Exhibit 10.33
INDEMNITY AGREEMENT
This INDEMNITY AGREEMENT (this "Agreement") is effective as of July 31,
2002, and is by and among WH HOLDINGS (CAYMAN ISLANDS) LTD. (the "Company") and
WH ACQUISITION CORP. ("WH Acquisition", and, together with the Company, the
"Indemnifying Parties"), and WHITNEY & CO., LLC, WHITNEY V, L.P., WHITNEY
STRATEGIC PARTNERS V, L.P., GGC ADMINISTRATION, L.L.C., GOLDEN GATE PRIVATE
EQUITY, INC., CCG INVESTMENTS (BVI), L.P., CCG ASSOCIATES-AI, LLC, CCG
INVESTMENT FUND-AI, LP, CCG AV, LLC-SERIES C, CCG AV, LLC-SERIES E, CCG
ASSOCIATES-QP, LLC and WH INVESTMENTS LTD. (collectively, the "Indemnified
Parties").
WHEREAS, certain of the Indemnified Parties have entered into a Share
Purchase Agreement with the Company dated as of the date hereof (the "Purchase
Agreement"), pursuant to which such Indemnified Parties will purchase equity
securities from the Company;
WHEREAS, the proceeds from the sale of such securities will be used by the
Company in connection with the merger (the "Merger") of WH Acquisition with and
into Herbalife International, Inc. ("Herbalife");
WHEREAS, it is a condition to the obligation of such Indemnified Parties
to purchase such equity securities that the Company enter into this Agreement
for the benefit of the Indemnified Parties;
NOW, THEREFORE, in consideration of the investment in the Company by the
Indemnified Parties who are acquiring equity securities of the Company, and for
other good and valuable consideration, the parties agree as follows:
1. Indemnification. Each Indemnifying Parties agrees, jointly and
severally, to indemnify and hold harmless each of the Indemnified Parties and
each of their respective officers, directors, agents, employees, subsidiaries,
partners, members, and controlling persons to the fullest extent permitted by
law from and against any and all losses, claims, damages, expenses (including,
without limitation, reasonable fees, disbursements and other charges of counsel
and costs of investigation incurred by an Indemnified Party in connection
therewith) (collectively, "Liabilities") resulting from, arising out of, or in
any way related to the Merger or any other transaction or proposed transaction
involving the sale or other disposition or acquisition of Herbalife and/or the
business and assets of Herbalife, regardless of when or where such action is
brought (including, without limitation, the action pending in Superior Court of
the State of California in the County of San Francisco brought by Rosemont
Associates Inc. and Joseph P. Urso against Whitney & Co., LLC, and filed as Case
No. CGC-02-409712). If and to the extent that the foregoing indemnification is
unenforceable for any reason, Indemnifying Parties shall make the maximum
contribution to the payment and satisfaction of such Liabilities that shall be
permissible under applicable law. In connection with the obligation of
Indemnifying Parties to indemnify for expenses as set
forth above, each Indemnifying Parties further agrees, upon presentation of
appropriate invoices containing reasonable detail, to reimburse, without
duplication, each Indemnified Party for all such expenses (including, without
limitation, reasonable fees, disbursements and other charges of counsel and
costs of investigation) incurred by such Indemnified Party as they are incurred
by such Indemnified Party.
2. Procedure. Each Indemnified Party will, promptly after the receipt of
notice of the commencement of any action, investigation, claim or other
proceeding against such Indemnified Party in respect of which indemnity may be
sought from the Indemnifying Parties, notify the Indemnifying Parties in writing
of the commencement thereof. The omission of any Indemnified Party so to notify
the Indemnifying Parties of any such action shall not relieve the Indemnifying
Parties from any liability which it may have to such Indemnified Party unless,
and only to the extent that, such omission results in the Indemnifying Parties'
forfeiