

   317,484     285,511     294,703     48.9  43.0  40.3

China

   30,543     27,415     29,684      
  

 

 

   

 

 

   

 

 

     

Worldwide Total Sales Leaders

   348,027     312,926     324,387      
  

 

 

   

 

 

   

 

 

     

The number of sales leaders by geographic region as of the quarterly reporting dates will normally be higher than the number of sales leaders by geographic region as of the re-qualification period because sales leaders who do not re-qualify during the relevant twelve-month period will be deletedremoved from the rank of sales leader the following February. Since sales leaders purchase most of our products for resale to other distributors and consumers, comparisons of sales leader totals on ayear-to-year basis are indicators of our recruitment and retention efforts in different geographic regions.

The value of the average monthly purchase of Herbalife products by our sales leaders has remained relatively constant over time. Consequently, increases in our sales are driven primarily by our retention of sales leaders, our recruitment and retention of distributors and by our distributors’ increased adoption of daily consumption business methods.

DMOs.

We provide distributors with products, support materials, training, special events and a competitive compensation program. If a distributor wants to pursue the Herbalife business opportunity, the distributor is responsible for growing his or her business and personally pays for the sales activities related to attracting new customers and recruiting distributors by hosting events such as Herbalife Opportunity Meetings or Success Training Seminars; by advertising Herbalife’s products; by purchasing and using promotional materials such as t-shirts, buttons and caps; by utilizing and paying for direct mail and print material such as brochures, flyers, catalogs, business cards, posters and banners and telephone book listings; by purchasing inventory for sale or use as samples; and by training, mentoring and following up (in person or via the phone or internet) with customers and recruits on how to use Herbalife productsand/or pursue the Herbalife business opportunity.

Presentation

“Retail sales”represent the gross sales amounts on our invoices to distributors before distributor allowances, as defined below, and“net sales,”which reflect distributor allowances and shipping and handling revenues, represent what we collect and recognize as net sales in our financial statements. We discuss retail sales because of its fundamental role in our compensation systems, internal controls and operations, including its role as the basis upon which distributor discounts, royalties and bonuses are awarded. In addition, it is used as the basis for certain information included in daily and monthly reports reviewed by our management. However, such a measure is not in accordance with U.S. generally accepted accounting principles, or U.S. GAAP. Retail sales should not be considered in isolation from, nor as a substitute for, net sales and other consolidated income or cash flow statement data prepared in accordance with U.S. GAAP, or as a measure of profitability or liquidity. A reconciliation of net sales to retail sales is presented below under “Results of Operations.”“Product sales”represent the actual product purchase price paid to us by our distributors, after giving effect to distributor discounts referred to as “distributor allowances,” which approximate 50% of retail sales prices. Distributor allowances as a percentage of retail sales may vary by country depending upon regulatory restrictions that limit or otherwise restrict distributor allowances.

We also offer reduced distributor allowances with respect to certain products worldwide.

Our international operations have provided and will continue to provide a significant portion of our total net sales. As a result, total net sales will continue to be affected by fluctuations in the U.S. dollar against foreign currencies. In order to provide a framework for assessing how our underlying businesses performed excluding the effect of foreign currency fluctuations, in addition to comparing the percent change in net sales from one period to another in U.S. dollars, we also compare the percent change in net sales from one period to another period using “net sales in local currency”disclosure. Net sales in local currency is not a U.S. GAAP financial measure. Net sales in local currency removes from net sales in U.S. dollars the impact of changes in exchange rates between the U.S. dollar and the functional currencies of our foreign subsidiaries, by translating the current period net sales into U.S. dollars using the same foreign currency exchange rates that were used to translate the net sales for the previous comparable period. We believe presenting net sales in local currency is useful to investors because it allows a more meaningful comparison of net sales of our foreign operations from period to period. However, net sales in local currency measures should not be considered in isolation or as an alternative to net sales in U.S. dollars measures that reflect current period exchange rates, or to other financial measures calculated and presented in accordance with U.S. GAAP.

Our“gross profit”consists of net sales less“cost of sales,”which represents our manufacturing costs, the price we pay to our raw material suppliers and manufacturers of our products as well as shipping and handling costs related to product


53


shipments, duties and tariffs, freight expenses relating to shipment of products to distributors and importers and similar expenses.

“Royalty overrides”are our most significant expense and consist of:

royalty overrides and production bonuses which total approximately 15% and 7%, respectively, of the retail sales of weight management, targeted nutrition, energy, sports & fitness, Outer Nutrition and promotional products;

the Mark Hughes bonus payable to some of our most senior distributors in the aggregate amount of up to 1% of retail sales of weight management, targeted nutrition, energy, sports & fitness, Outer Nutrition products and promotional products; and

• royalty overrides and production bonuses which total approximately 15% and 7%, respectively, of the retail sales of weight management, targeted nutrition, energy, sports & fitness, Outer Nutrition and promotional products;
• the Mark Hughes bonus payable to some of our most senior distributors in the aggregate amount of up to 1% of retail sales of weight management, targeted nutrition, energy, sports & fitness, Outer Nutrition products and promotional products; and
• other discretionary incentive cash bonuses to qualifying distributors.

other discretionary incentive cash bonuses to qualifying distributors.

Royalty overrides are generally earned based on retail sales and provide potential earnings to distributors of up to 23% of retail sales or approximately 33% of our net sales. Royalty overrides together with distributor allowances of up to 50% represent the potential earnings to distributors of up to approximately 73% of retail sales. Theare generally compensation to distributors is generally for the development, retention and improved productivity of their distributor sales organizations and isare paid to several levels of distributors on each sale. Due to restrictions on direct selling in China, our full-time employed sales representativesemployees in China, areprior to the transition into independent service providers, were compensated with wages, bonuses and benefits and our licensed businessindependent service providers in China are compensated with service fees instead of the distributor allowances and royalty overrides utilized in our traditional marketing program. Compensation to China sales employees and independent service providers are included in selling, general and administrative expenses. Because of local country regulatory constraints, we may be required to modify our typical distributor incentive plans as described above. Consequently, the total distributor discount percentage may vary over time. We also offer reduced distributor allowances and pay reduced royalty overrides with respect to certain products worldwide.

Consequently, the total royalty override percentage may vary over time.

Royalty overrides together with distributor allowances of up to 50% of retail sales prices represent the potential earnings to distributors of up to approximately 73% of retail sales.

Ouroperatingcontribution margins”consist of net sales less cost of sales and royalty overrides.

“Selling, general and administrative expenses”represent our operating expenses, components of which include labor and benefits, sales events, professional fees, travel and entertainment, distributor marketing, occupancy costs, communication costs, bank fees, depreciation and amortization, foreign exchange gains and losses and other miscellaneous operating expenses.

Most of our sales to distributors outside the United States are made in the respective local currencies. In preparing our financial statements, we translate revenues into U.S. dollars using average exchange rates. Additionally, the majority of our purchases from our suppliers generally are made in U.S. dollars. Consequently, a strengthening of the U.S. dollar versus a foreign currency can have a negative impact on our reported sales and operatingcontribution margins and can generate transaction losses on intercompany transactions. Throughout the last five years, foreign currency exchange rates have fluctuated significantly. From time to time, we enter into foreign exchange forward and option contracts to partially mitigate our foreign currency exchange risk as discussed in further detail in Item 7A —Quantitative and Qualitative Disclosures about Market Risk.

Results of Operations

Our results of operations for the periods below are not necessarily indicative of results of operations for future periods, which depend upon numerous factors, including our ability to recruit new distributors and retain existing distributors, open new markets, further penetrate existing markets, introduce new products and programs that will help our distributors increase their retail efforts and develop niche market segments.


54


The following table sets forth selected results of our operations expressed as a percentage of net sales for the periods indicated:
             
  Year Ended
  Year Ended
  Year Ended
 
  December 31,
  December 31,
  December 31,
 
  2010  2009  2008 
 
Operations:
            
Net sales  100.0%  100.0%  100.0%
Cost of sales  20.4   21.2   19.4 
             
Gross profit  79.6   78.8   80.6 
Royalty overrides(1)  32.9   32.8   33.8 
Selling, general and administrative expenses(1)  32.5   33.3   32.7 
             
Operating income  14.2   12.7   14.1 
Interest expense, net  0.3   0.2   0.6 
             
Income before income taxes  13.9   12.5   13.5 
Income taxes  3.3   3.8   4.1 
             
Net income  10.6   8.7   9.4 
             

   Year Ended
December  31,
2011
  Year Ended
December  31,
2010
  Year Ended
December  31,
2009
 

Operations:

    

Net sales

   100.0  100.0  100.0

Cost of sales

   19.7    20.4    21.2  
  

 

 

  

 

 

  

 

 

 

Gross profit

   80.3    79.6    78.8  

Royalty overrides(1)

   32.9   ��32.9    32.8  

Selling, general and administrative expenses(1)

   31.1    32.5    33.3  
  

 

 

  

 

 

  

 

 

 

Operating income

   16.3    14.2    12.7  

Interest expense, net

   0.1    0.3    0.2  
  

 

 

  

 

 

  

 

 

 

Income before income taxes

   16.2    13.9    12.5  

Income taxes

   4.3    3.0    3.8  
  

 

 

  

 

 

  

 

 

 

Net income

   11.9    10.9    8.7  
  

 

 

  

 

 

  

 

 

 

(1)Compensation to our China sales employees and licensed businessservice fees to our independent service providers isin China are included in selling, general and administrative expenses while distributor compensation for all other countries is included in royalty overrides.

Changes in net sales are directly associated with the recruiting and retention of our distributor force, retailing of our products, the quality and completeness of our product offerings that the distributor force has to sell and the number of countries in which we operate. Management’s role, both in-country and at the region and corporate level, is to provide distributors with a competitive and broad product line, encourage strong teamwork and distributor leadership and offer leading edge business tools and technology services to make doing business with Herbalife simple. Management uses the distributor marketing program coupled with educational and motivational tools and promotions to incentivize distributors to increase recruiting, retention and retailing, which in turn affect net sales. Such tools include Company sponsored sales events such as Extravaganzas, Leadership Development Weekends and World Team Schools where large groups of distributors gather, thus allowing them to network with other distributors, learn recruiting, retention and retailing techniques from our leading distributors and become more familiar with how to market and sell our products and business opportunities. Accordingly, management believes that these development and motivation programs increase the productivity of the sales leader network. The expenses for such programs are included in selling, general and administrative expenses. Sales are driven by several factors, including the number and productivity of distributors and sales leaders who continually build, educate and motivate their respective distribution and sales organizations. We also use event and non-event product promotions to motivate distributors to increase recruiting, retention and retailing activities. These promotions have prizes ranging from qualifying for events to product prizes and vacations. The costs of these promotions are included in selling, general and administrative expenses.

The factors described above have helped distributors increase their business, which in turn helps drive volume pointVolume Point growth in our business, and thus, net sales growth. The discussion below of net sales by geographic region further details some of the specific drivers of growth of our business and causes of sales increases and decreases

fluctuations during the yearsyear ended December 31, 2011 as compared to the same period in 2010, 2009 and 2008, as well as the unique growth or contraction factors specific to certain geographic regions or major countries.significant countries within a region. We believe that the correct business foundation, coupled with ongoing training and promotional initiatives, is required to increase recruiting and retention of distributors and retailing of our products. ThisThe correct business foundation includes strong country management that works closely with the distributor leadership, actively engaged and unified distributor leadership, a broad product line that appeals to local consumer needs, a favorable regulatory environment, a scalable and stable technology platform and an attractive distributor marketing plan. Initiatives, such as Success Training Seminars, Leadership Development Weekends, Promotional Events and regional Extravaganzas are integral components of developing a highly


55


motivated and educated distributor sales organization that will work toward increasing the recruitment and retention of distributors.

We anticipate that our strategy will continue to include creating and maintaining growth within existing markets while expanding into new markets. In addition, new ideas and DMOs, are being generated in many of our regional markets and are globalized where applicable, through the combined efforts of distributors, country management or regional and corporate management. ExamplesWhile we support a number of different DMOs, one of the more popular DMOs is the daily consumption DMO. Under our traditional DMO, a distributor typically sells to its customers on a somewhat infrequent basis (e.g., monthly) which provides fewer opportunities for interaction with their customers. Under a daily consumption DMO, a distributor interacts with its customers on a more frequent basis which enables the distributor to better educate and advise customers about nutrition and the proper use of the products and helps promote daily usage as well, thereby helping the distributor grow his or her business. Specific examples of DMOs include the Club concept in Mexico, Premium Herbalife Opportunity Meetings in Korea, the Healthy Breakfast concept in Russia, and the Internet/Sampling and Weight Loss Challenge in the U.S. Management’s strategy is to review the applicability of expanding successful country initiatives throughout a region, and where appropriate, financially support the globalization of these initiatives.

Summary Financial Results for the year ended December 31, 2011 compared to the year ended December 31, 2010

Net sales for the year ended December 31, 2011 increased 26.3% to $3,454.5 million as compared to $2,734.2 million in 2010. In local currency, net sales for the year ended December 31, 2011 increased 22.8% as compared to the same period in 2010. The increase in net sales was primarily due to the continued successful adoption and operation of daily consumption DMOs; increased distributor engagement as reflected by record 2011 sales leader retention and an increase in average active sales leaders; branding activities and increased distributor recruiting.

Net income for the year ended December 31, 2011 increased 37.9% to $412.6 million, or $3.30 per diluted share, compared to $299.2 million, or $2.37 per diluted share, for the same period in 2010. The increase was primarily due to higher contribution margin driven by net sales growth discussed above, partially offset by higher selling, general and administrative expenses to support the growth of our business and higher income taxes. In addition, net income for the year ended December 31, 2010 was also negatively impacted by matters related to Venezuela, as described below.

Net income for the year ended December 31, 2011 included a $0.9 million pre-tax ($0.7 million post-tax) additional interest expense from the write-off of unamortized deferred financing costs resulting from the debt refinancing arrangement in March 2011. See Note 4,Long Term Debt, to the Consolidated Financial Statements for further information on our debt refinancing.

Net income for the year ended December 31, 2010 included a $15.1 million unfavorable impact related to the remeasurement of monetary assets and liabilities resulting from Venezuela being designated as a highly inflationary economy beginning January 1, 2010; a $12.7 million unfavorable impact related to incremental U.S. dollar costs of 2009 imports into Venezuela which were recorded at the unfavorable parallel market exchange rate and were not devalued based on 2010 exchange rates, but rather recorded to cost of sales at their historical dollar costs as products were sold in the first quarter of 2010; a $5.8 million favorable impact resulting from receipt of U.S. dollars approved by the Venezuelan government’s foreign exchange commission, CADIVI,

at the official exchange rate relating to 2009 product importations which were previously registered with CADIVI; a $14.5 million one-time favorable impact to income taxes related to Venezuela becoming a highly inflationary economy; a $4.0 million pre-tax ($2.6 million post-tax) foreign exchange gain in Herbalife Venezuela as a result of remeasuring its Bolivar denominated monetary assets and liabilities as of June 30, 2010 at the SITME rate of 5.3 Bolivars per U.S. dollar as opposed to the last parallel market rate of 8.3 Bolivars per U.S. dollar. SeeLiquidity and Capital Resources — Working Capital and Operating Activities below for further discussion of currency exchange rate issues in Venezuela. Net income for the year ended December 31, 2010 also included a $3.2 million tax benefit from an international income tax audit settlement.

Year ended December 31, 2011 compared to year ended December 31, 2010

Net Sales

The following chart reconciles retail sales to net sales:

Sales by Geographic Region

  Year Ended December 31,  Change
in Net
Sales
 
  2011  2010  
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  
  (Dollars in millions) 

North America

 $1,111.4   $(530.5 $580.9   $117.7   $698.6   $977.3   $(465.9 $511.4   $102.7   $614.1    13.8

Mexico

  706.0    (344.4  361.6    75.3    436.9    539.8    (263.4  276.4    57.6    334.0    30.8

South & Central America

  904.9    (430.8  474.1    80.3    554.4    637.8    (303.4  334.4    56.0    390.4    42.0

EMEA

  991.0    (476.4  514.6    100.6    615.2    854.5    (413.6  440.9    86.9    527.8    16.6

Asia Pacific

  1,469.4    (666.7  802.7    135.9    938.6    1,088.5    (498.5  590.0    93.5    683.5    37.3

China

  245.1    (34.3  210.8        210.8    208.4    (24.0  184.4    —      184.4    14.3
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Worldwide

 $5,427.8   $(2,483.1 $2,944.7   $509.8   $3,454.5   $4,306.3   $(1,968.8 $2,337.5   $396.7   $2,734.2    26.3
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

North America

The North America region reported net sales of $698.6 million for the year ended December 31, 2011. Net sales increased $84.5 million, or 13.8%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 13.6% for the year ended December 31, 2011, as compared to the same period in 2010. The overall increase in net sales in the region was a result of net sales growth in the U.S. of $81.5 million, or 13.7%, for the year ended December 31, 2011, as compared to the same period in 2010.

In the U.S. we continue to see the success of our distributors converting their business focus toward a daily consumption DMO, especially the Nutrition Club DMO, and its extension into Commercial Clubs, along with the continued development of the Weight Loss Challenge DMO. The success of these DMOs has resulted in higher levels of distributor engagement and momentum.

Average active sales leaders in the region increased 15.1% for the year ended December 31, 2011, as compared to the same period in 2010. Average active sales leaders in the U.S. increased 15.2% for the year ended December 31, 2011, as compared to the same period in 2010.

During the fourth quarter of 2011, the region hosted three regional Extravaganzas with approximately 21,600 attendees. The region also hosted a Future President Team Retreat with 370 attendees.

Mexico

The Mexico region reported net sales of $436.9 million for the year ended December 31, 2011. Net sales for the year ended December 31, 2011 increased $102.9 million, or 30.8%, as compared to the same period in 2010.

In local currency, net sales for the year ended December 31, 2011 increased 28.6% as compared to the same period in 2010. The fluctuation of foreign currency rates had a favorable impact of $7.4 million on net sales for the year ended December 31, 2011.

The growth in net sales was primarily the result of increased distributor engagement as well as the continued success of the Nutrition Club DMO. In addition, since the beginning of 2010 we have significantly expanded our distribution network and product access throughout the country.

Average active sales leaders in Mexico increased 25.2% for the year ended December 31, 2011, as compared to the same period in 2010.

In September 2011, the region hosted an Extravaganza in Mexico City with approximately 20,000 attendees.

South and Central America

The South and Central America region reported net sales of $554.4 million for the year ended December 31, 2011. Net sales increased $164.0 million, or 42.0%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 36.7% for the year ended December 31, 2011, as compared to the same period in 2010. The fluctuation of foreign currency rates had a $20.6 million favorable impact on net sales for the year ended December 31, 2011.The increase in net sales for the year ended December 31, 2011, as compared to the same period in 2010, was due to an increase in net sales in every country in the region led by Brazil and Venezuela. This growth was primarily driven by the adoption and expansion of daily consumption DMOs throughout the region.

In Brazil, the region’s largest market, net sales increased $91.3 million, or 42.5%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 35.9% for the year ended December 31, 2011, as compared to the same period in 2010. The increase in local currency net sales was primarily the result of the successful adoption of Nutrition Clubs and other daily consumption DMOs. The fluctuation of foreign currency rates had a $14.3 million favorable impact on net sales in Brazil for the year ended December 31, 2011.

Venezuela, the region’s second largest market, experienced a net sales increase of $24.0 million, or 58.3%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 48.3% for the year ended December 31, 2011, as compared to the same period in 2010. The sales growth in local currency was partially driven by price increases of 10% and 4.5% in February 2011 and August 2011, respectively. SeeLiquidity and Capital Resources — Working Capital and Operating Activitiesbelow for further discussion of currency exchange rate issues in Venezuela.

Average active sales leaders in the region increased 21.2% for the year ended December 31, 2011, as compared to the same period in 2010.

In February 2011, the region hosted two Extravaganzas in Buenos Aires, Argentina and Bogota, Colombia. Together, the events had over 15,000 attendees. In April 2011, the region hosted three Extravaganzas in Brazil with a total of almost 15,000 attendees. In June 2011, the region also hosted Leadership Development Weekends in 14 cities with a total of almost 13,000 attendees. During the fourth quarter 2011 Brazil held a World Team School with over 5,600 attendees.

EMEA

The EMEA region reported net sales of $615.2 million for the year ended December 31, 2011. Net sales increased $87.4 million, or 16.6%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 12.2% for the year ended December 31, 2011, as compared to the same period in 2010. The fluctuation of foreign currency rates had a favorable impact on net sales of $23.3 million for the year ended December 31, 2011. The increase in net sales for the year ended December 31, 2011 was driven by increases in the majority of the countries in the region led by Russia, Spain, Italy, Belgium and several of the Eastern European markets.

Net sales in Italy, our largest market in the region, increased $7.4 million, or 6.7%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 1.6% for the year ended December 31, 2011, as compared to the same period in 2010.

Net sales in Russia, our second largest market in the region, increased $29.3 million, or 66.4%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 61.3% for the year ended December 31, 2011, as compared to the same period in 2010. The increase in Russia was driven by the ongoing adoption of the Commercial Nutrition Club, additional sales centers which have increased access to our products and improving brand image including the sponsorship of FC Spartak Moscow football club.

Net sales in Spain, our third largest market in the region, increased $11.1 million, or 27.6%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales in Spain increased 21.3% for the year ended December 31, 2011, as compared to the same period in 2010. The increase in Spain was mainly due to the positive effect of increased distributor engagement and recruitment which was aided by our sponsorship of FC Barcelona.

Average active sales leaders in the region increased 15.1% for the year ended December 31, 2011, as compared to the same period in 2010.

The region hosted two Extravaganzas in September 2011 with approximately 15,500 attendees in Barcelona, Spain and 2,000 in Istanbul, Turkey.

Asia Pacific

The Asia Pacific region, which excludes China, reported net sales of $938.6 million for the year ended December 31, 2011. Net sales increased $255.1 million, or 37.3%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 32.2% for the year ended December 31, 2011, as compared to the same period in 2010. The fluctuation of foreign currency rates had a favorable impact of $34.9 million on net sales for the year ended December 31, 2011. The increase in net sales for the year ended December 31, 2011 reflected broad-based growth across the region, especially in South Korea, India, Indonesia, and Malaysia, partially offset by a decrease in Taiwan.

Net sales in South Korea, our largest market in the region, increased $134.7 million, or 64.5%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 57.3% for the year ended December 31, 2011, as compared to the same period in 2010. The increase in net sales was primarily driven by the successful adoption and operation of the Nutrition Club DMO, in the form of Commercial Clubs along with the Mega and Premium Herbalife Opportunity Meetings. The fluctuation of foreign currency rates had a favorable impact on net sales of $15.1 million for the year ended December 31, 2011, as compared to the same period in 2010.

Net sales in Taiwan, our second largest market in the region, decreased $11.4 million, or 6.8%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales decreased 13.0% for the year ended December 31, 2011, as compared to the same period in 2010. The decline in net sales was mainly due to strategic actions taken to address certain distributor business training practices around nutrition clubs, resulting in the closure of a significant number of clubs. We believe these actions create a stable platform for future growth. The fluctuation of foreign currency rates had a favorable impact on net sales of $10.3 million for the year ended December 31, 2011, as compared to the same period in 2010.

Net sales in India, our third largest market in the region, increased $62.0 million, or 112.7%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 117.5% for the year ended December 31, 2011, as compared to the same period in 2010. The increase in net sales for the year ended December 31, 2011 was primarily driven by the successful adoption of the Nutrition Club DMO. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $2.6 million for the year ended December 31, 2011, as compared to the same period in 2010.

Net sales in Malaysia, our fourth largest market in the region, increased $19.5 million, or 30.1%, for the year ended December 31, 2011, as compared to the same period in 2010, reflecting the continued success of the Road Show DMO, which has generated positive distributor momentum and increased recruiting. In local currency, net sales increased 23.9% for the year ended December 31, 2011, as compared to the same period in 2010. The fluctuation of foreign currency rates had a favorable impact on net sales of $4.0 million for the year ended December 31, 2011, as compared to the same period in 2010.

Average active sales leaders in the region increased 34.3% for the year ended December 31, 2011, as compared to the same period in 2010.

In May 2011, the region hosted an Extravaganza in Bangkok, Thailand with over 22,000 attendees. In September 2011, the region hosted an Asia Pacific University training in Seoul, South Korea with approximately 13,000 attendees.

China

Net sales in China were $210.8 million for the year ended December 31, 2011. Net sales increased $26.4 million, or 14.3%, for the year ended December 31, 2011, as compared to the same period in 2010. In local currency, net sales increased 9.1% for the year ended December 31, 2011, as compared to the same period in 2010. The fluctuation of foreign currency rates had a favorable impact of $9.6 million on net sales for the year ended December 31, 2011.

The current focus in China is to expand the Nutrition Club DMO to enhance the emphasis on daily consumption DMOs. We believe that the Nutrition Club concept is slowly starting to gain traction as evidenced by the growth in clubs over the past year. While we believe the Nutrition Club DMO has tremendous potential to expand throughout China and achieve success similar to South Korea, we also realize that this process will most likely build gradually over the next few years.

Average active sales leaders in China increased 28.7% for the year ended December 31, 2011, as compared to the same period in 2010. We believe that the increase in distributor engagement as reflected in the average active sales leader numbers is indicative of the market transitioning to daily consumption DMOs.

As of December 31, 2011, we had direct-selling licenses in 16 provinces and we were operating 67 retail stores in 29 provinces in China. The 16 provinces in which we now have direct-selling licenses represent an addressable population of approximately 844 million. We continue to seek additional provincial licenses where appropriate.

In September 2011, the region hosted their Anniversary Rally in Qingdao, Shandong with over 10,100 attendees.

Sales by Product Category

  Year Ended December 31,  % Change
in Net
Sales
 
  2011  2010  
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  
  (Dollars in millions) 

Weight Management

 $3,479.4   $(1,647.5 $1,831.9   $326.8   $2,158.7   $2,749.1   $(1,303.4 $1,445.7   $253.2   $1,698.9    27.1

Targeted Nutrition

  1,272.7    (602.6  670.1    119.5    789.6    1,018.2    (482.8  535.4    93.8    629.2    25.5

Energy, Sports and Fitness

  273.6    (129.5  144.1    25.7    169.8    196.3    (93.1  103.2    18.1    121.3    40.0

Outer Nutrition

  238.1    (112.7  125.4    22.4    147.8    206.3    (97.8  108.5    19.0    127.5    15.9

Literature, Promotional and Other

  164.0    9.2    173.2    15.4    188.6    136.4    8.3    144.7    12.6    157.3    19.9
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Total

 $5,427.8   $(2,483.1 $2,944.7   $509.8   $3,454.5   $4,306.3   $(1,968.8 $2,337.5   $396.7   $2,734.2    26.3
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Net sales for all product categories increased for the year ended December 31, 2011 as compared to the same period in 2010. The growth factors described in the above discussions of the individual geographic regions apply generally to all product categories.

Gross Profit

Gross profit was $2,774.4 million for the year ended December 31, 2011, as compared to $2,175.4 million for the same period in 2010. As a percentage of net sales, gross profit for the year ended December 31, 2011 increased to 80.3%, as compared to 79.6% for the same period in 2010, or a favorable net increase of 70 basis points. The net 70 basis point increase for the year ended December 31, 2011, as compared to the same period in 2010, was primarily due to a favorable 51 basis point net increase related to circumstances surrounding Herbalife Venezuela and Venezuela’s highly inflationary economy. The remaining net increase of 19 basis points was primarily due to the favorable impact from net source savings, foreign exchange fluctuations partially offset by an unfavorable impact from country mix and inventory write-downs. Specifically, the 51 basis point increase resulted from the combination of (i) 47 favorable basis points from recognizing an unfavorable foreign exchange impact of $12.7 million during the first quarter 2010 relating to the incremental U.S. dollar cost of importing finished goods into Venezuela at the unfavorable parallel market rate rather than the CADIVI official rate, and (ii) 4 favorable basis points from the impact of remeasuring Herbalife Venezuela’s Bolivar net sales at the SITME rate during the year ended December 31, 2011, as opposed to being remeasured at the less favorable old parallel market rate during the first five months of fiscal year 2010 prior to the change to remeasuring at the SITME rate. SeeLiquidity and Capital Resources — Venezuelabelow for further discussion on currency exchange rate issues in Venezuela. We believe that at least in the near term we will continue to have the ability to partially mitigate certain cost pressures across our business through improved optimization of our supply chain coupled with select increases in the retail prices of our products.

Royalty Overrides

Royalty overrides were $1,137.6 million for the year ended December 31, 2011, as compared to $900.2 million for the same period in 2010. Royalty overrides as a percentage of net sales was 32.9% for both the years ended December 31, 2011 and 2010. Generally, this ratio varies slightly from period to period due to changes in the mix of products and countries because full royalty overrides are not paid on certain products and in certain countries. Compensation to our sales employees and independent service providers in China is included in selling, general and administrative expenses as opposed to royalty overrides where it is included for all other distributors under our worldwide marketing plan. We anticipate fluctuations in royalty overrides as a percentage of net sales reflecting the growth prospect of our China business relative to that of our worldwide business.

Selling, General and Administrative Expenses

Selling, general and administrative expenses were $1,074.6 million for the year ended December 31, 2011, as compared to $887.7 million for the same period in 2010. Selling, general and administrative expenses as a percentage of net sales were 31.1% for the year ended December 31, 2011, as compared to 32.5% for the same period in 2010.

The increase in selling, general and administrative expenses for the year ended December 31, 2011 included $54.0 million in higher salaries, bonuses and benefits, excluding China sales employees; higher variable expenses as a result of sales growth including $46.3 million in higher distributor promotion and event costs, $21.5 million in higher non-income tax expenses such as value added tax and sales tax, $8.3 million in higher credit card fees, $9.4 million in higher expenses related to China sales employees, sales officers and independent service providers and $4.1 million in higher foreign exchange loss, which included the effect of Herbalife Venezuela’s $7.4 million net foreign exchange loss recorded in the first and second quarter of 2010.

Net Interest Expense

Net interest expense is as follows:

Net Interest Expense

  Year Ended
December 31,
2011
  Year Ended
December 31,
2010
 
   (Dollars in millions) 

Interest expense

   9.9    9.7  

Interest income

   (7.4  (2.3
  

 

 

  

 

 

 

Net Interest Expense

  $2.5   $7.4  
  

 

 

  

 

 

 

The decrease in net interest expense for the year ended December 31, 2011, as compared to the same period in 2010, was primarily due to $2.6 million of interest received on VAT refunds during 2011 and an increase in interest income earned on our outstanding cash and cash equivalents balances which had increased during 2011.

Income Taxes

Income taxes were $147.2 million for the year ended December 31, 2011, as compared to $80.9 million for the same period in 2010. As a percentage of pre-tax income, the effective income tax rate was 26.3% for the year ended December 31, 2011, as compared to 21.3% for the same period in 2010. The increase in the effective tax rate for the year ended December 31, 2011, as compared to the same period in 2010, was primarily due to the conversion of Venezuela to a highly inflationary economy in 2010, a tax benefit from an international income tax audit settlement recognized in 2010, and the change in the operating effective rate reflecting changes in the country mix. See Note 12,Income Taxes,to the Consolidated Financial Statements for additional discussion.

During the second quarter of 2011, we had a change in method of accounting for excess tax benefits recognized as a result of the exercise of employee stock options, stock appreciation rights, or SARs, and other share-based equity grants from the tax-law-ordering method to the with-and-without method which impacted our income tax expenses recognized within our consolidated statement of income. This change in accounting principle was applied to all periods presented within our 2011 Annual Report for comparative purposes. This change in accounting principle does not impact the consolidated financial statements related to fiscal years prior to 2010. See Note 2,Basis of Presentation, to the Consolidated Financial Statements, for discussion of this change in the method of accounting. The impacts to our financial statements resulting from this change are also discussed in Note 2.

Summary Financial Results for the year ended December 31, 2010 compared to the year ended December 31, 2009

Net sales for the year ended December 31, 2010 increased 17.6% to $2,734.2 million as compared to $2,324.6 million in 2009. In local currency, net sales for the year ended December 31, 2010 increased 17.4% as compared to the same periods in 2009. The increase in net sales was primarily due to the continued successful adoption and operation of daily consumption business models, an increase in average active sales leaders, branding activities and increased distributor recruiting.

Net income for the year ended December 31, 2010 increased 42.9%47.1% to $290.5$299.2 million, or $4.67$2.37 per diluted share, compared to $203.3 million, or $3.22$1.61 per diluted share, for the same period in 2009. The increase was primarily driven by higher operatingcontribution margin and lower effective tax rate and was partially offset by higher salaries, bonuses and benefits, higher distributor promotion and event costs, higher China sales employee and licensed businessindependent service provider costs, higher credit card fees, higher non-income tax expenses and higher depreciation expense.

Net income for the year ended December 31, 2010 included a $15.1 million unfavorable impact related to the remeasurement of monetary assets and liabilities resulting from Venezuela being designated as a highly inflationary economy beginning January 1, 2010; a $12.7 million unfavorable impact related to incremental U.S. dollar costs of 2009 imports into Venezuela which were recorded at the unfavorable parallel market exchange rate and were not devalued based on 2010 exchange rates but rather recorded to cost of sales at their historical dollar costs as products were sold in the first quarter of 2010; a $5.8 million favorable impact resulting from receipt of U.S. dollars approved by the Venezuelan government’s foreign exchange commission, CADIVI, at the official exchange rate relating to 2009 product importations which were previously registered with CADIVI; a $14.5 million one-time favorable impact to income taxes related to Venezuela becoming a highly inflationary economy; a $4.0 million pre-tax ($2.6 million post-tax) foreign exchange gain in Herbalife Venezuela as a result of remeasuring its Bolivar denominated monetary assets and liabilities as of June 30, 2010 at the SITME rate of 5.3 Bolivars per U.S. dollar as opposed to the last parallel market rate of 8.3 Bolivars per U.S. dollar. SeeLiquidity and Capital Resources — Working Capital and Operating Activities below for further discussion of currency exchange rate issues in Venezuela. Net income for the year ended December 31, 2010 also included a $3.2 million tax benefit from an international income tax audit settlement.

Net income for the year ended December 31, 2009 included a $12.2 million unfavorable after tax impact (net of $6.6 million tax benefit) related to incremental U.S. dollar cost of imports into Venezuela at the unfavorable parallel market exchange rate rather than the official currency exchange rate; a $0.9 million unfavorable after tax impact (net of $0.4 million tax benefit) in connection with our restructuring activities; and a $3.8 million net favorable impact to income taxes from the expiration of certain statute of limitations offset by a charge for an international income tax audit settlement.


56


Year ended December 31, 2010 compared to year ended December 31, 2009

Net Sales

The following chart reconciles retail sales to net sales:

Sales by Geographic Region

                                             
  Year Ended December 31,    
  2010  2009    
           Shipping &
              Shipping &
     Change
 
  Retail
  Distributor
  Product
  Handling
  Net
  Retail
  Distributor
  Product
  Handling
  Net
  in Net
 
  Sales  Allowance  Sales  Revenues  Sales  Sales  Allowance  Sales  Revenues  Sales  Sales 
                 (Dollars in millions)             
 
North America $977.3  $(465.9) $511.4  $102.7  $614.1  $844.8  $(403.1) $441.7  $87.3  $529.0   16.1%
Mexico  539.8   (263.4)  276.4   57.6   334.0   431.5   (210.3)  221.2   41.8   263.0   27.0%
South & Central America  637.8   (303.4)  334.4   56.0   390.4   605.3   (291.9)  313.4   53.5   366.9   6.4%
EMEA  854.5   (413.6)  440.9   86.9   527.8   816.0   (394.2)  421.8   82.4   504.2   4.7%
Asia Pacific  1,088.5   (498.5)  590.0   93.5   683.5   825.3   (382.1)  443.2   66.0   509.2   34.2%
China  208.4   (24.0)  184.4      184.4   167.2   (14.9)  152.3      152.3   21.1%
                                             
Worldwide $4,306.3  $(1,968.8) $2,337.5  $396.7  $2,734.2  $3,690.1  $(1,696.5) $1,993.6  $331.0  $2,324.6   17.6%
                                             

  Year Ended December 31,  Change
in Net
Sales
 
  2010  2009  
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  
  (Dollars in millions) 

North America

 $977.3   $(465.9 $511.4   $102.7   $614.1   $844.8   $(403.1 $441.7   $87.3   $529.0    16.1

Mexico

  539.8    (263.4  276.4    57.6    334.0    431.5    (210.3  221.2    41.8    263.0    27.0

South & Central America

  637.8    (303.4  334.4    56.0    390.4    605.3    (291.9  313.4    53.5    366.9    6.4

EMEA

  854.5    (413.6  440.9    86.9    527.8    816.0    (394.2  421.8    82.4    504.2    4.7

Asia Pacific

  1,088.5    (498.5  590.0    93.5    683.5    825.3    (382.1  443.2    66.0    509.2    34.2

China

  208.4    (24.0  184.4        184.4    167.2    (14.9  152.3        152.3    21.1
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Worldwide

 $4,306.3   $(1,968.8 $2,337.5   $396.7   $2,734.2   $3,690.1   $(1,696.5 $1,993.6   $331.0   $2,324.6    17.6
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

North America

The North America region reported net sales of $614.1 million for the year ended December 31, 2010. Net sales increased $85.1 million, or 16.1%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 15.8% for the year ended December 31, 2010 as compared to the same period in 2009. The overall increase in the region was a result of net sales growth in the U.S. of $82.6 million, or 16.1%, for the year ended December 31, 2010 as compared to the same period in 2009.

In the U.S. we continue to see the success of our distributors converting their business focus toward a daily consumption business model, especially the Nutrition Club DMO, and its extension into Commercial Clubs and Central Clubs, along with the continued development of the Weight Loss Challenge DMO. In terms of volume, the mix of business in the U.S. was 63.7% in the U.S. Latin market and 36.3% in the General market for the year ended December 31, 2010. Sales growth was 8.6% in the U.S. Latin market and 25.7% in the General market for the year ended December 31, 2010. Given the ongoing transition of the overall region to a higher level of utilization of daily consumption DMO’s,DMOs, we do not believe there iswas an ongoing benefit to evaluating the U.S. market as a bifurcated business. Therefore, we will returnreturned to discussing it on a consolidated basis beginning in 2011.

In October 2010, the region hosted Regional Extravaganzas, one in Atlanta for the U.S. Latin Market and one in Los Angeles for both the U.S. Latin Market and the General Market, with over 20,000 combined attendees. In December, the General Market hosted a Future President Team Retreat with approximately 250 attendees. Also, during 2010, the region hosted different events including a series of Leadership Development Weekends as well as Nutrition Club and Academy tours. In total almost 50,000 distributors attended these events.

Average active sales leaders in the region increased 13.9% for the year ended December 31, 2010 as compared to the same period in 2009. Average active sales leaders in the U.S. increased 14.6% for the year ended December 31, 2010 as compared to the same period in 2009. Total sales leaders in the region increased 4.7% as of December 31, 2010 compared to December 31, 2009.

Mexico

The Mexico region reported net sales of $334.0 million for the year ended December 31, 2010. Net sales for the year ended December 31, 2010 increased $71.0 million, or 27.0%, as compared to the same period in 2009. In local currency, net sales for the year ended December 31, 2010 increased 19.2% as compared to the same period in 2009. The fluctuation of foreign currency rates had a favorable impact of $20.5 million on net sales for the year ended December 31, 2010.


57


We believe that local currency sales during fiscal year 2010 benefited from our distribution agreement with a large Mexico retailer that was initiated at the beginning of the year. This agreement allows distributors to pick up their product orders at the customer service counters of 302 locations in 26 Mexican states. We believe that by leveraging their distribution system, we are providing distributors with significantly better product access.

Average active sales leaders in Mexico increased 10.2% for the year ended December 31, 2010 as compared to the same period in 2009. Total sales leaders in Mexico increased 0.7% as of December 31, 2010, compared to December 31, 2009.

In September 2010, Mexico hosted a regional extravaganza with total attendance of 18,200.

South and Central America

The South and Central America region reported net sales of $390.4 million for the year ended December 31, 2010. Net sales increased $23.5 million, or 6.4%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 18.5% for the year ended December 31, 2010 as compared to the same period in 2009. The fluctuation of foreign currency rates had a $44.5 million unfavorable impact on net sales for the year ended December 31, 2010. The increase in net sales for the year ended December 31, 2010 was driven by increases in net sales in the majority of the countries in the region including Brazil, Ecuador and Bolivia, partially offset by a decline in Venezuela.

In Brazil, the region’s largest market, net sales increased $44.5 million, or 26.1%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 13.5% for the year ended December 31, 2010 as compared to the same period in 2009. The increase in local currency net sales was primarily the result of the successful adoption of Nutrition Clubs and other daily consumption based DMOs. The fluctuation of foreign currency rates had a $21.5 million favorable impact on net sales in Brazil for the year ended December 31, 2010.

Venezuela, the region’s second largest market, experienced a net sales decrease of $44.1 million, or 51.7%, for the year ended December 31, 2010 as compared to the same period in 2009. The decrease in net sales reflects the impact of re-measuring Venezuela’s local sales at the parallel market exchange rate and the new regulated market rate during fiscal year 2010. During the year ended December 31, 2010 the average applicable exchange rate was 63% less favorable compared to the official exchange rate that was used to translate Venezuela’s local sales during the same period in 2009. In local currency, net sales increased 29.1% for the year ended December 31, 2010 as compared to the same period in 2009. The sales growth in local currency was partially driven by price increases of 12%, 8%, and 10% in March 2010, July 2010, and November 2010, respectively. SeeLiquidity and Capital Resources — Working Capital and Operating Activitiesin this section for further discussion on currency exchange rate issues in Venezuela.

Average active sales leaders in the region increased 3.2% for the year ended December 31, 2010 as compared to the same period in 2009. Total sales leaders in the region decreased 21.7% as of December 31, 2010 compared to December 31, 2009.

In February 2010, the region hosted an Extravaganza in Quito, Ecuador with over 12,500 attendees.

EMEA

The EMEA region reported net sales of $527.8 million for the year ended December 31, 2010. Net sales increased $23.6 million, or 4.7%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 7.1% for the year ended December 31, 2010 as compared to the same period in 2009. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $12.1 million for the year ended December 31, 2010. The increase in net sales for the year ended December 31, 2010 was driven by increases in net sales in Russia, Norway, Commonwealth of Independent States, or CIS countries, and Spain, partially offset by decreases in France and Italy.

Net sales in Italy, our largest market in the region, decreased $6.7 million, or 5.7%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales decreased 0.9% for the year


58


ended December 31, 2010 as compared to the same period in 2009. The decrease in net sales was primarily driven by a shift in focus to daily consumption DMOs and away from recruiting. This decline iswas similar to what we have seen in other markets like Taiwan and Brazil as they were transitioning from a recruiting model to a daily consumption model.

Net sales in Russia, our second largest market in the region, increased $12.9 million, or 41.4%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 36.6% for the year ended December 31, 2010 as compared to the same period in 2009. The increase in Russia was driven by the ongoing adoption of the Commercial Nutrition Club.

Net sales in Spain, our third largest market in the region, increased $4.4 million, or 12.2%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales in Spain increased 18.3% for the year ended December 31, 2010 as compared to the same period in 2009. The increase in Spain was mainly due to the positive effect of increased distributor engagement and recruitment.

Net sales in France, our fourth largest market in the region, decreased $9.2 million, or 22.4%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales in France decreased 18.7% for the year ended December 31, 2010 as compared to the same period in 2009. The decrease in net sales in France was mainly due to lower recruiting.

Average active sales leaders in the region increased 2.9% for the year ended December 31, 2010 as compared to the same period in 2009. Total sales leaders in the region decreased 6.7% as of December 31, 2010 compared to December 31, 2009.

In July 2010, the region hosted Extravaganzas in Stockholm, Sweden with 5,800 attendees, in Turin, Italy with 8,300 attendees, and in Kiev, Ukraine with 3,300 attendees. In December 2010, South Africa held an Extravaganza with approximately 1,700 attendees.

Asia Pacific

The Asia Pacific region, which excludes China, reported net sales of $683.5 million for the year ended December 31, 2010. Net sales increased $174.3 million, or 34.2%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 26.6% for the year ended December 31, 2010 as compared to the same period in 2009. The fluctuation of foreign currency rates had a favorable impact of $38.9 million on net sales for the year ended December 31 2010. The increase in net sales for the year ended December 31, 2010 was broad based with virtually every country in the region showingyear-over-year net sales growth led by Korea, India, Malaysia, Indonesia, and Vietnam.

Net sales in South Korea, our largest market in the region, increased $93.9 million, or 81.7%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 67.1% for the year ended December 31, 2010 as compared to the same period in 2009. The increase in net sales was primarily driven by the successful adoption and operation of the Nutrition Club DMO, in the form of Commercial Clubs along with the Premium Herbalife Opportunity Meeting. The fluctuation of foreign currency rates had a favorable impact on net sales of $16.8 million for the year ended December 31, 2010 as compared to the same period in 2009.

Net sales in Taiwan, our second largest market in the region, increased $2.0 million, or 1.2%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales decreased 3.3% for the year ended December 31, 2010 as compared to the same period in 2009. The fluctuation of foreign currency rates had a favorable impact on net sales of $7.4 million for the year ended December 31, 2010 as compared to the same period in 2009.

Net sales in Malaysia, our third largest market in the region in 2010, increased $13.7 million, or 26.9%, for the year ended December 31, 2010 as compared to the same period in 2009, reflecting the continued success of the Road Show DMO, which has generated positive distributor momentum and increased recruiting. In local currency, net sales increased 15.9% for the year ended December 31, 2010 as compared to the same period in 2009. The fluctuation of foreign currency rates had a favorable impact on net sales of $5.6 million for the year ended December 31, 2010 as compared to the same period in 2009.


59


Net sales in Japan, our fourth largest market in the region in 2010, decreased $0.7 million, or 1.3%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 3.6% for the year ended December 31, 2010 as compared to the same period in 2009. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $2.8 million for the year ended December 31, 2010 as compared to the same period in 2009. Despite the modest increase in local currency net sales in 2010, the market continuescontinued to be negatively impacted by low recruiting activity.

Net sales in India, our fifth largest market in the region in 2010, increased $29.2 million, or 112.8%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 101.8% for the year ended December 31, 2010 as compared to the same period in 2009. The increase in net sales for the year ended December 31, 2010 was driven primarily by the successful adoption of the Nutrition Club DMO. The fluctuation of foreign currency rates had a favorable impact on net sales of $2.9 million for the year ended December 31, 2010 as compared to the same period in 2009.

In May 2010, the region hosted an Extravaganza in Singapore with almost 18,000 attendees. In September 2010, the region hosted a Herbalife University in Macau, China with approximately 8,000 attendees.

Average active sales leaders in the region increased 25.8% for the year ended December 31, 2010 as compared to the same period in 2009. Total sales leaders in the region increased 21.6% as of December 31, 2010 compared to December 31, 2009.

China

Net sales in China were $184.4 million for the year ended December 31, 2010. Net sales increased $32.1 million, or 21.1%, for the year ended December 31, 2010 as compared to the same period in 2009. In local currency, net sales increased 20.0% for the year ended December 31, 2010 as compared to the same period in 2009. The fluctuation of foreign currency rates had a favorable impact of $1.8 million on net sales for the year ended December 31, 2010.

The current focus in China is to expand the Nutrition Club DMO to enhance the retail focus and thereby increase the emphasis on daily consumption methods of operation. As experienced in other markets, such as Brazil, which have gone through a similar transition, China has experienced a slow-down in sales growth as the licensed business providers begin to build their nutrition club business. We believe that the nutrition club concept is slowly starting to gain traction as evidenced by the growth in clubs over the past year. While we believe the nutrition club DMO has tremendous potential to expand throughout China and achieve success similar to Taiwan and South Korea, we also realize that the process is still in its early development stage and will most likely build gradually over the next few years.

As of December 31, 2010, we had direct-selling licenses in 16 provinces and we were operating 71 retail stores in 30 provinces in China. The 16 provinces in which we now have direct-selling licenses represent an addressable population of approximately 844 million. In October 2010, the region hosted a 5 year anniversary rally with approximately 12,000 attendees.

Average active sales leaders in China increased 15.7% for the year ended December 31, 2010 as compared to the same period in 2009. Total sales leaders in China decreased 1.2% as of December 31, 2010 compared to December 31, 2009.


60


Sales by Product Category
                                             
  Year Ended December 31,    
  2010  2009    
           Shipping &
              Shipping &
     % Change
 
  Retail
  Distributor
  Product
  Handling
  Net
  Retail
  Distributor
  Product
  Handling
  Net
  in Net
 
  Sales  Allowance  Sales  Revenues  Sales  Sales  Allowance  Sales  Revenues  Sales  Sales 
              (Dollars in millions)             
 
Weight Management $2,749.1  $(1,303.4) $1,445.7  $253.2  $1,698.9  $2,392.2  $(1,142.0) $1,250.2  $214.6  $1,464.8   16.0%
Targeted Nutrition  1,018.2   (482.8)  535.4   93.8   629.2   806.3   (384.9)  421.4   72.3   493.7   27.4%
Energy, Sports and Fitness  196.3   (93.1)  103.2   18.1   121.3   161.2   (77.0)  84.2   14.5   98.7   22.9%
Outer Nutrition  206.3   (97.8)  108.5   19.0   127.5   209.6   (100.1)  109.5   18.8   128.3   (0.6)%
Literature, Promotional and Other  136.4   8.3   144.7   12.6   157.3   120.8   7.5   128.3   10.8   139.1   13.1%
                                             
Total $4,306.3  $(1,968.8) $2,337.5  $396.7  $2,734.2  $3,690.1  $(1,696.5) $1,993.6  $331.0  $2,324.6   17.6%
                                             

  Year Ended December 31,  % Change
in Net
Sales
 
  2010  2009  
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  Retail
Sales
  Distributor
Allowance
  Product
Sales
  Shipping  &
Handling
Revenues
  Net
Sales
  
  (Dollars in millions) 

Weight Management

 $2,749.1   $(1,303.4 $1,445.7   $253.2   $1,698.9   $2,392.2   $(1,142.0 $1,250.2   $214.6   $1,464.8    16.0

Targeted Nutrition

  1,018.2    (482.8  535.4    93.8    629.2    806.3    (384.9  421.4    72.3    493.7    27.4

Energy, Sports and Fitness

  196.3    (93.1  103.2    18.1    121.3    161.2    (77.0  84.2    14.5    98.7    22.9

Outer Nutrition

  206.3    (97.8  108.5    19.0    127.5    209.6    (100.1  109.5    18.8    128.3    (0.6)% 

Literature, Promotional and Other

  136.4    8.3    144.7    12.6    157.3    120.8    7.5    128.3    10.8    139.1    13.1
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Total

 $4,306.3   $(1,968.8 $2,337.5   $396.7   $2,734.2   $3,690.1   $(1,696.5 $1,993.6   $331.0   $2,324.6    17.6
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Net sales for all product categories increased for the year ended December 31, 2010 as compared to the year ended December 31, 2009, except for a slight decrease in Outer Nutrition, mainly due to the factors described in the above discussions of the individual geographic regions. In addition, net sales for Outer Nutrition decreased in part due to the distributor focus on DMOs that are centered towards Weight Management products.

Gross Profit

Gross profit was $2,175.4 million for the year ended December 31, 2010, as compared to $1,831.4 million for the year ended December 31, 2009. As a percentage of net sales, gross profit for the year ended December 31, 2010 increased to 79.6%, as compared to 78.8% for the same period in 2009. The increase in the gross profit as a percentage of net sales for the year ended December 31, 2010, as compared to the same period in 2009, was primarily due to a favorable impact from currency fluctuations, cost savings throughout our supply chain, and a decreased unfavorable foreign exchange impact of $12.7 million recognized during the year ended December 31, 2010 relating to the incremental U.S. dollar cost of importing finished goods into Venezuela at the unfavorable parallel market rate rather than the official currency exchange, as compared to $18.8 million recognized during the year ended December 31, 2009. These increases to the gross profit as a percentage of net sales were partially offset by country mix and by the unfavorable impact of remeasuring Herbalife Venezuela’s Bolivar net sales at the less favorable old parallel market rate and at the less favorable SITME exchange rate during 2010, as opposed to being translated at the CADIVI official rate during 2009. SeeLiquidity and Capital Resources — Working Capital and Operating Activitiesin this section for further discussion on currency exchange rate issues in Venezuela. We believe that we have the ability to partially mitigate certain cost pressures through improved optimization of our supply chain coupled with select increases in the retail prices of our products.

Royalty Overrides

Royalty overrides were $900.2 million for the year ended December 31, 2010, as compared to $761.5 million for the same period in 2009. Royalty overrides as a percentage of net sales was 32.9% for the year ended December 31, 2010, as compared to 32.8% for the same period in 2009. Generally, this ratio varies slightly from period to period due to changes in the mix of products and countries because full royalty overrides are not paid on certain products and in certain countries. Compensation to our full-time sales employees and licensed businessindependent service providers in China is included in selling, general and administrative expenses as opposed to royalty overrides where it is included for all other distributors under our worldwide marketing plan. We anticipate fluctuations in royalty overrides as a percentage of net sales reflecting the growth prospect of our China business relative to that of our worldwide business.

Selling, General and Administrative Expenses

Selling, general and administrative expenses were $887.7 million for the year ended December 31, 2010, as compared to $773.9 million for the same period in 2009. Selling, general and administrative expenses as a percentage of net sales was 32.5% for the year ended December 31, 2010, as compared to 33.3% for the same period in 2009.


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The increase in selling, general and administrative expenses for the year ended December 31, 2010 included $32.7 million in higher salaries, bonuses and benefits, excluding China sales employees; $5.5 million in higher depreciation and amortization expense; and higher variable expenses including $29.2 million in higher distributor promotion and event costs, $8.3 million in higher expenses related to China sales employees and licensed businessindependent service providers, $8.0 million in higher credit card fees and $7.4 million in higher non-income tax expense.
We expect 2011 selling, general and administrative expenses to increase in absolute dollars over 2010 levels reflecting higher salaries and benefits excluding China sales employees, China sales employee costs, and China licensed business provider service fees, increased depreciation, primarily related to our global Oracle implementation, and various sales growth initiatives, including distributor events and promotions.

Net Interest Expense

Net interest expense is as follows:

         
  Year Ended
  Year Ended
 
  December 31,
  December 31,
 
Net Interest Expense 2010  2009 
  (Dollars in millions) 
 
Interest expense  9.7   9.6 
Interest income  (2.3)  (4.5)
         
Net Interest Expense $7.4  $5.1 
         

Net Interest Expense

  Year Ended
December  31,
2010
  Year Ended
December  31,
2009
 
   (Dollars in millions) 

Interest expense

   9.7    9.6  

Interest income

   (2.3  (4.5
  

 

 

  

 

 

 

Net Interest Expense

  $7.4   $5.1  
  

 

 

  

 

 

 

The increase in net interest expense for the year ended December 31, 2010 as compared to the same period in 2009, was primarily due to the decrease in interest income generated from Herbalife Venezuela’s cash and cash equivalents and an increase in interest expense relating to our interest rate swap agreements, partially offset by lower interest expense on our senior secured credit facility due to lower average debt balance during 2010 as compared to 2009. See“Liquidity and Capital Resources”in this section for further discussion on our senior secured credit facility.

Income Taxes

Income taxes were $89.6$80.9 million for the year ended December 31, 2010, as compared to $87.6 million for the same period in 2009. As a percentage of pre-tax income, the effective income tax rate was 23.6%21.3% for the year ended December 31, 2010, as compared to 30.1% for the year ended December 31, 2009. The decrease in the effective tax rate for the year ended December 31, 2010, as compared to the same period in 2009, was primarily due to the ability to utilize $3.0 million of foreign tax credit carrybacks, the conversion of Venezuela to a highly inflationary economy, as discussed below and a favorable decision in a foreigntax benefit from an international income tax audit which resulted in a one-time tax benefit of $3.2 million. In addition,settlement recognized, and the decreasechange in the operating effective rate reflects favorablereflecting changes in the country mix and non-cash benefit of $3.1 million due to the expiration of certain statue of limitations. The 2010 effective tax rate is not indicative of the future income tax rates and includes certain nonrecurring income tax benefits as discussed within this section.

mix.

Venezuela has experienced cumulative inflation of at least 100% during the three year period ending December 31, 2009. Therefore, as of January 1, 2010 the Bolivar is hyperinflationary for U.S. federal income tax

purposes. As a result, because Herbalife Venezuela is considered a dual incorporated entity, it is now required to account for its operations using the Dollar Approximate Separate Transactions Method of accounting, (DASTM).or DASTM. The transitional impact of DASTM resulted in a deferred income tax benefit of approximately $14.5 million recorded during the first quarter of 2010. SeeLiquidity and Capital Resources — Working Capital and Operating Activitiesin this section for further discussion on Venezuela becoming a highly inflationary economy.

Summary Financial Results for the year ended December 31, 2009 compared to the year ended December 31, 2008
Net sales for the year ended December 31, 2009 decreased 1.5% to $2,324.6 million as compared to $2,359.2 million in 2008. The decrease was primarily due to the unfavorable impact of currency fluctuations of


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$155.6 million. In local currency, net sales for the year ended December 31, 2009 increased 5.1%, as compared to the same period in 2008. For the year ended December 31, 2009, net sales in U.S. dollars in our top ten countries including the U.S., Brazil, Taiwan, China, Italy, South Korea, Venezuela and Malaysia increased 7.4%, 12.2%, 28.0%, 5.0%, 5.2%, 56.9%, 6.9% and 30.8%, respectively, as compared to the same period in 2008, while Mexico and Japan, decreased 25.3% and 14.5%, respectively, as compared to the same period in 2008. The increase in net sales in most of our top markets was mainly due to the successful conversions to daily consumption business models, branding activities and increased distributor recruiting. In Mexico, the negative impact of the Value Added Tax, or VAT, that has been levied by the Mexican government on the import and resale of certain nutrition products, which we began collecting from our distributors during the third quarter of 2008 contributed to the decline in net sales and distributor and sales leader recruiting. In Japan, lower net sales were mainly due to decline in distributor recruiting.
Net income for the year ended December 31, 2009 decreased 8.1% to $203.3 million, or $3.22 per diluted share, compared to $221.2 million, or $3.36 per diluted share, for the same period in 2008. The decrease was primarily driven by currency related revenue declines, higher cost of goods sold, depreciation expense, salaries and benefits, and advertising and promotion expense, partially offset by lower professional fees, sales event costs and interest expense and lower effective tax rate.
Net income for the year ended December 31, 2009 included a $12.2 million unfavorable after tax impact (net of $6.6 million tax benefit) related to incremental U.S. dollar cost of imports into Venezuela at the unfavorable parallel market exchange rate rather than the official currency exchange rate; a $0.9 million unfavorable after tax impact (net of $0.4 million tax benefit) in connection with our restructuring activities; and a $3.8 million net favorable impact to income taxes from the expiration of certain statute of limitations offset by a charge for an international income tax audit settlement. Net income for the year ended December 31, 2008 included a $4.8 million unfavorable after tax impact related to restructuring activities (net of $1.9 million tax benefit) and a $6.1 million valuation allowance on deferred tax asset for deferred interest.
Year ended December 31, 2009 compared to year ended December 31, 2008
Net Sales
The following chart reconciles retail sales to net sales:
Sales by Geographic Region
                                             
  Year Ended December 31,    
  2009  2008    
           Shipping &
              Shipping &
     Change
 
  Retail
  Distributor
  Product
  Handling
  Net
  Retail
  Distributor
  Product
  Handling
  Net
  in Net
 
  Sales  Allowance  Sales  Revenues  Sales  Sales  Allowance  Sales  Revenues  Sales  Sales 
              (Dollars in millions)             
 
North America $844.8  $(403.1) $441.7  $87.3  $529.0  $795.3  $(379.2) $416.1  $80.8  $496.9   6.5%
Mexico  431.5   (210.3)  221.2   41.8   263.0   584.3   (284.8)  299.5   52.7   352.2   (25.3)%
South & Central America  605.3   (291.9)  313.4   53.5   366.9   665.9   (332.9)  333.0   50.6   383.6   (4.4)%
EMEA  816.0   (394.2)  421.8   82.4   504.2   927.7   (449.1)  478.6   92.1   570.7   (11.7)%
Asia Pacific  825.3   (382.1)  443.2   66.0   509.2   678.1   (318.0)  360.1   50.7   410.8   24.0%
China  167.2   (14.9)  152.3      152.3   159.9   (14.9)  145.0      145.0   5.0%
                                             
Worldwide $3,690.1  $(1,696.5) $1,993.6  $331.0  $2,324.6  $3,811.2  $(1,778.9) $2,032.3  $326.9  $2,359.2   (1.5)%
                                             
North America
The North America region reported net sales of $529.0 million for the year ended December 31, 2009. Net sales increased $32.1 million, or 6.5%, for the year ended December 31, 2009 as compared to the same period in 2008. In local currency, net sales increased 6.7% for the year ended December 31, 2009 as compared to the same period in 2008. The overall increase in the region was a result of net sales growth in the U.S. of $35.3 million, or 7.4%, as compared to the same period in 2008.


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We continue to see the success of our distributors converting their business focus toward a daily consumption business model, especially the Nutrition Club DMO, and its extension into Commercial Clubs and Central Clubs, along with the continued development of the Weight Loss Challenge DMO. We also implemented a 5% price increase in the U.S. in February 2009. In terms of volume, the mix of business in the U.S. was 67% in the U.S. Latin market and 33% in the General market for the year ended December 31, 2009.
In October 2009, the region hosted a U.S. Latin market and General market Extravaganzas in Atlanta, GA. More than 14,000 distributors attended with 11,800 attending the U.S. Latin market event and 2,800 attending the General market event. Also, during 2009, the region hosted different events including a “Why Herbalife, Why Now?” tour, a series of Leadership Development Weekends, a Nutrition Club tour and a Recruiting tour. In total more than 30,000 distributors attended these events.
New sales leaders in the region decreased 12.1% for the year ended December 31, 2009, as compared to the same period in 2008. Total sales leaders in the region decreased 2.2% as of December 31, 2009 compared to December 31, 2008. New sales leaders in the U.S. decreased 11.7% for the year ended December 31, 2009, as compared to the same period in 2008.
Mexico
The Mexico region reported net sales of $263.0 million for the year ended December 31, 2009. Net sales for the year ended December 31, 2009, decreased $89.2 million, or 25.3%, as compared to the same period in 2008. In local currency, net sales for the year ended December 31, 2009 decreased 8.9% as compared to the same period in 2008. The fluctuation of foreign currency rates had an unfavorable impact of $57.7 million on net sales for the year ended December 31, 2009.
Net sales comparisons for 2009 versus 2008 were negatively impacted by the collection of a VAT from our distributors that has been levied by the Mexican government on the import and resale of certain nutrition products. We began charging the VAT to distributors in the third quarter of 2008. Distributors previously paid 0% VAT on purchases of most of our nutrition products. Because Nutrition Clubs are the predominant DMO in Mexico, and are retail price-sensitive, the VAT increase has caused our volumes to decline. For the year ended December 31, 2008, this VAT increase affected approximately 58% of our sales volume in the region. For the first three quarters of 2009 this VAT increase affected approximately 58% of sales volume but for the fourth quarter of 2009, this VAT increase affected only approximately 20% of our sales volume. The reduced impact in the fourth quarter was due to the introduction in October 2009 of several re-formulated nutrition products which are not subject to the VAT charge that replaced our existing products that were subject to the VAT. Through the third quarter, net sales in local currency were 12.7% lower in 2009 on ayear-to-date basis as compared to 2008. In the fourth quarter, local currency net sales increased 8.2% compared to the same period in 2008 and increased 1.2% sequentially compared to the third quarter of 2009.
New sales leaders in Mexico decreased 16.2% for the year ended December 31, 2009, as compared to the same period in 2008. Total sales leaders in Mexico decreased 14.1% as of December 31, 2009, compared to December 31, 2008.
In September 2009, Mexico hosted an Extravaganza with over 14,600 attendees. In addition, during 2009, Mexico also hosted a motivational Global Expansion Team/Millionaire Team Retreat and Active Sales Leader schools. Total combined attendance at these two events was over 4,000 distributors.
South and Central America
The South and Central America region reported net sales of $366.9 million for the year ended December 31, 2009. Net sales decreased $16.7 million or 4.4%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales were relatively flat for the year ended December 31, 2009, as compared to the same period in 2008. The fluctuation of foreign currency rates had a $17.3 million unfavorable impact on net sales for the year ended December 31, 2009. The increase in local currency net sales in the region for the year ended December 31, 2009 was attributable to sales growth in Brazil and Venezuela as well as a full year of sales in Ecuador


64


which was opened in the fourth quarter of 2008. Offsetting these increases were sales declines in Peru, Argentina, Bolivia, Chile, and Colombia.
In Brazil, the region’s largest market, net sales increased $18.5 million, or 12.2%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales increased 20.4% for the year ended December 31, 2009, as compared to the same period in 2008. The increase in local currency net sales was primarily a result of distributors successfully transforming this market into a more balanced mix of recruiting, retailing and retention via the Nutrition Club and other daily consumption based DMOs. The fluctuation of foreign currency rates had a $12.5 million unfavorable impact on net sales for the year ended December 31, 2009.
Venezuela, the region’s second largest market, experienced a net sales increase of $5.5 million, or 6.9%, for the year ended December 31, 2009, as compared to the same period in 2008. The increase in sales for the year ended December 31, 2009, compared to 2008 primarily reflected lower sales in the prior year due to the cumulative effect from price increases of 20% and 25% in January and May 2008, respectively. In October 2008, we instituted changes in non-resident distributor compensation to address currency controls imposed by the Venezuelan government. Also, in June 2009 we instituted a 10% price increase along with further changes in non-resident distributor compensation to adjust for inflation and currency issues. Sales increased sequentially from the third to the fourth quarter of 2009 by 14.9%.
New sales leaders in the region decreased 36.0% for the year ended December 31, 2009, as compared to the same period in 2008. The decrease was driven by a decline in new sales leaders in several markets including Argentina which decreased 72.8% for the year ended December 31, 2009, as compared to the same period in 2008; Peru, which decreased 61.0% for the year ended December 31, 2009, as compared to the same period in 2008; and Bolivia, which decreased 66.6% for the year ended December 31, 2009, as compared to the same period in 2008. Total sales leaders in the region decreased 14.4% as of December 31, 2009 compared to December 31, 2008.
EMEA
The EMEA region reported net sales of $504.2 million for the year ended December 31, 2009. Net sales decreased $66.5 million, or 11.7%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales decreased 3.7% for the year ended December 31, 2009, as compared to the same period in 2008. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $45.5 million for the year ended December 31, 2009.
Among the largest markets in the region, Italy, France and Spain, net sales increased 5.2%, and decreased 24.3% and 29.1%, respectively, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, Italy reported a net sales increase of 11.3% while France and Spain reported net sales decreases of 19.3% and 25.0%, respectively, for the year ended December 31, 2009, as compared to the same period in 2008.
In Spain, we are beginning to see an improvement resulting from the withdrawal of the Spanish Ministry of Health alert regarding Herbalife products. This alert was withdrawn in April 2009 requiring no action by the Company. Although Spain local currency net sales were down 25.0% for the full year 2009 compared to 2008, local currency net sales in the fourth quarter of 2009 were 1.9% higher as compared to the same period in 2008. In Russia, net sales decreased by 15.2% for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, however, net sales increased by 8.2% for the year ended December 31, 2009, as compared to the same period in 2008. The increase in local currency net sales was primarily driven by the adoption of the Office Club concept where all DMOs are carried out from a combined Office and Commercial Nutrition Club location. Net sales in the Netherlands decreased 7.5% for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, however, net sales decreased only 2.0% for the year ended December 31, 2009, as compared to the prior year period reflecting a re-activated distributor base that is utilizing the Wellness Evaluation and Healthy Breakfast DMOs. Net sales in Portugal decreased 43.7% for the year ended December 31, 2009, as compared to the same period in 2008. However, in local currency, Portugal net sales declined 40.6% for the year ended December 31, 2009, as it continues to transition towards a daily consumption model. We are beginning to see some improvement in Portugal as local currency net sales for the fourth quarter of 2009 were down only 6.9% compared to the same period in 2008.


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For the year ended December 31, 2009, new sales leaders for the region decreased 19.9%. For the year ended December 31, 2009, the most significant decreases occurred in Spain, Portugal, France, and the Commonwealth of Independent States of Russia, or CIS countries, of 53.0%, 65.7%, 38.7% and 33.6%, respectively. These declines were partially offset by increases in Italy, Czech Republic, and Turkey where new sales leaders increased 5.1%, 57.1%, and 12.5%, respectively. Total sales leaders in the region decreased 12.5% as of December 31, 2009 compared to December 31, 2008.
In July 2009, EMEA held three regional Extravaganzas in Russia, Italy, and the Czech Republic with approximate attendance of 2,400, 7,600, and 7,800, respectively. In October 2009, South Africa held an Extravaganza with approximately 1,200 attendees.
Asia Pacific
The Asia Pacific region, which excludes China, reported net sales of $509.2 million for the year ended December 31, 2009. Net sales increased $98.4 million, or 24.0%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales increased 32.7% for the year ended December 31, 2009, as compared to the same period in 2008. The fluctuation of foreign currency rates had an unfavorable impact of $36.0 million on net sales for the year ended December 31, 2009. The increase in net sales in Asia Pacific for the year ended December 31, 2009, was primarily attributable to net sales increases in three of our largest markets in the region, Taiwan, South Korea and Malaysia, partially offset by a decrease in Japan. The increase in net sales in India, one of our emerging markets, also contributed to the increase in net sales in the region.
Net sales in Taiwan, our largest market in the region, increased $36.1 million, or 28.0%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales increased 34.3% for the year ended December 31, 2009, as compared to the same period in 2008. Adoption of the Nutrition Club DMO, in the form of Commercial Clubs, continues to be a positive catalyst for growth in this country. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $8.1 million for the year ended December 31, 2009, as compared to the same period in 2008.
Net sales in South Korea, our second largest market in the region, increased $41.7 million, or 56.9%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales increased 77.2% for the year ended December 31, 2009, as compared to the same period in 2008. The increase in local currency net sales for the year ended December 31, 2009 was primarily driven by the adoption of the Nutrition Club DMO, in the form of Commercial Clubs along with the Premium Herbalife Opportunity Meeting. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $14.8 million for the year ended December 31, 2009, as compared to the same period in 2008.
Net sales in Japan, our third largest market in the region, decreased $9.7 million, or 14.5%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales decreased 10.6% for the year ended December 31, 2009, as compared to the same period in 2008. The decrease in local currency net sales for the year ended December 31, 2009, was driven by a continuing decline in distributor recruiting. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $2.6 million for the year ended December 31, 2009, as compared to the same period in 2008.
Net sales in Malaysia, our fourth largest market in the region, increased $12.0 million, or 30.8%, for the year ended December 31, 2009, as compared to the same period in 2008, reflecting the continued success of the Road Show DMO, which has generated positive distributor momentum and increased recruiting. In local currency, net sales increased 39.2% for the year ended December 31, 2009, as compared to the same period in 2008. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $3.3 million for the year ended December 31, 2009, as compared to the same period in 2008.
Net sales in India increased $12.8 million, or 97.7%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales increased 117.8% for the year ended December 31, 2009, as compared to the same period in 2008. The increase in local currency net sales for the year ended December 31, 2009, was driven by the adoption of the Nutrition Club DMO. The number of clubs at December 31, 2009 was 555


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compared to 100 at December 31, 2008. The fluctuation of foreign currency rates had an unfavorable impact on net sales of $2.6 million for the year ended December 31, 2009, as compared to the same period in 2008.
In June, Korea hosted a regional Extravaganza with approximately 13,800 attendees. In September, Taiwan hosted an Asia-Pacific regional University with attendance of approximately 11,000 distributors.
New sales leaders in the region increased 26.9% for the year ended December 31, 2009, as compared to the same period in 2008. New sales leaders for India, Korea and Taiwan increased 112.4%, 71.8% and 19.8%, respectively, for the year ended December 31, 2009 compared to the same period in 2008. These increases were offset by declines in Japan and Philippines of 57.0% and 10.5%, respectively, for the year ended December 31, 2009 compared to the same period in 2008. Total sales leaders in the region increased 15.0% as of December 31, 2009 compared to December 31, 2008.
China
Net sales in China were $152.3 million for the year ended December 31, 2009. Net sales increased $7.3 million, or 5.0%, for the year ended December 31, 2009, as compared to the same period in 2008. In local currency, net sales increased 3.6% for the year ended December 31, 2009, as compared to the same period in 2008. The fluctuation of foreign currency rates had a favorable impact of $2.1 million on net sales for the year ended December 31, 2009.
The current focus in China is to expand the Nutrition Club DMO to enhance the retail focus and thereby increase the emphasis on daily consumption methods of operation. As experienced in other markets, such as Brazil, which have gone through a similar transition, China has been experiencing a slow-down in sales growth as service providers begin to build their nutrition club business.
In early July 2009, China’s Ministry of Commerce granted five additional licenses for us to conduct direct-selling business in the provinces of Fujian, Shan’Xi, Sichuan, Hubei, and Shanghai. All licenses became effective immediately, except Shanghai, which was activated in July 2010 after we opened our service outlets. Additionally, our license for Beijing, which was granted in July 2008 with the same condition as noted above for Shanghai, was activated in July 2009. We received our first direct-selling license in China in March 2007 for the cities of Suzhou and Nanjing in the Jiangsu province. An additional license was granted in July of the same year to conduct business throughout the entire Jiangsu province. In July 2008, we received five additional licenses for the provinces of Beijing, Guangdong, Shandong, Zhejiang and Guizhou. The 11 provinces in which we now have direct-selling licenses represent an addressable population of approximately 599 million. As of December 31, 2009, we were operating 75 retail stores in 30 provinces in China.
New sales employees in China decreased 12.4% for the year ended December 31, 2009, as compared to the same period in 2008. Total sales employees in China increased 2.7% as of December 31, 2009 compared to December 31, 2008.
Sales by Product Category
                                             
  Year Ended December 31,    
  2009  2008    
           Shipping &
              Shipping &
     % Change
 
  Retail
  Distributor
  Product
  Handling
  Net
  Retail
  Distributor
  Product
  Handling
  Net
  in Net
 
  Sales  Allowance  Sales  Revenues  Sales  Sales  Allowance  Sales  Revenues  Sales  Sales 
              (Dollars in millions)             
 
Weight Management $2,392.2  $(1,142.0) $1,250.2  $214.6  $1,464.8  $2,469.9  $(1,196.8) $1,273.1  $211.9  $1,485.0   (1.4)%
Targeted Nutrition  806.3   (384.9)  421.4   72.3   493.7   818.0   (396.4)  421.6   70.2   491.8   0.4%
Energy, Sports and Fitness  161.2   (77.0)  84.2   14.5   98.7   165.6   (80.2)  85.4   14.2   99.6   (0.9)%
Outer Nutrition  209.6   (100.1)  109.5   18.8   128.3   243.8   (118.1)  125.7   20.9   146.6   (12.5)%
Literature, Promotional and Other  120.8   7.5   128.3   10.8   139.1   113.9   12.6   126.5   9.7   136.2   2.1%
                                             
Total $3,690.1  $(1,696.5) $1,993.6  $331.0  $2,324.6  $3,811.2  $(1,778.9) $2,032.3  $326.9  $2,359.2   (1.5)%
                                             
Net sales for Weight Management, Energy, Sports and Fitness and Outer Nutrition products decreased for the year ended December 31, 2009, as compared to the same period in 2008, partially offset by an increase in Targeted


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Nutrition and Literature, Promotional and Other product category for the year ended December 31, 2009, as compared to the same period in 2008, mainly due to the factors described in the above discussions of the individual geographic regions. In addition, net sales for Outer Nutrition decreased in part due to the distributor focus on DMOs that are centered towards Weight Management products.
Gross Profit
Gross profit was $1,831.4 million for the year ended December 31, 2009, as compared to $1,900.8 million for the same period in 2008. As a percentage of net sales, gross profit for the year ended December 31, 2009 decreased to 78.8%, as compared to 80.6% for the same period in 2008. The decrease was primarily due to the unfavorable impact from currency fluctuations, changes in country mix, and the unfavorable impact during 2009 of recognizing $18.8 million incremental U.S. dollar cost of imports into Venezuela at the unfavorable parallel market exchange rate rather than the official currency exchange rate. SeeLiquidity and Capital Resources — Working Capital and Operating Activitiesin this section for further discussion on currency exchange rate issues in Venezuela.
Royalty Overrides
Royalty overrides as a percentage of net sales was 32.8% for the year ended December 31, 2009, as compared to 33.8% for the same period in 2008. The decrease for the year ended December 31, 2009, was primarily due to changes in country mix and the increase in net sales in China where compensation to our full-time sales employees and licensed business providers is included in selling, general and administrative expenses as opposed to royalty overrides where it is included for all other distributors under our worldwide marketing plan. Generally, this ratio varies slightly from period to period due to changes in the mix of products and countries because full royalty overrides are not paid on certain products and in certain countries.
Selling, General and Administrative Expenses
Selling, general and administrative expenses as a percentage of net sales was 33.3% for the year ended December 31, 2009, as compared to 32.7% for the same period in 2008.
For the year ended December 31, 2009, selling, general and administrative expenses increased $2.1 million to $773.9 million compared to the same period in 2008. The increase for the year ended December 31, 2009 included $7.6 million in higher salaries and benefits, primarily related to China sales employees and licensed business providers; and $13.8 million in higher depreciation and amortization expenses, related to the development of our technology infrastructure and the expansion and relocation of certain operations to new facilities. These increases were offset by $6.9 million in lower professional fees; $5.5 million in lower advertising, promotion costs and distributor sales events primarily reflecting currency fluctuations and location of events; $2.6 million in lower bad debt expense; $2.6 million in lower litigation costs; and $1.4 million in lower occupancy costs.
Net Interest Expense
Net interest expense is as follows:
         
  Year Ended
  Year Ended
 
  December 31,
  December 31,
 
Net Interest Expense 2009  2008 
  (Dollars in millions) 
 
Interest expense  9.6   20.1 
Interest income  (4.5)  (6.9)
         
Net Interest Expense $5.1  $13.2 
         
The decrease in interest expense for the year ended December 31, 2009 as compared to the same period in 2008 was primarily due to lower interest rates and lower average debt balance in 2009 as compared to 2008. See“Liquidity and Capital Resources”in this section for further discussion on our senior secured credit facility.


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Income Taxes
Income taxes were $87.6 million for the year ended December 31, 2009, as compared to $97.8 for the same period in 2008. As a percentage of pre-tax income, the effective income tax rate was 30.1% for the year ended December 31, 2009, as compared to 30.7% for the same period in 2008. The decrease in the effective tax rate for the year ended December 31, 2009, as compared to the same period in 2008, was primarily due to a change in the operating effective rate reflecting changes in the country mix, and a non-cash benefit of $4.9 million due to the expiration of certain statute of limitations, partially offset by a charge for an international income tax audit settlement of $1.1 million.
Restructuring Costs
As part of our restructurings, we recorded $1.3 million and $6.7 million of professional fees, severance and related costs for the year ended December 31, 2009 and 2008, respectively. All such amounts were included in selling, general and administrative expenses.
Liquidity and Capital Resources for fiscal years 2011, 2010 2009 and 20082009

We have historically met our working capital and capital expenditure requirements, including funding for expansion of operations, through net cash flows provided by operating activities. Our principal source of liquidity is our operating cash flows. Variations in sales of our products would directly affect the availability of funds. There are no material contractual restrictions on the ability to transfer and remit funds among our international affiliated companies. However, as discussed below there are foreign currency restrictions in Venezuela. We are closely monitoring various aspects of the current worldwide financial crisis and we do not believe that there has been or will be a material impact on our liquidity from this crisis. As noted above, we have historically met our funding needs utilizing cash flow from operating activities and we believe we will have sufficient resources to meet debt service obligations in a timely manner. Our existing debt has not resulted from the need to fund our normal operations, but instead has effectively resulted from our share repurchase and dividend activities over the recent years, which together, since the inception of these programs in 2007, amounted to approximately $920.8 million. Our use of the credit facility for these purposes and not for general working capital and capital expenditure needs has limited the impact that the current worldwide credit crisis has on us.$1.3 billion. While a significant net sales decline could potentially affect the availability of funds, many of our largest expenses are purely variable in nature, which could protectwe believe protects our funding in all but a dramatic net sales downturn. Further, as discussed in greater detail below, we maintain a revolving credit facility, executed on March 9, 2011, which had $219.0$492.0 million of undrawn capacity as of December 31, 2010, and is comprised2011. In addition, as of banksDecember 31, 2011, we also had a cash pooling arrangement with a financial institution for cash management purposes. This cash pooling arrangement allows certain of our participating foreign locations to withdraw cash from this financial institution based upon our aggregate cash deposits held by certain of our participating locations who participate in the cash pooling arrangement. This cash pooling arrangement generally allows us to withdraw amounts to the extent aggregate cash deposits held by our participating locations are continuingavailable at the financial institution; we did not owe any amounts to supportthis financial institution as of December 31, 2011.

For the facility throughyear ended December 31, 2011, we generated $509.3 million of operating cash flow, as compared to $389.1 million for the current worldwide financial crisis.

same period in 2010. The increase in cash generated from operations was primarily due to an increase in operating income of $174.8 million driven by a 26.3% growth in net sales for the year ended December 31, 2011 as compared to the same period in 2010. For the year ended December 31, 2010, we generated $380.4$389.1 million of operating cash flow, as compared to $285.1 million for the same period in 2009. The increase in cash generated from operations was primarily due to an increase in operating income of $91.5 million driven by a 17.6% growth in net sales for the year ended December 31, 2010 as compared to the same period in 2009.
For the year ended December 31, 2009, we generated $285.1 million of operating cash flow, as compared to $273.0 million for the same period in 2008. The increase in cash generated from operations was primarily due to the increase in non-cash items included in net income for the year ended December 31, 2009, as compared to the same period in 2008, lower interest payments due to lower average debt balance and lower interest rates and the favorable change in operating assets for the year ended December 31, 2009, compared to the same period in 2008. This was partially offset by lower operating income, higher income tax payments, and unfavorable change in operating liabilities for the year ended December 31, 2009, as compared to the same period in 2008.

Capital expenditures, including capital leases, for the years ended December 31, 2011, 2010 and 2009 and 2008 were $90.9 million, $68.1 million, $60.1 million and $106.8$60.1 million, respectively. The majority of these expenditures represented investments in management information systems, the development of our distributor internet initiatives, and the expansion of our warehouse, sales centers and manufacturing facilities domestically and internationally. In 2008 and 2009, capital expenditures primarily related to the global roll-out of Oracle Order Management System. The decrease in 2009 from 2008 primarily reflects lower spending as the Oracle roll-out project was completed during


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the third quarter of 2009. We expect to incur total capital expenditures of approximately $80$110 million to $90$120 million for the full year of 2011.
2012.

We entered into a $300.0 million senior secured credit facility, or Prior Credit Facility, comprised of a $200.0 million term loan and a revolving credit facility of $100.0 million, with a syndicate of financial institutions as lenders in July 2006. In September 2007, we amended our senior secured credit facility,Prior Credit Facility, increasing the revolving credit facility by $150.0 million to $250.0 million to fund the increase in our share repurchase program discussed below. The term loan matureswas to mature on July 21, 2013 and the revolving credit facility iswas to be available until July 21, 2012. The term loan bearsbore interest at LIBOR plus a margin of 1.5%, or the base rate, which representsrepresented the prime rate offered by major U.S. banks, plus a margin of 0.50%. The revolving credit facility bearsbore interest at LIBOR plus a margin of 1.25%, or the base rate, which representsrepresented the prime rate offered by major U.S. banks, plus a margin of 0.25%. On December 31, 2010, 2009 and 2008, the weighted average interest rate was 1.75%, 1.66% and 3.04%, respectively.

The senior secured credit facility requires

This Prior Credit Facility required us to comply with a leverage ratio and an interest coverage ratio. In addition, the senior secured credit facility containsPrior Credit Facility, contained customary covenants, including covenants that limitlimited or restrictrestricted our ability to incur liens, incur indebtedness, make investments, dispose of assets, make certain restricted payments, merge or consolidate and enter into certain transactions with affiliates. As of December 31, 2010 and 2009, we were in compliance with these covenants.

During 2010, we borrowed an aggregate amount of $427.0 million under the revolving credit facility and paid $487.0 million of the revolving credit facility. During 2009, we borrowed an aggregate amount of $212.0 million under the revolving credit facility and paid $298.7 million of the revolving credit facility.

On March 9, 2011, we entered into a $700.0 million senior secured revolving credit facility, or the New Credit Facility, with a syndicate of financial institutions as lenders and terminated our Prior Credit Facility. The New Credit Facility has a five year maturity and expires on March 9, 2016. During 2008,March 2011, U.S. dollar borrowings under the New Credit Facility incurred interest at the base rate plus a margin of 0.75% or LIBOR plus a margin of 1.75%. After March 2011, based on our consolidated leverage ratio, U.S. dollar borrowings under the New Credit Facility will bear interest at either LIBOR plus the applicable margin between 1.50% and 2.50% or the base rate plus the applicable margin between 0.50% and 1.50%. We, based on our consolidated leverage ratio, will pay a commitment fee between 0.25% and 0.50% per annum on the unused portion of the New Credit Facility. The New Credit Facility also permits us to borrow limited amounts in Mexican Peso and Euro currencies based on variable rates. The base rate under the New Credit Facility represents the highest of the Federal Funds Rate plus 0.50%, one-month LIBOR plus 1.00%, and the prime rate offered by Bank of America.

In March 2011, we used $196.0 million in U.S. dollar borrowings under the New Credit Facility to repay all amounts outstanding under the Prior Credit Facility. We incurred approximately $5.7 million of debt issuance costs in connection with the New Credit Facility. These debt issuance costs were recorded as deferred financing costs on our consolidated balance sheet and are being amortized over the term of the New Credit Facility. At December 31, 2011, the weighted average interest rate for borrowings under New Credit Facility was 1.89%. At December 31, 2010, and 2009, the weighted average interest rate for borrowings under Prior Credit Facility was 1.75%, and 1.66%, respectively.

The New Credit Facility requires us to comply with a leverage ratio and an interest coverage ratio. In addition, the New Credit Facility contains customary covenants, including covenants that limit or restrict our ability to incur liens, incur indebtedness, make investments, dispose of assets, make certain restricted payments, pay dividends, repurchase our common shares, merge or consolidate and enter into certain transactions with affiliates. As of December 31, 2011, we were in compliance with these covenants.

During the year ended December 31, 2011, we borrowed an aggregate amount of $118.0$859.7 million and $54.0 million under the New Credit Facility and the Prior Credit Facility, respectively, and paid $149.0a total of $657.7 million and $228.9 million of the revolving credit facility. During the years ended December 31, 2010, 2009,New Credit Facility and 2008, these borrowings were primarily related to our share repurchases and dividends program as discussed further below.

We are currently planning to refinance our senior secured credit facility, which consists of a revolving credit facility and a term loan that are expiring in July 2012 and July 2013, respectively, as discussed in greater detail above. This will allow us to better support our growth and strategic initiatives, as well as to continue to fund our dividend program, and our share repurchase program as discussed further below. The refinancing is expected to be completed during the first half of 2011.
Prior Credit Facility, respectively.

The following summarizes our contractual obligations including interest at December 31, 2010,2011, and the effect such obligations are expected to have on our liquidity and cash flows in future periods:

                     
  Payments Due by Period 
              2016 &
 
  Total  2011  2012 - 2013  2014 - 2015  Thereafter 
        (Dollars in millions)    
 
Borrowings under the senior credit facility(1) $182.1  $4.6  $177.5  $  $ 
Capital leases  3.1   1.6   1.5       
Operating leases  161.5   39.0   58.2   39.6   24.7 
Other  21.5   11.5   10.0       
                     
Total $368.2  $56.7  $247.2  $39.6  $24.7 
                     

   Payments Due by Period 
   Total   2012   2013 - 2014   2015 - 2016   2017 &
Thereafter
 
   (Dollars in millions) 

Borrowings under the senior credit facility(1)

  $218.3    $3.9    $7.8    $206.6    $  

Capital leases

   1.4     1.4                 

Operating leases

   163.1     42.9     61.4     35.0     23.8  

Other

   35.1     23.2     9.7     2.2       
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total(2)

  $417.9    $71.4    $78.9    $243.8    $23.8  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

(1)The estimated interest payments on our senior credit facilityNew Credit Facility are based on interest rates effective at December 31, 2010.2011.

(2)Our consolidated balance sheet as of December 31, 2011 included $38.7 million in unrecognized tax benefits. The future payments related to these unrecognized tax benefits have not been presented in the table above due to the uncertainty of the amounts and potential timing of cash settlements with the tax authorities, and whether any settlement would occur.

At December 31, 2011 and December 31, 2010, the total amount of our foreign subsidiary cash was $246.0 million and $188.2 million, respectively, of which $9.2 million and $5.8 million, respectively, was invested in U.S. dollars. For earnings not considered to be indefinitely reinvested, deferred taxes have been accrued. For earnings considered to be indefinitely reinvested, deferred taxes have not been provided. Should we make a determination to remit the cash and cash equivalents from our foreign subsidiaries to our U.S. consolidated group for the purpose of repatriation of undistributed earnings, we would need to accrue and pay taxes. As of December 31, 2010 included $38.52011, our U.S. consolidated group had approximately $82.2 million in unrecognizedof permanently reinvested unremitted earnings from its subsidiaries, and if these monies were ever needed to be remitted, the impact of any tax benefits. The future payments relatedconsequences on our overall liquidity position would not be material. As of December 31, 2011, our parent, Herbalife Ltd., had $1.8 billion of permanently reinvested unremitted earnings relating to its operating subsidiaries. We do not have any plans to repatriate these unremitted earnings to our parent; therefore, we do not have any liquidity concerns relating to these unrecognized tax benefits have not been presented in the table above dueunremitted earnings and related cash and cash equivalents. See Note 12,Income Taxes, to the uncertainty of the amounts and potential timing of cash settlements with the tax authorities, and whether any settlement would occur.

Consolidated Financial Statements for additional discussion.

Off-Balance Sheet Arrangements

At December 31, 20102011 and December 31, 2009,2010, we had no material off-balance sheet arrangements as defined in Item 303(a)(4)(ii) ofRegulation S-K.


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Stock Split

Share Repurchases
On April 18, 2007,28, 2011, our board of directors authorizedshareholders approved the repurchase of upstock split. One additional common share was distributed to $300 million of our shareholders on or around May 17, 2011, for each common share held on May 10, 2011. All common shares duringsubject to outstanding equity awards and warrants, as well as the next two years, at such times and prices as determined by our management, as market conditions warrant. On August 23, 2007, our board of directors approved an increase of $150 million, raising the total value of our common shares authorized to be repurchased to $450 million. On May 20, 2008, our board of directors approved an additional increase of $150 million to our previously authorized share repurchase program raising the total valuenumber of common shares authorizedreserved for issuance under our equity compensation plans, were adjusted proportionately. All periods disclosed and presented within this Annual Report have been adjusted to be repurchased to $600 million. reflect this stock split.

Share Repurchases

On April 17, 2009, our share repurchase program adopted on April 18, 2007 expired pursuant to its terms. On April 30, 2009, our board of directors authorized a new program for us to repurchase up to $300 million of our common shares during the nextfollowing two years, at such times and prices as determined by management, as market conditions warrant. On May 3, 2010, our board of directors approved an increase to the share repurchase authorization from $300 million to $1 billion. In addition, our board of directors approved the extension of the expiration date of the share repurchase program from April 2011 to December 2014.

The New Credit Facility permits repurchases of common shares as long as no default or event of default exists and the consolidated leverage ratio specified in the New Credit Facility is not exceeded.

During the year ended December 31, 2011, we repurchased 5.5 million of our common shares through open market purchases at an aggregate cost of approximately $298.8 million, or an average cost of $54.27 per share. During the year ended December 31, 2010, we repurchased approximately 2.95.7 million of our common shares through open market purchases at an aggregate cost of approximately $150.1 million, or an average cost of $52.25$26.13 per share. During the year ended December 31, 2009, we repurchased approximately 2.04.0 million of our common shares through open market purchases at an aggregate cost of approximately $73.2 million, or an average cost of $36.60$18.30 per share. During the year ended December 31, 2008, we repurchased approximately 4.6 million of our common shares through open market purchases at an aggregate cost of $137.0 million, or an average cost of $29.60 per share. As of December 31, 2010, the remaining authorized capacity under the share repurchase program was $776.7 million.

The number of shares issued upon vesting or exercise for certain restricted stock units and stock appreciation rights granted, pursuant to the Company’s share-based compensation plans, is net of the minimum statutory withholding requirements that the Company pays on behalf of its employees. Although shares withheld are not issued, they are treated as common share repurchases for accounting purposes, as they reduce the number of shares that would have been issued upon vesting.

Dividends

The declaration of future dividends is subject to the discretion of our board of directors and will depend upon various factors, including our earnings, financial condition, restrictions imposed by the New Credit Facility and the terms of any other indebtedness that may be outstanding, cash requirements, future prospects and other factors deemed relevant by our board of directors. The New Credit Facility permits payments of dividends as long as no default or event of default exists and the consolidated leverage ratio specified in the New Credit Facility is not exceeded.

During the second quarter of 2007, the Company’sour board of directors adopted a regular quarterly cash dividend program. The Company’sOur board of directors authorized a $0.20$0.10 per common share cash dividend each quarter from the adoption of the program through the second quarter of 2010. On August 2, 2010, the Company’swe announced that our board of directors approved an increase in the quarterly cash dividend to $0.25$0.13 per common share, an increase of $0.05$0.03 per common share from prior quarters. On May 2, 2011, we announced that our board of directors approved an increase in the quarterly cash dividend to $0.20 per common share, an increase of $0.07 per common share from prior quarters.

The aggregate amount of dividends paid and declared during fiscal year 2011, 2010, 2009, and 20082009 was approximately $85.5 million, $53.7 million, and $48.7 million, and $50.7 million, respectively.

Working Capital and Operating Activities

As of December 31, 2010, 20092011 and 2008,December 31, 2010, we had positive working capital of $220.1 million, and $124.8 million, $83.5 million, and $82.9 million, respectively. Cashrespectively, or an increase of $95.3 million. This increase was primarily related to the increase in our cash and cash equivalents, were $190.6 million at December 31, 2010,receivables and $150.8 million at December 31, 2009inventories, partially offset by the increases in our current liabilities primarily related to our accounts payables, royalty overrides, and 2008.

accrued expenses. The increase in receivables primarily relates to increases in receivables from credit card companies due to the sales growth of our business. The increase in inventory primarily relates to increases in finished goods to support sales growth and strategic sourcing initiatives.

We expect that cash and funds provided from operations and available borrowings under our revolving credit facilityNew Credit Facility will provide sufficient working capital to operate our business, to make expected capital expenditures and to meet foreseeable liquidity requirements, including debt service on our term loan and amounts outstanding under our revolving credit facility,New Credit Facility, for the next twelve months.

months and thereafter.

The majority of our purchases from suppliers are generally made in U.S. dollars, while sales to our distributors generally are made in local currencies. Consequently, strengthening of the U.S. dollar versus a foreign currency can have a negative impact on net sales and operatingcontribution margins and can generate transaction losses on intercompany transactions. For discussion of our foreign exchange contracts and other hedging arrangements, see Part II, Item 7A —Quantitative and Qualitative Disclosures about Market Risk.


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Currency Restrictions in Venezuela

Currency restrictions enacted by the Venezuelan government in 2003 have become more restrictive and have impacted the ability of the Company’s subsidiary in Venezuela, Herbalife Venezuela, to obtain U.S. dollars in exchange for Venezuelan Bolivars, or Bolivars, at the official foreign exchange rates from the Venezuelan government and its foreign exchange commission, CADIVI. The application and approval processes have been

intermittently delayed and the timing and ability to obtain U.S. dollars at the official exchange rates remains uncertain. In certain instances, we havethe Company has made appropriate applications through CADIVI for approval to obtain U.S. dollars so that Herbalife Venezuela can pay for imported products and an annual dividend at the official exchange rate. As an alternative exchange mechanism, we havethe Company has also participated in certain bond offerings from the Venezuelan government and from Petróleos de Venezuela, S.A. or PDVSA, a Venezuelan state-owned petroleum company, where wethe Company effectively purchased bonds with ourits Bolivars and then sold the bonds for U.S. dollars. In other instances, wethe Company has also used aalternative legal exchange mechanisms for currency exchanges, such as the legal parallel market mechanism for currency exchanges until this less favorable parallel marketwhich is discussed below and was discontinued in May 2010.

In June 2010, the Venezuelan government introduced additional regulations under a new regulated system, SITME, which is controlled by the Central Bank of Venezuela. SITME provides a mechanism to exchange Bolivars into U.S. dollars through the purchase and sale of U.S. dollar denominated bonds issued in Venezuela. However, SITME is only available in certain limited circumstances. Specifically, SITME can only be used for product purchases and is not available for other matters such as the payment of dividends. Also, SITME can only be used for amounts of up to $50,000 per day and $350,000 per month and is generally only available to the extent the applicant has not exchanged and received U.S. dollars via the CADIVI process within the previous 90 days.

Although Venezuela is an important market in ourthe Company’s South and Central America Region, Herbalife Venezuela’s net sales represented less than 2%, 4%2% and 4% of the ourCompany’s consolidated net sales for the years ended December 31, 2011, 2010 2009 and 2008,2009, respectively, and its total assets represented less than 3% and 6% of ourthe Company’s consolidated total assets as of both December 31, 20102011 and 2009, respectively.

2010.

Pre-Highly Inflationary Economy in Venezuela and Herbalife Venezuela’s Cash and Cash Equivalents at December 31, 2009

During the fourth quarter of 2009, due to the currency restrictions in obtaining U.S. dollars at the official currency exchange rate and in order to mitigate the Company’s currency exchange risk in Venezuela, Herbalife Venezuela entered into a series of parallel market transactions and exchanged 105.0 million Bolivars for approximately $19.5 million U.S. dollars at an average rate of approximately 5.4 Bolivars per U.S. dollar. Also, during the fourth quarter of 2009, Herbalife Venezuela settled $13.6 million of its U.S. dollar denominated non-CADIVI registered intercompany shipment payables that were initially recorded and then subsequently remeasured at the parallel market exchange rate. Therefore, theThe settlement of these intercompany shipment payables did not result in any net foreign exchange gains or losses recorded in ourthe accompanying consolidated statement of income for the year ended December 31, 2009. Incremental costs of $18.8 million, related to the importation of products into Venezuela at the unfavorable parallel market exchange rate, were recorded in costs of sales in ourthe Company’s consolidated statement of income for the year ended December 31, 2009.

As of December 31, 2009, Herbalife Venezuela’s $5.9 million U.S. dollar cash and cash equivalents residing in its U.S. dollar bank account were remeasured to Bolivars at the parallel market exchange rate of approximately 5.9 Bolivars per U.S. dollar. These remeasured cash and cash equivalents were translated at the official rate of 2.15 Bolivars per U.S. dollar and reported as $15.8 million in the Company’s consolidated balance sheet at December 31, 2009. Based on ourthe Company’s specific facts and circumstances, U.S. GAAP required usthe Company to use the dividend remittance rate (the official exchange rate) for translation purposes and the parallel market exchange rate (the applicable rate at which a particular transaction could be settled), for certain remeasurement purposes. Due to the difference between the remeasurement rate and translation rate, the cash and cash equivalents relating to Herbalife Venezuela reported on ourthe Company’s consolidated balance sheet at December 31, 2009, was $9.9 million greater than the U.S. dollar amount residing in Herbalife Venezuela’s U.S. dollar bank account and therefore did not necessarily reflect the true purchasing power of the reported U.S. dollar cash and cash equivalents. At December 31, 2009, Herbalife Venezuela reported cash and cash equivalents of approximately $34.2 million, of which $15.8 million was denominated in U.S. dollars


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and $18.4 million was denominated in Bolivars. The cash and cash equivalents were translated into ourthe consolidated financial statements at the official exchange rate, which was the rate applicable for dividend remittance.

Highly Inflationary Economy and Accounting in Venezuela

Venezuela’s inflation rate as measured using the blended National Consumer Price Index and Consumer Price Index rate exceeded a three-year cumulative inflation rate of 100% as of December 31, 2009. Accordingly, effective January 1, 2010, Venezuela was considered a highly inflationary economy. Pursuant to the highly inflationary basis of accounting under U.S. GAAP, Herbalife Venezuela changed its functional currency from the Bolivar to the U.S. dollar. Subsequent movements in the Bolivar to U.S. dollar exchange rate will impact ourthe Company’s consolidated earnings. Prior to January 1, 2010 when the Bolivar was the functional currency, movements in the Bolivar to U.S. dollar were recorded as a component of equity through other comprehensive income. Pursuant to highly inflationary accounting rules, we arethe Company no longer required to translatetranslates Herbalife Venezuela’s financial statements since theiras its functional currency is now the U.S. dollar.

Based on relevant facts and circumstances at the applicable times, under the highly inflationary basis of accounting, wethe Company used the parallel market exchange rate for remeasurement purposes until the parallel market was discontinued in May 2010. On January 1, 2010, in connection with the determination that Venezuela was a highly inflationary economy, wethe Company remeasured Herbalife Venezuela’s opening balance sheet’s monetary assets and liabilities at the parallel market rate which resulted in us recordingand recorded a non-tax deductible foreign exchange loss of $15.1 million. This charge included the $9.9 million foreign exchange loss relatingrelated to Herbalife Venezuela’s U.S. dollar cash and cash equivalents that were remeasured at the parallel market rate and then translated at the official rate at December 31, 2009. Also, Herbalife Venezuela’s $34.2 million cash and cash equivalents reported in ourthe Company’s consolidated balance sheet at December 31, 2009, which included U.S. dollar denominated cash, waswere reduced to approximately $12.5 million on January 1, 2010. However, nonmonetary assets, such as inventory, reported on ourthe Company’s consolidated balance sheet at December 31, 2009, remained at historical cost subsequent to Venezuela becoming a highly inflationary economy. Therefore, the incremental costs related to ourthe Company’s 2009 imported products recorded at the parallel market exchange rate negatively impacted ourthe Company’s consolidated earningsstatement of income for the year ended December 31, 2010 by approximately $12.7 million as these products were sold during the first quarter of 2010. This amount is not tax deductible. See Note 12,Income Taxes, in our notes to consolidated financial statements,the Consolidated Financial Statements for additional discussion on the income tax impact related to Venezuela becoming a highly inflationary.

inflationary economy.

Official Exchange Rate Devaluations in Venezuela in 2011 and 2010

In early January 2010, Venezuela announced an official exchange rate devaluation of the Bolivar to an official rate of 4.3 Bolivars per U.S. dollar for non-essential items and 2.6 Bolivars per U.S. dollar for essential items. OurThe Company’s imports fall into both classifications. During 2010, because wethe Company used the parallel market exchange rate for remeasurement purposes until the parallel market was discontinued in May 2010 and then used the SITME rate thereafter, any U.S. dollars obtained from CADIVI at the official rate had a positive impact on ourto the Company’s consolidated net earnings. Specifically, wethe Company recorded $5.8 million of foreign exchange gains to selling, general and administrative expenses within our accompanyingthe Company’s consolidated statement of income for the year ended December 31, 2010, as a result of receiving U.S. dollars approved by CADIVI at the official exchange rate. The majority of Herbalife Venezuela’s 2010 importations were not registered with CADIVI so the official exchange rates arewere not available to pay for these U.S. imports. As of December 31, 2010, Herbalife Venezuela also hashad an outstanding intercompany dividend payable to ourthe Company of $2.5 million, which was declared in December 2008 and registered with CADIVI. The request to obtain U.S. dollars at the official rate to settle theCADIVI and still remains outstanding intercompany dividend payable is pending CADIVI’s approval.as of December 31, 2011. Also, at December 31, 2010, Herbalife Venezuela had outstanding intercompany shipment payable balances of $2.6 million, primarily relating to 2010, which arewere registered with CADIVI and arewere pending CADIVI’s approval.

As of December 31, 2011, $0.1 million outstanding intercompany shipment payable balances were registered with CADIVI and pending their approval.

In late December 2010, Venezuela announced that the CADIVI official exchange rate of 2.6 Bolivars per U.S. dollar willwould be eliminated and theeliminated. The CADIVI official exchange of 4.3 Bolivars per U.S. dollar will beis used for all essential items and non-essential items beginning January 2011. This devaluation did not have a material impact on ourthe Company’s consolidated financial statements. At December 31, 2011 and 2010, wethe Company used the SITME rate of 5.3 Bolivars per U.S. dollar for remeasurement purposes. We expect that any U.S. dollars obtained from CADIVI at the official exchange rate of 4.3 Bolivars per U.S. dollar will have a positive impact on our consolidated net earnings, and the impact of any U.S. dollars obtained from the Venezuelan government and PDVSA bond offerings on our consolidated earnings will depend on the prevailing exchange rates during those periods.


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Remeasurement of Herbalife Venezuela’s Monetary Assets and Liabilities at December 31, 2011 and 2010

During the second quarter of 2010, wethe Company recorded a $4.0 million pre-tax ($2.6 million post-tax) net foreign exchange gain to selling, general and administrative expenses, within the Company’s consolidated statement of income, as a result of remeasuring Herbalife Venezuela’sits Bolivar denominated monetary assets and liabilities as of June 30, 2010 at the SITME rate of 5.3 Bolivars per U.S. dollar as opposed to the last parallel market rate prior to the closure of the parallel market in May 2010 of 8.3 Bolivars per U.S. dollar. Herbalife Venezuela’s cash and cash equivalents, primarily denominated in Bolivars, increased by $5.2 million as a result of using the SITME rate as opposed to the last quoted parallel market rate during the second quarter of 2010. During the third quarter of 2010 and thereafter, wethe Company continued to use the SITME rate of 5.3 Bolivars per U.S. dollar to remeasure its Bolivar denominated transactions. As of December 31, 2010, the majority of Herbalife Venezuela’s net monetary Bolivar denominated assets and liabilities approximated $19.4 million which included Bolivar denominated cash and cash equivalents approximating $24.6 million, and were all remeasured at the new regulated rate underSITME rate.

During 2011, the Company accessed the SITME exceptmarket in order to exchange its Bolivars to U.S. dollars. In less frequent instances, the Company has also accessed alternative legal exchange mechanisms, to exchange Bolivars for U.S. dollars, at less favorable rates than the SITME rate, which resulted in the Company recognizing $1.2 million of losses in selling, general and administration expenses included within its consolidated statement of income for the $2.5year ended December 31, 2011. In February 2011, Herbalife Venezuela purchased U.S. dollar denominated bonds with a face value of $20 million intercompany dividend which wasU.S. dollars in a bond offering from PDVSA for 86 million Bolivars and then immediately sold the bonds for $15 million U.S. dollars, resulting in an average effective conversion rate of 5.7 Bolivars per U.S. dollar. The 86 million Bolivars were previously remeasured at the CADIVI official rate.regulated system rate, or SITME rate, of 5.3 Bolivars per U.S. dollar and recorded as cash and cash equivalents of $16.3 million on the Company’s consolidated balance sheet at December 31, 2010. This Bolivar to U.S. dollar conversion resulted in the Company recording a net pre-tax loss of $1.3 million U.S. dollars during the first quarter of 2011 which is included in its consolidated statement of income for the year ended December 31, 2011. The Company was unsuccessful in accessing any subsequent PDVSA bond offerings and the frequency of future bond offerings is unknown. The Company continues to remeasure its Bolivars at the published SITME rate given the limited availability of alternative exchange mechanisms and the uncertainty in the effective exchange rate for alternative exchange mechanisms.

As of December 31, 2011, Herbalife Venezuela’s net monetary assets and liabilities denominated in Bolivars was approximately $26.8 million, and included approximately $34.8 million in Bolivar denominated cash and cash equivalents. The majority of these Bolivar denominated assets and liabilities were remeasured at the SITME rate as of December 31, 2011. While we continuethe Company continues to monitor the new exchange mechanism and restrictions under SITME, there is no assurance that wethe Company will be able to exchange Bolivars into U.S. dollars on a timely basis. Therefore, these remeasured amounts, including cash and cash equivalents, being reported on our accompanyingthe Company’s consolidated balance sheet using the SITME rate may not accurately represent the amount of U.S. dollars wethat the Company could ultimately realize.

Consolidation of Herbalife Venezuela

We plan

The Company plans to continue ourits operation in Venezuela and to import products into Venezuela despite the foreign currency constraints that exist in the country. Herbalife Venezuela will continue to apply for legal exchange mechanisms to convert its Bolivars to U.S. dollars. Despite the currency exchange restrictions in Venezuela, we continuethe Company continues to control Herbalife Venezuela and its operations. The mere existence of the exchange restrictions discussed above does not in and of itself create a presumption that this lack of exchangeability isother-than-temporary, nor does it create a presumption that an entity should deconsolidate its Venezuelan operations. Therefore, we continuethe Company continues to consolidate Herbalife Venezuela in our accompanyingits consolidated financial statements for U.S. GAAP purposes. Substantially allThe majority of Herbalife Venezuela’s Bolivar denominated assets and liabilities are currently being remeasured at the SITME rate.

Although there are delays in the CADIVI approval process, when applicable, we plan to continue applying to CADIVI to obtain the official rate relating to the importation of the Company’s products. In addition, we

We plan to utilize the SITME market and CADIVI rate to the extent allowable under current restrictions in order to exchange Bolivars for U.S. dollars. We also plan to access government, and PDVSA bond offerings, and

alternative legal exchange mechanisms when they are made available. These alternative legal exchange mechanisms could cause us to recognize significant foreign exchange losses if they are less favorable than the SITME rate. Our ability to access the official exchange rate and the SITME rate could impact what exchange rates will be used for remeasurement purposes in future periods. We continue to assess and monitor the current economic and political environment in Venezuela. SeeSubsequent Events, within this section for further discussion on Herbalife Venezuela.


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Quarterly Results of Operations
                                 
  Quarter Ended 
  December 31,
  September 30,
  June 30,
  March 31,
  December 31,
  September 30,
  June 30,
  March 31,
 
  2010  2010  2010  2010  2009  2009  2009  2009 
  (In thousands except per share data) 
 
Operations:                                
Net sales $738,356  $688,431  $688,806  $618,633  $630,871  $600,218  $571,805  $521,683 
Cost of sales  148,513   133,265   136,561   140,472   136,515   131,777   122,442   102,400 
                                 
Gross profit  589,843   555,166   552,245   478,161   494,356   468,441   449,363   419,283 
Royalty overrides  244,088   224,061   224,780   207,319   204,580   194,639   186,750   175,532 
Selling, general and administrative expenses  239,512   230,150   211,110   206,883   205,691   195,968   190,794   181,458 
                                 
Operating income  106,243   100,955   116,355   63,959   84,085   77,834   71,819   62,293 
Interest expense, net  1,126   2,192   2,146   1,953   1,016   1,037   1,338   1,712 
                                 
Income before income taxes  105,117   98,763   114,209   62,006   83,069   76,797   70,481   60,581 
Income taxes  24,127   23,024   32,276   10,135   27,413   18,902   22,228   19,039 
                                 
Net income $80,990  $75,739  $81,933  $51,871  $55,656  $57,895  $48,253  $41,542 
                                 
Earnings per share                                
Basic $1.37  $1.28  $1.38  $0.86  $0.92  $0.95  $0.78  $0.68 
Diluted $1.31  $1.22  $1.32  $0.83  $0.88  $0.91  $0.77  $0.67 
Weighted average shares outstanding                                
Basic  59,082   59,221   59,527   60,160   60,492   61,234   61,642   61,510 
Diluted  62,058   61,946   62,103   62,672   63,004   63,397   62,929   61,614 

Contingencies

The Company is from time to time engagedQuarterly income taxes, net income, basic earnings per share, and diluted earnings per share presented in routine litigation. The Company regularly reviews all pending litigation mattersthe table below reflect the change in which it is involved and establishes reserves deemed appropriate by management for these litigation matters when a probable loss estimate can be made.
As a marketeraccounting method discussed in Note 2,Basis of dietary and nutritional supplements and other products that are ingested by consumers or applied to their bodies, the Company has been and is currently subjected to various product liability claims. The effects of these claims to date have not been materialPresentation, to the Company,Consolidated Financial Statements. Basic and diluted earnings per share, and weighted average shares outstanding, have also been adjusted to reflect the reasonably possible range of exposure on currently existing claims is not materialstock split as discussed above.

  Quarter Ended 
  December 31,
2011
  September 30,
2011
  June 30,
2011
  March 31,
2011
  December 31,
2010
  September 30,
2010
  June 30,
2010
  March 31,
2010
 
  (In thousands except per share data) 

Operations:

        

Net sales

 $884,569   $895,218   $879,654   $795,096   $738,356   $688,431   $688,806   $618,633  

Cost of sales

  170,960    175,308    171,023    162,793    148,513    133,265    136,561    140,472  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Gross profit

  713,609    719,910    708,631    632,303    589,843    555,166    552,245    478,161  

Royalty overrides

  293,109    290,842    289,232    264,377    244,088    224,061    224,780    207,319  

Selling, general and administrative expenses

  286,151    277,721    266,225    244,526    239,512    230,150    211,110    206,883  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Operating income

  134,349    151,347    153,174    123,400    106,243    100,955    116,355    63,959  

Interest expense, net

  (1,357  345    855    2,648    1,126    2,192    2,146    1,953  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Income before income taxes

  135,706    151,002    152,319    120,752    105,117    98,763    114,209    62,006  

Income taxes

  30,349    42,980    41,139    32,733    18,832    19,879    32,034    10,135  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Net income

 $105,357   $108,022   $111,180   $88,019   $86,285   $78,884   $82,175   $51,871  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Earnings per share

        

Basic

 $0.91   $0.92   $0.93   $0.74   $0.73   $0.67   $0.69   $0.43  

Diluted

 $0.86   $0.87   $0.88   $0.70   $0.69   $0.63   $0.65   $0.41  

Weighted average shares outstanding

        

Basic

  115,989    116,975    119,007    118,206    118,164    118,442    119,054    120,320  

Diluted

  122,640    124,275    126,617    125,625    125,958    125,613    125,685    126,246  

Contingencies

See Note 7,Contingencies, to the Company. The Company believes that it has meritorious defenses to the allegations contained in the lawsuits. The Company currently maintains product liability insurance with an annual deductibleConsolidated Financial Statements for information on our contingencies as of $10 million.

On April 16, 2007, Herbalife International of America, Inc. filed a Complaint in the United States District Court for the Central District of California against certain former Herbalife distributors who had left the Company to join a competitor. The Complaint alleged breach of contract, misappropriation of trade secrets, intentional interference with prospective economic advantage, intentional interference with contract, unfair competition, constructive trust and fraud and seeks monetary damages, attorney’s fees and injunctive relief (Herbalife International of America, Inc. v. Robert E. Ford, et al). The court entered a Preliminary Injunction against the defendants enjoining them from further useand/or misappropriation of the Company’s trade secrets on December 11, 2007. Defendants appealed the court’s entry of the Preliminary Injunction to the U.S. Court of Appeals for the Ninth Circuit. That court affirmed, in relevant part, the Preliminary Injunction. On December 3, 2007, the defendants filed a counterclaim alleging that the Company had engaged in unfair and deceptive business practices, intentional and negligent interference with prospective economic advantage, false advertising and that the Company was an endless chain scheme in violation of California law and seeking restitution, contract rescission and an injunction. Both sides engaged in discovery and filed cross motions for Summary Judgment. On August 25, 2009, the court granted partial summary judgment for Herbalife on all of defendants’ claims except the claim that the Company is an endless chain


75

31, 2011.


scheme which under applicable law is a question of fact that can only be determined at trial. The court denied defendants’ motion for Summary Judgment on Herbalife’s claims for misappropriation of trade secrets and breach of contract. On May 5, 2010, the District Court granted summary judgment for Herbalife on defendants’ endless chain-scheme counterclaim. Herbalife voluntarily dismissed its remaining claims, and on May 14, 2010, the District Court issued a final judgment dismissing all of the parties’ claims. On June 10, 2010 the defendants appealed from that judgment and on June 21, 2010, Herbalife cross-appealed. The Company believes that there is merit to its appeal, and it will prevail upon both its appeal as well as the defendant’s appeal.
Certain of the Company’s subsidiaries have been subject to tax audits by governmental authorities in their respective countries. In certain of these tax audits, governmental authorities are proposing that significant amounts of additional taxes and related interest and penalties are due. The Company and its tax advisors believe that there are substantial defenses to their allegations that additional taxes are owed, and the Company is vigorously contesting the additional proposed taxes and related charges. On May 7, 2010, the Company received an administrative assessment from the Mexican Tax Administration Service in an amount equivalent to approximately $93 million, translated at the period ended spot rate, for various items, the majority of which was Value Added Tax allegedly owed on certain of the Company’s products imported into Mexico during the years 2005 and 2006. This assessment is subject to interest and inflationary adjustments. On July 8, 2010, the Company initiated a formal administrative appeal process. In connection with the appeal of the assessment, the Company may be required to post bonds for some or all of the assessed amount. Therefore, in July 2010, the Company entered into agreements with certain insurance companies to allow for the potential issuance of surety bonds in support of its appeal of the assessment. Such surety bonds, if issued, would not affect the availability of the Company’s existing credit facility. The Company did not record a provision as the Company, based on analysis and guidance from its advisors, does not believe a loss is probable. Further, the Company is currently unable to reasonably estimate a possible loss or range of loss that could result from an unfavorable outcome in respect to this assessment or any additional assessments that may be issued for these or other periods. The Company believes that it has meritorious defenses and is vigorously pursuing the appeal, but final resolution of this matter could take several years.
These matters may take several years to resolve. While the Company believes it has meritorious defenses, it cannot be sure of their ultimate resolution. Although the Company has reserved amounts for certain matters that the Company believes represent the most likely outcome of the resolution of these related disputes, if the Company is incorrect in the assessment, the Company may have to record additional expenses, when it becomes probable that an increased potential liability is warranted.
Subsequent Events

On February 18, 2011, our Board of Directors approved atwo-for-one split of our common shares, subject to approval by our shareholders at our upcoming Annual General Meeting of Shareholders to be held on April 28, 2011. If approved by our shareholders, one additional common share will be distributed to our shareholders on or around May 17, 2011, for each common share held on May 10, 2011. The stock split will not be effective unless approved by our shareholders at the meeting.

On February 22, 2011,21, 2012, we announced that our Boardboard of Directorsdirectors approved a quarterly cash dividend of $0.25$0.30 per common share for the fourth quarter of 2010, to shareholders of record as of the close of business on March 8, 2011,7, 2012, payable on March 22, 2011.
In February 2011, Herbalife Venezuela purchased U.S. dollar denominated bonds with a face value of $20 million U.S. dollars from a PDVSA bond offering for 86 million Bolivars and then immediately sold the bonds for U.S. dollars at an expected average effective rate of 5.7 Bolivars per U.S. dollar. These 86 million Bolivars were remeasured at the SITME rate of 5.3 Bolivars per U.S. dollar and recorded as cash and cash equivalents of $16.3 million on our consolidated balance sheet at December 31, 2010. We expect to receive approximately $15 million U.S. dollars in late February or early March 2011 as a result of this conversion and final settlement. This conversion is expected to result in us recording a net pre-tax loss of approximately $1.3 million U.S. dollars in our 2011 consolidated statement of income and will be reflected in our consolidated financial statements at March 31, 2011 and for the quarter ending March 31, 2011.


762012.


Critical Accounting Policies
Our Consolidated Financial Statements are prepared in conformity with

U.S. GAAP which requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the year. We regularly evaluate our estimates and assumptions related to revenue recognition, allowance for product returns, inventory, reserves, share-based compensation expense, goodwill and purchased intangible asset valuations, deferred income tax asset valuation allowances, uncertain tax positions, tax contingencies, and other loss contingencies. We base our estimates and assumptions on current facts, historical experience and various other factors that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities and the recording of revenue, costs and expenses. Actual results could differ from those estimates. We consider the following policies to be most critical in understanding the judgments that are involved in preparing the financial statements and the uncertainties that could impact our operating results, financial condition and cash flows.

We are a network marketing company that sells a wide range of weight management products, nutritional supplements, energy, sports & fitness products and personal care products within one industry segment as defined under Financial Accounting Standard Board, or FASB, Accounting Standards Codification, or ASC, Topic 280,Segment Reporting. Our products are manufactured by third party providers and manufactured in our Suzhou, China facility, and in our manufacturing facility located in Lake Forest, California, and then are sold to independent distributors who sell Herbalife products to retail consumers or other distributors. As of December 31, 2010,2011, we sold products in 7479 countries throughout the world and we are organized and managed by geographic region. We have elected to aggregate our operating segments into one reporting segment, except China, as management believes that our operating segments have similar operating characteristics and similar long term operating performance. In making this determination, management believes that the operating segments are similar in the nature of the products sold, the product acquisition process, the types of customers to whom products are sold, the methods used to distribute the products, and the nature of the regulatory environment.

Revenue is recognized when products are shipped and title and risk of loss passes to the independent distributor or importer or as products are sold in our retail stores in China. Sales are recognized on a net sales basis, which reflects product returns, net of discounts referred to as “distributor allowances”, and amounts billed for shipping and handling costs. We generally receive the net sales price in cash or through credit card payments at the point of sale. Related royalty overrides and allowances for product returns are recorded when revenue is recognized.

Allowances for product returns, primarily in connection with our buyback program, are provided at the time the product is shipped. This accrual is based upon historical return rates for each country and the relevant return pattern, which reflects anticipated returns to be received over a period of up to 12 months following the original sale. Historically, product returns and buybacks have not been significant. Product returns and buybacks were approximately 0.4%, 0.5%0.4% and 0.8%0.5% of retail sales for the years ended December 31, 2011, 2010, and 2009, and 2008, respectively.

We record reserves againstadjust our inventoryinventories to provide for estimated obsoletelower of cost or unsalable inventorymarket based on assumptions regarding future demand for our products and market conditions. If future demand and market conditions are less favorable than management’s assumptions, additional reservesinventory write-downs could be required. Likewise, favorable future demand and market conditions could positively impact future operating results if previously reserved for inventory iswritten down inventories are sold. We reserved forhave obsolete and slow moving inventory totalinginventories which have been adjusted downward $17.6 million and $9.4 million and $9.3 millionto present them at their lower of cost or market in our consolidated balance sheets as of December 31, 2010,2011 and December 31, 2009,2010, respectively.

In accordance with the FASB ASC Topic 360,Property, Plant and Equipment, property, plant, and equipment, and purchased intangibles subject to amortization, are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of assets to be held and used is measured by a comparison of the carrying amount of an asset to estimated undiscounted future cash flows expected to be generated by the asset. If the carrying amount of an asset exceeds its estimated future cash flows, an impairment charge is recognized by the amount by which the carrying amount of the asset exceeds the fair value of the asset. Assets to be disposed of would be separately presented in the balance sheet and reported at the lower of the carrying amount or fair value less costs to sell, and are no longer depreciated. The assets and liabilities


77


of a disposed group classified as held for sale would be presented separately in the appropriate asset and liability sections of the balance sheet.
Goodwill and marketing related intangible assets not subject to amortization are tested annually for impairment, and are tested for impairment more frequently if events and circumstances indicate that the asset might be impaired. An impairment loss is recognized to the extent that the carrying amount exceeds the asset’s fair value. In order to estimate the fair value of goodwill, we primarily use the discounted cash flow model, known as the

income approach. The determination of impairment is made at the reporting unit level and consists of two steps. First, we determine the fair value of a reporting unit and compare it to its carrying amount. Second, if the carrying amount of a reporting unit exceeds its fair value, an impairment loss is recognized for any excess of the carrying amount of the reporting unit’s goodwill and other intangibles over the implied fair value. Thevalue as determined in Step 2 of the goodwill impairment test; also, if during Step 1 of a goodwill impairment test we determine we have reporting units with zero or negative carrying amounts, then we perform Step 2 of the goodwill impairment test if it is more likely than not that a goodwill impairment exists. During step 2 of a goodwill impairment test, the implied fair value of goodwill is determined in a similar manner as how the amount of goodwill recognized in a business combination is determined, in accordance with FASB ASC Topic 805,Business Combinations, or ASC 805.. We would assign the fair value of a reporting unit to all of the assets and liabilities of that reporting unit as if the reporting unit had been acquired in a business combination and the fair value of the reporting unit was the price paid to acquire the reporting unit. The excess of the fair value of a reporting unit over the amounts assigned to its assets and liabilities is the implied fair value of goodwill. As of December 31, 20102011, and 2009,December 31, 2010, we had goodwill of approximately $102.9$105.5 million and $102.5$102.9 million, respectively, and marketing related intangible assets of approximately $310.0 million for both periods. No marketing related intangibles or goodwill impairment was recorded during the years ended December 31, 2011, 2010 2009 and 2008.

2009. As discussed in Note 2,Basis of Presentation, to the Consolidated Financial Statements, in September 2011, the FASB issued Accounting Standards Update, or ASU, No. 2011-08,Testing Goodwill for Impairment. The adoption of this ASU will not have a material impact on our consolidated financial statements, as it is intended to simplify the assessment for goodwill impairment.

Contingencies are accounted for in accordance with the FASB ASC Topic 450,Contingencies,or ASC 450. ASC 450 requires that we record an estimated loss from a loss contingency when information available prior to issuance of our financial statements indicates that it is probable that an asset has been impaired or a liability has been incurred at the date of the financial statements and the amount of the loss can be reasonably estimated. We also disclose material contingencies when we believe a loss is not probable but reasonably possible as required by ASC 450. Accounting for contingencies such as legal and incomenon-income tax matters requires us to use judgment related to both the likelihood of a loss and the estimate of the amount or range of loss. Many of these legal and tax contingencies can take years to be resolved. Generally, as the time period increases over which the uncertainties are resolved, the likelihood of changes to the estimate of the ultimate outcome increases.

Deferred income tax assets have been established for net operating loss and interest carryforwards of certain foreign subsidiaries and have been reduced by a valuation allowance to reflect them at amounts estimated to be ultimately realized. The net operating loss carryforwards expire in varying amounts over a future period of time. Realization of the income tax carryforwards is dependent on generating sufficient taxable income prior to expiration of the carryforwards. Although realization is not assured, we believe it is more likely than not that the net carrying value of the income tax carryforwards will be realized. The amount of the income tax carryforwards that is considered realizable, however, could change if estimates of future taxable income during the carryforward period are adjusted. In the ordinary course of our business, there are many transactions and calculations where the tax law and ultimate tax determination is uncertain. As part of the process of preparing our Consolidated Financial Statements,consolidated financial statements, we are required to estimate our income taxes in each of the jurisdictions in which we operate prior to the completion and filing of tax returns for such periods. This process requires estimating both our geographic mix of income and our uncertain tax positions in each jurisdiction where we operate. These estimates involve complex issues and require us to make judgments about the likely application of the tax law to our situation, as well as with respect to other matters, such as anticipating the positions that we will take on tax returns prior to our actually preparing the returns and the outcomes of disputes with tax authorities. The ultimate resolution of these issues may take extended periods of time due to examinations by tax authorities and statutes of limitations. In addition, changes in our business, including acquisitions, changes in our international corporate structure, changes in the geographic location of business functions or assets, changes in the geographic mix and amount of income, as well as changes in our agreements with tax authorities, valuation allowances, applicable accounting rules, applicable tax laws and regulations, rulings and interpretations thereof, developments in tax audit and other matters, and variations in the estimated and actual level of annual pre-tax income can affect the overall effective income tax rate.

We account for uncertain tax positions in accordance with the FASB ASC Topic 740,Income Taxes,or ASC 740, which provides guidance on the determination of how tax benefits claimed or expected to be claimed

on a tax return should be recorded in the financial statements. Under ASC 740, we must recognize the tax benefit from an


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uncertain tax position only if it is more likely than not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The tax benefits recognized in the financial statements from such a position are measured based on the largest benefit that has a greater than fifty percent likelihood of being realized upon ultimate resolution.
We account for share-based compensation in accordance with the FASB ASC Topic 718,Compensation-Stock Compensation, or ASC 718. Under the fair value recognition provisions of this statement, share-based compensation cost is measured at the grant date based on the value of the award and is recognized as an expense over the vesting period. Determining the fair value of share-based awards at the grant date requires judgment, including estimating our stock price volatility and employee stock award exercise behaviors. Our expected volatility is based upon the historical volatility of our common shares and, due to the limited period of public trading data for our common shares, it is also validated against the volatility of a company peer group. The expected life of awards is based on the simple average of the average vesting period and the life of the award, or the simplified method. As share-based compensation expense recognized in the Statements of Income is based on awards ultimately expected to vest, the amount of expense has been reduced for estimated forfeitures. ASC 718 requires forfeitures to be estimated at the time of grant and revised, if necessary, in subsequent periods if actual forfeitures differ from those estimates. If actual forfeitures differ from estimates, additional expense or reversal of previous expense are recorded. Forfeitures were estimated based on historical experience.

We account for foreign currency transactions in accordance with ASC Topic 830,Foreign Currency Matters. In a majority of the countries where we operate, the functional currency is the local currency. Our foreign subsidiaries’ asset and liability accounts are translated for consolidated financial reporting purposes into U.S. dollar amounts at year-end exchange rates. Revenue and expense accounts are translated at the average rates during the year. Our foreign exchange translation adjustments are included in accumulated other comprehensive loss on our accompanying consolidated balance sheets. Foreign currency transaction gains and losses and foreign currency remeasurements are generally included in selling, general and administrative expenses in the accompanying consolidated statements of income.

New Accounting Pronouncements
In December 2010, the FASB, issued Accounting Standards Update, or ASU,2010-28,Intangibles-Goodwill and Other (Topic 350): When to Perform Step 2 of the Goodwill Impairment Test for Reporting Units with Zero or Negative Carrying Amounts (a consensus of the FASB Emerging Issues Task Force). ASU2010-28 provides amendments to Accounting Standards Codification, or ASC, Topic 350,Intangibles — Goodwill and Other. Pursuant to ASU2010-28, if any entity during Step 1 of a goodwill impairment test determines reporting units with zero or negative carrying amounts, then they should perform Step 2 of the goodwill impairment test if it is more likely than not that a goodwill impairment exists. In determining whether it is more likely than not that a goodwill impairment exists, an entity should consider whether there are any adverse qualitative factors indicating that an impairment may exist. The qualitative factors are consistent with the existing guidance and examples in ASC Topic 350, which requires that goodwill of a reporting unit be tested for impairment between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of a reporting unit below its carrying amount. As a result, goodwill impairments may be reported sooner or more often compared to current practice. ASU2010-28 is effective for fiscal years and interim periods within those years, beginning after December 15, 2010, with early adoption not permitted. We do not expect that the adoption of ASU2010-28 will have a material impact on our consolidated financial statements.

Item 7A.QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

We are exposed to market risks, which arise during the normal course of business from changes in interest rates and foreign currency exchange rates. On a selected basis, we use derivative financial instruments to manage or hedge these risks. All hedging transactions are authorized and executed pursuant to written guidelines and procedures.

We apply FASB ASC Topic 815,Derivatives and Hedging,or ASC 815, which established accounting and reporting standards for derivative instruments, including certain derivative instruments embedded in other


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contracts, and for hedging activities. All derivatives, whether designated in hedging relationships or not, are required to be recorded on the balance sheet at fair value. If the derivative is designated as a fair-value hedge, the changes in the fair value of the derivative and the underlying hedged item are recognized concurrently in earnings. If the derivative is designated as a cash-flow hedge, changes in the fair value of the derivative are recorded in other comprehensive income (loss) and are recognized in the consolidated statements of income when the hedged item affects earnings. ASC 815 defines the requirements for designation and documentation of hedging relationships as well as ongoing effectiveness assessments in order to use hedge accounting. For a derivative that does not qualify as a hedge, changes in fair value are recognized concurrently in earnings.

A discussion of our primary market risk exposures and derivatives is presented below.

Foreign Exchange Risk

We transact business globally and are subject to risks associated with changes in foreign exchange rates. Our objective is to minimize the impact to earnings and cash flow associated with foreign exchange rate fluctuations. We enter into foreign exchange derivatives in the ordinary course of business primarily to reduce exposure to currency fluctuations attributable to intercompany transactions, translation of local currency revenue, inventory purchases subject to foreign currency exposure, and to partially mitigate the impact of foreign currency rate fluctuations. Due to the recent significant volatility in the foreign exchange market, our current strategy, in general, is to hedge some of the significant exposures on a short-term basis. We will continue to monitor the foreign exchange market and evaluate our hedging strategy accordingly. With the exception of our foreign exchange forward contracts relating to forecasted inventory purchases and intercompany management fees as discussed below in this section, all of our foreign exchange contracts are designated as free standing derivatives for which hedge accounting does not apply. The changes in the fair market value of the derivatives not qualifying as cash flow hedges are included in selling, general and administrative expenses in our consolidated statements of income.

The foreign exchange forward contracts designated as free standing derivatives are used to hedge advances between subsidiaries and to partially mitigate the impact of foreign currency fluctuations. Foreign exchange

average rate option contracts are also used to mitigate the impact of foreign currency rate fluctuations. The objective of these contracts is to neutralize the impact of foreign currency movements on the operating results of our subsidiaries. The fair value of forward and option contracts is based on third-party bank quotes.

Our foreign currency derivative contracts are generally executed on a monthly basis.

We also purchase foreign currency forward contracts in order to hedge forecasted inventory purchases and intercompany management fees that are designated as cash-flow hedges and are subject to foreign currency exposures. We applied the hedge accounting rules as required by ASC Topic 815 for these hedges. These contracts allow us to sell Euros in exchange for U.S. dollars at specified contract rates. As of December 31, 20102011 and 2009,2010, the aggregate notional amounts of these contracts outstanding were approximately $32.1$64.4 million and $66.8$32.1 million, respectively. At December 31, 2010,2011, the outstanding contracts were expected to mature over the next twelvefifteen months. Our derivative financial instruments are recorded on the consolidated balance sheet at fair value based on quoted market rates. For the forecasted inventory purchases, the forward contracts are used to hedge forecasted inventory purchases over specific months. Changes in the fair value of these forward contracts, excluding forward points, designated as cash-flow hedges are recorded as a component of accumulated other comprehensive income (loss) within shareholders’ equity, and are recognized in cost of sales in the consolidated statement of income during the period which approximates the time the hedged inventory is sold. We also hedge forecasted intercompany management fees over specific months. Changes in the fair value of these forward contracts designated as cash flow hedges are recorded as a component of accumulated other comprehensive loss within shareholders’ equity, and are recognized in selling, general and administrative expenses in the consolidated statement of income in the period when the hedged item and underlying transaction affects earnings. As of December 31, 2011, we recorded assets at fair value of $4.4 million relating to all outstanding foreign currency contracts designated as cash-flow hedges. As of December 31, 2010, we recorded assets at fair value of $0.6 million and liabilities at fair value of $0.8 million relating to all outstanding foreign currency contracts designated as cash-flow hedges. As of December 31, 2009, we recorded assets at fair value of $2.3 million relating to all outstanding foreign currency contracts designated as cash-flow hedges. We assess hedge effectiveness and measure hedge ineffectiveness at least quarterly. During the years ended December 31, 20102011 and 2009,2010, the ineffective portion relating to these hedges was immaterial and the hedges remained effective as of December 31, 20102011 and 2009.


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2010.


As of December 31, 20102011 and 2009,2010, the majority of our outstanding foreign currency forward contracts had maturity dates of less than one yearfifteen months and twelve months, respectively, with the majority of freestanding derivatives expiring within one month and three months.
months, respectively. There were no foreign currency option contracts outstanding as of December 31, 2011 and 2010.

The table below describes all foreign currency forward contracts that were outstanding as of December 31, 20102011 and 2009:

             
  Average
  Original
  Fair
 
  Contract
  Notional
  Value
 
Foreign Currency Rate  Amount  Gain (Loss) 
     (In millions)  (In millions) 
 
At December 31, 2010
            
Buy BRL sell USD  1.68  $7.6  $0.1 
Buy EUR sell ARS  5.27   1.3    
Buy EUR sell JPY  113.89   1.2   (0.1)
Buy EUR sell MXN  16.58   35.5    
Buy EUR sell RUB  40.99   1.8    
Buy EUR sell USD  1.34   101.4   0.1 
Buy INR sell USD  44.81   4.5    
Buy JPY sell EUR  111.90   1.2    
Buy JPY sell USD  82.57   19.4   0.4 
Buy KRW sell USD  1,146.51   21.0   0.4 
Buy MXN sell EUR  16.45   8.0    
Buy MXN sell USD  12.37   4.5    
Buy MYR sell USD  3.10   12.2   0.1 
Buy PEN sell USD  2.80   10.3    
Buy PHP sell USD  43.89   0.1    
Buy TWD sell USD  29.17   2.6    
Buy USD sell BRL  1.72   14.9   (0.5)
Buy USD sell COP  1,917.51   4.3    
Buy USD sell EUR  1.32   74.3   (1.0)
Buy USD sell GBP  1.56   4.0    
Buy USD sell INR  45.78   8.7   (0.2)
Buy USD sell JPY  81.59   9.8   (0.1)
Buy USD sell KRW  1,138.90   4.9   (0.1)
Buy USD sell MXN  12.45   4.9    
Buy USD sell PEN  2.81   5.2    
Buy USD sell PHP  44.11   2.8    
Buy USD sell RUB  31.48   1.3    
             
Total forward contracts     $367.7  $(0.9)
             


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2010:


Foreign Currency

  Average
Contract
Rate
   Original
Notional
Amount
   Fair
Value
Gain (Loss)
 
       (In millions)   (In millions) 

At December 31, 2011

      

Buy CNY sell USD

   6.34    $2.5    $  

Buy EUR sell ARS

   5.70     3.0       

Buy EUR sell AUD

   1.30     0.8       

Buy EUR sell GBP

   0.83     0.8       

Buy EUR sell HKD

   10.15     0.9       

Buy EUR sell IDR

   11,985.00     2.2       

Buy EUR sell INR

   69.21     2.3       

Buy EUR sell MXN

   18.14     14.9       

Buy EUR sell MYR

   4.17     6.0     (0.1

Buy EUR sell RUB

   41.74     9.2       

Buy EUR sell USD

   1.30     44.8     (0.1

Buy EUR sell ZAR

   10.89     0.6       

Buy GBP sell EUR

   0.84     0.8       

Buy JPY sell USD

   77.85     7.0     0.1  

Buy KRW sell USD

   1,161.81     32.2     (0.2

Buy MYR sell EUR

   4.12     0.8       

Buy MYR sell USD

   3.18     19.0       

Buy PEN sell USD

   2.70     6.7       

Buy SEK sell EUR

   8.98     1.0       

Buy USD sell ARS

   4.37     0.8       

Buy USD sell COP

   1,943.00     5.1       

Buy USD sell EUR

   1.37     81.4     4.4  

Buy USD sell GBP

   1.55     24.1       

Buy USD sell INR

   53.30     1.0       

Buy USD sell KRW

   1,156.38     7.5       

Buy USD sell MXN

   13.89     37.3     0.4  

Buy USD sell PHP

   43.79     3.2       

Buy USD sell RUB

   31.86     1.3       

Buy USD sell SGD

   1.28     0.3       

Buy USD sell THB

   31.43     0.2       

Buy USD sell ZAR

   8.33     1.1       
    

 

 

   

 

 

 

Total forward contracts

    $318.8    $4.5  
    

 

 

   

 

 

 

Foreign Currency

  Average
Contract
Rate
   Original
Notional
Amount
   Fair
Value
Gain (Loss)
 
       (In millions)   (In millions) 

At December 31, 2010

      

Buy BRL sell USD

   1.68    $7.6    $0.1  

Buy EUR sell ARS

   5.27     1.3       

Buy EUR sell JPY

   113.89     1.2     (0.1

Buy EUR sell MXN

   16.58     35.5       

Buy EUR sell RUB

   40.99     1.8       

Buy EUR sell USD

   1.34     101.4     0.1  

Buy INR sell USD

   44.81     4.5       

Buy JPY sell EUR

   111.90     1.2       

Buy JPY sell USD

   82.57     19.4     0.4  

Buy KRW sell USD

   1,146.51     21.0     0.4  

Buy MXN sell EUR

   16.45     8.0       

Buy MXN sell USD

   12.37     4.5       

Buy MYR sell USD

   3.10     12.2     0.1  

Buy PEN sell USD

   2.80     10.3       

Buy PHP sell USD

   43.89     0.1       

Buy TWD sell USD

   29.17     2.6       

Buy USD sell BRL

   1.72     14.9     (0.5

Buy USD sell COP

   1,917.51     4.3       

Buy USD sell EUR

   1.32     74.3     (1.0

Buy USD sell GBP

   1.56     4.0       

Buy USD sell INR

   45.78     8.7     (0.2

Buy USD sell JPY

   81.59     9.8     (0.1

Buy USD sell KRW

   1,138.90     4.9     (0.1

Buy USD sell MXN

   12.45     4.9       

Buy USD sell PEN

   2.81     5.2       

Buy USD sell PHP

   44.11     2.8       

Buy USD sell RUB

   31.48     1.3       
    

 

 

   

 

 

 

Total forward contracts

    $367.7    $(0.9
    

 

 

   

 

 

 

             
  Average
  Original
  Fair
 
  Contract
  Notional
  Value
 
Foreign Currency Rate  Amount  Gain (Loss) 
     (In millions)  (In millions) 
 
At December 31, 2009
            
Buy EUR sell MXN  19.67  $32.6  $(1.6)
Buy JPN sell USD  90.60   16.9   (0.5)
Buy USD sell EUR  1.48   77.2   2.6 
Buy CLP sell USD  523.79   5.3   0.2 
Buy USD sell CLP  509.40   2.9    
Buy HKD sell USD  7.75   6.5    
Buy JPY sell EUR  131.55   3.3    
Buy EUR sell JPY  131.59   3.3    
Buy USD sell BRL  1.78   7.3   (0.1)
Buy USD sell ZAR  7.86   1.3   (0.1)
Buy ZAR sell USD  7.49   1.3    
Buy USD sell PHP  47.49   6.3   (0.1)
Buy USD sell KRW  1,181.27   1.9    
Buy USD sell INR  46.72   3.0    
Buy USD sell COP  1,983.88   3.5   0.1 
Buy EUR sell USD  1.43   45.2    
Buy EUR sell HKD  11.26   2.6    
Buy MXN sell USD  13.19   8.5    
Buy GBP sell USD  1.63   5.7    
Buy USD sell RUB  29.78   1.3    
Buy COP sell USD  2,053.31   4.2    
Buy KRW sell USD  1,167.38   1.9    
Buy BRL sell USD  1.78   0.6    
Buy EUR sell GBP  0.89   3.3    
Buy MXN sell EUR  18.81   7.0    
Buy PHP sell USD  46.47   3.2    
Buy RUB sell USD  30.25   0.3    
Buy USD sell MXN  13.15   1.7    
Buy USD sell JPN  92.46   7.9   0.1 
             
Total forward contracts     $266.0  $0.6 
             
As of December 31, 2010 and 2009 we did not have any outstanding foreign currency option contracts.
MostThe majority of our foreign subsidiaries designate their local currencies as their functional currencies. At December 31, 20102011 and December 31, 2009,2010, the total amount of our foreign subsidiary cash was $188.2$246.0 million and $149.6$188.2 million, respectively, of which $5.8$9.2 million and $11.9$5.8 million, respectively, was invested in U.S. dollars.

Currency restrictions enacted by the Venezuelan government in 2003 have become more restrictive and have impacted the ability of our subsidiary in Venezuela, or Herbalife Venezuela, to obtain U.S. dollars in exchange for Venezuelan Bolivars, or Bolivars, at the official foreign exchange rates from the Venezuelan government and its foreign exchange commission, CADIVI. The application and approval processes have been intermittently delayed and the timing and ability to obtain U.S. dollars at the official exchange rates remains uncertain. In certain instances, we have made appropriate applications through CADIVI for approval to obtain U.S. dollars so that Herbalife Venezuela can pay for imported products and an annual dividend, at the official exchange rate. As an alternative

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exchange mechanism, we have also participated in certain bond offerings from the Venezuelan government and from Petróleos de Venezuela, S.A. or PDVSA, a Venezuelan state-owned petroleum company, where we effectively purchased bonds with our Bolivars and then sold the bonds for U.S. dollars. In other instances, we used a legal but less favorable parallel market mechanism for currency exchange. In May 2010, this less favorable parallel market was discontinued.
In June 2010, the Venezuelan government introduced additional regulations under a newly regulated system, SITME, which is controlled by the Central Bank of Venezuela. SITME provides a mechanism to exchange Bolivars into U.S. dollars through the purchase and sale of U.S. dollar denominated bonds issued in Venezuela. However, SITME is only available in certain limited circumstances. Specifically, SITME can only be used for product purchases and it is not available for other matters such as the payment of dividends. Also, SITME can only be used for amounts of up to $50,000 per day and $350,000 per month and is generally only available to the extent that the applicant has not exchanged and received U.S. dollars via the CADIVI process within the previous 90 days.
Venezuela’s inflation rate as measured using the blended National Consumer Price Index and Consumer Price Index rate exceeded a three-year cumulative inflation rate of 100% as of December 31, 2009. In early January 2010, Venezuela announced an official exchange rate devaluation of the Bolivar to an official rate of 4.3 Bolivars per U.S. dollar for non-essential items and 2.6 Bolivars per U.S. dollar for essential items. Our imports fall into both classifications.
In late December 2010, Venezuela announced that the CADIVI official exchange rate of 2.6 Bolivars per U.S. dollar will be eliminated and the CADIVI official exchange of 4.3 Bolivars per U.S. dollar will be used for all essential items and non-essential items beginning January 2011. This devaluation did not have a material impact to our consolidated financial statements. At December 31, 2010, we used the SITME rate of 5.3 Bolivars per U.S. dollar for remeasurement purposes. We expect that any U.S. dollars obtained from CADIVI at the official exchange rate will have a positive impact on our consolidated net earnings, and the impact of any U.S. dollars obtained from the Venezuelan government and PDVSA bond offerings on our consolidated earnings will depend on the prevailing exchange rates during those periods. See Item 7 —Management’s Discussion and Analysis of Financial Condition and Results of Operations,for a further discussion on how the currency restrictions in Venezuela have impacted Herbalife Venezuela’s operations.

Interest Rate Risk

As of December 31, 2010,2011, $202.0 million of borrowings under the aggregate annual maturities of our senior secured credit facility wereNew Credit Facility is expected to be: 2011-$1.5 million; 2012-$32.5 million;mature and 2013-$140.9 million.expire on March 9, 2016. The fair value of our senior secured credit facilityNew Credit Facility approximates its carrying value of $202.0 million as of December 31, 2011. The fair value of our Prior Credit Facility approximated its carrying value of $174.9 million as of December 31, 20102010. The New Credit Facility bears, and $236.4 million as of December 31, 2009. Our senior secured credit facility bearsthe Prior Credit Facility bore, a variable interest rate, and on December 31, 20102011 and 2009,2010, the weighted average interest rate was 1.75% and 1.66%, respectively.

Under our senior secured credit facility, we were obligated to enter into interest rate hedges for up to 25% of the aggregate principal amount of the term loan for a minimum of three years. On August 23, 2006, we entered into an interest rate swap agreement. This agreement provided for us to pay interest for a three-year period at a fixed rate of 5.26% on the initial notional principal amount of $180.0 million while receiving interest for the same period at the LIBOR rate on the same notional principal amount. The notional amount was scheduled to be reduced by $20.0 million in the second, third and fourth quarters of each year commencing January 1, 2007 throughout the term of the swap. The swap had been designated as a cash flow hedge against the variability in LIBOR interest rate on our term loan at LIBOR plus 1.50%, thereby fixing our effective rate on the notional amounts at 6.76%. In September 2009, the interest swap expired and was consequently settled. As of December 31, 2009, there were no amounts remaining in other comprehensive income relating to this expired interest swapNew Credit Facility and the swap had no value.
On June 26, 2009, we entered into an interest rate swap agreement, with an effective date of June 30, 2009, which expired on September 30, 2009. The swap notional amountPrior Credit Facility was $20 million, where we paid three month LIBOR1.89% and received one month LIBOR plus 0.185%. During September 2009, the interest rate swap agreement expired and all outstanding amounts were settled. We elected not to apply hedge accounting for this interest rate swap.


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1.75%, respectively.


During August 2009, we entered into four interest rate swap agreements with an effective date of December 31, 2009. The agreements collectively provide for us to pay interest for less than a four-year period at a weighted average fixed rate of 2.78% on notional amounts aggregating to $140$140.0 million while receiving interest for the same period at the one month LIBOR rate on the same notional amounts. These agreements will expire in July 2013. TheThese swaps have beenat inception were designated as cash flow hedges against the variability in the LIBOR interest rate on our term loan under the Prior Credit Facility or against the variability in the LIBOR interest rate on the replacement debt. Our term loan under the Prior Credit Facility was terminated in March 2011 and refinanced with the New Credit Facility as discussed further in Note 4,Long-Term Debt, to the Consolidated Financial Statements. Our swaps remain effective and continue to be designated as cash flow hedges against the variability in certain LIBOR interest rate borrowings under the New Credit Facility at LIBOR plus 1.50% to 2.50%, thereby fixing our weighted average effective rate on the notional amounts at 4.28% to 5.28%. There was no hedge ineffectiveness recorded as result of this refinancing event.

We formally assess both at inceptionhedge effectiveness and measure hedge ineffectiveness at least quarterly thereafter, whetherquarterly. During the derivatives used in hedging transactions areyears ended December 31, 2011 and 2010, the ineffective portion relating to these hedges was immaterial and the hedges remained effective in offsetting changes in cash flows of the hedged item. Asas of December 31, 2010 the hedge relationships qualified as effective hedges under the ASC 815.2011. Consequently, all changes in the fair value of the derivatives are deferred and recorded in other comprehensive income (loss) until the related forecasted transactions are recognized in the consolidated statements of income. As of December 31, 2010, and December 31, 2009, theThe fair value of the interest rate swap agreements are based on third-party bank quotesquotes. At December 31, 2011 and December 31, 2010, we recorded the interest rate swaps as a liabilityliabilities at their fair value of $5.1 million and $6.6 million, and $2.6 million, respectively.

Our exposure to interest rate volatility risk relating to our senior secured credit facilityNew Credit Facility is partially mitigated by our interest rate swaps. Based on the outstanding balances of our senior secured credit facilityNew Credit Facility and our interest rate swaps at December 31, 2010,2011, a hypothetical 50-basis-point change, in interest rates prevailing at that date, sustained for one year, would not represent a material potential net change in fair value, earnings, or cash flows.

Item 8.FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

Our consolidated financial statements and notes thereto and the reports of KPMG LLP, independent registered public accounting firm, are set forth in the Index to Financial Statements under Item 15 —Exhibits and Financial Statement Schedulesof this Annual Report onForm 10-K, and is incorporated herein by reference.

Item 9.CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

None.

Item 9A.CONTROLS AND PROCEDURES

Disclosure Controls and Procedures

The Company maintains disclosure controls and procedures as defined inRule 13a-15(e) under the Exchange Act. Based on an evaluation of the Company’s disclosure controls and procedures as of the end of the period covered by this report conducted by the Company’s management, with the participation of the Chief Executive Officer and Chief Financial Officer, the Chief Executive Officer and Chief Financial Officer have concluded that the Company’s disclosure controls and procedures were effective as of December 31, 2010.

2011.

Management’s Report on Internal Control over Financial Reporting

The SEC, as directed by Section 404 of the Sarbanes-Oxley Act of 2002, adopted rules which require the Company to include in its Annual Report onForm 10-K, an assessment by management of the effectiveness of the Company’s internal control over financial reporting as defined inRule 13a-15(f) under the Exchange Act. In addition, the Company’s independent auditors must attest to and report on the effectiveness of the Company’s internal control over financial reporting.

Management of the Company is responsible for establishing and maintaining adequate internal control over financial reporting as defined inRule 13a-15(f) under the Exchange Act. The Company’s internal control over financial reporting is designed to provide reasonable assurance to the Company’s management and Boardboard of Directorsdirectors regarding the preparation and fair presentation of published financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect all misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.


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The Company’s management carried out an evaluation, under the supervision and with the participation of the Company’s Chief Executive Officer and Chief Financial Officer, of the effectiveness of the Company’s internal control over financial reporting based on the framework in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based upon this evaluation, under the framework in Internal Control — Integrated Framework, our management concluded that our internal control over financial reporting was effective as of December 31, 2010.
2011.

The independent registered public accounting firm that audited the financial statements included in this Annual Report onForm 10-K has issued an attestation report on the Company’s internal control over financial reporting, which is set forth below.

Changes in Internal Control over Financial Reporting

There were no changes in our internal control over financial reporting (as defined inRules 13a-15(f) and15d-15(f) under the Exchange Act) that occurred during the fourth quarter ended December 31, 20102011 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.


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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors and Stockholders

Herbalife Ltd.:

We have audited Herbalife Ltd. and subsidiaries’ (the “Company”)the internal control over financial reporting of Herbalife Ltd. and subsidiaries (the “Company”) as of December 31, 2010,2011, based on criteria established inInternal Control — Integrated Frameworkissued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO)(“COSO”). The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying management’s report on internal control over financial reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, Herbalife Ltd. and subsidiaries maintained, in all material respects, effective internal control over financial reporting as of December 31, 2010,2011, based on criteria established inInternal Control — Integrated Frameworkissued by the COSO.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Herbalife Ltd. and subsidiaries as of December 31, 20102011 and 2009,2010, and the related consolidated statements of income, changes in shareholders’ equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2010,2011, and our report dated February 22, 201121, 2012, expressed an unqualified opinion on those consolidated financial statements.

/s/  S/    KPMG LLP

Los Angeles, California

February 22, 2011


8621, 2012


Item 9B.OTHER INFORMATION

None.

PART III.

Item 10.DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The information required under this Item is incorporated herein by reference to our definitive proxy statement to be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2010,2011, except that the information required with respect to our executive officers is set forth under Item 1 —Business, of this Annual Report onForm 10-K, and is incorporated herein by reference.

Item 11.EXECUTIVE COMPENSATION

The information required under this Item is incorporated herein by reference to our definitive proxy statement to be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2010.

2011.

Item 12.SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

The information required under this Item is incorporated herein by reference to our definitive proxy statement to be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2010,2011, except that the information required with respect to our equity compensation plans is set forth under Item 5 —Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securitiesof this Annual Report onForm 10-K, and is incorporated herein by reference.

Item 13.CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

The information required under this Item is incorporated herein by reference to our definitive proxy statement to be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2010.

2011.

Item 14.PRINCIPAL ACCOUNTING FEES AND SERVICES

The information required under this Item is incorporated herein by reference to our definitive proxy statement to be filed with the SEC no later than 120 days after the close of our fiscal year ended December 31, 2010.


872011.


PART IV

Item 15.EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

The following documents are filed as part of this Annual Report onForm 10-K, or incorporated herein by reference:

1. Financial Statements.    The following financial statements of Herbalife Ltd. are filed as part of this Annual Report onForm 10-K on the pages indicated:

   Page No.
 

HERBALIFE LTD. AND SUBSIDIARIES

  

Report of Independent Registered Public Accounting Firm

   94  

Consolidated Balance Sheets as of December 31, 20102011 and 20092010

   95  

Consolidated Statements of Income for the years ended December 31, 2011, 2010 2009 and 20082009

   96  

Consolidated Statements of Changes in Shareholders’ Equity and Comprehensive Income for the years ended December 31, 2011, 2010 2009 and 20082009

   97  

Consolidated Statements of Cash Flows for the years ended December 31, 2011, 2010 2009 and 20082009

   98  

Notes to Consolidated Financial Statements

   99  

2. Financial Statement Schedules.    Schedules are omitted because the required information is inapplicable, not material, or the information is presented in the consolidated financial statements or related notes.

3. Exhibits.    The exhibits listed in the Exhibit Index immediately below are filed as part of this Annual Report onForm 10-K, or are incorporated by reference herein.

EXHIBIT INDEX

       
Exhibit
    
Number Description Reference
 
 3.1 Form of Amended and Restated Memorandum and Articles of Association of Herbalife Ltd. (d)
 4.1 Form of Share Certificate (d)
 10.1 Form of Indemnity Agreement between Herbalife International Inc. and certain officers and directors of Herbalife International Inc. (a)
 10.2# Herbalife International of America, Inc.’s Senior Executive Deferred Compensation Plan, effective January 1, 1996, as amended (a)
 10.3# Herbalife International of America, Inc.’s Management Deferred Compensation Plan, effective January 1, 1996, as amended (a)
 10.4 Master Trust Agreement between Herbalife International of America, Inc. and Imperial Trust Company, Inc., effective January 1, 1996 (a)
 10.5# Herbalife International Inc. 401K Profit Sharing Plan and Trust, as amended (a)
 10.6 Trust Agreement for Herbalife 2001 Executive Retention Plan, effective March 15, 2001 (a)
 10.7# Herbalife 2001 Executive Retention Plan, effective March 15, 2001 (a)
 10.8 Notice to Distributors regarding Amendment to Agreements of Distributorship, dated as of July 18, 2002 between Herbalife International, Inc. and each Herbalife Distributor (a)
 10.9 Indemnity agreement dated as of July 31, 2002, by and among WH Holdings (Cayman Islands) Ltd., WH Acquisition Corp., 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 C, CCG AV, LLC-Series E, CCG Associates-QP, LLC and WH Investments Ltd. (a)


88


       
Exhibit
    
Number Description Reference
 
 10.10# Independent Director’s Stock Option Plan of WH Holdings (Cayman Islands) Ltd. (a)
 10.11# WH Holdings (Cayman Islands) Ltd. Stock Incentive Plan, as restated, dated as of November 5, 2003 (a)
 10.12# Non-Statutory Stock Option Agreement, dated as of April 3, 2003 between WH Holdings (Cayman Islands) Ltd. and Michael O. Johnson (a)
 10.13# Side Letter Agreement dated as of April 3, 2003 by and among WH Holdings (Cayman Islands) Ltd., Michael O. Johnson and the Shareholders listed therein (a)
 10.14# Form of Non-Statutory Stock Option Agreement (Non-Executive Agreement) (a)
 10.15# Form of Non-Statutory Stock Option Agreement (Executive Agreement) (a)
 10.16 Indemnity Agreement, dated as of February 9, 2004, among WH Capital Corporation and Brett R. Chapman (a)
 10.17 First Amendment to Amended and Restated WH Holdings (Cayman Islands) Ltd. Stock Incentive Plan, dated November 5, 2003 (a)
 10.18 Registration Rights Agreement, dated as of July 31, 2002, by and among WH Holdings (Cayman Islands) Ltd., Whitney V, L.P., Whitney Strategic Partners V, L.P., WH Investments Ltd., CCG Investments (BVI), L.P., CCG Associates-QP, LLC, CCG Associates-AI, LLC, CCG Investment Fund-AI, L.P., CCG AV, LLC-Series C and CCG AV, LLC-Series E. (b)
 10.19 Share Purchase Agreement, dated as of July 31, 2002, by and among WH Holdings (Cayman Islands) Ltd., Whitney Strategic Partners V, L.P., WH Investments Ltd., Whitney V, L.P., CCG Investments (BVI), L.P., CCG Associates-QP, LLC, CCG Associates-AI, LLC, CCG Investment Fund-AI, LP, CCG AV, LLC-Series C and CCG AV, LLC-Series E. (b)
 10.20 Form of Indemnification Agreement between Herbalife Ltd. and the directors and certain officers of Herbalife Ltd. (c)
 10.21# Herbalife Ltd. 2004 Stock Incentive Plan, effective December 1, 2004 (c)
 10.22 Indemnification Agreement, dated as of December 13, 2004, by and among Herbalife Ltd., Herbalife International, Inc., Whitney V, L.P., Whitney Strategic Partners V, L.P., 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, CCG CI, LLC and GGC Administration, LLC. (d)
 10.23# Amendment No. 1 to Herbalife Ltd. 2004 Stock Incentive Plan (e)
 10.24# Form of Stock Bonus Award Agreement (e)
 10.25# Form of 2004 Herbalife Ltd. 2004 Stock Incentive Plan Stock Option Agreement (v)
 10.26# Form of 2004 Herbalife Ltd. 2004 Stock Incentive Plan Non-Employee Director Stock Option Agreement (v)
 10.27# Independent Directors Stock Unit Award Agreement (f)
 10.28# Amended and Restated Herbalife Ltd. 2005 Stock Incentive Plan (g)
 10.29# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement (h)
 10.30# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement (h)
 10.31# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Mr. Michael O. Johnson (i)
 10.32# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Mr. Michael O. Johnson (i)
 10.33# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Messrs. Brett R. Chapman and Richard Goudis (j)
 10.34# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Messrs. Brett R. Chapman and Richard Goudis (j)

89


       
Exhibit
    
Number Description Reference
 
 10.35 Form of Credit Agreement, dated as of July 21, 2006, by and among Herbalife International Inc., Herbalife Ltd., WH Intermediate Holdings Ltd., HBL Ltd., WH Luxembourg Holdings S.á.R.L., Herbalife International Luxembourg S.á.R.L., HLF Luxembourg Holdings, S.á.R.L., WH Capital Corporation, WH Luxembourg Intermediate Holdings S.á.R.L., HV Holdings Ltd., Herbalife Distribution Ltd., Herbalife Luxembourg Distribution S.á.R.L., and the Subsidiary Guarantors party thereto in favor of Merrill Lynch Capital Corporation, as Collateral Agent (k)
 10.36 Form of Security Agreement, dated as of July 21, 2006, by and among Herbalife International, Inc., Herbalife Ltd., WH Intermediate Holdings Ltd., HBL Ltd., WH Luxembourg Holdings S.á.R.L., Herbalife International Luxembourg S.á.R.L., HLF Luxembourg Holdings, S.á.R.L., WH Capital Corporation, WH Luxembourg Intermediate Holdings S.á.R.L., HV Holdings Ltd., Herbalife Distribution Ltd., Herbalife Luxembourg Distribution S.á.R.L., and the Subsidiary Guarantors party thereto in favor of Merrill Lynch Capital Corporation, as Collateral Agent (k)
 10.37# Stock Unit Agreement by and between Herbalife Ltd. and Brett R. Chapman dated October 10, 2006 (l)
 10.38# Amendment dated October 10, 2006, to Stock Option Agreement by and between Herbalife Ltd. and Brett R. Chapman dated September 1, 2004 (l)
 10.39# Amendment dated October 10, 2006, to Stock Option Agreement by and between Herbalife Ltd. and Brett R. Chapman dated December 1, 2004 (l)
 10.40# Amendment dated October 10, 2006, to Stock Option Agreement by and between Herbalife Ltd. and Brett R. Chapman dated April 27, 2005 (l)
 10.41# Stock Unit Agreement by and between Herbalife Ltd. and Richard P. Goudis dated October 24, 2006 (m)
 10.42# Amendment dated October 24, 2006, to Stock Option Agreement by and between Herbalife Ltd. and Richard P. Goudis dated June 14, 2004 (m)
 10.43# Amendment dated October 24, 2006, to Stock Option Agreement by and between Herbalife Ltd. and Richard P. Goudis dated September 1, 2004 (m)
 10.44# Amendment dated October 24, 2006, to Stock Option Agreement by and between Herbalife Ltd. and Richard P. Goudis dated December 1, 2004 (m)
 10.45# Amendment dated October 24, 2006, to Stock Option Agreement by and between Herbalife Ltd. and Richard P. Goudis dated April 27, 2005 (m)
 10.46# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Michael O Johnson (n)
 10.47# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Michael O. Johnson (n)
 10.48# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Messrs. Richard P. Goudis and Brett R. Chapman (n)
 10.49# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Messrs. Richard P. Goudis and Brett R. Chapman (n)
 10.50# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement (n)
 10.51# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement (n)
 10.52 First Amendment dated June 21, 2007, to Form of Credit Agreement, dated as of July 21, 2006, by and among Herbalife International Inc., Herbalife Ltd., WH Intermediate Holdings Ltd., HBL Ltd., WH Luxembourg Holdings S.á.R.L., Herbalife International Luxembourg S.á.R.L., HLF Luxembourg Holdings, S.á.R.L., WH Capital Corporation, WH Luxembourg Intermediate Holdings S.á.R.L., HV Holdings Ltd., Herbalife Distribution Ltd., Herbalife Luxembourg Distribution S.á.R.L., and the Subsidiary Guarantors party thereto in favor of Merrill Lynch Capital Corporation, as Collateral Agent (o)

90


       
Exhibit
    
Number Description Reference
 
 10.53 Second Amendment dated September 17, 2007, to Form of Credit Agreement, dated as of July 21, 2006, by and among Herbalife International Inc., Herbalife Ltd., WH Intermediate Holdings Ltd., HBL Ltd., WH Luxembourg Holdings S.á.R.L., Herbalife International Luxembourg S.á.R.L., HLF Luxembourg Holdings, S.á.R.L., WH Capital Corporation, WH Luxembourg Intermediate Holdings S.á.R.L., HV Holdings Ltd., Herbalife Distribution Ltd., Herbalife Luxembourg Distribution S.á.R.L., and the Subsidiary Guarantors party thereto in favor of Merrill Lynch Capital Corporation, as Collateral Agent (o)
 10.54 Third Amendment dated November 30, 2007, to Form of Credit Agreement, dated as of July 21, 2006, by and among Herbalife International Inc., Herbalife Ltd., WH Intermediate Holdings Ltd., HBL Ltd., WH Luxembourg Holdings S.á.R.L., Herbalife International Luxembourg S.á.R.L., HLF Luxembourg Holdings, S.á.R.L., WH Capital Corporation, WH Luxembourg Intermediate Holdings S.á.R.L., HV Holdings Ltd., Herbalife Distribution Ltd., Herbalife Luxembourg Distribution S.á.R.L., and the Subsidiary Guarantors party thereto in favor of Merrill Lynch Capital Corporation, as Collateral Agent (p)
 10.55# Herbalife Ltd. Employee Stock Purchase Plan (p)
 10.56 Fourth Amendment dated February 21, 2008, to Form of Credit Agreement, dated as of July 21, 2006, by and among Herbalife International Inc., Herbalife Ltd., WH Intermediate Holdings Ltd., HBL Ltd., WH Luxembourg Holdings S.á.R.L., Herbalife International Luxembourg S.á.R.L., HLF Luxembourg Holdings, S.á.R.L., WH Capital Corporation, WH Luxembourg Intermediate Holdings S.á.R.L., HV Holdings Ltd., Herbalife Distribution Ltd., Herbalife Luxembourg Distribution S.á.R.L., and the Subsidiary Guarantors party thereto in favor of Merrill Lynch Capital Corporation, as Collateral Agent (p)
 10.57# Employment Agreement dated as of March 27, 2008 between Michael O. Johnson and Herbalife International of America, Inc. (q)
 10.58# Stock Unit Award Agreement by and between Herbalife Ltd. and Michael O. Johnson, dated March 27, 2008. (q)
 10.59# Stock Appreciation Right Award Agreement by and between Herbalife Ltd. and Michael O. Johnson, dated March 27, 2008. (q)
 10.60# Stock Appreciation Right Award Agreement by and between Herbalife Ltd. and Michael O. Johnson, dated March 27, 2008. (q)
 10.61 Fifth Amendment dated September 25, 2008, to Form of Credit Agreement, dated as of July 21, 2006, by and among Herbalife International Inc., Herbalife Ltd., WH Intermediate Holdings Ltd., HBL Ltd., WH Luxembourg Holdings S.á.R.L., Herbalife International Luxembourg S.á.R.L., HLF Luxembourg Holdings, S.á.R.L., WH Capital Corporation, WH Luxembourg Intermediate Holdings S.á.R.L., HV Holdings Ltd., Herbalife Distribution Ltd., Herbalife Luxembourg Distribution S.á.R.L., and the Subsidiary Guarantors party thereto in favor of Merrill Lynch Capital Corporation, as Collateral Agent (r)
 10.62# Amendment to Herbalife International Inc. 401K Profit Sharing Plan and Trust (s)
 10.63# Form of Independent Directors Stock Appreciation Right Award Agreement (t)
 10.64# Herbalife Ltd. Amended and Restated Independent Directors Deferred Compensation and Stock Unit Plan (t)
 10.65# Amended and Restated Employment Agreement by and between Richard P. Goudis and Herbalife International of America, Inc., dated as of January 1, 2010. (u)
 10.66# Severance Agreement by and between Desmond Walsh and Herbalife International of America, Inc., dated as of January 1, 2010. (u)
 10.67# Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement (v)
 10.68# Amended and Restated Non-Management Directors Compensation Plan (v)
 10.69# Amendment to Form of Non-Employee Directors Stock Appreciation Right Award Agreement (v)
 10.70# Amended and Restated Employment Agreement by and between Brett Chapman and Herbalife International of America, Inc., dated as of June 1, 2010. (w)

91


       
Exhibit
    
Number Description Reference
 
 10.71# First Amendment to the Amended and Restated Employment Agreement by and between Richard P. Goudis and Herbalife International of America, Inc., dated as of December 28, 2010. (x)
 10.72# First Amendment to the Amended and Restated Employment Agreement by and between Brett R.Chapman and Herbalife International of America, Inc., dated as of December 26, 2010. (x)
 21.1 Subsidiaries of the Registrant *
 23.1 Consent of KPMG LLP — Independent Registered Public Accounting Firm *
 31.1 Rule 13a-14(a) Certification of Chief Executive Officer *
 31.2 Rule 13a-14(a) Certification of Chief Financial Officer *
 32.1 Section 1350 Certification of Chief Executive Officer *
 32.2 Section 1350 Certification of Chief Financial Officer *
 101.INS XBRL Instance Document **
 101.SCH XBRL Taxonomy Extension Schema Document **
 101.CAL XBRL Taxonomy Extension Calculation Linkbase Document **
 101.DEF XBRL Taxonomy Extension Definition Linkbase Document **
 101.LAB XBRL Taxonomy Extension Label Linkbase Document **
 101.PRE XBRL Taxonomy Extension Presentation Linkbase Document **

Exhibit

Number

Description

Reference
3.1Form of Amended and Restated Memorandum and Articles of Association of Herbalife Ltd.(d
4.1Form of Share Certificate(d
10.1Form of Indemnity Agreement between Herbalife International Inc. and certain officers and directors of Herbalife International, Inc.(a
10.2#Herbalife International of America, Inc.’s Senior Executive Deferred Compensation Plan, effective January 1, 1996, as amended(a
10.3#Herbalife International of America, Inc.’s Management Deferred Compensation Plan, effective January 1, 1996, as amended(a
10.4#Master Trust Agreement between Herbalife International of America, Inc. and Imperial Trust Company, Inc., effective January 1, 1996(a
10.5#Herbalife International Inc. 401K Profit Sharing Plan and Trust, as amended(a
10.6Notice to Distributors regarding Amendment to Agreements of Distributorship, dated as of July 18, 2002 between Herbalife International, Inc. and each Herbalife Distributor(a
10.7Indemnity agreement dated as of July 31, 2002, by and among WH Holdings (Cayman Islands) Ltd., WH Acquisition Corp., 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 C, CCG AV, LLC-Series E, CCG Associates-QP, LLC and WH Investments Ltd.(a

Exhibit

Number

Description

Reference
10.8#WH Holdings (Cayman Islands) Ltd. Stock Incentive Plan, as restated, dated as of November 5, 2003(a
10.9#Non-Statutory Stock Option Agreement, dated as of April 3, 2003 between WH Holdings (Cayman Islands) Ltd. and Michael O. Johnson(a
10.10#Side Letter Agreement dated as of April 3, 2003 by and among WH Holdings (Cayman Islands) Ltd., Michael O. Johnson and the Shareholders listed therein(a
10.11#Form of Non-Statutory Stock Option Agreement (Non-Executive Agreement)(a
10.12#Form of Non-Statutory Stock Option Agreement (Executive Agreement)(a
10.13Indemnity Agreement, dated as of February 9, 2004, among WH Capital Corporation and Brett R. Chapman(a
10.14#First Amendment to Amended and Restated WH Holdings (Cayman Islands) Ltd. Stock Incentive Plan, dated November 5, 2003(a
10.15Registration Rights Agreement, dated as of July 31, 2002, by and among WH Holdings (Cayman Islands) Ltd., Whitney V, L.P., Whitney Strategic Partners V, L.P., WH Investments Ltd., CCG Investments (BVI), L.P., CCG Associates-QP, LLC, CCG Associates-AI, LLC, CCG Investment Fund-AI, L.P., CCG AV, LLC-Series C and CCG AV, LLC-Series E.(b
10.16Share Purchase Agreement, dated as of July 31, 2002, by and among WH Holdings (Cayman Islands) Ltd., Whitney Strategic Partners V, L.P., WH Investments Ltd., Whitney V, L.P., CCG Investments (BVI), L.P., CCG Associates-QP, LLC, CCG Associates-AI, LLC, CCG Investment Fund-AI, LP, CCG AV, LLC-Series C and CCG AV, LLC-Series E.(b
10.17Form of Indemnification Agreement between Herbalife Ltd. and the directors and certain officers of Herbalife Ltd.(c
10.18#Herbalife Ltd. 2004 Stock Incentive Plan, effective December 1, 2004(c
10.19Indemnification Agreement, dated as of December 13, 2004, by and among Herbalife Ltd., Herbalife International, Inc., Whitney V, L.P., Whitney Strategic Partners V, L.P., 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, CCG CI, LLC and GGC Administration, LLC.(d
10.20#Amendment No. 1 to Herbalife Ltd. 2004 Stock Incentive Plan(e
10.21#Form of 2004 Herbalife Ltd. 2004 Stock Incentive Plan Stock Option Agreement(m
10.22#Form of 2004 Herbalife Ltd. 2004 Stock Incentive Plan Non-Employee Director Stock Option Agreement(m
10.23#Amended and Restated Herbalife Ltd. 2005 Stock Incentive Plan(f
10.24#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement(q
10.25#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement(q
10.26#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Michael O. Johnson(q
10.27#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Michael O. Johnson(q
10.28#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Messrs. Richard P. Goudis and Brett R. Chapman(q
10.29#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Messrs. Richard P. Goudis and Brett R. Chapman(q

Exhibit

Number

Description

Reference
10.30#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Mr. Michael O. Johnson(g
10.31#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Mr. Michael O. Johnson(g
10.32#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement applicable to Messrs. Brett R. Chapman and Richard Goudis(g
10.33#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement applicable to Messrs. Brett R. Chapman and Richard Goudis(g
10.34#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement(g
10.35#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Appreciation Right Award Agreement(g
10.36#Herbalife Ltd. Employee Stock Purchase Plan(h
10.37#Employment Agreement dated as of March 27, 2008 between Michael O. Johnson and Herbalife International of America, Inc.(i
10.38#Stock Unit Award Agreement by and between Herbalife Ltd. and Michael O. Johnson, dated March 27, 2008.(i
10.39#Stock Appreciation Right Award Agreement by and between Herbalife Ltd. and Michael O. Johnson, dated March 27, 2008.(i
10.40#Stock Appreciation Right Award Agreement by and between Herbalife Ltd. and Michael O. Johnson, dated March 27, 2008.(i
10.41#Amendment to Herbalife International Inc. 401K Profit Sharing Plan and Trust(j
10.42#Form of Independent Directors Stock Appreciation Right Award Agreement(k
10.43#Herbalife Ltd. Amended and Restated Independent Directors Deferred Compensation and Stock Unit Plan(k
10.44#Amended and Restated Employment Agreement by and between Richard P. Goudis and Herbalife International of America, Inc., dated as of January 1, 2010.(l
10.45#Severance Agreement by and between Desmond Walsh and Herbalife International of America, Inc., dated as of January 1, 2010.(l
10.46#Form of Herbalife Ltd. 2005 Stock Incentive Plan Stock Unit Award Agreement(m
10.47#Amended and Restated Non-Management Directors Compensation Plan(m
10.48#Form of Herbalife Ltd. 2005 Stock Incentive Plan Non-Employee Directors Stock Appreciation Right Award Agreement(m
10.49#Amended and Restated Employment Agreement by and between Brett Chapman and Herbalife International of America, Inc., dated as of June 1, 2010.(n
10.50#First Amendment to the Amended and Restated Employment Agreement by and between Richard P. Goudis and Herbalife International of America, Inc., dated as of December 28, 2010.(o
10.51#First Amendment to the Amended and Restated Employment Agreement by and between Brett R. Chapman and Herbalife International of America, Inc., dated as of December 26, 2010.(o
10.52#Severance Agreement by and between John DeSimone and Herbalife International of America, Inc., dated as of February 23, 2011.(p
10.53#Amended and Restated Severance Agreement, dated as of February 23, 2011, by Desmond Walsh and Herbalife International of America, Inc.(p

Exhibit

Number

Description

Reference
10.54Credit Agreement, dated as of March 9, 2011, by and among Herbalife International, Inc. (“HII”), Herbalife Ltd., Herbalife International Luxembourg S.a.R.L., certain subsidiaries of HII as guarantors, the lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.(q
10.55#Amendment to Amended and Restated Herbalife Ltd. 2005 Stock Incentive Plan(r
10.56#Stock appreciation Right Award Agreement, dated August 4, 2011, by and between Herbalife Ltd. and Michael O. Johnson(s
21.1Subsidiaries of the Registrant*
23.1Consent of KPMG LLP — Independent Registered Public Accounting Firm*
31.1Rule 13a-14(a) Certification of Chief Executive Officer*
31.2Rule 13a-14(a) Certification of Chief Financial Officer*
32.1Section 1350 Certification of Chief Executive Officer*
32.2Section 1350 Certification of Chief Financial Officer*
101.INSXBRL Instance Document*
101.SCHXBRL Taxonomy Extension Schema Document*
101.CALXBRL Taxonomy Extension Calculation Linkbase Document*
101.DEFXBRL Taxonomy Extension Definition Linkbase Document*
101.LABTaxonomy Extension Label Linkbase Document*
101.PREXBRL Taxonomy Extension Presentation Linkbase Document*

*Filed herewith.

**Furnished, not filed, herewith.

#Management contract or compensatory plan or arrangement.
 **Furnished, not filed

(a)Previously filed on October 1, 2004 as an Exhibit to the Company’s registration statement onForm S-1(FileS-1 (File No. 333-119485) and is incorporated herein by reference.

(b)Previously filed on November 9, 2004 as an Exhibit to Amendment No. 2 to the Company’s registration statement onForm S-1 (File No.333-119485) and is incorporated herein by reference.

(c)Previously filed on December 2, 2004 as an Exhibit to Amendment No. 4 to the Company’s registration statement onForm S-1 (File No.333-119485) and is incorporated herein by reference.

(d)Previously filed on December 14, 2004 as an Exhibit to Amendment No. 5 to the Company’s registration statement onForm S-1 (File No.333-119485) and is incorporated herein by reference.

(e)Previously filed on February 17, 2005 as an Exhibit to the Company’s registration statement onForm S-8 (FileNo. 333-122871) and is incorporated herein by reference.

(f)Previously filed on February 28, 2006 as an Exhibit to the Company’s Annual Report onForm 10-K for the year ended December 31, 2005 and is incorporated herein by reference.
(g)Previously filed on April 30, 2010 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.

(h)(g)Previously filed on March 29, 2006 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.
(i)Previously filed on March 29, 2006 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.
(j)Previously filed on March 31, 2006 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.
(k)Previously filed on November 13, 2006 as an Exhibit to the Company’s Quarterly Report onForm 10-Q for the quarter ended September 30, 2006 and is incorporated by reference.

92


(l)Previously filed on October 12, 2006 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.
(m)Previously filed on October 26, 2006 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.
(n)Previously filed on May 29,June 1, 2007 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.

(o)Previously filed on November 6, 2007 as an Exhibit to the Company’s Quarterly Report onForm 10-Q for the quarter ended September 30, 2007 and is incorporated by reference.
(p)(h)Previously filed on February 26, 2008 as an Exhibit to the Company’s Annual Report onForm 10-K for the year ended December 31, 2007 and is incorporated herein by reference.

(q)(i)Previously filed on April 7, 2008 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.

(r)Previously filed on November 3, 2008 as an Exhibit to the Company’s Quarterly Report onForm 10-Q for the quarter ended September 30, 2008 and is incorporated by reference.
(s)(j)Previously filed on May 4, 2009 as an Exhibit to the Company’s Quarterly Report onForm 10-Q for the quarter ended March 31, 2009 and is incorporated by reference.

(t)(k)Previously filed on May 3, 2010 as an Exhibit to the Company’s Quarterly Report onForm 10-Q for the quarter ended March 31, 2010 and is incorporated by reference.

(u)(l)Previously filed on June 17, 2010 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.

(v)(m)Previously filed on August 2, 2010 as an Exhibit to the Company’s Quarterly Report onForm 10-Q for the quarter ended June 30, 2010 and is incorporated by reference.

(w)(n)Previously filed on August 3, 2010 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.

(x)(o)Previously filed on December 29, 2010 as an Exhibit to the Company’s Current Report onForm 8-K and is incorporated herein by reference.


93

(p)Previously filed on March 1, 2011 as an Exhibit to the Company’s Current Report on Form 8-K and is incorporated herein by reference.

(q)Previously filed on May 2, 2011 as an Exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2011 and is incorporated by reference.

(r)Previously filed on April 29, 2011 as an Exhibit to the Company’s Current Report on Form 8-K and is incorporated herein by reference.

(s)Previously filed on August 10, 2011 as an Exhibit to the Company’s Amendment No. 1 to Current Report on Form 8-K/A and is incorporated herein by reference.


REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

The Board of Directors and Stockholders

Herbalife Ltd.:

We have audited the accompanying consolidated balance sheets of Herbalife Ltd. and subsidiaries (the “Company”) as of December 31, 20102011 and 2009,2010, and the related consolidated statements of income, changes in shareholders’ equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2010.2011. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Herbalife Ltd. and subsidiaries as of December 31, 20102011 and 2009,2010, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2010,2011, in conformity with U.S. generally accepted accounting principles.

As discussed in Note 2 to the consolidated financial statements, during 2011, the Company changed its method of accounting for excess tax benefits recognized as a result of the exercise of employee stock options, stock appreciation rights, and other share-based equity grants, from the tax-law ordering method to the with-and-without method.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), Herbalife Ltd. and subsidiaries’the internal control over financial reporting of Herbalife Ltd. and subsidiaries as of December 31, 2010,2011, based on criteria established inInternal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission, and our report dated February 22, 2011,21, 2012, expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.

/s/    KPMG LLP

Los Angeles, California

February 22, 2011


9421, 2012


HERBALIFE LTD.
         
  December 31, 
  2010  2009 
  (In thousands, except share amounts) 
 
ASSETS
CURRENT ASSETS:        
Cash and cash equivalents $190,550  $150,801 
Receivables, net of allowance for doubtful accounts of $3,202 (2010) and $3,982 (2009)  85,612   76,958 
Inventories  182,467   145,962 
Prepaid expenses and other current assets  93,963   101,181 
Deferred income taxes  42,994   38,600 
         
Total current assets  595,586   513,502 
         
Property, plant and equipment — at cost:        
Furniture and fixtures  5,409   5,254 
Equipment  272,881   266,555 
Leasehold improvements  66,049   53,592 
         
   344,339   325,401 
Less: accumulated depreciation and amortization  (166,912)  (147,392)
         
Net property, plant and equipment  177,427   178,009 
         
Deferred compensation plan assets  18,536   17,410 
Other assets  25,880   21,306 
Deferred financing costs, net of accumulated amortization of $2,279 (2010) and $1,778 (2009)  998   1,498 
Marketing related intangibles and other intangible assets, net  310,894   311,782 
Goodwill  102,899   102,543 
         
Total assets $1,232,220  $1,146,050 
         
 
LIABILITIES AND SHAREHOLDERS’ EQUITY
CURRENT LIABILITIES:        
Accounts payable $43,784  $37,330 
Royalty overrides  162,141   144,689 
Accrued compensation  69,376   65,043 
Accrued expenses  141,867   107,943 
Current portion of long-term debt  3,120   12,402 
Advance sales deposits  35,145   22,261 
Income taxes payable  15,383   40,298 
         
Total current liabilities  470,816   429,966 
NON-CURRENT LIABILITIES:        
Long-term debt, net of current portion  175,046   237,931 
Deferred compensation plan liability  20,167   16,629 
Deferred income taxes  55,572   77,613 
Other non-current liabilities  23,407   24,600 
         
Total liabilities  745,008   786,739 
         
COMMITMENTS AND CONTINGENCIES        
SHAREHOLDERS’ EQUITY:        
Common shares, $0.002 par value, 500.0 million shares authorized, 58.9 million (2010) and 60.2 million (2009) shares outstanding  118   120 
Paid-in capital in excess of par value  257,375   222,882 
Accumulated other comprehensive loss  (27,285)  (23,396)
Retained earnings  257,004   159,705 
         
Total shareholders’ equity  487,212   359,311 
         
Total liabilities and shareholders’ equity $1,232,220  $1,146,050 
         

   December 31, 
   2011  2010 
   (In thousands, except share
amounts)
 
ASSETS  

CURRENT ASSETS:

   

Cash and cash equivalents

  $258,775   $190,550  

Receivables, net of allowance for doubtful accounts of $2,250 (2011) and $3,202 (2010)

   89,660    85,612  

Inventories

   247,696    182,467  

Prepaid expenses and other current assets

   117,073    93,963  

Deferred income taxes

   55,615    42,994  
  

 

 

  

 

 

 

Total current assets

   768,819    595,586  
  

 

 

  

 

 

 

Property, plant and equipment — at cost:

   

Furniture and fixtures

   6,020    5,409  

Equipment

   301,689    272,881  

Leasehold improvements

   79,729    66,049  
  

 

 

  

 

 

 
   387,438    344,339  

Less: accumulated depreciation and amortization

   (193,735  (166,912
  

 

 

  

 

 

 

Net property, plant and equipment

   193,703    177,427  
  

 

 

  

 

 

 

Deferred compensation plan assets

   20,511    18,536  

Other assets

   41,125    25,880  

Deferred financing costs, net

   4,797    998  

Marketing related intangibles and other intangible assets, net

   311,764    310,894  

Goodwill

   105,490    102,899  
  

 

 

  

 

 

 

Total assets

  $1,446,209   $1,232,220  
  

 

 

  

 

 

 
LIABILITIES AND SHAREHOLDERS’ EQUITY  

CURRENT LIABILITIES:

   

Accounts payable

  $57,095   $43,784  

Royalty overrides

   197,756    162,141  

Accrued compensation

   76,435    69,376  

Accrued expenses

   152,744    141,867  

Current portion of long-term debt

   1,542    3,120  

Advance sales deposits

   31,702    35,145  

Income taxes payable

   31,415    15,383  
  

 

 

  

 

 

 

Total current liabilities

   548,689    470,816  

NON-CURRENT LIABILITIES:

   

Long-term debt, net of current portion

   202,079    175,046  

Deferred compensation plan liability

   23,702    20,167  

Deferred income taxes

   72,348    55,572  

Other non-current liabilities

   39,203    23,407  
  

 

 

  

 

 

 

Total liabilities

   886,021    745,008  
  

 

 

  

 

 

 

COMMITMENTS AND CONTINGENCIES

   

SHAREHOLDERS’ EQUITY:

   

Common shares, $0.001 par value, 1.0 billion shares authorized, 115.8 million (2011) and 117.8 million (2010) shares outstanding

   116    118  

Paid-in capital in excess of par value

   291,950    248,693  

Accumulated other comprehensive loss

   (37,809  (27,285

Retained earnings

   305,931    265,686  
  

 

 

  

 

 

 

Total shareholders’ equity

   560,188    487,212  
  

 

 

  

 

 

 

Total liabilities and shareholders’ equity

  $1,446,209   $1,232,220  
  

 

 

  

 

 

 

See the accompanying notes to consolidated financial statements.


95


HERBALIFE LTD.
             
  Year Ended December 31, 
  2010  2009  2008 
  (In thousands, except per share amounts) 
 
Product sales $2,337,493  $1,993,617  $2,032,293 
Shipping & handling revenues  396,733   330,960   326,920 
             
Net sales  2,734,226   2,324,577   2,359,213 
Cost of sales  558,811   493,134   458,396 
             
Gross profit  2,175,415   1,831,443   1,900,817 
Royalty overrides  900,248   761,501   796,718 
Selling, general and administrative expenses  887,655   773,911   771,847 
             
Operating income  387,512   296,031   332,252 
Interest expense  9,664   9,613   20,115 
Interest income  2,247   4,510   6,893 
             
Income before income taxes  380,095   290,928   319,030 
Income taxes  89,562   87,582   97,840 
             
NET INCOME $290,533  $203,346  $221,190 
             
Earnings per share            
Basic $4.88  $3.32  $3.47 
Diluted $4.67  $3.22  $3.36 
Weighted average shares outstanding            
Basic  59,502   61,221   63,785 
Diluted  62,256   63,097   65,769 

   Year Ended December 31, 
   2011   2010   2009 
   (In thousands, except per share amounts) 

Product sales

  $2,944,722    $2,337,493    $1,993,617  

Shipping & handling revenues

   509,815     396,733     330,960  
  

 

 

   

 

 

   

 

 

 

Net sales

   3,454,537     2,734,226     2,324,577  

Cost of sales

   680,084     558,811     493,134  
  

 

 

   

 

 

   

 

 

 

Gross profit

   2,774,453     2,175,415     1,831,443  

Royalty overrides

   1,137,560     900,248     761,501  

Selling, general and administrative expenses

   1,074,623     887,655     773,911  
  

 

 

   

 

 

   

 

 

 

Operating income

   562,270     387,512     296,031  

Interest expense

   9,864     9,664     9,613  

Interest income

   7,373     2,247     4,510  
  

 

 

   

 

 

   

 

 

 

Income before income taxes

   559,779     380,095     290,928  

Income taxes

   147,201     80,880     87,582  
  

 

 

   

 

 

   

 

 

 

NET INCOME

  $412,578    $299,215    $203,346  
  

 

 

   

 

 

   

 

 

 

Earnings per share

      

Basic

  $3.51    $2.51    $1.66  

Diluted

  $3.30    $2.37    $1.61  

Weighted average shares outstanding

      

Basic

   117,540     119,004     122,442  

Diluted

   124,846     126,495     126,194  

See the accompanying notes to consolidated financial statements.


96


HERBALIFE LTD.

AND COMPREHENSIVE INCOME

                         
     Paid-in
  Accumulated
          
     Capital in
  Other
     Total
    
  Common
  Excess of
  Comprehensive
  Retained
  Shareholders’
  Comprehensive
 
  Shares  par Value  Loss  Earnings  Equity  Income 
  (In thousands, except per share amounts) 
 
Balance at December 31, 2007 $129  $160,872  $(3,947) $25,190  $182,244     
Issuance of 1.7 million common shares from exercise of stock options, SARs, warrants, employee stock purchase plan, and restricted stock grants  3   19,505           19,508     
Excess tax benefit from exercise of stock options, SARs and restricted stock grants      15,289           15,289     
Additional capital from share based compensation      17,788           17,788     
Repurchases of common shares  (9)  (15,739)      (123,173)  (138,921)    
Dividends ($0.80 per share)              (50,700)  (50,700)    
Net income              221,190   221,190  $221,190 
Foreign currency translation adjustment          (24,770)      (24,770)  (24,770)
Unrealized gain on derivatives, net of income taxes of $205          103       103   103 
                         
Total comprehensive income                     $196,523 
                         
Balance at December 31, 2008 $123  $197,715  $(28,614) $72,507  $241,731     
                         
Issuance of 0.9 million common shares from exercise of stock options, SARs, restricted stock grants, and employee stock purchase plan  2   7,882           7,884     
Excess tax benefit from exercise of stock options, SARs and restricted stock grants      3,587           3,587     
Additional capital from share based compensation      20,907           20,907     
Repurchases of common shares  (5)  (8,269)      (66,367)  (74,641)    
Dividends and dividend equivalents ($0.80 per share)      1,060       (49,781)  (48,721)    
Net income              203,346   203,346  $203,346 
Foreign currency translation adjustment          5,248       5,248   5,248 
Unrealized loss on derivatives, net of income taxes of ($40)          (30)      (30)  (30)
                         
Total comprehensive income                     $208,564 
                         
Balance at December 31, 2009 $120  $222,882  $(23,396) $159,705  $359,311     
                         
Issuance of 1.7 million common shares from exercise of stock options, SARs and restricted stock grants  4   15,305           15,309     
Excess tax benefit from exercise of stock options, SARs and restricted stock grants      16,727           16,727     
Additional capital from share based compensation      22,969           22,969     
Repurchases of common shares  (6)  (21,088)      (138,914)  (160,008)    
Dividends and dividend equivalents ($0.90 per share)      580  ��    (54,320)  (53,740)    
Net income              290,533   290,533  $290,533 
Foreign currency translation adjustment          583       583   583 
Unrealized loss on derivatives, net of income taxes of ($1,222)          (4,472)      (4,472)  (4,472)
                         
Total comprehensive income                     $286,644 
                         
Balance at December 31, 2010 $118  $257,375  $(27,285) $257,004  $487,212     
                         

  Common
Shares
  Paid-in
Capital in
Excess of
par Value
  Accumulated
Other
Comprehensive
Loss
  Retained
Earnings
  Total
Shareholders’
Equity
  Comprehensive
Income
 
  (In thousands, except per share amounts) 

Balance at December 31, 2008

 $123   $197,715   $(28,614 $72,507   $241,731   

Issuance of 1.8 million common shares from exercise of stock options, SARs, restricted stock grants, and employee stock purchase plan

  2    7,882      7,884   

Excess tax benefit from exercise of stock options, SARs and restricted stock grants

   3,587      3,587   

Additional capital from share based compensation

   20,907      20,907   

Repurchases of common shares

  (5  (8,269   (66,367  (74,641 

Dividends and dividend equivalents ($0.40 per share)

   1,060     (49,781  (48,721 

Net income

     203,346    203,346   $203,346  

Foreign currency translation adjustment

    5,248     5,248    5,248  

Unrealized loss on derivatives, net of income taxes of ($40)

    (30   (30  (30
      

 

 

 

Total comprehensive income

      $208,564  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Balance at December 31, 2009

 $120   $222,882   $(23,396 $159,705   $359,311   
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Issuance of 3.3 million common shares from exercise of stock options, SARs, restricted stock grants, and employee stock purchase plan

  4    15,305      15,309   

Excess tax benefit from exercise of stock options, SARs and restricted stock grants

   8,045      8,045   

Additional capital from share based compensation

   22,969      22,969   

Repurchases of common shares

  (6  (21,088   (138,914  (160,008 

Dividends and dividend equivalents ($0.45 per share)

   580     (54,320  (53,740 

Net income

     299,215    299,215   $299,215  

Foreign currency translation adjustment

    583     583    583  

Unrealized loss on derivatives, net of income taxes of ($1,222)

    (4,472   (4,472  (4,472
      

 

 

 

Total comprehensive income

      $295,326  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Balance at December 31, 2010

 $118   $248,693   $(27,285 $265,686   $487,212   
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

Issuance of 3.7 million common shares from exercise of stock options, SARs, restricted stock grants, and employee stock purchase plan

  4    26,463      26,467   

Excess tax benefit from exercise of stock options, SARs and restricted stock grants

   27,450      27,450   

Additional capital from share based compensation

   24,133      24,133   

Repurchases of common shares

  (6  (35,427   (286,206  (321,639 

Dividends and dividend equivalents ($0.73 per share)

   638     (86,127  (85,489 

Net income

     412,578    412,578   $412,578  

Foreign currency translation adjustment, net of income taxes of ($3,090)

    (16,757   (16,757  (16,757

Unrealized gain on derivatives, net of income taxes of $1,455

    6,233     6,233    6,233  
      

 

 

 

Total comprehensive income

      $402,054  
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

 

 

 

Balance at December 31, 2011

 $116   $291,950   $(37,809 $305,931   $560,188   
 

 

 

  

 

 

  

 

 

  

 

 

  

 

 

  

See the accompanying notes to consolidated financial statements.


97


HERBALIFE LTD.
             
  Year Ended December 31, 
  2010  2009  2008 
  (In thousands) 
 
CASH FLOWS FROM OPERATING ACTIVITIES            
Net income $290,533  $203,346  $221,190 
Adjustments to reconcile net income to net cash provided by operating activities:            
Depreciation and amortization  68,621   62,437   48,732 
Excess tax benefits from share-based payment arrangements  (16,410)  (3,266)  (14,602)
Share based compensation expenses  22,969   20,907   17,788 
Amortization of discount and deferred financing costs  500   491   481 
Deferred income taxes  (24,631)  (11,226)  (4,103)
Unrealized foreign exchange transaction loss (gain)  (7,142)  4,809   15,243 
Foreign exchange loss from adoption of highly inflationary accounting in Venezuela  15,131       
Other  2,527   340   1,963 
Changes in operating assets and liabilities:            
Receivables  (7,593)  2,361   (18,529)
Inventories  (31,516)  (1,742)  (27,572)
Prepaid expenses and other current assets  10,254   (7,781)  (23,966)
Other assets  (3,485)  2,109   1,800 
Accounts payable  6,650   (9,500)  8,922 
Royalty overrides  15,732   9,102   13,375 
Accrued expenses and accrued compensation  31,092   (3,461)  12,412 
Advance sales deposits  12,439   8,779   1,917 
Income taxes payable  (8,807)  4,700   24,191 
Deferred compensation plan liability  3,538   2,651   (6,254)
             
NET CASH PROVIDED BY OPERATING ACTIVITIES  380,402   285,056   272,988 
             
CASH FLOWS FROM INVESTING ACTIVITIES            
Purchases of property, plant and equipment  (68,125)  (59,768)  (88,601)
Proceeds from sale of property, plant and equipment  115   102   76 
Deferred compensation plan assets  (1,126)  (1,656)  3,561 
Acquisition of business     (10,000)   
             
NET CASH USED IN INVESTING ACTIVITIES  (69,136)  (71,322)  (84,964)
             
CASH FLOWS FROM FINANCING ACTIVITIES            
Dividends paid  (53,740)  (48,721)  (50,700)
Borrowings from long-term debt  427,000   211,974   118,000 
Principal payments on long-term debt  (499,451)  (313,089)  (167,481)
Increase in deferred financing costs        (75)
Share repurchases  (160,008)  (74,641)  (138,921)
Excess tax benefits from share-based payment arrangements  16,410   3,266   14,602 
Proceeds from exercise of stock options and sale of stock under employee stock purchase plan  15,309   7,884   19,508 
             
NET CASH USED IN FINANCING ACTIVITIES  (254,480)  (213,327)  (205,067)
             
EFFECT OF EXCHANGE RATE CHANGES ON CASH  (17,037)  (453)  (19,517)
             
NET CHANGE IN CASH AND CASH EQUIVALENTS  39,749   (46)  (36,560)
CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR  150,801   150,847   187,407 
             
CASH AND CASH EQUIVALENTS, END OF YEAR $190,550  $150,801  $150,847 
             
CASH PAID DURING THE YEAR            
Interest paid $9,295  $10,011  $17,735 
             
Income taxes paid $111,497  $95,139  $73,939 
             
NON CASH ACTIVITIES            
Assets acquired under capital leases and other long-term debt $576  $388  $36,048 
             

   Year Ended December 31, 
   2011  2010  2009 
   (In thousands) 

CASH FLOWS FROM OPERATING ACTIVITIES

    

Net income

  $412,578   $299,215   $203,346  

Adjustments to reconcile net income to net cash provided by operating activities:

    

Depreciation and amortization

   71,853    68,621    62,437  

Excess tax benefits from share-based payment arrangements

   (27,450  (7,728  (3,266

Share based compensation expenses

   24,133    22,969    20,907  

Amortization of discount and deferred financing costs

   1,007    500    491  

Deferred income taxes

   (12,984  (33,313  (11,226

Unrealized foreign exchange transaction loss (gain)

   9,403    (7,142  4,809  

Write-off of deferred financing costs

   914          

Foreign exchange loss from adoption of highly inflationary accounting in Venezuela

       15,131      

Other

   2,206    2,527    340  

Changes in operating assets and liabilities:

    

Receivables

   (9,687  (7,593  2,361  

Inventories

   (84,880  (31,516  (1,742

Prepaid expenses and other current assets

   3,229    10,254    (7,781

Other assets

   (13,864  (3,485  2,109  

Accounts payable

   15,427    6,650    (9,500

Royalty overrides

   44,041    15,732    9,102  

Accrued expenses and accrued compensation

   28,749    31,092    (3,461

Advance sales deposits

   (1,538  12,439    8,779  

Income taxes

   42,659    (8,807  4,700  

Deferred compensation plan liability

   3,535    3,538    2,651  
  

 

 

  

 

 

  

 

 

 

NET CASH PROVIDED BY OPERATING ACTIVITIES

   509,331    389,084    285,056  
  

 

 

  

 

 

  

 

 

 

CASH FLOWS FROM INVESTING ACTIVITIES

    

Purchases of property, plant and equipment

   (90,408  (68,125  (59,768

Proceeds from sale of property, plant and equipment

   297    115    102  

Deferred compensation plan assets

   (1,975  (1,126  (1,656

Acquisition of business

           (10,000
  

 

 

  

 

 

  

 

 

 

NET CASH USED IN INVESTING ACTIVITIES

   (92,086  (69,136  (71,322
  

 

 

  

 

 

  

 

 

 

CASH FLOWS FROM FINANCING ACTIVITIES

    

Dividends paid

   (85,489  (53,740  (48,721

Borrowings from long-term debt

   914,200    427,000    211,974  

Principal payments on long-term debt

   (888,865  (499,451  (313,089

Deferred financing costs

   (5,718        

Share repurchases

   (321,639  (160,008  (74,641

Excess tax benefits from share-based payment arrangements

   27,450    7,728    3,266  

Proceeds from exercise of stock options and sale of stock under employee stock purchase plan

   22,262    15,309    7,884  
  

 

 

  

 

 

  

 

 

 

NET CASH USED IN FINANCING ACTIVITIES

   (337,799  (263,162  (213,327
  

 

 

  

 

 

  

 

 

 

EFFECT OF EXCHANGE RATE CHANGES ON CASH

   (11,221  (17,037  (453
  

 

 

  

 

 

  

 

 

 

NET CHANGE IN CASH AND CASH EQUIVALENTS

   68,225    39,749    (46

CASH AND CASH EQUIVALENTS, BEGINNING OF YEAR

   190,550    150,801    150,847  
  

 

 

  

 

 

  

 

 

 

CASH AND CASH EQUIVALENTS, END OF YEAR

  $258,775   $190,550   $150,801  
  

 

 

  

 

 

  

 

 

 

CASH PAID DURING THE YEAR

    

Interest paid

  $8,800   $9,295   $10,011  
  

 

 

  

 

 

  

 

 

 

Income taxes paid

  $118,906   $111,497   $95,139  
  

 

 

  

 

 

  

 

 

 

See the accompanying notes to consolidated financial statements.


98


HERBALIFE LTD.
1.  Organization

1.    Organization

Herbalife Ltd., a Cayman Islands exempt limited liability company, or Herbalife, was incorporated on April 4, 2002. Herbalife Ltd. (and together with its subsidiaries, the “Company”) is a leading global network marketing company that sells weight management, nutritional supplements, energy, sports & fitness products and personal care products through a network of approximately 2.12.7 million independent distributors, except in China, where the Company currently sells its products through retail stores, sales representatives, sales employeesofficers and licensed businessindependent service providers. The Company reports revenue in six geographic regions: North America, which consists of the U.S., Canada and Jamaica;America; Mexico; South and Central America; EMEA, which consists of Europe, the Middle East and Africa; Asia Pacific (excluding China) which consists; and China.

2.    Basis of Asia, New Zealand and Australia; and China.

2.  Basis of Presentation
Presentation

The Company’s consolidated financial statements refer to Herbalife and its subsidiaries.

On April 28, 2011, the Company’s shareholders approved a two-for-one stock split, or the stock split, of the Company’s common shares. One additional common share was distributed to the Company’s shareholders on or around May 17, 2011, for each common share held on May 10, 2011. All references in the financial statements and notes to number of shares and per share amounts have been retrospectively adjusted for all periods presented to reflect the stock split.

New Accounting Pronouncements

In December 2010,September 2011, the Financial Accounting Standards Board, or FASB, issued Accounting Standards Update, or ASU,2010-28, No. 2011-08,Intangibles-Goodwill and Other (Topic 350): WhenTesting Goodwill for Impairment. This ASU permits an entity to Perform Step 2make a qualitative assessment of the Goodwill Impairment Test for Reporting Units with Zero or Negative Carrying Amounts (a consensus of the FASB Emerging Issues Task Force)or ASU2010-28. ASU2010-28 provides amendments to Accounting Standards Codification, or ASC, Topic 350,Intangibles — Goodwill and Other. Pursuant to ASU2010-28, if any entity during Step 1 of a goodwill impairment test determines reporting units with zero or negative carrying amounts exist, then they should perform Step 2 of the goodwill impairment test if it is more likely than not that a goodwill impairment exists. In determining whether it is more likely than not that a reporting unit’s fair value is less than its carrying amount before applying the two-step goodwill impairment exists,test. If an entity should consider whether there are any adverse qualitative factors indicating that an impairment may exist. The qualitative factors are consistent with the existing guidance and examples in ASC Topic 350, which requires that goodwill of a reporting unit be tested for impairment between annual tests if an event occurs or circumstances change that wouldconcludes it is not more likely than not reducethat the fair value of a reporting unit belowis less than its carrying amount. Asamount, then there is no need to perform the two-step impairment test. This ASU is effective for annual and interim goodwill impairment tests performed for fiscal years beginning after December 15, 2011. Early adoption is permitted. The adoption of this ASU will not have a result,material impact on the Company’s consolidated financial statements, as it is intended to simplify the assessment for goodwill impairments may be reported soonerimpairment.

In June 2011, the FASB issued ASU No. 2011-05,Comprehensive Income (Topic 220): Presentation of Comprehensive Income. This ASU will require companies to present the components of net and comprehensive income in either one or more often comparedtwo consecutive financial statements and eliminates the option to current practice.present other comprehensive income in the statement of changes in shareholders’ equity. In December 2011, the FASB issued amendments to defer certain presentation requirements of this ASU; the amendments defer the requirement where companies would have been required to present reclassification adjustments for each component of accumulated other comprehensive income in both net income and other comprehensive income on the face of the financial statements. This ASU2010-28 is effective for fiscal years and interim periods within those years, beginning after December 15, 2010, with early2011. The adoption of this ASU only impacts the presentation of the Company’s consolidated financial statements and does not permitted.materially impact its consolidated financial statements.

In May 2011, the FASB issued ASU No. 2011-04,Fair Value Measurement (Topic 820): Amendments to Achieve Common Fair Value Measurement and Disclosure Requirements in U.S. GAAP and IFRSs. This ASU expands existing disclosure requirements for fair value measurements and provides additional information on how to measure fair value. The Company does not expect that theis required to apply this ASU prospectively for interim and annual periods beginning after December 15, 2011. The adoption of ASU2010-28this guidance will not have a material impact on the Company’s consolidated financial statements.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Significant Accounting Policies

In June 2009, the FASB issued the

FASB Accounting Standards Codification, or the Codification, which is the single source of authoritative nongovernmental U.S. generally accepted accounting principles, or GAAP. Rules and interpretive releases of the SEC under authority of federal securities laws are also sources of authoritative GAAP for SEC reporting companies. The Codification, which changes the referencing of financial standards, became effective for interim and annual periods ending on or after September 15, 2009. All existing non-SEC accounting standards are superseded as described in the Codification. All other non-SEC accounting literature not included in the Codification is non-authoritative. The adoption of the Codification did not have a significant impact on the Company’s consolidated financial statements and references to standards issued prior to the Codification have been replaced with a description of the applicable FASB authoritative guidance or with the updated accounting standard codification number.

Consolidation Policy

The consolidated financial statements include the accounts of Herbalife Ltd. and its subsidiaries. All significant intercompany transactions and accounts have been eliminated.


99


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
Business Combinations
In December 2007, the FASB issued authoritative guidance relating to Business Combinations that established principles and requirements for how an acquirer recognizes and measures in its financial statements the identifiable assets acquired, the liabilities assumed, any non controlling interest in the acquiree and the goodwill acquired. The guidance also modifies the recognition for preacquisition contingencies, such as environmental or legal issues, restructuring plans and acquired research and development value in purchase accounting. The guidance requires the acquirer to recognize changes in the amount of its deferred tax benefits that are recognizable because of a business combination either in income from continuing operations in the period of the combination or directly in contributed capital, depending on the circumstances. The guidance also establishes disclosure requirements which will enable users to evaluate the nature and financial effects of the business combination. The Company adopted the guidance on January 1, 2009, which did not have a material impact on its consolidated financial statements.

During August 2009, the Company purchased certain assets of Micelle Laboratories, Inc., a Lake Forest, California contract manufacturer of food and nutritional supplements. The Company purchased the assets in order to strengthen its global manufacturing capabilities. The purchase price is not material to the Company’s consolidated financial statements and for accounting purposes the acquisition, or the Micelle Acquisition, was recorded as a business combination pursuant to FASB accounting standards codification, or ASC, 805,Business Combinations.

Foreign Currency Translation and Transactions

In the majority of the countries that the Company operates, the functional currency is the local currency. The Company’s foreign subsidiaries’ asset and liability accounts are translated for consolidated financial reporting purposes into U.S. dollar amounts at year-end exchange rates. Revenue and expense accounts are translated at the average rates during the year. Foreign exchange translation adjustments are included in accumulated other comprehensive loss on the accompanying consolidated balance sheets. Foreign currency transaction gains and losses, which include the cost of foreign currency derivative contracts and the related settlement gains and losses but excluding certain foreign currency derivatives designated as cash flow hedges as discussed in Note 11,Derivative Instruments and Hedging Activities, are included in selling, general and administrative expenses in the accompanying consolidated statements of income. The Company recorded net foreign currency transaction losses of $11.4 million, $7.3 million, $7.7 million, and $5.7$7.7 million, for the years ended December 31, 2011, 2010, 2009, and 2008,2009, respectively, which includes the foreign exchange impact relating to the Company’s Venezuelan subsidiary, Herbalife Venezuela. Herbalife Venezuela’s foreign currency financial statement impact is discussed further below within this Note.

Forward Exchange Contracts, Option Contracts and Interest Rate Swaps

The Company enters into foreign currency derivative instruments such as forward exchange contracts and option contracts in managing its foreign exchange risk on sales to distributors, purchase commitments denominated in foreign currencies, intercompany transactions and bank loans. The Company also enters into interest rate swaps in managing its interest rate risk on its variable rate term loan.credit facility. The Company does not use the contracts for trading purposes.

In accordance with FASB ASC Topic 815,Derivatives and Hedging, or ASC 815, the Company designates certain of its derivative instruments as cash flow hedges and formally documents its hedge relationships, including identification of the hedging instruments and the hedged items, as well as its risk management objectives and strategies for undertaking the hedge transaction, at the time the derivative contract is executed. The Company assesses the effectiveness of the hedge both at inception and on an ongoing basis and determines whether the hedge is highly or perfectly effective in offsetting changes in cash flows of the hedged item. The Company records the effective portion of changes in the estimated fair value in accumulated other comprehensive income (loss) and subsequently reclassifies the related amount of accumulated other comprehensive income (loss) to earnings when the hedged item and underlying transaction impacts earnings. If it is determined that a derivative

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

has ceased to be a highly effective hedge, the Company will discontinue hedge accounting for such transaction. For derivatives that are not designated as hedges, all changes in estimated fair value are recognized in the consolidated statements of income.


100


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
On January 1, 2009, the Company adopted FASB authoritative guidance that requires additional financial statement disclosures on derivative instruments as required by ASC 815. This adoption did not have any financial impact on the Company’s consolidated financial statements and only required additional financial statement disclosures on derivative instruments. The Company has applied the requirements of this standard on a prospective basis as disclosed in Note 11,Derivative Instruments and Hedging Activities. Accordingly, disclosures related to annual periods prior to the date of adoption have not been presented.
Cash and Cash Equivalents

The Company considers all highly liquid investments purchased with a maturity of three months or less to be cash equivalents. Cash and cash equivalents are comprised primarily of money market accounts and foreign and domestic bank accounts. To reduce its credit risk, the Company monitors the credit standing of the financial institutions that hold the Company’s cash and cash equivalents.

In May 2010,

During 2011, the FASB issued ASU2010-19, Foreign Currency Issues: Multiple Foreign Currency Exchange Rates, or ASU2010-19, which codifiesCompany entered into a cash pooling arrangement with a financial institution for cash management purposes. This cash pooling arrangement allows certain of the SEC staff announcement madeCompany’s participating foreign locations to withdraw cash from this financial institution to the extent aggregate cash deposits held by its participating locations are available at the March 18, 2010, Emerging Issues Task Force meeting. ASU2010-19 providesfinancial institution. To the SEC staff’s viewextent any participating location on certain foreign currency issues relating to investmentsan individual basis is in Venezuela. ASU2010-19 became effective on March 18, 2010. The Company has adopted this guidance. During fiscal year 2009, due to the difference between the foreign currency remeasurement ratean overdraft position, these overdrafts will be recorded as liabilities and translation rate relating to Herbalife Venezuela, the cash and cash equivalents reported onreflected as financing activities in the Company’s consolidated balance sheet atand consolidated statement of cash flows, respectively. As of December 31, 2009, was $9.9 million greater than2011, the U.S. dollar amount residing in Herbalife Venezuela’s U.S. dollar bank account and thereforeCompany did not necessarily reflect the true purchasing power of the U.S. dollar cash and cash equivalents. Herbalife Venezuela’sowe any amounts to this financial statement impact relating to the Company’s reported consolidated cash and cash equivalents and its foreign exchange transactions is discussed further below within this Note.

institution.

Accounts Receivable

Accounts receivable consist principally of receivables from credit card companies, arising from the sale of products to the Company’s distributors, and receivables from importers, who are utilized in a limited number of countries to sell products to distributors. Due to the geographic dispersion of its credit card receivables, the collection risk is not considered to be significant. The receivables from credit card companies were $51.4$65.1 million and $43.4$51.4 million as of December 31, 20102011 and 2009,2010, respectively. Substantially all of the receivables from credit card companies were current as of December 31, 20102011 and 2009.2010. Although receivables from importers can be significant, the Company performs ongoing credit evaluations of its importers and maintains an allowance for potential credit losses. The Company considers customer credit-worthiness, past and current transaction history with the customer, contractual terms, current economic industry trends, and changes in customer payment terms when determining whether collectibility is reasonably assured and whether to record allowances for its receivables. If the financial condition of the Company’s customers deteriorates and adversely affects their ability to make payments, additional allowances will be recorded. The Company believes that it provides adequate allowances for receivables from its distributors and importers which are not material to its consolidated financial statements. As of December 31, 2010,2011, the majority of the Company’s total outstanding accounts receivable were current.

Fair Value of Financial Instruments

Effective January 1, 2008,

The Company applies the Company adoptedprovisions of FASB authoritative guidance as it applies to the nonfinancial assets and nonfinancial liabilities. The FASB authoritative guidance clarifies the definition of fair value, prescribes methods for measuring fair value, establishes a fair value hierarchy based on the inputs used to measure fair value, and expands disclosures about fair value measurements. As disclosed in Note 14,13,Fair Value Measurements,the Company has properly measured and disclosed its financial instruments.


101


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
The Company has estimated the fair value of its financial instruments using the following methods and assumptions:

The carrying amounts of cash and cash equivalents, receivables and accounts payable approximate fair value due to the short-term maturities of these instruments;

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The fair value of option and forward contracts are based on dealer quotes; and

• The carrying amounts of cash and cash equivalents, receivables and accounts payable approximate fair value due to the short-term maturities of these instruments;
• The fair value of option and forward contracts are based on dealer quotes; and
• The carrying values of the Company’s variable rate debt instruments are considered to approximate their fair values because interest rates of those instruments approximate current rates offered to the Company.

The carrying values of the Company’s variable rate debt instruments are considered to approximate their fair values because interest rates of those instruments approximate current rates offered to the Company.

Inventories

Inventories are stated at lower of cost (on(primarily on thefirst-in, first-out basis) or market. The Company had reserves for obsolete and slow moving inventory totaling $9.4 million and $9.3 million as of December 31, 2010 and 2009, respectively.

Deferred Financing Costs

Deferred financing costs represent fees and expenses related to the borrowing of the Company’s long-term debt and are amortized under the effective interest method over the term of the related debt.

Long-Lived Assets

Depreciation of furniture, fixtures, and equipment (includes computer hardware and software) is computed on a straight-line basis over the estimated useful lives of the related assets, which range from three to ten years. Leasehold improvements are amortized on a straight-line basis over the life of the related asset or the term of the lease, whichever is shorter. Depreciation of furniture, fixtures, equipment, and amortization of leasehold improvements recorded to selling, general and administrative expenses totaled $68.9 million, $67.7 million, $62.2 million, and $48.7$62.2 million, for the years ended December 31, 2011, 2010 and 2009, and 2008, respectively.

Long-lived assets are reviewed for impairment, based on undiscounted cash flows, whenever events or changes in circumstances indicate that the carrying amount of such assets may not be recoverable. Measurement of an impairment loss is based on the estimated fair value of the asset.

Goodwill and marketing related intangible assets with indefinite lives are evaluated on an annual basis for impairment or more frequently if events or changes in circumstances indicate that the asset might be impaired. During the years ended December 31, 2011, 2010 2009 and 2008,2009, there were no goodwill or marketing related intangible asset impairments. At December 31, 2011, 2010 2009 and 2008,2009, the marketing related intangible asset balance was $310.0 million. As of December 31, 2011, 2010, 2009, and 2008,2009, the goodwill balance was $105.5 million, $102.9 million, and $102.5 million, and $110.7respectively. The $2.6 million respectively.increase in goodwill in 2011 from 2010 was primarily due to the acquisition of iChange Network, Inc., a privately held software company, where the purchase price was not material to the Company’s consolidated financial statements. The $0.4 million increase in goodwill in 2010 from 2009 was primarily due to the effect of an adjustment to the fair value of inventory acquired in the Micelle Acquisition. The $8.2 million net decrease in goodwill in 2009 from 2008 was primarily due to a $12.1 million decrease related to a change in deferred tax liability, partially offset by a $3.9 million increase related to the Micelle Acquisition.

Intangible assets with finite lives are amortized over their expected lives, whichand are two years for product certifications, three years forexpected to be fully amortized over the distributor network and non-compete agreements,next five years for product formulas and seven years for customer relationships. Atyears. As of December 31, 2008,2011, the Company’s intangible assets with finite lives had been fully amortized. During fiscal yearincreased to $1.7 million, net of $0.6 million amortization, due to the iChange Network acquisition. As of December 31, 2010, the Company’s intangible assets with finite lives decreased to $0.8 million. As of December 31, 2009, the Company’s intangible assets with finite lives increased to $1.7 million, net of $0.2 million amortization, due to the Micelle Acquisition. As of December 31, 2010, the Company’s intangible assets with finite lives decreased to $0.8 million. The annual amortization expense for finite life intangibles was $0.6 million, $0.9 million, and $0.2 million and zero for the years ended December 31, 2011, 2010, 2009, and 2008,2009, respectively. At December 31, 2010,2011, the annual expected amortization expense is as follows: 20112012 — $0.6 million; 2013 — $0.4 million; 20122014 — $0.2$0.3 million; 20132015 — $0.3 million; and 2016 — $0.1 million; and 2014 — $0.1 million.


102


HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Income Taxes

Income tax expense includes income taxes payable for the current year and the change in deferred income tax assets and liabilities for the future tax consequences of events that have been recognized in the Company’s financial statements or income tax returns. A valuation allowance is recognized to reduce the carrying value of deferred income tax assets if it is believed to be more likely than not that a component of the deferred income tax assets will not be realized.

The Company accounts for uncertainty in income taxes in accordance with FASB authoritative guidance which clarifies the accounting and reporting for uncertainties in income taxes recognized in an enterprise’s financial statements. This guidance prescribes a comprehensive model for the financial statement recognition, measurement, presentation and disclosure of uncertain tax positions taken or expected to be taken in income tax returns. See Note 12,Income Taxes,for further discussion on income taxes.

In the second quarter of 2011, the Company changed its method of accounting for excess tax benefits recognized as a result of the exercise of employee stock options, stock appreciation rights, or SARs, and other share-based equity grants, from the tax-law-ordering method to the with-and-without method. Under the tax law ordering method, the deduction for share-based compensation is applied against income tax liabilities before other credits are applied, such as foreign tax credits. The with-and-without method applies the deduction for share-based compensation against taxable income after other credits have been applied against taxable income, to the extent allowable and subject to applicable limitations. The with-and-without method separately determines the impact of the tax benefit from share-based compensation after considering the tax effects related to the Company’s on-going operations. A benefit is recorded when deductions for share-based compensation reduces income taxes payable or increases income taxes refund receivable. The Company believes that the with-and-without method is a preferable method of determining the benefit applicable to share-based compensation because it better reflects the Company’s ongoing operations. This change in accounting method primarily impacts the allocation of income taxes and tax benefits between continuing operations, deferred tax items, and additional paid in capital for financial reporting purposes, but it does not have any impact on the ultimate amount of income tax reported on the Company’s income tax returns and it does not impact the Company’s income taxes payable included within its accompanying consolidated balance sheet. This change in accounting principle does not impact the consolidated financial statements related to fiscal years prior to 2010.

This change in accounting principle is applied to all periods presented and the following tables summarize the impact of this change on the Company’s consolidated financial statements:

Consolidated Balance Sheet

   December 31, 2010 
   As  Previously
Reported
   As Adjusted 
   (In thousands) 

Paid-in capital in excess of par value

  $257,375    $248,693  

Retained earnings

  $257,004    $265,686  

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Consolidated Statements of Income

   Year Ended
December 31, 2010
 
   As  Previously
Reported
   As Adjusted 
   (In thousands, except per
share amount)
 

Income taxes

  $89,562    $80,880  

Net income

  $290,533    $299,215  

Basic earnings per share(1)

  $2.44    $2.51  

Diluted earnings per share(1)

  $2.33    $2.37  

(1)Basic and diluted earnings per share, as previously reported, for the year ended December 31, 2010, have also been adjusted to reflect the stock split.

Common Share Amounts Used to Compute Basic and Diluted Earnings Per Share

   Year Ended
December 31, 2010
 
   As Previously
Reported (1)
   As Adjusted 
   (In thousands) 

Weighted average shares used in basic computations

   119,004     119,004  

Dilutive effect of exercise of equity grants outstanding

   5,076     7,059  

Dilutive effect of warrants

   432     432  
  

 

 

   

 

 

 

Weighted average shares used in diluted computations

   124,512     126,495  
  

 

 

   

 

 

 

(1)Basic and diluted weighted shares outstanding, as previously reported, for the year ended December 31, 2010, have been adjusted to reflect the stock split.

Consolidated Statement of Changes in Shareholders’ Equity and Comprehensive Income

   Year Ended
December 31, 2010
 
   As  Previously
Reported
   As Adjusted 
   (In thousands) 

Paid-in Capital in Excess of Par Value

    

Excess tax benefit from exercise of stock options, SARs and restricted stock grants

  $16,727    $8,045  

Balance at December 31, 2010

  $257,375    $248,693  

Retained Earnings

    

Net income

  $290,533    $299,215  

Balance at December 31, 2010

  $257,004    $265,686  

Comprehensive Income

    

Net income

  $290,533    $299,215  

Total comprehensive income

  $286,644    $295,326  

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Consolidated Statement of Cash Flows

   Year Ended
December 31, 2010
 
   As  Previously
Reported
  As Adjusted 
   (In thousands) 

Net income

  $290,533   $299,215  

Excess tax benefits from share-based payment arrangements

  $(16,410 $(7,728

Deferred income taxes

  $(24,631 $(33,313

Net cash provided by operating activities

  $380,402   $389,084  

Excess tax benefits from share-based payment arrangements

  $16,410   $7,728  

Net cash used in financing activities

  $(254,480 $(263,162

If the Company had not changed from the prior tax law ordering method of accounting for excess tax benefits in the second quarter of fiscal year 2011, income taxes, net income and earnings per share would have been reflected as noted below:

Consolidated Statements of Income

   Year Ended
December 31,  2011
 
   As Computed Under
Prior Method
 
   (In thousands, except
per share amount)
 

Income taxes

  $159,083  

Net income

  $400,696  

Basic earnings per share

  $3.41  

Diluted earnings per share

  $3.25  

Royalty Overrides

An independent distributor may earn commissions, called royalty overrides or production bonuses, based on retail volume. Such commissions are based on the retail sales volume of certain other members of the independent sales force who are sponsored by the distributor. In addition, such commissions are recorded when the products are shipped and revenue is recognized.Non-U.S. royalty checks that have aged, for a variety of reasons, beyond a certainty of being paid, are taken back into income. Management has estimated this period of certainty to be three years worldwide.

Comprehensive Income

Comprehensive income consists of net earnings, foreign currency translation adjustments and the effective portion of the unrealized gains or losses on derivatives. Comprehensive income is presented in the consolidated statements of shareholders’ equity and comprehensive income.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Components of accumulated other comprehensive income (loss) consisted of the following (in thousands):

             
  December 31, 
  2010  2009  2008 
 
Foreign currency translation adjustment $(21,852) $(22,435) $(27,683)
Unrealized loss on derivatives, net of tax  (5,433)  (961)  (931)
             
Total accumulated other comprehensive income (loss) $(27,285) $(23,396) $(28,614)
             

   December 31, 
   2011  2010  2009 

Foreign currency translation adjustment, net of tax

  $(38,609 $(21,852 $(22,435

Unrealized loss on derivatives, net of tax

   800    (5,433  (961
  

 

 

  

 

 

  

 

 

 

Total accumulated other comprehensive income (loss)

  $(37,809 $(27,285 $(23,396
  

 

 

  

 

 

  

 

 

 

Operating Leases

The Company leases all of its physical properties under operating leases. Certain lease agreements generally include rent holidays and tenant improvement allowances. The Company recognizes rent holiday periods on a straight-line basis over the lease term beginning when the Company has the right to the leased space. The Company also records tenant improvement allowances and rent holidays as deferred rent liabilities and amortizes the deferred rent over the terms of the lease to rent.

Research and Development

The Company’s research and development is performed by in-house staff and outside consultants. For all periods presented, research and development costs were expensed as incurred and were not material.


103


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
Earnings Per Share

Basic earnings per share represents net income for the period common shares were outstanding, divided by the weighted average number of common shares outstanding for the period. Diluted earnings per share represents net income divided by the weighted average number of common shares outstanding, inclusive of the effect of dilutive securities such as outstanding stock options, stock appreciation rights,SARs, stock units and warrants.

The following are the common share amounts used to compute the basic and diluted earnings per share for each period (in thousands):

             
  Year Ended December 31, 
  2010  2009  2008 
 
Weighted average shares used in basic computations  59,502   61,221   63,785 
Dilutive effect of exercise of equity grants outstanding  2,538   1,734   1,803 
Dilutive effect of warrants(1)  216   142   181 
             
Weighted average shares used in diluted computations  62,256   63,097   65,769 
             

   Year Ended December 31, 
   2011   2010   2009 

Weighted average shares used in basic computations

   117,540     119,004     122,442  

Dilutive effect of exercise of equity grants outstanding

   7,046     7,059     3,468  

Dilutive effect of warrants(1)

   260     432     284  
  

 

 

   

 

 

   

 

 

 

Weighted average shares used in diluted computations

   124,846     126,495     126,194  
  

 

 

   

 

 

   

 

 

 

(1)At December 31, 2010,2011, the Company had 0.5 million warrants outstanding, with an exercise price of $15.50,$7.75, which will expire on December 1, 2014.

There were an aggregate of 0.82.1 million, 2.81.5 million and 2.35.6 million of equity grants, consisting of stock options, stock appreciation rights,SARs, and stock units that were outstanding during the years ended December 31, 2011, 2010 2009 and 2008,2009, respectively, but were not included in the computation of diluted earnings per share because their effect would be anti-dilutive.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Revenue Recognition

Revenue is recognized when products are shipped and title and risk of loss passes to the independent distributor or importer. Sales are recognized on a net sales basis, which reflects product returns, net of discounts referred to as “distributor allowances,” and amounts billed for shipping and handling costs. Shipping and handling costs paid by the Company are included in cost of sales. The Company generally receives the net sales price in cash or through credit card payments at the point of sale. The Company currently presents sales taxes collected from customers on a net basis. Related royalty overrides are recorded when revenue is recognized.

Allowances for product returns, primarily in connection with the Company’s buyback program, are provided at the time the sale is recorded. This accrual is based upon historical return rates for each country and the relevant return pattern, which reflects anticipated returns to be received over a period of up to 12 months following the original sale.

Share-Based Payments

The Company accounts for share-based compensation in accordance with FASB authoritative guidance which requires the measurement of share-based compensation expense for all share-based payment awards made to employees for service. The Company measures share-based compensation cost at the grant date, based on the fair value of the award, and recognizes the expense on a straight-line basis over the employee’s requisite service period.

Use of Estimates

The preparation of financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions. Such estimates and assumptions affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. The Company


104


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
evaluates its estimates and assumptions on an ongoing basis using historical experience and other factors, including the current economic environment, which the Company believes to be reasonable under the circumstances. The Company adjusts such estimates and assumptions when facts and circumstances dictate. Illiquid credit markets, volatile equity, and foreign currency have combined to increase the uncertainty inherent in such estimates and assumptions. As future events and their effects cannot be determined with precision, actual results could differ from these estimates. Changes in estimates resulting from continuing changes in the economic environment will be reflected in the financial statements in future periods.

Currency Restrictions in Venezuela

Currency restrictions enacted by the Venezuelan government in 2003 have become more restrictive and have impacted the ability of the Company’s subsidiary in Venezuela, Herbalife Venezuela, to obtain U.S. dollars in exchange for Venezuelan Bolivars, or Bolivars, at the official foreign exchange rates from the Venezuelan government and its foreign exchange commission, CADIVI. The application and approval processes have been intermittently delayed and the timing and ability to obtain U.S. dollars at the official exchange rates remains uncertain. In certain instances, the Company has made appropriate applications through CADIVI for approval to obtain U.S. dollars so that Herbalife Venezuela can pay for imported products and an annual dividend at the official exchange rate. As an alternative exchange mechanism, the Company has also participated in certain bond offerings from the Venezuelan government and from Petróleos de Venezuela, S.A. or PDVSA, a Venezuelan state-owned petroleum company, where the Company effectively purchased bonds with its Bolivars and then sold

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

the bonds for U.S. dollars. In other instances, the Company has also used aalternative legal exchange mechanisms for currency exchanges, such as the legal parallel market mechanism for currency exchanges until this less favorable parallel marketwhich is discussed below and was discontinued in May 2010.

In June 2010, the Venezuelan government introduced additional regulations under a new regulated system, SITME, which is controlled by the Central Bank of Venezuela. SITME provides a mechanism to exchange Bolivars into U.S. dollars through the purchase and sale of U.S. dollar denominated bonds issued in Venezuela. However, SITME is only available in certain limited circumstances. Specifically, SITME can only be used for product purchases and is not available for other matters such as the payment of dividends. Also, SITME can only be used for amounts of up to $50,000 per day and $350,000 per month and is generally only available to the extent the applicant has not exchanged and received U.S. dollars via the CADIVI process within the previous 90 days.

Although Venezuela is an important market in the Company’s South and Central America Region, Herbalife Venezuela’s net sales represented less than 2%, 4%2% and 4% of the Company’s consolidated net sales for the years ended December 31, 2011, 2010 2009 and 2008,2009, respectively, and its total assets represented less than 3% and 6% of the Company’s consolidated total assets as of both December 31, 20102011 and 2009, respectively.

2010.

Pre-Highly Inflationary Economy in Venezuela and Herbalife Venezuela’s Cash and Cash Equivalents at December 31, 2009

During the fourth quarter of 2009, due to the currency restrictions in obtaining U.S. dollars at the official currency exchange rate and in order to mitigate the Company’s currency exchange risk in Venezuela, Herbalife Venezuela entered into a series of parallel market transactions and exchanged 105.0 million Bolivars for approximately $19.5 million U.S. dollars at an average rate of approximately 5.4 Bolivars per U.S. dollar. Also, during the fourth quarter of 2009, Herbalife Venezuela settled $13.6 million of its U.S. dollar denominated non-CADIVI registered intercompany shipment payables that were initially recorded and then subsequently remeasured at the parallel market exchange rate. Therefore, theThe settlement of these intercompany shipment payables did not result in any net foreign exchange gains or losses recorded in the accompanying consolidated statement of income for the year ended December 31, 2009. Incremental costs of $18.8 million, related to the importation of products into Venezuela at the unfavorable parallel market exchange rate, were recorded in costs of sales in the Company’s consolidated statement of income for the year ended December 31, 2009.


105


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
As of December 31, 2009, Herbalife Venezuela’s $5.9 million U.S. dollar cash and cash equivalents residing in its U.S. dollar bank account were remeasured to Bolivars at the parallel market exchange rate of approximately 5.9 Bolivars per U.S. dollar. These remeasured cash and cash equivalents were translated at the official rate of 2.15 Bolivars per U.S. dollar and reported as $15.8 million in the Company’s consolidated balance sheet at December 31, 2009. Based on the Company’s specific facts and circumstances, U.S. GAAP required the Company to use the dividend remittance rate (the official exchange rate) for translation purposes and the parallel market exchange rate (the applicable rate at which a particular transaction could be settled), for certain remeasurement purposes. Due to the difference between the remeasurement rate and translation rate, the cash and cash equivalents relating to Herbalife Venezuela reported on the Company’s consolidated balance sheet at December 31, 2009, was $9.9 million greater than the U.S. dollar amount residing in Herbalife Venezuela’s U.S. dollar bank account and therefore did not necessarily reflect the true purchasing power of the reported U.S. dollar cash and cash equivalents. At December 31, 2009, Herbalife Venezuela reported cash and cash equivalents of approximately $34.2 million, of which $15.8 million was denominated in U.S. dollars and $18.4 million was denominated in Bolivars. The cash and cash equivalents were translated into the consolidated financial statements at the official exchange rate, which was the rate applicable for dividend remittance.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Highly Inflationary Economy and Accounting in Venezuela

Venezuela’s inflation rate as measured using the blended National Consumer Price Index and Consumer Price Index rate exceeded a three-year cumulative inflation rate of 100% as of December 31, 2009. Accordingly, effective January 1, 2010, Venezuela was considered a highly inflationary economy. Pursuant to the highly inflationary basis of accounting under U.S. GAAP, Herbalife Venezuela changed its functional currency from the Bolivar to the U.S. dollar. Subsequent movements in the Bolivar to U.S. dollar exchange rate will impact the Company’s consolidated earnings. Prior to January 1, 2010 when the Bolivar was the functional currency, movements in the Bolivar to U.S. dollar were recorded as a component of equity through other comprehensive income. Pursuant to highly inflationary accounting rules, the Company is no longer required to translatetranslates Herbalife Venezuela’s financial statements since theiras its functional currency is now the U.S. dollar.

Based on relevant facts and circumstances at the applicable times, under the highly inflationary basis of accounting, the Company used the parallel market exchange rate for remeasurement purposes until the parallel market was discontinued in May 2010. On January 1, 2010, in connection with the determination that Venezuela was a highly inflationary economy, the Company remeasured Herbalife Venezuela’s opening balance sheet’s monetary assets and liabilities at the parallel market rate which resulted in the Company recordingand recorded a non-tax deductible foreign exchange loss of $15.1 million. This charge included the $9.9 million foreign exchange loss relatingrelated to Herbalife Venezuela’s U.S. dollar cash and cash equivalents that were remeasured at the parallel market rate and then translated at the official rate at December 31, 2009. Also, Herbalife Venezuela’s $34.2 million cash and cash equivalents reported in the Company’s consolidated balance sheet at December 31, 2009, which included U.S. dollar denominated cash, waswere reduced to approximately $12.5 million on January 1, 2010. However, nonmonetary assets, such as inventory, reported on the Company’s consolidated balance sheet at December 31, 2009, remained at historical cost subsequent to Venezuela becoming a highly inflationary economy. Therefore, the incremental costs related to the Company’s 2009 imported products recorded at the parallel market exchange rate negatively impacted the Company’s consolidated statement of income for the year ended December 31, 2010 by approximately $12.7 million as these products were sold during the first quarter of 2010. This amount is not tax deductible. See Note 12,Income Taxes,for additional discussion on the income tax impact related to Venezuela becoming a highly inflationary economy.

Official Exchange Rate Devaluations in Venezuela in 2011 and 2010

In early January 2010, Venezuela announced an official exchange rate devaluation of the Bolivar to an official rate of 4.3 Bolivars per U.S. dollar for non-essential items and 2.6 Bolivars per U.S. dollar for essential items. The Company’s imports fall into both classifications. During 2010, because the Company used the parallel market


106


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
exchange rate for remeasurement purposes until the parallel market was discontinued in May 2010 and then used the SITME rate thereafter, any U.S. dollars obtained from CADIVI at the official rate had a positive impact to the Company’s consolidated net earnings. Specifically, the Company recorded $5.8 million of foreign exchange gains to selling, general and administrative expenses within the Company’s consolidated statement of income for the year ended December 31, 2010, as a result of receiving U.S. dollars approved by CADIVI at the official exchange rate. The majority of Herbalife Venezuela’s 2010 importations were not registered with CADIVI so the official exchange rates arewere not available to pay for these U.S. imports. As of December 31, 2010, Herbalife Venezuela also hashad an outstanding intercompany dividend payable to the Company of $2.5 million, which was declared in December 2008 and registered with CADIVI. The request to obtain U.S. dollars at the official rate to settle theCADIVI and still remains outstanding intercompany dividend payable is pending CADIVI’s approval.as of December 31, 2011. Also, at December 31, 2010, Herbalife Venezuela had outstanding intercompany shipment payable balances of $2.6 million, primarily relating to 2010, which arewere registered with CADIVI and arewere pending CADIVI’s approval.
As of December 31, 2011, $0.1 million outstanding intercompany shipment payable balances were registered with CADIVI and pending their approval.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

In late December 2010, Venezuela announced that the CADIVI official exchange rate of 2.6 Bolivars per U.S. dollar willwould be eliminated and theeliminated. The CADIVI official exchange of 4.3 Bolivars per U.S. dollar will beis used for all essential items and non-essential items beginning January 2011. This devaluation did not have a material impact on the Company’s consolidated financial statements. At December 31, 2011 and 2010, the Company used the SITME rate of 5.3 Bolivars per U.S. dollar for remeasurement purposes.

Remeasurement of Herbalife Venezuela’s Monetary Assets and Liabilities at December 31, 2011 and 2010

During the second quarter of 2010, the Company recorded a $4.0 million pre-tax ($2.6 million post-tax) net foreign exchange gain to selling, general and administrative expenses, within the Company’s consolidated statement of income, as a result of remeasuring its Bolivar denominated monetary assets and liabilities as of June 30, 2010 at the SITME rate of 5.3 Bolivars per U.S. dollar as opposed to the last parallel market rate prior to the closure of the parallel market in May 2010 of 8.3 Bolivars per U.S. dollar. Herbalife Venezuela’s cash and cash equivalents, primarily denominated in Bolivars, increased by $5.2 million as a result of using the SITME rate as opposed to the last quoted parallel market rate during the second quarter of 2010. During the third quarter of 2010 and thereafter, the Company continued to use the SITME rate of 5.3 Bolivars per U.S. dollar to remeasure its Bolivar denominated transactions. As of December 31, 2010, the majority of Herbalife Venezuela’s net monetary Bolivar denominated assets and liabilities approximated $19.4 million which included Bolivar denominated cash and cash equivalents approximating $24.6 million, and were all remeasured at the new regulated rate underSITME rate.

During 2011, the Company accessed the SITME exceptmarket in order to exchange its Bolivars to U.S. dollars. In less frequent instances, the Company has also accessed alternative legal exchange mechanisms, to exchange Bolivars for U.S. dollars, at less favorable rates than the SITME rate, which resulted in the Company recognizing $1.2 million of losses in selling, general and administration expenses included within its consolidated statement of income for the $2.5year ended December 31, 2011. In February 2011, Herbalife Venezuela purchased U.S. dollar denominated bonds with a face value of $20 million intercompany dividend which wasU.S. dollars in a bond offering from PDVSA for 86 million Bolivars and then immediately sold the bonds for $15 million U.S. dollars, resulting in an average effective conversion rate of 5.7 Bolivars per U.S. dollar. The 86 million Bolivars were previously remeasured at the CADIVI official rate.regulated system rate, or SITME rate, of 5.3 Bolivars per U.S. dollar and recorded as cash and cash equivalents of $16.3 million on the Company’s consolidated balance sheet at December 31, 2010. This Bolivar to U.S. dollar conversion resulted in the Company recording a net pre-tax loss of $1.3 million U.S. dollars during the first quarter of 2011 which is included in its consolidated statement of income for the year ended December 31, 2011. The Company was unsuccessful in accessing any subsequent PDVSA bond offerings and the frequency of future bond offerings is unknown. The Company continues to remeasure its Bolivars at the published SITME rate given the limited availability of alternative exchange mechanisms and the uncertainty in the effective exchange rate for alternative exchange mechanisms.

As of December 31, 2011, Herbalife Venezuela’s net monetary assets and liabilities denominated in Bolivars was approximately $26.8 million, and included approximately $34.8 million in Bolivar denominated cash and cash equivalents. The majority of these Bolivar denominated assets and liabilities were remeasured at the SITME rate as of December 31, 2011. While the Company continues to monitor the new exchange mechanism and restrictions under SITME, there is no assurance that the Company will be able to exchange Bolivars into U.S. dollars on a timely basis. Therefore, these remeasured amounts, including cash and cash equivalents, being reported on the Company’s consolidated balance sheet using the SITME rate may not accurately represent the amount of U.S. dollars that the Company could ultimately realize.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Consolidation of Herbalife Venezuela

The Company plans to continue its operation in Venezuela and to import products into Venezuela despite the foreign currency constraints that exist in the country. Herbalife Venezuela will continue to apply for legal exchange mechanisms to convert its Bolivars to U.S. dollars. Despite the currency exchange restrictions in Venezuela, the Company continues to control Herbalife Venezuela and its operations. The mere existence of the exchange restrictions discussed above does not in and of itself create a presumption that this lack of exchangeability isother-than-temporary, nor does it create a presumption that an entity should deconsolidate its Venezuelan operations. Therefore, the Company continues to consolidate Herbalife Venezuela in its consolidated financial


107


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
statements for U.S. GAAP purposes. Substantially allThe majority of Herbalife Venezuela’s Bolivar denominated assets and liabilities are currently being remeasured at the SITME rate. See Note 15,Subsequent Events, for further information on Herbalife Venezuela.
3.  Inventories

3.    Inventories

Inventories consist primarily of finished goods available for resale and can be categorized as follows (in millions):

         
  December 31, 
  2010  2009 
 
Weight Management, Targeted Nutrition and Energy, Sports and Fitness $159.4  $123.6 
Outer Nutrition  9.7   11.4 
Literature, Promotional and Others  13.4   11.0 
         
Total $182.5  $146.0 
         

   December 31, 
   2011   2010 

Weight Management, Targeted Nutrition and Energy, Sports and Fitness

  $223.5    $159.4  

Outer Nutrition

   11.1     9.7  

Literature, Promotional and Others

   13.1     13.4  
  

 

 

   

 

 

 

Total

  $247.7    $182.5  
  

 

 

   

 

 

 

The following are the major classes of inventory (in millions):

         
  December 31, 
  2010  2009 
 
Raw materials $13.7  $5.5 
Work in process  0.6   0.1 
Finished goods  168.2   140.4 
         
Total $182.5  $146.0 
         
Total inventories are presented net of the reserves for obsolete and slow moving inventory of $9.4 million and $9.3 million at December 31, 2010 and 2009, respectively.
4.  Long-Term Debt

   December 31, 
   2011   2010 

Raw materials

  $21.7    $13.7  

Work in process

   2.5     0.6  

Finished goods

   223.5     168.2  
  

 

 

   

 

 

 

Total

  $247.7    $182.5  
  

 

 

   

 

 

 

4.    Long-Term Debt

Long-term debt consists of the following (in millions):

         
  December 31, 
  2010  2009 
 
Borrowings under senior credit facility $174.9  $236.4 
Capital leases  2.9   4.8 
Other debt  0.3   9.1 
         
   178.1   250.3 
Less: current portion  3.1   12.4 
         
Long-term portion $175.0  $237.9 
         
Interest expense was $9.7 million, $9.6 million, and $20.1 million, for the years ended December 31, 2010, 2009 and 2008, respectively.

   December 31, 
   2011   2010 

Borrowings under prior senior secured credit facility

  $    $174.9  

Borrowings under the new senior secured revolving credit facility

   202.0       

Capital leases

   1.4     2.9  

Other debt

   0.2     0.3  
  

 

 

   

 

 

 
   203.6     178.1  

Less: current portion

   1.5     3.1  
  

 

 

   

 

 

 

Long-term portion

  $202.1    $175.0  
  

 

 

   

 

 

 

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

On July 21, 2006, the Company entered into a $300.0 million senior secured credit facility, or the Prior Credit Facility, comprised of a $200.0 million term loan and a $100.0 million revolving credit facility, with a syndicate of financial institutions as lenders. In September 2007, the Company and its lenders amended the credit agreement, increasing the amount of the revolving credit facility by an aggregate principal amount of $150.0 million to $250.0 million primarily to finance the increase in itsthe Company’s share repurchase program. See Note 8,Shareholders’ Equity, for further discussion of the share repurchase program and the share repurchase amounts during the years ended December 31, 2011, 2010 2009 and


108


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
2008. 2009. The term loan bearsbore interest at LIBOR plus a margin of 1.5%, or the base rate plus a margin of 0.50%, and matures on July 21, 2013.. The revolving credit facility bearsbore interest at LIBOR plus a margin of 1.25%, or the base rate plus a margin of 0.25%.

On March 9, 2011, the Company entered into a $700.0 million senior secured revolving credit facility, or the New Credit Facility, with a syndicate of financial institutions as lenders and terminated its Prior Credit Facility. The New Credit Facility has a five year maturity and expires on March 9, 2016. During March 2011, U.S. dollar borrowings under the New Credit Facility incurred interest at the base rate plus a margin of 0.75% or LIBOR plus a margin of 1.75%. After March 2011, based on the Company’s consolidated leverage ratio, U.S. dollar borrowings under the New Credit Facility bear interest at either LIBOR plus the applicable margin between 1.50% and 2.50% or the base rate plus the applicable margin between 0.50% and 1.50%. The Company, based on its consolidated leverage ratio, pays a commitment fee between 0.25% and 0.50% per annum on the unused portion of the New Credit Facility. The New Credit Facility also permits the Company to borrow limited amounts in Mexican Peso and Euro currencies based on variable rates. The base rate under the New Credit Facility represents the highest of the Federal Funds Rate plus 0.50%, one-month LIBOR plus 1.00%, and is available until July 21, 2012. On December 31, 2010, and December 31, 2009, the weighted average interestprime rate foroffered by Bank of America.

In March 2011, the senior secured credit facility was 1.75% and 1.66%, respectively.Company used $196.0 million in U.S. dollar borrowings under the New Credit Facility to repay all amounts outstanding under the Prior Credit Facility. The Company incurred approximately $2.3$5.7 million of debt issuance costs in connection with entering into the senior secured credit facility in July 2006, whichNew Credit Facility. These debt issuance costs were recorded as deferred financing costs on the Company’s consolidated balance sheet and are being amortized over the term of the senior secured credit facility. New Credit Facility. On December 31, 2011 and 2010, the weighted average interest rate for borrowings under the New Credit Facility and the Prior Credit Facility was 1.89% and 1.75%, respectively.

The fair value of the Company’s senior secured credit facility approximates its carrying value.

The senior secured credit facilityNew Credit Facility requires the Company to comply with a leverage ratio and an interest coverage ratio. In addition, the senior secured credit facilityNew Credit Facility contains customary covenants, including covenants that limit or restrict the Company’s ability to incur liens, incur indebtedness, make investments, dispose of assets, make certain restricted payments, pay dividends, repurchase its common shares, merge or consolidate and enter into certain transactions with affiliates. The Prior Credit Facility also required the Company to comply with a leverage ratio and an interest coverage ratio. The Prior Credit Facility also contained customary covenants, including covenants that limited or restricted the Company’s ability to incur liens, incur indebtedness, make investments, dispose of assets, make certain restricted payments, merge or consolidate and enter into certain transactions with affiliates. As of December 31, 20102011 and 2009,2010, the Company was compliant with its debt covenants.
As of December 31, 2010,covenants under the New Credit Facility and Prior Credit Facility, respectively.

During 2011, the Company was obligated to pay approximately $0.4borrowed $859.7 million and $54.0 million under the New Credit Facility and Prior Credit Facility, respectively, and paid a total of $657.7 million and $228.9 million of the term loan every quarter until June 30, 2013,New Credit Facility and the remaining principal on July 21, 2013. As of December 31, 2010 and 2009, the amounts outstanding under the term loan were $143.9 million and $145.4 million,Prior Credit Facility, respectively.

During 2010, the Company borrowed an aggregate amount of $427.0 million and paid a total amount of $487.0 million of the revolving credit facility.Prior Credit Facility. During 2009, the Company borrowed an aggregate amount of $212.0 million and paid a total amount of $298.7 million of the revolving credit facility. During 2008,Prior Credit Facility. As of December 31, 2011, the Company borrowed an aggregateU.S. dollar amount outstanding under the New Credit Facility was $202.0 million. There were no outstanding foreign currency borrowings as of $118.0 million and paid a total amount of $149.0 million ofDecember 31, 2011 under the revolving credit facility.New Credit Facility. As of December 31, 2010, and 2009, the amounts outstanding under the Prior Credit Facility, consisting of a term loan and revolving credit facility, were $143.9 million and $31.0 million, and $91.0 million, respectively.
Annual

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

There are no annual scheduled principal payments under the Company’s senior credit facility are: $1.5New Credit Facility. All borrowings against the New Credit Facility must be repaid prior to its termination in March 2016.

Interest expense was $9.9 million, $32.5$9.7 million, and $140.9$9.6 million, for the years ended December 31, 2011, 20122010 and 2013,2009, respectively. See Note 5,Interest expense for the year ended December 31, 2011 included a $0.9 million write-off of unamortized deferred financing costs resulting from the extinguishment of the Prior Credit Facility, as discussed above.

5.    Lease obligations, for payments due under capital leases and operating leases.

5.  Lease obligations

The Company has warehouse, office, furniture, fixtures and equipment leases, which expire at various dates through 2020.2021. Under the lease agreements, the Company is also obligated to pay property taxes, insurance and maintenance costs.

Certain leases contain renewal options. Future minimum rental commitments for non-cancelable operating leases and capital leases at December 31, 2010,2011, were as follows (in millions):

         
  Operating  Capital 
 
2011 $39.0  $1.6 
2012  32.2   1.5 
2013  26.0    
2014  21.4    
2015  18.2    
Thereafter  24.7    
         
Total $161.5   3.1 
         
Less: amounts included above representing interest      (0.2)
         
Present value of net minimum lease payments     $2.9 
         

   Operating   Capital 

2012

  $42.9    $1.4  

2013

   34.5       

2014

   26.9       

2015

   22.3       

2016

   12.7       

Thereafter

   23.8       
  

 

 

   

 

 

 

Total

  $163.1    $1.4  
  

 

 

   

Less: amounts included above representing interest

       
    

 

 

 

Present value of net minimum lease payments

    $1.4  
    

 

 

 

Rental expense for the years ended December 31, 2011, 2010 and 2009, and 2008, was $49.2 million, $43.5 million, and $39.7 million, and $40.8 million, respectively.


109


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
Property, plant and equipment under capital leases is included in property, plant and equipment on the accompanying consolidated balance sheets as follows (in millions):
         
  December 31, 
  2010  2009 
 
Equipment $10.7  $15.8 
Less: accumulated depreciation  (8.8)  (12.2)
         
Total $1.9  $3.6 
         
6.  Employee compensation plans

   December 31, 
   2011  2010 

Equipment

  $10.6   $10.7  

Less: accumulated depreciation

   (9.7  (8.8
  

 

 

  

 

 

 

Total

  $0.9   $1.9  
  

 

 

  

 

 

 

6.    Employee compensation plans

The Company maintains a profit sharing plan pursuant to Sections 401(a) and (k) of the Internal Revenue Code of 1986, as amended, or the Code. The plan is available to substantially all employees who meet the length of service requirements. Prior to January 1, 2009, employees could elect to contribute between 2% to 17% of their compensation, and the Company would make matching contributions in an amount equal to one dollar for

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

each dollar of deferred earnings not to exceed 3% of the participants’ earnings. Participants partially vested in the Company contributions after one year and fully vested after five years. Effective January 1, 2009, the Company amended its profit sharing plan. Starting January 1, 2009, employees may elect to contribute up to 75% of their compensation; however, contributions are limited to a maximum annual amount as set periodically by the Code. The Company will make matching contributions in an amount equal to one dollar for each dollar of deferred earnings up to the first 1%, and then make matching contributions in an amount equal to 50% of one dollar for each dollar on the subsequent 5% of deferred earnings. The contributions become fully vested after two years. The Company contributed $2.5 million, $2.3 million, $2.2 million, and $2.0$2.2 million, to its profit sharing plan during the years ended December 31, 2011, 2010, and 2009, and 2008, respectively.

The Company has non-qualified deferred compensation plans for select groups of management: the Herbalife Management Deferred Compensation Plan and the Herbalife Senior Executive Deferred Compensation Plan. The deferred compensation plans allow eligible employees to elect annually to defer up to 75% of their base annual salary and up to 100% of their annual bonus for each calendar year, or the Annual Deferral Amount. The Company makes matching contributions on behalf of each participant in the Senior Executive Deferred Compensation Plan. The Senior Executive Deferred Compensation Plan provides that the amount of the matching contributions is to be determined by the Company at its discretion. For 2009, and 2008, the matching contribution was 3% of a participant’s base salary. In 2010 and 2011, the Company’s matching contribution was increased to 3.5% to alignwhich aligns with the 401(k) retirement plan match.

Each participant in either of the non-qualified deferred compensation plans discussed above has, at all times, a fully vested and non-forfeitable interest in each year’s contribution, including interest credited thereto, and in any Company matching contributions, if applicable. In connection with a participant’s election to defer an Annual Deferral Amount, the participant may also elect to receive a short-term payout, equal to the Annual Deferral Amount plus interest. Such amount is payable in two or more years from the first day of the year in which the Annual Deferral Amount is actually deferred.

The total deferred compensation ofexpense for the two non-qualified deferred compensation plans, net of participant contributions, was an expense of$0.2 million, $2.1 million, and $2.6 million for the years ended December 31, 2011, 2010, and 2009, respectively, and a benefit of $4.5 million for the year ended December 31, 2008.respectively. The total long-term deferred compensation liability under the two deferred compensation plans was $20.2$23.7 million and $16.6$20.2 million at December 31, 2011 and 2010, and 2009, respectively.

The deferred compensation plans are unfunded and their benefits are paid from the general assets of the Company, except that the Company has contributed to a “rabbi trust” whose assets will be used to pay the benefits if the Company remains solvent, but can be reached by the Company’s creditors if the Company becomes insolvent. The value of the assets in the “rabbi trust” was $18.5$20.5 million and $17.4$18.5 million as of December 31, 2011 and 2010, and 2009, respectively.


110


7.    Contingencies

HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
7.  Contingencies
The Company is from time to time engaged in routine litigation. The Company regularly reviews all pending litigation matters in which it is involved and establishes reserves deemed appropriate by management for these litigation matters when a probable loss estimate can be made.

As a marketer of dietary and nutritional supplements and other products that are ingested by consumers or applied to their bodies, the Company has been and is currently subjected to various product liability claims. The effects of these claims to date have not been material to the Company, and the reasonably possible range of exposure on currently existing claims is not material to the Company. The Company believes that it has meritorious defenses to the allegations contained in the lawsuits. The Company currently maintains product liability insurance with an annual deductible of $10 million.

On April 16, 2007, Herbalife International of America, Inc. filed a Complaint in the United States District Court for the Central District of California against certain former Herbalife distributors who had left the Company to join a competitor. The Complaint alleged breach of contract, misappropriation of trade secrets, intentional interference with prospective economic advantage, intentional interference with contract, unfair competition, constructive trust and fraud and seeks monetary damages, attorney’s fees and injunctive relief (Herbalife International of America, Inc. v. Robert E. Ford, et al). The court entered a Preliminary Injunction against the defendants enjoining them from further use

and/orHERBALIFE LTD. misappropriation of the Company’s trade secrets on December 11, 2007. Defendants appealed the court’s entry of the Preliminary Injunction to the U.S. Court of Appeals for the Ninth Circuit. That court affirmed, in relevant part, the Preliminary Injunction. On December 3, 2007, the defendants filed a counterclaim alleging that the Company had engaged in unfair and deceptive business practices, intentional and negligent interference with prospective economic advantage, false advertising and that the Company was an endless chain scheme in violation of California law and seeking restitution, contract rescission and an injunction. Both sides engaged in discovery and filed cross motions for Summary Judgment. On August 25, 2009, the court granted partial summary judgment for Herbalife on all of defendants’ claims except the claim that the Company is an endless chain scheme which under applicable law is a question of fact that can only be determined at trial. The court denied defendants’ motion for Summary Judgment on Herbalife’s claims for misappropriation of trade secrets and breach of contract. On May 5, 2010, the District Court granted summary judgment for Herbalife on defendants’ endless chain-scheme counterclaim. Herbalife voluntarily dismissed its remaining claims, and on May 14, 2010, the District Court issued a final judgment dismissing all of the parties’ claims. On June 10, 2010 the defendants appealed from that judgment and on June 21, 2010, Herbalife cross-appealed. The Company believes that there is merit to its appeal, and it will prevail upon both its appeal as well as the defendant’s appeal.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Certain of the Company’s subsidiaries have been subject to tax audits by governmental authorities in their respective countries. In certain of these tax audits, governmental authorities are proposing that significant amounts of additional taxes and related interest and penalties are due. The Company and its tax advisors believe that there are substantial defenses to their allegations that additional taxes are owed, and the Company is vigorously contesting the additional proposed taxes and related charges. On May 7, 2010, the Company received an administrative assessment from the Mexican Tax Administration Service in an amount equivalent to approximately $93$82 million, translated at the period ended spot rate, for various items, the majority of which was Value Added Tax, or VAT, allegedly owed on certain of the Company’s products imported into Mexico during the years 2005 and 2006. This assessment is subject to interest and inflationary adjustments. On July 8, 2010, the Company initiated a formal administrative appeal process. In connection withOn May 13, 2011, the appeal ofMexican Tax Administration Service issued a resolution on the assessment,Company’s administrative appeal. The resolution nullified the Company may be required to post bonds forassessment. Since the Mexican Tax Administration Service can further review the tax audit findings and re-issue some or all of the assessed amount. Therefore,original assessment, the Company commenced litigation in July 2010,the Tax Court of Mexico in August 2011 to dispute the assertions made by the Mexican Tax Administration Service in the case. The Company expects to receive a response to this litigation from the Mexican Tax Administration. In December 2011, the Mexican Tax Administration commenced a tax audit of one of the Company’s Mexican subsidiaries for the period from January to September 2007. This tax audit is in the initial stages. Prior to the nullification of the assessment relating to the 2005 and 2006 years the Company entered into agreements with certain insurance companies to allow for the potential issuance of surety bonds in support of its appeal of the assessment. Such surety bonds, if issued, would not affect the availability of the Company’s existing credit facility.New Credit Facility. These arrangements with the insurance companies remain in place in the event that the assessment is re-issued. The Company didhas not recordrecognized a provisionloss as the Company, based on its analysis and guidance from its advisors, does not believe a loss would be probable if the assessment is probable.re-issued or if any additional assessment is issued. Further, the Company is currently unable to reasonably estimate a possible loss or range of loss that could result from an unfavorable outcome in respect to thisif the assessment was re-issued or any additional assessments


111


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
that may were to be issued for these or other periods. The Company believes that it has meritorious defenses if the assessment is re-issued or would have meritorious defenses if any additional assessment is issued.

The Company received an assessment from the Spanish Tax Authority in an amount equivalent to approximately $4.2 million translated at the period ended spot rate, for withholding taxes, interest and penalties related to payments to Spanish distributors for the 2003-2004 period. The Company appealed the assessment to the National Appellate Court (Audiencia Nacional). The Company believes that it has meritorious defenses. The Company has not recognized a loss as the Company does not believe a loss is vigorously pursuingprobable. The Company is currently unable to reasonably estimate a possible loss or range of loss that could result from an unfavorable outcome if additional assessments for other periods were to be issued. A decision in the appeal, but final resolutioncase is anticipated in the first half of fiscal year 2012.

The Company received a tax assessment in September 2009, from the Federal Revenue Office of Brazil in an amount equivalent to approximately $4.6 million U.S. dollars translated at the period ended spot rate, related to withholding/contributions based on payments to the Company’s distributors during 2004. The Company has appealed this matter could take several years.

tax assessment to the Administrative Council of Tax Appeals (2nd level administrative appeal) as it believes it has meritorious defenses and it has not recognized a loss as the Company does not believe a loss is probable. The Company is currently unable to reasonably estimate the amount of the loss that may result from an unfavorable outcome if additional assessments for other periods were to be issued.

These matters may take several years to resolve. While the Company believes it has meritorious defenses, it cannot be sure of their ultimate resolution. Although the Company has reserved amounts for certain matters that the Company believes represent the most likely outcome of the resolution of these related disputes, if the Company is incorrect in the assessment, the Company may have to record additional expenses, when it becomes probable that an increased potential liability is warranted.

8.  Shareholders’ equity

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

8.    Shareholders’ equity

The Company had 58.9115.8 million, 60.2117.8 million, and 61.4120.5 million common shares outstanding at December 31, 2011, 2010 2009 and 2008,2009, respectively. In December 2004, the Company authorized 7.5 million preference shares at $0.002 par value. The 7.5 million authorized preference shares remained unissued as of December 31, 2010.2011 and were not adjusted as a result of the stock split as the preference shares were to remain unaffected by the stock split as discussed further below. Preference shares may be issued from time to time in one or more series, each of such series to have such voting powers (full or limited or without voting powers), designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions as determined by the Company’s board of directors.

DividendsStock Split

On April 28, 2011, the Company’s shareholders approved a 2-for-1 split of the Company’s common shares. One additional common share was distributed to the Company’s shareholders on or around May 17, 2011, for each common share held on May 10, 2011. All common shares subject to outstanding equity awards and warrants, as well as the number of common shares reserved for issuance under the Company’s share-based compensation plans, were adjusted proportionately.

Dividends

The declaration of future dividends is subject to the discretion of the Company’s board of directors and will depend upon various factors, including its earnings, financial condition, restrictions imposed by its credit agreement,the New Credit Facility and the terms of any other indebtedness that may be outstanding, cash requirements, future prospects and other factors deemed relevant by its board of directors. The senior credit facility,New Credit Facility entered into on July 21, 2006, as amended,March 9, 2011, permits payments of dividends as long as no default or event of default exists and the sum ofconsolidated leverage ratio specified in the amounts paid with respect to dividends and share repurchases doesNew Credit Facility is not exceed the sum of $450.0 million plus 75% of cumulative consolidated net income from the first quarter of 2007 to the last day of the quarter most recently ended prior to the date of the dividend.

exceeded.

During the second quarter of 2007, the Company’s board of directors adopted a regular quarterly cash dividend program. The Company’s board of directors authorized a $0.20$0.10 per common share cash dividend each quarter from the adoption of the program through the second quarter of 2010. On August 2, 2010, the Company’sCompany announced that its board of directors approved an increase in the quarterly cash dividend to $0.25$0.13 per common share, an increase of $0.05$0.03 per common share from prior quarters. On May 2, 2011, the Company announced that its board of directors approved an increase in the quarterly cash dividend to $0.20 per common share, an increase of $0.07 per common share from prior quarters. The aggregate amount of dividends paid and declared during the fiscal years ended December 31, 2011, 2010, 2009, and 2008,2009, was approximately $85.5 million, $53.7 million, and $48.7 million, and $50.7 million, respectively.

Share Repurchases

On April 18, 2007, the Company’s board of directors authorized the repurchase of up to $300 million of the Company’s common shares during the next two years, at such times and prices as determined by Company management, as market conditions warrant. On August 23, 2007, the Company’s board of directors approved an increase of $150 million to its previously authorized share repurchase program raising the total value of Company common shares authorized to be repurchased to $450 million. On May 20, 2008, the Company’s board of directors approved an additional increase of $150 million to the share repurchase program raising the total value of Company common shares authorized to be repurchased to $600 million.

On April 17, 2009, the Company’s share repurchase program adopted on April 18, 2007 expired pursuant to its terms.

On April 30, 2009, the Company announced that its board of directors authorized a new program for the Company to repurchase up to $300 million of Herbalife common shares during the nextfollowing two years, at such times and prices as determined by the Company’s management as market conditions warrant. On May 3, 2010, the Company’s board of directors approved an increase to the share repurchase authorization from $300 million to $1 billion. In addition, the Company’s board of directors approved the extension of the expiration date of the share repurchase


112


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
program from April 2011 to December 2014. The New Credit Facility permits the Company to repurchase its common shares as long as no default or event of default exists and the consolidated leverage ratio specified in the New Credit Facility is not exceeded. As of December 31, 2010,2011, the remaining authorized capacity under the Company’s share repurchase program was approximately $776.7$477.9 million.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

During the year ended December 31, 2011, the Company repurchased 5.5 million of its common shares through open market purchases at an aggregate cost of approximately $298.8 million, or an average cost of $54.27 per share. During the year ended December 31, 2010, the Company repurchased 2.95.7 million of its common shares through open market purchases at an aggregate cost of approximately $150.1 million, or an average cost of $52.25$26.13 per share. During the year ended December 31, 2009, the Company repurchased 2.04.0 million of its common shares through open market purchases at an aggregate cost of approximately $73.2 million, or an average cost of $36.60$18.30 per share. During the year ended December 31, 2008, the Company repurchased approximately 4.6 million of common shares through open market purchases at an aggregate cost of $137.0 million, or an average cost of $29.60 per share.

The aggregate purchase price of the common shares repurchased was reflected as a reduction to shareholders’ equity. The Company allocated the purchase price of the repurchased shares as a reduction to retained earnings, common shares and additionalpaid-in-capital.

The number of shares issued upon vesting or exercise for certain restricted stock units and stock appreciation rightsSARs granted, pursuant to the Company’s share-based compensation plans, is net of the minimum statutory withholding requirements that the Company pays on behalf of its employees. Although shares withheld are not issued, they are treated as common share repurchases for accounting purposes,in the Company’s consolidated financial statements, as they reduce the number of shares that would have been issued upon vesting.

9.  Share-Based Compensation
These shares do not count against the authorized capacity under the Company’s share repurchase program described above.

9.    Share-Based Compensation

The Company has five share-based compensation plans, the WH Holdings (Cayman Islands) Ltd. Stock Incentive Plan, or the Management Plan, the WH Holdings (Cayman Islands) Ltd. Independent Directors Stock Incentive Plan, or the Independent Directors Plan, the Herbalife Ltd. 2004 Stock Incentive Plan, or the 2004 Stock Incentive Plan, the Amended and Restated Herbalife Ltd. 2005 Stock Incentive Plan, or the 2005 Stock Incentive Plan, and the Amended and Restated Herbalife Ltd. Independent Directors Deferred Compensation and Stock Unit Plan, or the Independent Director Stock Unit Plan. The Management Plan providesprovided for the grant of options to purchase common shares of Herbalife to members of the Company’s management. The Independent Directors Plan providesprovided for the grant of options to purchase common shares of Herbalife to the Company’s independent directors. The 2004 Stock Incentive Plan replaced the Management Plan and the Independent Directors Plan and after the adoption thereof, no additional awards were made under either the Management Plan or the Independent Directors Plan. However, the shares remaining available for issuance under these plans were absorbed by and became available for issuance under the 2004 Stock Incentive Plan. The 2005 Stock Incentive Plan replaced the 2004 Stock Incentive Plan and after the adoption thereof, no additional awards were made under the 2004 Stock Incentive Plan. The terms of the 2005 Stock Incentive Plan are substantially similar to the terms of the 2004 Stock Incentive Plan. The 2005 Stock Incentive Plan authorizes the issuance of 4,000,00014,400,000 common shares pursuant to awards granted under the plan, plus any shares that remained available for issuance under the 2004 Stock Incentive Plan at the time of the adoption of the 2005 Stock Incentive Plan. The purpose of the Independent Directors Stock Unit Plan is to facilitate equity ownership in the Company by its independent directors through the award of stock units. At December 31, 20102011 an aggregate of approximately 0.95.1 million common shares remain available for future issuance under the share-based compensation plans.

2005 Stock Incentive Plan and the Independent Directors Stock Unit Plan.

The Company’s share-based compensation plans provide for grants of stock options, stock appreciation rights, or SARS,SARs, and stock units, which are collectively referred to herein as awards. Stock options typically vest quarterly over a five-year period or less, beginning on the grant date, and certain stock option grants vest over a period of less than five years.date. Certain SARSSARs vest quarterly over a five-year period beginning on the grant date. Other SARSSARs vest annually over a three-year period. The contractual term of service condition stock options and SARSSARs is generally ten years. Stock unit awards under the 2005 Incentive Plan, or Incentive Plan Stock Units, vest annually over a three year period which is equal to the contractual term. Stock units awarded under the

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Independent Directors Stock Unit Plan, or Independent Director Stock Units, vest at a rate of 25% on each January 15, April 15, July 15 and October 15. In January 2009, the Company amended the Independent Directors Planmoved to comply with newly issued Code Section 457A to eliminate the deferral election and to move to SARS fromgranting SARs instead of stock units.units for its independent directors. In March 2008, the Company granted stock unit awards to its Chairman and Chief Executive Officer, which vest over a four-year period at a rate of 30% during each of the first three years and 10%


113


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
during the fourth year. In February 2009, the Company granted stock units and SARSSARs to certain employees subject to continued service, one-third of which vest on the third anniversary of the date of grant, one-third of which vest on the fourth anniversary of the date of grant, and the remaining one-third of which vest on the fifth anniversary of the date of grant. In 2010, the Company granted other stock units to certain key employees subject to continued service, one half of which vest on the first anniversary of the date of the grant, and the remaining half of which vest on the second anniversary of the date of the grant.

Awards can be subject to the following: market and service conditions, or market condition awards,awards; market, service and performance conditions, or market and performance condition awards; or be subject only to only continued service with the Company, or service condition awards. All awards granted by the Company are either market condition awards, market and performance condition awards, or service condition awards. Unless otherwise determined at the time of grant, the value of each stock unit shall be equal to one common share of Herbalife. The Company’s stock compensation awards outstanding as of December 31, 20102011 include stock options, SARS,SARs, and stock units.

In March 2008, the Company granted SARS with market conditionscondition SARs to its Chairman and Chief Executive Officer, which will fully vest at the end of four years subject to his continued employment through that date and the achievement of certain conditions related to the market value of the Company’s common shares. The market conditions include targets for stock price appreciation of both a 10% and a 15% compound annual growth rate.

The fair value of these SARs was determined on the date of the grant using the Monte Carlo lattice model.

In August 2011, the Company granted market and performance condition SARs to its Chairman and Chief Executive Officer. These awards will vest on December 31, 2014, subject to his continued employment through that date, the Company’s stock price appreciating and exceeding a targeted price, and the Company’s achievement of certain volume point performance targets. The fair value of these SARs was determined on the date of the grant using the Monte Carlo lattice model.

The Company records compensation expense over the requisite service period which is equal to the vesting period. For awards granted on or after January 1, 2006, the compensation expense is recognized on a straight-line basis over the vesting term. Stock-based compensation expense is included in selling, general and administrative expenses in the consolidated statements of income. For the years ended December 31, 2011, 2010, 2009, and 2008,2009, share-based compensation expense, relating to service condition awards, amounted to $19.2 million, $20.0 million, $18.4 million, and $15.9$18.4 million, respectively. For the years ended December 31, 2011, 2010 2009 and 2008,2009, share-based compensation expense, relating to market condition awards, amounted to $2.9 million, $3.0 million, and $2.7 million, respectively. For the year ended December 31, 2011, share-based compensation expense, relating to market and $1.9 million, respectively.performance condition awards, amounted to $1.4 million. For the years ended December 31, 2011, 2010, 2009, and 2008,2009, the related income tax benefits recognized in earnings for all awards amounted to $7.5 million, $7.4 million, and $7.9 million, and $6.7 million, respectively.

As of December 31, 2010,2011, the total unrecognized compensation cost related to non-vested service condition stock awards was $25.9$34.1 million and the related weighted-average period over which it is expected to be recognized is approximately 1.5 years. As of December 31, 2010,2011, the total unrecognized compensation cost related to non-vested market condition stock awards was $3.5$0.7 million and the related weighted-average period over which it is expected to be recognized is approximately 1.20.2 years.

As of December 31, 2011, the total unrecognized compensation cost related to non-vested market and performance condition awards was $11.7 million and the related weighted-average period over which it is expected to be recognized is approximately 3.0 years.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

For the years ended December 31, 2011, 2010, 2009, and 2008,2009, excess tax benefits of $16.7 million, $3.6$27.5 million, and $15.3$8.0 million, and $3.6 million, respectively, were generated and recognized from exercises of awards.

Stock units are valued at the market value on the date of grant. The fair value of all SARS and stock optionsservice condition SARs are estimated on the date of grant using the Black-Scholes-Merton option-pricing model andmodel. The fair value of market condition SARs are estimated on the date of grant using the Monte Carlo lattice model, respectively. Themodel. Historically, the expected term of the SARSSARs and stock options arewas based on the simple average of the average vesting period and the life of the award, or the simplified method, becausemethod. During the fourth quarter of 2011, the limitedCompany began calculating the expected term of its SARs based on historical data.data as more historical information was available. All groups of employees have been determined to have similar historical exercise patterns for valuation purposes. The expected volatility of the SARSSARs and stock options are based upon the historical volatility of the Company’s common shares and it is also validated against the volatility rates of a peer group of companies. The risk free interest rate is based on the implied yield on a U.S. Treasury zero-coupon issue with a remaining term equal to the expected term of the SARSSARs and stock options. The expected dividend yield assumption is based on the Company’s historical and expected amount of dividend payouts.


114


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
There were no stock options granted during the years ended December 31, 2011, 2010 2009 and 2008.2009. The following table summarizes the weighted average assumptions used in the calculation of the fair value for service condition awards for the years ended December 31, 2011, 2010 2009 and 2008:
                         
  SARS  Independent Director’s SARS 
  Year Ended December 31,  Year Ended December 31, 
  2010  2009  2008  2010  2009  2008 
 
Expected volatility  48.3%  48.5%  39.5%  48.2%  48.6%   
Dividends yield  1.8%  5.7%  2.0%  1.7%  5.8%   
Expected term  6.4 years   6.5 years   6.2 years   3.8 years   3.8 years    
Risk-free interest rate  2.4%  2.3%  2.6%  1.3%  1.4%   
2009:

   SARs  Independent Director’s SARs 
   Year Ended December 31,  Year Ended December 31, 
   2011  2010  2009  2011  2010  2009 

Expected volatility

   46.6  48.3  48.5  49.4  48.2  48.6

Dividends yield

   1.5  1.8  5.7  1.5  1.7  5.8

Expected term

   6.2 years    6.4 years    6.5 years    3.8 years    3.8 years    3.8 years  

Risk-free interest rate

   1.9  2.4  2.3  1.0  1.3  1.4

There were no market condition awards or market and performance condition awards granted during the years ended December 31, 2010 and 2009. For market and performance condition awards granted during the year ended December 31, 2008,2011, the following table summarizes the weighted average assumptions used in the calculation of the fair value:

   SARs 
   SARSYear Ended
December 31,
2011
 
Year Ended
December 31,
2008

Expected volatility

   38.544.0%

Dividends yield

   1.61.4%

Expected term

   5.55.2 years  

Risk-free interest rate

   2.61.2%

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The following tables summarize the activity under all share-based compensation plans, which includes all stock awards, for the year ended December 31, 2010:

                 
        Weighted
    
     Weighted
  Average
  Aggregate
 
     Average
  Remaining
  Intrinsic
 
Stock Options & SARS Awards  Exercise Price  Contractual Term  Value(1) 
  (In thousands)        (In millions) 
 
Outstanding at December 31, 2009  7,372  $24.84   5.9 years  $123.6 
Granted  890  $45.17         
Exercised  (1,813) $20.77         
Forfeited  (59) $32.26         
                 
Outstanding at December 31, 2010(2)  6,390  $28.75   5.7 years  $253.1 
                 
Exercisable at December 31, 2010  3,302  $23.20   4.1 years  $149.2 
                 
2011:

Stock Options & SARs

  Awards  Weighted
Average
Exercise Price
   Weighted
Average
Remaining
Contractual Term
   Aggregate
Intrinsic
Value(1)
 
   (In thousands)          (In millions) 

Outstanding at December 31, 2010(2)

   12,780   $14.38     5.7 years    $253.1  

Granted(3)

   2,100   $54.83      

Exercised

   (3,575 $12.39      

Forfeited

   (136 $18.90      
  

 

 

      

Outstanding at December 31, 2011(4)

   11,169   $22.54     5.5 years    $332.8  
  

 

 

      

Exercisable at December 31, 2011

   4,369   $13.30     4.2 years    $167.7  
  

 

 

      

(1)The intrinsic value is the amount by which the current market value of the underlying stock exceeds the exercise price of the stock award.

(2)Includes 0.81.5 million market condition awardsSARs that were outstanding as of December 31, 2010.


115

(3)Includes 0.9 million market and performance condition SARs granted to the Company’s Chairman and Chief Executive Officer.

(4)Includes 1.5 million market condition SARs and 0.9 million market and performance condition SARs that were outstanding as of December 31, 2011.


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
             
     Weighted
    
     Average
    
     Grant Date
  Aggregate
 
Incentive Plan and Independent Directors Stock Units Shares  Fair Value  Fair Value 
  (In thousands)     (In millions) 
 
Outstanding and nonvested at December 31, 2009  689.5  $26.35  $18.2 
Granted  121.1  $45.71   5.5 
Vested  (221.3) $34.04   (7.5)
Forfeited  (9.1) $23.13   (0.2)
             
Outstanding and nonvested at December 31, 2010  580.2  $27.51  $16.0 
             
The weighted-average grant date fair value of service condition awardsSARs granted during the years ended December 31, 2011, 2010, and 2009 was $21.23, $9.32, and 2008 was $21.88, $6.42, and $23.58,$2.04, respectively. The weighted-average grant date fair value of market and performance condition awardsSARs granted during the year ended December 31, 20082011 was $14.59.$17.37. The total intrinsic value of service condition awardsstock options and SARs exercised during the years ended December 31, 2011, 2010 and 2009 and 2008 was $133.8 million, $63.8 million, $16.4 million, and $45.8$16.4 million, respectively. There were no market condition, awardsor market condition and performance condition SARs exercised during the years ended December 31, 2011, 2010 and 2009.

Incentive Plan and Independent Directors Stock Units

  Shares  Weighted
Average
Grant Date
Fair Value
 
   (In thousands)    

Outstanding and nonvested at December 31, 2010

   1,160.5   $13.76  

Granted

   25.0   $42.82  

Vested

   (456.5 $17.76  

Forfeited

   (11.4 $11.93  
  

 

 

  

Outstanding and nonvested at December 31, 2011

   717.6   $12.25  
  

 

 

  

The total vesting date fair value of stock units which vested during the years ended December 31, 2011, 2010 and 2009 was $19.8 million, $10.3 million, and 2008.

$4.3 million, respectively.

In the second quarter of 2011, the Company changed its method of accounting for excess tax benefits recognized as a result of the exercise of employee stock options, SARs, and other share-based equity grants, from the tax-law-ordering method to the with-and-without method. This change in accounting principle is applied to all applicable periods presented. See Note 2,Basis of Presentation, for further information on this change in accounting principle.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Employee Stock Purchase Plan

During 2007, the Company adopted a qualified employee stock purchase plan, or ESPP, which was implemented during the first quarter of 2008. In connection with the adoption of the ESPP, the Company has reserved for issuance a total of 12 million common shares. At December 31, 2010,2011, approximately 0.91.9 million common shares remain available for future issuance. Under the terms of the ESPP, rights to purchase common shares may be granted to eligible qualified employees subject to certain restrictions. The ESPP enables the Company’s eligible employees, through payroll withholdings, to purchase a limited number of common shares at 85% of the fair market value of a common share at the purchase date. Purchases are made on a quarterly basis.

10.    Segment Information

10.  

Segment Information
The Company is a network marketing company that sells a wide range of weight management products, nutritional supplements and personal care products within one industry segment as defined under the FASB ASC Topic 280,Segment Reporting. The Company’s products are manufactured by third party providers and by the Company in its Suzhou, China facility and in its manufacturing facility located in Lake Forest, California facility, and then are sold to independent distributors who sell Herbalife products to retail consumers or other distributors. Revenues reflect sales of products by the Company to distributors and are categorized based on the distributors’ geographic location.
The

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

As of December 31, 2011, the Company sells products in 7479 countries throughout the world and is organized and managed by geographic regions. The Company aggregates its operating segments, excluding China, into one reporting segment, or the Primary Reporting Segment, as management believes that the Company’s operating segments have similar operating characteristics and similar long term operating performance. In making this determination, management believes that the operating segments are similar in the nature of the products sold, the product acquisition process, the types of customers to whom products are sold, the methods used to distribute the products, and the nature of the regulatory environment. China has been identified as a separate reporting segment as it does not meet the criteria for

116


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
aggregation. The operating information for the Primary Reporting Segment and China, and sales by product line are as follows:
             
  Year Ended December 31, 
  2010  2009  2008 
  (In millions) 
 
Net Sales:
            
Primary Reporting Segment:            
United States $595.4  $512.9  $477.6 
Mexico  334.0   263.0   352.2 
Others  1,620.4   1,396.4   1,384.4 
             
Total Primary Reporting Segment  2,549.8   2,172.3   2,214.2 
China  184.4   152.3   145.0 
             
Total Net Sales $2,734.2  $2,324.6  $2,359.2 
             
Operating Margin(1)(2):
            
Primary Reporting Segment:            
United States $257.0  $220.0  $200.5 
Mexico  131.7   104.0   155.4 
Others  721.5   613.3   623.0 
             
Total Primary Reporting Segment  1,110.2   937.3   978.9 
China(3)  165.0   132.6   125.1 
             
Total Operating Margin $1,275.2  $1,069.9  $1,104.0 
Selling, general and administrative expense  887.7   773.9   771.8 
Interest expense  9.7   9.6   20.1 
Interest income  2.3   4.5   6.9 
             
Income before income taxes  380.1   290.9   319.0 
Income taxes  89.6   87.6   97.8 
             
Net Income $290.5  $203.3  $221.2 
             
Capital Expenditures:
            
United States $51.0  $45.4  $91.7 
Mexico  2.5   1.4   1.4 
China  3.1   3.7   3.7 
Others  11.5   9.6   10.0 
             
Total Capital Expenditures $68.1  $60.1  $106.8 
             


117

The following table table broken into two for XBRL tagging.


   Year Ended December 31, 
   2011   2010   2009 
   (In millions) 

Net Sales:

      

Primary Reporting Segment:

      

United States

  $676.9    $595.4    $512.9  

Mexico

   436.9     334.0     263.0  

South Korea

   343.5     208.9     115.0  

Others

   1,786.4     1,411.5     1,281.4  
  

 

 

   

 

 

   

 

 

 

Total Primary Reporting Segment

   3,243.7     2,549.8     2,172.3  

China

   210.8     184.4     152.3  
  

 

 

   

 

 

   

 

 

 

Total Net Sales

  $3,454.5    $2,734.2    $2,324.6  
  

 

 

   

 

 

   

 

 

 

Contribution Margin(1):

      

Primary Reporting Segment:

      

United States

  $286.3    $257.0    $220.0  

Mexico

   191.1     131.7     104.0  

South Korea

   163.1     103.0     54.4  

Others

   810.0     618.5     558.9  
  

 

 

   

 

 

   

 

 

 

Total Primary Reporting Segment

   1,450.5     1,110.2     937.3  

China(2)

   186.4     165.0     132.6  
  

 

 

   

 

 

   

 

 

 

Total Contribution Margin

  $1,636.9    $1,275.2    $1,069.9  

Selling, general and administrative expense

   1,074.6     887.7     773.9  

Interest expense

   9.9     9.7     9.6  

Interest income

   7.4     2.3     4.5  
  

 

 

   

 

 

   

 

 

 

Income before income taxes

   559.8     380.1     290.9  

Income taxes

   147.2     80.9     87.6  
  

 

 

   

 

 

   

 

 

 

Net Income

  $412.6    $299.2    $203.3  
  

 

 

   

 

 

   

 

 

 

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

             
  Year Ended December 31, 
  2010  2009  2008 
  (In millions) 
 
Net sales by product line:
            
Weight Management $1,698.9  $1,464.8  $1,485.0 
Targeted Nutrition  629.2   493.7   491.8 
Energy, Sports & Fitness  121.3   98.7   99.6 
Outer Nutrition  127.5   128.3   146.6 
Literature, Promotional and Other(4)  157.3   139.1   136.2 
             
Total Net Sales $2,734.2  $2,324.6  $2,359.2 
             
Net sales by geographic region:
            
North America(5) $614.1  $529.0  $496.9 
Mexico  334.0   263.0   352.2 
South & Central America  390.4   366.9   383.6 
EMEA(6)  527.8   504.2   570.7 
Asia Pacific(7)  683.5   509.2   410.8 
China  184.4   152.3   145.0 
             
Total Net Sales $2,734.2  $2,324.6  $2,359.2 
             

   Year Ended December 31, 
   2011   2010   2009 
   (In millions) 

Capital Expenditures:

      

United States

  $60.4    $51.0    $45.4  

Mexico

   3.5     2.5     1.4  

South Korea

   2.1     0.4     1.6  

China

   6.6     3.1     3.7  

Others

   18.3     11.1     8.0  
  

 

 

   

 

 

   

 

 

 

Total Capital Expenditures

  $90.9    $68.1    $60.1  
  

 

 

   

 

 

   

 

 

 

   Year Ended December 31, 
   2011   2010   2009 
   (In millions) 

Net sales by product line:

      

Weight Management

  $2,158.7    $1,698.9    $1,464.8  

Targeted Nutrition

   789.6     629.2     493.7  

Energy, Sports & Fitness

   169.8     121.3     98.7  

Outer Nutrition

   147.8     127.5     128.3  

Literature, Promotional and Other(3)

   188.6     157.3     139.1  
  

 

 

   

 

 

   

 

 

 

Total Net Sales

  $3,454.5    $2,734.2    $2,324.6  
  

 

 

   

 

 

   

 

 

 

Net sales by geographic region:

      

North America

  $698.6    $614.1    $529.0  

Mexico

   436.9     334.0     263.0  

South & Central America

   554.4     390.4     366.9  

EMEA

   615.2     527.8     504.2  

Asia Pacific

   938.6     683.5     509.2  

China

   210.8     184.4     152.3  
  

 

 

   

 

 

   

 

 

 

Total Net Sales

  $3,454.5    $2,734.2    $2,324.6  
  

 

 

   

 

 

   

 

 

 

(1)OperatingContribution margin consists of net sales less cost of sales and royalty overrides. See Part II, Item 7 — Management’s Discussion and Analysis of Financial Condition and Results of Operationsin this Annual Report on Form 10-K for a description of net sales, cost of sales and royalty overrides.

(2)In the third quarter of 2010, the Company changed its method of allocation for certain costs to its business segments. Historical information presented has been reclassified to conform to the current presentation. This change had no effect on the Company’s consolidated statements of income.
(3)Compensation to China sales employees and service fees to China licensed businessindependent service providers totaling $96.8 million, $87.3 million $79.1 million and $70.3$79.1 million for the years ended December 31, 2011, 2010 2009 and 2008,2009, respectively, are included in selling, general and administrative expenses while distributor compensation for all other countries is included in royalty overrides.contribution margin.

(4)(3)Product buybacks and returns in all product categories are included in the literature, promotional and other category.
(5)Consists of the U.S., Canada and Jamaica.
(6)Consists of Europe, Middle East and Africa.
(7)Consists of Asia (excluding China), New Zealand and Australia.

As of December 31, 20102011 and 2009,2010, total assets for the Company’s Primary Reporting Segment were $1,162.1$1,357.4 million and $1,097.1$1,162.1 million, respectively. Total assets for the China segment were $70.1$88.8 million and $49.0$70.1 million as of December 31, 2011 and 2010, and 2009, respectively.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

As of December 31, 20102011 and 2009,2010, goodwill allocated to the Company’s reporting units included in the Company’s Primary Reporting Segment was $99.8$102.4 million and $99.4$99.8 million, respectively. Goodwill allocated to the China segment was $3.1 million as of December 31, 20102011 and 2009.

2010.

As of December 31, 2011, the net property, plant and equipment located in the U.S. and in all foreign countries was $144.2 million and $49.5 million, respectively. As of December 31, 2010, the net property, plant and equipment located in the U.S. and in all foreign countries was $141.1 million and $36.3 million, respectively.

As of December 31, 2009,2011, the net property, plant and equipment located indeferred tax assets related to the U.S. and in all foreign countries was $145.3$65.4 million and $32.7$46.8 million, respectively.

118


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
As of December 31, 2010, the deferred tax assets related to the U.S. and all foreign countries was $65.8$72.9 million and $34.8 million, respectively. As of December 31, 2009, the deferred tax assets related to the U.S. and all the foreign countries was $43.5 million and $33.8 million, respectively.
Most

The majority of the Company’s foreign subsidiaries designate their local currencies as their functional currency. As of December 31, 20102011 and 2009,2010, the total amount of cash held by foreign subsidiaries reported in the Company’s consolidated balance sheet was $188.2$246.0 million and $149.6$188.2 million, respectively, of which $5.8$9.2 million and $11.9$5.8 million, respectively, was maintained or invested in U.S. dollars. See Note 2,Basis of Presentation,for further discussion on Herbalife Venezuela’s cash

11.    Derivative Instruments and cash equivalents.

Hedging Activities

11.  

Derivative Instruments and Hedging Activities
Interest Rate Risk Management

The Company engages in an interest rate hedging strategy for which the hedged transactions are forecasted interest payments on the Company’s variable rate term loan.New Credit Facility. The hedged risk is the variability of forecasted interest rate cash flows, where the hedging strategy involves the purchase of interest rate swaps. For the outstanding cash flow hedges on interest rate exposures at December 31, 2010,2011, the maximum length of time over which the Company is hedging certain of these exposures is less than three years.

Under its senior secured credit facility, the Company was obligated to enter into interest rate hedges for up to 25% of the aggregate principal amount of the term loan for a minimum of three years. On August 23, 2006, the Company entered into an interest rate swap agreement. The agreement provided for the Company to pay interest for a three-year period at a fixed rate of 5.26% on the initial notional principal amount of $180.0 million while receiving interest for the same period at the LIBOR rate on the same notional principal amount. The notional amount was scheduled to be reduced by $20.0 million in the second, thirdapproximately one year and fourth quarters of each year commencing January 1, 2007 throughout the term of the swap. The swap had been designated as a cash flow hedge against the variability in the LIBOR interest rate on the Company’s term loan at LIBOR plus 1.50%, thereby fixing the Company’s effective rate on the notional amounts at 6.76%. In September 2009, the interest swap expired and was consequently settled. As of December 31, 2009, there were no amounts remaining in other comprehensive income relating to this expired interest swap and the swap had no value.
On June 26, 2009, the Company entered into an interest rate swap agreement, with an effective date of June 30, 2009, which expired on September 30, 2009. The swap notional amount was $20 million, where the Company paid three month LIBOR and received one month LIBOR plus 0.185%. As of December 31, 2009, the interest rate swap agreement expired and all outstanding amounts were settled. The Company elected not to apply hedge accounting for this interest rate swap.
seven months.

During August 2009, the Company entered into four interest rate swap agreements with an effective date of December 31, 2009. The agreements collectively provide for the Company to pay interest for less than a four-year period at a weighted average fixed rate of 2.78% on notional amounts aggregating to $140.0 million while receiving interest for the same period at the one month LIBOR rate on the same notional amounts. These agreements will expire in July 2013. These swaps have beenat inception were designated as cash flow hedges against the variability in the LIBOR interest rate on the Company’s term loan under the Prior Credit Facility or against the variability in the LIBOR interest rate on the replacement debt. The Company’s term loan under the Prior Credit Facility was terminated in March 2011 and refinanced with the New Credit Facility as discussed further in Note 4,Long-Term Debt. The Company’s swaps remain effective and continue to be designated as cash flow hedges against the variability in certain LIBOR interest rate borrowings under the New Credit Facility at LIBOR plus 1.50% to 2.50%, thereby fixing the Company’s weighted average effective rate on the notional amounts at 4.28% to 5.28%. There was no hedge ineffectiveness recorded as result of this refinancing event.

The Company formally assesses both at inceptionhedge effectiveness and measures hedge ineffectiveness at least quarterly thereafter, whetherquarterly. During the derivatives used in hedging transactions areyears ended December 31, 2011 and 2010, the ineffective portion relating to these hedges was immaterial and the hedges remained effective in offsetting changes in cash flows of the hedged item. Asas of December 31, 2010, the hedge relationships qualified as effective hedges under FASB ASC Topic 815,Derivatives and Hedging, or ASC 815.2011. Consequently, all changes in the fair value of the derivatives are deferred and recorded in other comprehensive income (loss) until the related forecasted transactions are recognized in the consolidated statements of income. The fair value of the interest rate swap agreements are based on third-party bank quotes. At December 31, 20102011 and December 31, 2009,2010, the Company recorded the interest rate swaps as liabilities at their fair value of $5.1 million and $6.6 million, and $2.6 million, respectively.


119


HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The table below describes the interest rate swaps in aggregate, and the fair value of the liabilities that were outstanding as of December 31, 20102011 and 2009:

                 
  Aggregate
  Average
  Aggregate
    
  Notional
  Swap
  Fair
  Maturity
 
Interest Rate Amounts  Rate  Value  Dates 
  (In millions)     (In millions)    
 
At December 31, 2010
                
Interest Rate Swaps $140.0   2.78% $(6.6)  July 2013 
At December 31, 2009
                
Interest Rate Swaps $140.0   2.78% $(2.6)  July 2013 
2010:

Interest Rate

  Aggregate
Notional
Amounts
   Average
Swap
Rate
  Aggregate
Fair
Value
  Maturity
Dates
 
   (In millions)      (In millions)    

At December 31, 2011

      

Interest Rate Swaps

  $140.0     2.78 $(5.1  July 2013  

At December 31, 2010

      

Interest Rate Swaps

  $140.0     2.78 $(6.6  July 2013  

Foreign Currency Instruments

The Company also designates certain foreign currency derivatives, such as certain foreign currency forward and option contracts, as freestanding derivatives for which hedge accounting does not apply. The changes in the fair market value of thethese freestanding derivatives are included in selling, general and administrative expenses in the Company’s consolidated statements of income. The Company uses foreign currency forward contracts to hedge foreign-currency-denominated intercompany transactions and to partially mitigate the impact of foreign currency fluctuations. The Company also uses foreign currency option contracts to partially mitigate the impact of foreign currency fluctuations. The fair value of the forward and option contracts are based on third-party bank quotes.

The Company’s foreign currency derivative contracts are generally executed on a monthly basis.

The Company also purchasesdesignates as cash-flow hedges those foreign currency forward contracts in orderit entered into to hedge forecasted inventory purchases and intercompany management fees that are designated as cash-flow hedges and are subject to foreign currency exposures. The Company applied the hedge accounting rules as required by ASC 815 for these hedges. These contracts allow the Company to sell Euros in exchange for U.S. dollars at specified contract rates. As of December 31, 2010 and 2009, the aggregate notional amounts of these contracts outstanding were approximately $32.1 million and $66.8 million, respectively. At December 31, 2010, the outstanding contracts were expected to mature over the next twelve months. The Company’s derivative financial instruments are recorded on the consolidated balance sheet at fair value based on third-party bank quotes. Forward contracts are used to hedge forecasted inventory purchases over specific months. Changes in the fair value of these forward contracts, excluding forward points, designated as cash-flow hedges are recorded as a component of accumulated other comprehensive income (loss) within shareholders’ equity, and are recognized in cost of sales in the consolidated statement of income during the period which approximates the time the hedged inventory is sold. The Company also hedges forecasted intercompany management fees over specific months. These contracts allow the Company to sell Euros in exchange for U.S. dollars at specified contract rates. Changes in the fair value of these forward contracts designated as cash flow hedges are recorded as a component of accumulated other comprehensive income (loss) within shareholders’ equity, and are recognized in selling, general and administrative expenses in the consolidated statement of income during the period when the hedged item and underlying transaction affect earnings.

As of December 31, 2011 and 2010, the aggregate notional amounts of all foreign currency contracts outstanding designated as cash flow hedges were approximately $64.4 million and $32.1 million, respectively. At December 31, 2011, these outstanding contracts were expected to mature over the next fifteen months. The Company’s derivative financial instruments are recorded on the consolidated balance sheet at fair value based on third-party bank quotes. As of December 31, 2011, the Company recorded assets at fair value of $4.4 million relating to all outstanding foreign currency contracts designated as cash-flow hedges. As of December 31, 2010, the Company recorded assets at fair value of $0.6 million and liabilities at fair value of $0.8 million relating to all outstanding foreign currency contracts designated as cash-flow hedges. As of December 31, 2009, the Company recorded assets at fair value of $2.3 million relating to all outstanding foreign currency contracts designated as cash-flow hedges. The Company assesses hedge effectiveness and measures hedge ineffectiveness at least quarterly. During the years ended December 31, 20102011 and 2009,2010, the ineffective portion relating to these hedges was immaterial and the hedges remained effective as of December 31, 2010 and 2009.

2011.

As of December 31, 20102011 and 2009,2010, the majority of the Company’s outstanding foreign currency forward contracts had maturity dates of less than one yearfifteen months and twelve months, respectively, with the majority of freestanding derivatives expiring within one month and three months.months, respectively. There were no foreign currency option contracts outstanding as of December 31, 20102011 and 2009.


120

2010.


HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The table below describes all foreign currency forward contracts that were outstanding as of December 31, 20102011 and 2009:

             
  Average
  Original
  Fair Value
 
Foreign Currency Contract Rate  Notional Amount  Gain (Loss) 
     (In millions)  (In millions) 
 
At December 31, 2010
            
Buy BRL sell USD  1.68  $7.6  $0.1 
Buy EUR sell ARS  5.27   1.3    
Buy EUR sell JPY  113.89   1.2   (0.1)
Buy EUR sell MXN  16.58   35.5    
Buy EUR sell RUB  40.99   1.8    
Buy EUR sell USD  1.34   101.4   0.1 
Buy INR sell USD  44.81   4.5    
Buy JPY sell EUR  111.90   1.2    
Buy JPY sell USD  82.57   19.4   0.4 
Buy KRW sell USD  1,146.51   21.0   0.4 
Buy MXN sell EUR  16.45   8.0    
Buy MXN sell USD  12.37   4.5    
Buy MYR sell USD  3.10   12.2   0.1 
Buy PEN sell USD  2.80   10.3    
Buy PHP sell USD  43.89   0.1    
Buy TWD sell USD  29.17   2.6    
Buy USD sell BRL  1.72   14.9   (0.5)
Buy USD sell COP  1,917.51   4.3    
Buy USD sell EUR  1.32   74.3   (1.0)
Buy USD sell GBP  1.56   4.0    
Buy USD sell INR  45.78   8.7   (0.2)
Buy USD sell JPY  81.59   9.8   (0.1)
Buy USD sell KRW  1,138.90   4.9   (0.1)
Buy USD sell MXN  12.45   4.9    
Buy USD sell PEN  2.81   5.2    
Buy USD sell PHP  44.11   2.8    
Buy USD sell RUB  31.48   1.3    
             
Total forward contracts     $367.7  $(0.9)
             


121

2010:


Foreign Currency

  Average
Contract  Rate
   Original
Notional  Amount
   Fair Value
Gain (Loss)
 
       (In millions)   (In millions) 

At December 31, 2011

      

Buy CNY sell USD

   6.34    $2.5    $  

Buy EUR sell ARS

   5.70     3.0       

Buy EUR sell AUD

   1.30     0.8       

Buy EUR sell GBP

   0.83     0.8       

Buy EUR sell HKD

   10.15     0.9       

Buy EUR sell IDR

   11,985.00     2.2       

Buy EUR sell INR

   69.21     2.3       

Buy EUR sell MXN

   18.14     14.9       

Buy EUR sell MYR

   4.17     6.0     (0.1

Buy EUR sell RUB

   41.74     9.2       

Buy EUR sell USD

   1.30     44.8     (0.1

Buy EUR sell ZAR

   10.89     0.6       

Buy GBP sell EUR

   0.84     0.8       

Buy JPY sell USD

   77.85     7.0     0.1  

Buy KRW sell USD

   1,161.81     32.2     (0.2

Buy MYR sell EUR

   4.12     0.8       

Buy MYR sell USD

   3.18     19.0       

Buy PEN sell USD

   2.70     6.7       

Buy SEK sell EUR

   8.98     1.0       

Buy USD sell ARS

   4.37     0.8       

Buy USD sell COP

   1,943.00     5.1       

Buy USD sell EUR

   1.37     81.4     4.4  

Buy USD sell GBP

   1.55     24.1       

Buy USD sell INR

   53.30     1.0       

Buy USD sell KRW

   1,156.38     7.5       

Buy USD sell MXN

   13.89     37.3     0.4  

Buy USD sell PHP

   43.79     3.2       

Buy USD sell RUB

   31.86     1.3       

Buy USD sell SGD

   1.28     0.3       

Buy USD sell THB

   31.43     0.2       

Buy USD sell ZAR

   8.33     1.1       
    

 

 

   

 

 

 

Total forward contracts

    $318.8    $4.5  
    

 

 

   

 

 

 

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

             
  Average
  Original
  Fair Value
 
Foreign Currency Contract Rate  Notional Amount  Gain (Loss) 
     (In millions)  (In millions) 
 
At December 31, 2009
            
Buy EUR sell MXN  19.67  $32.6  $(1.6)
Buy JPN sell USD  90.60   16.9   (0.5)
Buy USD sell EUR  1.48   77.2   2.6 
Buy CLP sell USD  523.79   5.3   0.2 
Buy USD sell CLP  509.40   2.9    
Buy HKD sell USD  7.75   6.5    
Buy JPY sell EUR  131.55   3.3    
Buy EUR sell JPY  131.59   3.3    
Buy USD sell BRL  1.78   7.3   (0.1)
Buy USD sell ZAR  7.86   1.3   (0.1)
Buy ZAR sell USD  7.49   1.3    
Buy USD sell PHP  47.49   6.3   (0.1)
Buy USD sell KRW  1,181.27   1.9    
Buy USD sell INR  46.72   3.0    
Buy USD sell COP  1,983.88   3.5   0.1 
Buy EUR sell USD  1.43   45.2    
Buy EUR sell HKD  11.26   2.6    
Buy MXN sell USD  13.19   8.5    
Buy GBP sell USD  1.63   5.7    
Buy USD sell RUB  29.78   1.3    
Buy COP sell USD  2,053.31   4.2    
Buy KRW sell USD  1,167.38   1.9    
Buy BRL sell USD  1.78   0.6    
Buy EUR sell GBP  0.89   3.3    
Buy MXN sell EUR  18.81   7.0    
Buy PHP sell USD  46.47   3.2    
Buy RUB sell USD  30.25   0.3    
Buy USD sell MXN  13.15   1.7    
Buy USD sell JPN  92.46   7.9   0.1 
             
Total forward contracts     $266.0  $0.6 
             

122


Foreign Currency

  Average
Contract  Rate
   Original
Notional  Amount
   Fair Value
Gain (Loss)
 
       (In millions)   (In millions) 

At December 31, 2010

      

Buy BRL sell USD

   1.68    $7.6    $0.1  

Buy EUR sell ARS

   5.27     1.3       

Buy EUR sell JPY

   113.89     1.2     (0.1

Buy EUR sell MXN

   16.58     35.5       

Buy EUR sell RUB

   40.99     1.8       

Buy EUR sell USD

   1.34     101.4     0.1  

Buy INR sell USD

   44.81     4.5       

Buy JPY sell EUR

   111.90     1.2       

Buy JPY sell USD

   82.57     19.4     0.4  

Buy KRW sell USD

   1,146.51     21.0     0.4  

Buy MXN sell EUR

   16.45     8.0       

Buy MXN sell USD

   12.37     4.5       

Buy MYR sell USD

   3.10     12.2     0.1  

Buy PEN sell USD

   2.80     10.3       

Buy PHP sell USD

   43.89     0.1       

Buy TWD sell USD

   29.17     2.6       

Buy USD sell BRL

   1.72     14.9     (0.5

Buy USD sell COP

   1,917.51     4.3       

Buy USD sell EUR

   1.32     74.3     (1.0

Buy USD sell GBP

   1.56     4.0       

Buy USD sell INR

   45.78     8.7     (0.2

Buy USD sell JPY

   81.59     9.8     (0.1

Buy USD sell KRW

   1,138.90     4.9     (0.1

Buy USD sell MXN

   12.45     4.9       

Buy USD sell PEN

   2.81     5.2       

Buy USD sell PHP

   44.11     2.8       

Buy USD sell RUB

   31.48     1.3       
    

 

 

   

 

 

 

Total forward contracts

    $367.7    $(0.9
    

 

 

   

 

 

 

HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
The following tables summarize the derivative activity during the year ended December 31, 20102011 and 2009,2010, relating to all the Company’s derivatives.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

Gains and Losses on Derivative Instruments

The following table summarizes gains (losses) relating to derivative instruments recorded in other comprehensive income (loss) during the yearyears ended December 31, 2011, 2010 and 2009:

         
  Amount of Gain (Loss) Recognized
 
  in Other Comprehensive Income (Loss)
 
  For the Year Ended 
  December 31, 2010  December 31, 2009 
  (In millions) 
 
Derivatives designated as cash flow hedging instruments:
        
Foreign exchange currency contracts relating to inventory and intercompany management fee hedges $5.6  $2.4 
Interest rate swaps $(7.5) $(2.6)

   Amount of Gain (Loss) Recognized
in Other Comprehensive Income (Loss)
For the Year Ended
 
   December 31,
2011
  December 31,
2010
  December 31,
2009
 
   (In millions) 

Derivatives designated as cash flow hedging instruments:

    

Foreign exchange currency contracts relating to inventory and intercompany management fee hedges

  $4.1   $5.6   $2.4  

Interest rate swaps

  $(2.1 $(7.5 $(2.6

As of December 31, 2010,2011, the estimated amount of existing net lossesgains related to cash flow hedges recorded in accumulated other comprehensive income (loss) that are expected to be reclassified into earnings over the next twelve months was $4.6$1.3 million.

The following table summarizes gains (losses) relating to derivative instruments recorded to income during the yearyears ended December 31, 2011, 2010 and 2009:

           
  Amount of Gain (Loss)
   
  Recognized in Income   
  For the Year Ended  Location of Gain (Loss)
  December 31, 2010  December 31, 2009  Recognized in Income
  (In millions)   
 
Derivatives designated as cash flow hedging instruments:
          
Foreign exchange currency contracts relating to inventory hedges and intercompany management fee hedges(1) $  $(0.3) Selling, general
and administrative
expenses
Derivatives not designated as hedging instruments:
          
Foreign exchange currency contracts $(9.4) $(15.8) Selling, general
and administrative
expenses

   Amount of Gain (Loss)
Recognized in Income
For the Year Ended
  Location of Gain  (Loss)
Recognized in Income
   
   December 31,
2011
   December 31,
2010
  December 31,
2009
  
   (In millions)   

Derivatives designated as cash flow hedging instruments:

      

Foreign exchange currency contracts relating to inventory hedges and intercompany management fee hedges(1)

  $    $   $(0.3 Selling, general
and administrative
expenses

Derivatives not designated as hedging instruments:

      

Foreign exchange currency contracts

  $2.7    $(9.4 $(15.8 Selling, general and
administrative expenses

(1)For foreign exchange contracts designated as hedging instruments, the amounts recognized in income (loss) represent the amounts excluded from the assessment of hedge effectiveness. There were no ineffective amounts reported for derivatives designated as hedging instruments.


123


HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The following table summarizes gains (losses) relating to derivative instruments reclassified from accumulated other comprehensive loss into income during the yearyears ended December 31, 2011, 2010 and 2009:

           
  Amount of Gain (Loss) Reclassified
  Location of Gain
  from Accumulated Other
  (Loss) Reclassified
  Comprehensive Loss into Income  from Accumulated Other
  For the Year Ended  Comprehensive Loss into
  December 31, 2010  December 31, 2009  Income (effective portion)
  (In millions)   
 
Derivatives designated as cash flow hedging instruments:
          
Foreign exchange currency contracts relating to inventory hedges $1.8  $0.8  Cost of sales
Foreign exchange currency contracts relating to intercompany management fee hedges $6.6  $  Selling, general and
administrative expenses
           
Interest rate contracts $(3.6) $(1.0) Interest expense, net

   Amount of Gain (Loss) Reclassified
from Accumulated Other
Comprehensive Loss into Income
  Location of Gain
(Loss)  Reclassified
from Accumulated Other
Comprehensive Loss into
Income (effective portion)
   
   
  For the Year Ended  
  December 31,
2011
  December 31,
2010
  December 31,
2009
  
   (In millions)   

Derivatives designated as cash flow hedging instruments:

     

Foreign exchange currency contracts relating to inventory hedges

  $(0.3 $1.8   $0.8   Cost of sales

Foreign exchange currency contracts relating to intercompany management fee hedges

  $(1.8 $6.6   $   Selling, general
and administrative
expenses

Interest rate contracts

  $(3.6 $(3.6 $(1.0 Interest expense, net

The Company reports its derivatives at fair value as either assets or liabilities within its consolidated balance sheet. See Note 14,13,Fair Value Measurements, for information on derivative fair values and their consolidated balance sheet location as of December 31, 2010,2011, and December 31, 2009.

12.  Income Taxes
2010.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

12. Income Taxes

The components of income before income taxes are as follows (in millions):

             
  Year Ended December 31, 
  2010  2009  2008 
 
Domestic $69.5  $94.9  $101.7 
Foreign  310.6   196.0   217.3 
             
Total $380.1  $290.9  $319.0 
             

   Year Ended December 31, 
   2011   2010   2009 

Domestic

  $143.9    $69.5    $94.9  

Foreign

   415.9     310.6     196.0  
  

 

 

   

 

 

   

 

 

 

Total

  $559.8    $380.1    $290.9  
  

 

 

   

 

 

   

 

 

 

Income taxes are as follows (in millionsmillions):

   Year Ended December 31, 
   2011  2010  2009 

Current:

    

Foreign

  $94.7   $75.6   $61.9  

Federal

   57.8    30.3    30.9  

State

   7.6    8.3    6.0  
  

 

 

  

 

 

  

 

 

 
   160.1    114.2    98.8  
  

 

 

  

 

 

  

 

 

 

Deferred:

    

Foreign

   (12.4  (3.2  2.5  

Federal

   (0.1  (30.7  (13.1

State

   (0.4  0.6    (0.6
  

 

 

  

 

 

  

 

 

 
   (12.9  (33.3  (11.2
  

 

 

  

 

 

  

 

 

 
  $147.2   $80.9   $87.6  
  

 

 

  

 

 

  

 

 

 

The Company recognizes excess tax benefits associated with share-based compensation to shareholders’ equity only when realized. When assessing whether excess tax benefits relating to share-based compensation have been realized, the Company follows the with-and-without approach which was adopted in the second quarter of U.S. dollars):

             
  Year Ended December 31, 
  2010  2009  2008 
 
Current:
            
Foreign $75.6  $61.9  $48.4 
Federal  30.3   30.9   45.0 
State  8.3   6.0   8.5 
             
   114.2   98.8   101.9 
             
Deferred:
            
Foreign  (3.2)  2.5   9.4 
Federal  (22.0)  (13.1)  (12.6)
State  0.6   (0.6)  (0.9)
             
   (24.6)  (11.2)  (4.1)
             
  $89.6  $87.6  $97.8 
             


124

2011. Under this approach, excess tax benefits related to share-based compensation are not deemed to be realized until after the utilization of all other tax benefits available to the Company, which are also subject to applicable limitations. As of December 31, 2011 and 2010, the Company had $20.6 million and $8.7 million, respectively, of unrealized excess tax benefits. Of the $20.6 million of excess tax benefits at December 31, 2011, $11.6 million relate to foreign tax credits generated and carried forward on US federal income tax returns. If unused, tax credit carryforwards of $5.6 million will expire in 2020 and $6.0 million will expire in 2021. See Note 2,Basis of Presentation,for further discussion of the Company’s change in method of accounting from the tax-law-ordering method to the with-and-without approach.


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
Venezuela has experienced cumulative inflation of at least 100% during the three year period ended December 31, 2009. Therefore, as of January 1, 2010 the Bolivar is hyperinflationary for U.S. federal income tax purposes. As a result, because Herbalife Venezuela is considered a dual incorporated entity, it is now required to account for its operations using the Dollar Approximate Separate Transactions Method of accounting, (DASTM).or DASTM. The transitional impact of DASTM resulted in a deferred income tax benefit of approximately $14.5 million recorded during the first quarter of 2010 which is included within the Company’s consolidated statement of income for the year ended December 31, 2010. See Note 2,Basis of Presentation, for a further discussion on Herbalife Venezuela and Venezuela’s highly inflationary economy.

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The significant categories of temporary differences that gave rise to deferred tax assets and liabilities are as follows (tax effected in millions):

         
  Year Ended
 
  December 31, 
  2010  2009 
 
Deferred income tax assets:
        
Accruals not currently deductible $47.5  $36.4 
Foreign tax credits and tax loss carryforwards of certain foreign subsidiaries  4.2   6.1 
Depreciation/amortization  17.1   3.0 
Deferred compensation plan  25.1   23.5 
Deferred interest expense  118.4   56.8 
Accrued state income taxes  1.3   0.5 
Accrued vacation  3.4   3.5 
Other  12.3   7.1 
         
Gross deferred income tax assets  229.3   136.9 
Less: valuation allowance  (128.7)  (59.6)
         
Net deferred income tax assets $100.6  $77.3 
         
Deferred income tax liabilities:
        
Intangible assets $109.5  $110.7 
Inventory deductibles  (1.1)  0.3 
Unrealized foreign exchange  1.2   1.8 
Other  3.6   3.5 
         
Net deferred income tax liabilities $113.2  $116.3 
         
Net deferred tax accounts $(12.6) $(39.0)
         

   Year Ended
December 31,
 
   2011  2010 

Deferred income tax assets:

   

Accruals not currently deductible

  $47.1   $47.5  

Tax loss carry forwards of certain foreign subsidiaries

   2.8    5.7  

Depreciation/amortization

   11.9    17.1  

Deferred compensation plan

   26.2    25.1  

Deferred interest expense

   205.6    118.4  

Accrued vacation

   4.0    3.5  

Inventory reserve

   4.2    1.1  

Hyperinflationary adjustment

   7.4    10.8  

Other

   11.3    2.7  
  

 

 

  

 

 

 

Gross deferred income tax assets

   320.5    231.9  

Less: valuation allowance

   (208.3  (124.2
  

 

 

  

 

 

 

Total deferred income tax assets

  $112.2   $107.7  
  

 

 

  

 

 

 

Deferred income tax liabilities:

   

Intangible assets

  $113.1   $109.5  

Unremitted foreign earnings

   8.7    6.0  

Other

   4.7    4.8  
  

 

 

  

 

 

 

Total deferred income tax liabilities

  $126.5   $120.3  
  

 

 

  

 

 

 

Total net deferred tax liabilities

  $(14.3 $(12.6
  

 

 

  

 

 

 

Net operating loss carryforwards of subsidiaries for 2011 and 2010 were $2.8 million and $5.7 million, respectively. If unused, net operating losses of $0.9 million will expire between 2012 and 2020 and $1.9 million can be carried forward indefinitely. Deferred interest carryforwards of subsidiaries for 2011 and 2010 were $205.6 million and $118.4 million, respectively, and can be carried forward indefinitely.

The Company recognizes valuation allowances on deferred tax assets reported if, based on the weight of the evidence it is more likely than not that some or all of the deferred tax assets will not be realized. The Company believes that the majorityAs of its deferred tax assets will be realized because of the reversal of certain significant taxable temporary differencesDecember 31, 2011 and anticipated future taxable income from operations.

At December 31, 2010 the Company’sCompany held valuation allowances against net deferred tax assets consistedof certain subsidiaries, primarily related to deferred interest expense carryforwards, in the amount of foreign$208.3 million and $124.2 million, respectively. The change in the Company’s valuation allowance during 2011 of $84.1 million was related to $88.1 million of additions charged to income tax loss carryforwards and deferred expenses and wereexpense, reduced by $2.1 million of reductions recognized as income tax benefits and $1.9 million of currency translation adjustments recognized within other comprehensive income. The change in the Company’s valuation allowancesallowance during 2010 and 2009 of $128.7 million. $64.6 million and $47.4 million, respectively, was primarily related to additions charged to income tax expense.

At December 31, 2009, the Company’s deferred tax assets consisted primarily of foreign tax loss carryforwards and deferred expenses and were reduced by valuation allowances of $59.6 million. The foreign tax loss carryforwards of $4.2 million expire in varying amounts between 2011, and indefinitely.

At December 31, 2010, the Company’s U.S. consolidated group had approximately $73.5$82.2 million of unremitted earnings that were permanently reinvested from substantially all of its foreign subsidiaries. In addition, at December 31, 2010,2011, Herbalife Ltd. had approximately $1.4$1.8 billion of permanently reinvested unremitted


125


HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
earnings relating to its operating subsidiaries. Since these unremitted earnings have been permanently reinvested,

HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

deferred taxes were not provided on these unremitted earnings. Further, it is not practicable to determine the amount of unrecognized deferred taxes with respect to these unremitted earnings.

Deferred taxes have been accrued for earnings that are not considered indefinitely reinvested. The deferred tax liability on the unremitted foreign earnings as of December 31, 2011 and 2010, was $8.7 million and $6.0 million, respectively.

The applicable statutory income tax rate in the Cayman Islands was zero for Herbalife Ltd. for the years being reported. For purposes of the reconciliation between the provision for income taxes at the statutory rate and the provision for income taxes at the effective tax rate, a notional 35% tax rate is applied as follows (in millions of dollars)millions):

             
  Year Ended December 31, 
  2010  2009  2008 
  (In millions) 
 
Tax expense at United States statutory rate $133.0  $101.8  $111.7 
Increase (decrease) in tax resulting from:            
Differences between U.S. and foreign tax rates on foreign income, including withholding taxes  (77.8)  (31.1)  (9.7)
U.S. tax (benefit) on foreign income net of foreign tax credits  (19.3)  (24.6)  (26.3)
Increase (decrease) in valuation allowances  69.1   47.4   8.7 
State taxes, net of federal benefit  5.9   4.7   5.4 
Unrecognized tax benefits  (10.9)  (5.1)  5.7 
Venezuela DASTM hyperinflationary impact  (14.5)      
Other  4.1   (5.5)  2.3 
             
Total $89.6  $87.6  $97.8 
             

   Year Ended December 31, 
   2011  2010  2009 
   (In millions) 

Tax expense at United States statutory rate

  $195.9   $133.0   $101.8  

Increase (decrease) in tax resulting from:

    

Differences between U.S. and foreign tax rates on foreign income, including withholding taxes

   (134.1  (77.8  (31.1

U.S. tax (benefit) on foreign income net of foreign tax credits

   (8.8  (19.3  (24.6

Increase (decrease) in valuation allowances

   86.0    64.6    47.4  

State taxes, net of federal benefit

   5.5    5.9    4.7  

Unrecognized tax benefits

   1.1    (10.9  (5.1

Venezuela DASTM hyperinflationary impact

       (14.5    

Other

   1.6    (0.1  (5.5
  

 

 

  

 

 

  

 

 

 

Total

  $147.2   $80.9   $87.6  
  

 

 

  

 

 

  

 

 

 

During the years ended December 31, 2011, 2010 2009 and 2008,2009, the Company benefited from the terms of a tax holiday in the People’s Republic of China. The tax holiday commenced on January 1, 2008 and will conclude on December 31, 2012. Under the terms of the holiday, the Company was subject to a zero tax rate in China during 2008 and 2009, an 11% tax rate in 2010, a 12% tax rate in 2011, and waswill be subject to a graduated12.5% tax rate in 2012.

As of 11% in 2010. TheDecember 31, 2011, the total amount of unrecognized tax rate will gradually increase, duringbenefits, including related interest and penalties was $39.0 million. If the years2011-2012 to a maximumtotal amount of 25%.

unrecognized tax benefits was recognized, $32.1 million of unrecognized tax benefits, $5.5 million of interest and $1.1 million of penalties would impact the effective tax rate. As of December 31, 2010, the total amount of the unrecognized tax benefits, including related interest and penalties was $38.5 million. The unrecognized tax benefits primarily relate to uncertainties from international transfer pricing issues, the deductibility of certain operating expenses in various jurisdictions, anticipated settlements in foreign tax audits and the expiration of the statute of limitations in several jurisdictions. If the total amount of unrecognized tax benefits was recognized, $31.6 million of unrecognized tax benefits, $5.6 million of interest and $1.3 million of penalties would impact the effective tax rate.

The Company accounts for the interest and penalties generated by tax contingencies as a component of income tax expense. During the year ended December 31, 2011, the Company recorded an increase in interest expense and a reversal of penalties expense related to uncertain tax positions of $0.1 million and $0.1 million, respectively. During the years ended December 31, 2010 and December 31, 2009, the Company recorded a reversal of interest and penalties expense related to uncertain tax positions of $2.9 million and $1.9 million, respectively. As of December 31, 2011, total accrued interest and $1.0penalties were $5.5 million and $1.1 million respectively. As of December 31, 2010, total accrued interest and penalties were $5.6 million and $1.3 million respectively.


126


HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The following changes occurred in the amount of unrecognized tax benefits (including related interest and penalties) during the years ended December 31, 2011, 2010 2009 and 20082009 (in millions):

                 
  Year Ended
  Year Ended
  Year Ended
    
  December 31,
  December 31,
  December 31,
    
  2010  2009  2008    
 
Beginning balance of unrecognized tax benefits $49.1  $52.8  $50.3     
Additions for current year tax positions  4.3   4.6   5.9     
Additions for prior year tax positions  3.0   2.1   3.5     
Reductions for prior year tax positions  (2.4)  (1.3)  (3.1)    
Reductions for audit settlements  (12.6)  (2.8)  (0.8)    
Reductions for the expiration of statutes of limitation  (3.1)  (7.7)  (3.0)    
Changes due to foreign currency translation adjustments  0.2   1.4        
                 
Ending balance of unrecognized tax benefits $38.5  $49.1  $52.8     
                 
Unrecognized

  Year Ended
December 31,
2011
  Year Ended
December 31,
2010
  Year Ended
December 31,
2009
 

Beginning balance of unrecognized tax benefits

 $31.6   $39.3   $41.0  

Additions for current year tax positions

  5.5    4.3    4.6  

Additions for prior year tax positions

  2.0    1.1    0.6  

Reductions for prior year tax positions

  (0.9  (2.3  (1.2

Reductions for audit settlements

  (0.7  (8.6  (0.9

Reductions for the expiration of statutes of limitation

  (4.5  (2.4  (5.6

Changes due to foreign currency translation adjustments

  (0.6  0.2    0.8  
 

 

 

  

 

 

  

 

 

 

Ending balance of unrecognized tax benefits (excluding interest and penalties)

 $32.4   $31.6   $39.3  

Interest and penalties associated with unrecognized tax benefits

  6.6    6.9    9.8  
 

 

 

  

 

 

  

 

 

 

Ending balance of unrecognized tax benefits (including interest and penalties)

 $39.0   $38.5   $49.1  
 

 

 

  

 

 

  

 

 

 

The amount of income taxes the Company pays is subject to ongoing audits by taxing jurisdictions around the world. The Company’s estimate of the potential outcome of any uncertain tax benefits (including related interestposition is subject to management’s assessment of relevant risks, facts, and penalties) decreased $10.8 million duringcircumstances existing at that time. The Company believes that it has adequately provided for these matters. However, the year endedCompany’s future results may include favorable or unfavorable adjustments to its estimates in the period the audits are resolved, which may impact the Company’s effective tax rate. As of December 31, 2010, which was partially offset by an increase of $0.2 million due2011, the Company’s tax filings are generally subject to foreign currency fluctuations. The $0.2 million benefit attributable to foreign currency fluctuations was accountedexamination in major tax jurisdictions for as a decrease to other comprehensive income.

years ending on or after December 31, 2007.

The Company believes that it is reasonably possible that the amount of unrecognized tax benefits could decrease by up to approximately $8.1$26.1 million within the next twelve months. Of this possible decrease, $2.0$22.6 million would be due to the settlement of audits or resolution of administrative or judicial proceedings. The remaining possible decrease of $6.1$3.5 million would be due to the expiration of statute of limitations in various jurisdictions.

As of December 31, 2010, the Company’s tax filings are subject to examination in the U.S. federal jurisdiction and various state jurisdictions for the years ending on or after December 31, 2006. The Company’s tax filings are also subject to examination in significant foreign jurisdictions for the years ending on or after December 31, 2006.
13.  Restructuring Reserve
During the fourth quarter of 2007, the Company initiated the second phase of its Realignment for Growth plan. The Company recorded $1.9 million and $4.0 million of professional fees, severance and related costs for the years ended December 31, 2008 and 2007, respectively, relating to the second phase of its Realignment for Growth plan. As of December 31, 2010, there were no amounts outstanding related to these charges.
During the fourth quarter of 2008, the Company initiated a Restructuring Program and incurred approximately $4.8 million of professional fees, severance and related costs during the year ended December 31, 2008. For the year ended December 31, 2009, the Company recorded an additional $1.3 million of professional fees, severance and related costs relating to this restructuring program. As of December 31, 2010, there no amounts outstanding related to these charges.
All amounts related to the Realignment for Growth plan and the Restructuring Program are included in selling, general and administrative expenses and there were no balances outstanding as of December 31, 2010 relating to these programs. The following table summarizes the components of the Company’s restructuring reserve as of


127


13.    Fair Value Measurements

HERBALIFE LTD.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
December 31, 2010, 2009, and 2008 and expenses incurred during the years ended December 31, 2010, 2009 and 2008 (in millions):
                 
     Retention
       
  Severance  Benefits  Others  Total 
 
Balance as of December 31, 2007 $2.9  $  $0.6  $3.5 
Charges  6.2      0.5   6.7 
Cash payments  (5.8)     (1.1)  (6.9)
                 
Balance as of December 31, 2008 $3.3  $  $  $3.3 
                 
Charges  0.6      0.7   1.3 
Cash payments  (3.8)     (0.7)  (4.5)
                 
Balance as of December 31, 2009 $0.1  $  $  $0.1 
                 
Charges            
Cash payments  (0.1)        (0.1)
                 
Balance as of December 31, 2010 $  $  $  $ 
                 
14.  Fair Value Measurements
The Company applies the provisions of FASB ASC Topic 820,Fair Value Measurements and Disclosures, or ASC 820, for its financial and non-financial assets and liabilities. ASC 820 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. ASC 820 establishes a fair value hierarchy, which prioritizes the inputs used in measuring fair value into three broad levels as follows:

Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date.

Level 2 inputs include quoted prices for similar assets or liabilities in active markets, quoted prices for identical or similar assets or liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability and inputs that are derived principally from or corroborated by observable market data by correlation or other means.

Level 3 inputs are unobservable inputs for the asset or liability.


128


HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

The Company measures certain assets and liabilities at fair value as discussed throughout the notes to its consolidated financial statements. Foreign exchange currency contracts and interest rate swaps are valued using standard calculations and models. Foreign exchange currency contracts are valued primarily based on inputs such as observable forward rates, spot rates and foreign currency exchange rates at the reporting period ended date. Interest rate swaps are valued primarily based on inputs such as LIBOR and swap yield curves at the reporting period ended date. Assets or liabilities that have recurring measurements and are measured at fair value consisted of Level 2 derivatives and are shown below at their gross values at December 31, 2010,2011, and December 31, 2009:

2010:

Fair Value Measurements at Reporting Date Using

           
    Significant
  Significant
 
    Other
  Other
 
    Observable
  Observable
 
    Inputs
  Inputs
 
    (Level 2)
  (Level 2)
 
    Fair Value at
  Fair Value at
 
    December 31,
  December 31,
 
  Derivative Balance Sheet Location 2010  2009 
    (In millions) 
 
ASSETS:
          
Derivatives designated as cash flow hedging instruments:
          
Foreign exchange currency contracts relating to inventory and intercompany management fee hedges Prepaid expenses and other current assets $0.6  $2.3 
Derivatives not designated as cash flow hedging instruments:
          
Foreign exchange currency contracts Prepaid expenses and other current assets $2.3  $0.9 
           
    $2.9  $3.2 
           
 
LIABILITIES:
Derivatives designated as cash flow hedging instruments:
          
Foreign exchange currency contracts relating to inventory and intercompany management fee hedges Accrued expenses $0.8  $ 
Interest rate swaps Accrued expenses $6.6  $2.6 
Derivatives not designated as hedging instruments:
          
Foreign exchange currency contracts Accrued expenses $3.0  $2.6 
           
    $10.4  $5.2 
           
15.  Subsequent Events

  Derivative Balance Sheet Location  Significant
Other
Observable
Inputs
(Level 2)
Fair Value at
December 31,
2011
  Significant
Other
Observable
Inputs
(Level 2)
Fair Value at
December 31,
2010
 
     (In millions) 

ASSETS:

    

Derivatives designated as cash flow hedging instruments:

    

Foreign exchange currency contracts relating to inventory and intercompany management fee hedges

 Prepaid expenses and other current assets  $4.4   $0.6  

Derivatives not designated as cash flow hedging instruments:

    

Foreign exchange currency contracts

 Prepaid expenses and other current assets  $0.8   $2.3  
   

 

 

  

 

 

 
   $5.2   $2.9  
   

 

 

  

 

 

 

LIABILITIES:

    

Derivatives designated as cash flow hedging instruments:

    

Foreign exchange currency contracts relating to inventory and intercompany management fee hedges

 Accrued expenses  $—     $0.8  

Interest rate swaps

 Accrued expenses  $5.1   $6.6  

Derivatives not designated as hedging instruments:

    

Foreign exchange currency contracts

 Accrued expenses  $0.7   $3.0  
   

 

 

  

 

 

 
   $5.8   $10.4  
   

 

 

  

 

 

 

14.    Subsequent Events

On February 18, 2011,21, 2012, the Company’s BoardCompany announced that its board of Directorsdirectors approved atwo-for-one split quarterly cash dividend of the Company’s$0.30 per common shares, subjectshare to approval by the Company’s shareholders at the Company’s upcoming Annual General Meeting of Shareholders to be heldrecord as of March 7, 2012, payable on April 28, 2011. If approved by the Company’s shareholders one additional common share


129

March 22, 2012.


HERBALIFE LTD.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)

will be distributed to

15.    Quarterly Information (Unaudited)

Quarterly net income, basic earnings per share, and diluted earnings per share presented in the Company’s shareholders on or around May 17, 2011, for each common share held on May 10, 2011. Thetable below reflect the change in accounting principle and stock split will not be effective unless approved by the Company’s shareholders at the meeting.

On February 22, 2011, the Company announced that its Boarddiscussed in Note 2,Basis of Directors approved a quarterly cash dividend of $0.25 per common share, for the fourth quarter of 2010, to shareholders of record as of the close of business on March 8, 2011, payable on March 22, 2011.
In February 2011, Herbalife Venezuela purchased U.S. dollar denominated bonds with a face value of $20 million U.S. dollars from a PDVSA bond offering for 86 million Bolivars and then immediately sold the bonds for U.S. dollars at an expected average effective rate of 5.7 Bolivars per U.S. dollar. These 86 million Bolivars were remeasured at the SITME rate of 5.3 Bolivars per U.S. dollar and recorded as cash and cash equivalents of $16.3 million on the Company’s consolidated balance sheet at December 31, 2010. The Company expects to receive approximately $15 million U.S. dollars in late February or early March 2011 as a result of this conversion and final settlement. This conversion is expected to result in the Company recording a net pre-tax loss of approximately $1.3 million U.S. dollars in its 2011 consolidated statement of income and will be reflected in the Company’s consolidated financial statements at March 31, 2011 and for the quarter ending March 31, 2011.
Presentation.

           2011                   2010         
   (In millions, except per share data) 

First Quarter Ended March 31

    

Net sales

  $795.1    $618.6  

Gross profit

   632.3     478.2  

Net income(1)(2)

   88.0     51.8  

Earnings per share

    

Basic(1)(2)

  $0.74    $0.43  

Diluted(1)(2)

  $0.70    $0.41  

Second Quarter Ended June 30

    

Net sales

  $879.7    $688.8  

Gross profit

   708.6     552.2  

Net income

   111.2     82.2  

Earnings per share

    

Basic

  $0.93    $0.69  

Diluted

  $0.88    $0.65  

Third Quarter Ended September 30

    

Net sales

  $895.2    $688.4  

Gross profit

   719.9     555.2  

Net income

   108.0     78.9  

Earnings per share

    

Basic

  $0.92    $0.67  

Diluted

  $0.87    $0.63  

Fourth Quarter Ended December 31

    

Net sales

  $884.5    $738.4  

Gross profit

   713.7     589.8  

Net income(3)

   105.4     86.3  

Earnings per share

    

Basic(3)

  $0.91    $0.73  

Diluted(3)

  $0.86    $0.69  

(1)
16.  Quarterly Information (Unaudited)Net income, basic earnings per share and diluted earnings per share for the three months ended March 31, 2011, were previously reported as $87.6 million, $0.74 per share, and $0.71 per share, respectively, as adjusted for the stock split.
         
  2010  2009 
  (In millions, except per share data) 
 
First Quarter Ended March 31
        
Net sales $618.6  $521.7 
Gross profit  478.2   419.3 
Net income  51.9   41.5 
Earnings per share        
Basic $0.86  $0.68 
Diluted $0.83  $0.67 
Second Quarter Ended June 30
        
Net sales $688.8  $571.8 
Gross profit  552.2   449.4 
Net income  81.9   48.3 
Earnings per share        
Basic $1.38  $0.78 
Diluted $1.32  $0.77 
Third Quarter Ended September 30
        
Net sales $688.4  $600.2 
Gross profit  555.2   468.4 
Net income  75.7   57.9 
Earnings per share        
Basic $1.28  $0.95 
Diluted $1.22  $0.91 
Fourth Quarter Ended December 31
        
Net sales $738.4  $630.9 
Gross profit  589.8   494.4 
Net income  81.0   55.7 
Earnings per share        
Basic $1.37  $0.92 
Diluted $1.31  $0.88 


130

(2)Net income, basic earnings per share and diluted earnings per share for the three months ended March 31, 2010, were not affected by the change in accounting principle noted above.

(3)Net income, basic earnings per share and diluted earnings per share for the three months ended December 31, 2010, were previously reported as $81.0 million, $0.69 per share, and $0.65 per share, respectively, as adjusted for the stock split.

SIGNATURES


SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereto duly authorized.

HERBALIFE LTD.

By:By: /s/    JOHN DESIMONE

John DeSimone

Chief Financial Officer

John DeSimone
Chief Financial Officer

Dated: February 22, 2011

21, 2012

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the date indicated.

Signature

  

Title

 

Date

SignatureTitleDate

/s/    MICHAEL O. JOHNSON


Michael O. Johnson

  

Chief Executive Officer, Director,

Chairman of the Board

(Principal Executive Officer)

 February 22, 201121, 2012

/s/    JOHN DESIMONE


John DeSimone

  

Chief Financial Officer

(Principal Financial Officer)

 February 22, 201121, 2012

/s/    BOSCO CHIU


Bosco Chiu

  

Senior Vice President and Principal
Accounting Officer (Principal

(Principal Accounting Officer)

 February 22, 201121, 2012

/s/    LEROY T. BARNES,


JR.

Leroy T. Barnes, Jr.

  Director February 22, 201121, 2012

/s/    RICHARD P. BERMINGHAM


Richard P. Bermingham

  Director February 22, 201121, 2012

/s/    PEDRO CARDOSO


Pedro CardosoCAROLE BLACK

Carole Black

  Director February 22, 201121, 2012

/s/    MURRAY H. DASHE


Murray H. DashePEDRO CARDOSO

Pedro Cardoso

  Director February 22, 201121, 2012

/s/    JEFFREY T. DUNN


Jeffrey T. DunnMURRAY H. DASHE

Murray H. Dashe

  Director February 22, 201121, 2012

/s/    LAWRENCE M. HIGBY


Lawrence M. HigbyJEFFREY T. DUNN

Jeffrey T. Dunn

  Director February 22, 201121, 2012

/s/    COLOMBE M. NICHOLAS


Colombe M. NicholasMICHAEL J. LEVITT

Michael J. Levitt

  Director February 22, 201121, 2012

/s/    JOHN TARTOL


John TartolCOLOMBE M. NICHOLAS

Colombe M. Nicholas

  Director February 22, 201121, 2012

/s/    JOHN TARTOL

John Tartol

DirectorFebruary 21, 2012


131

136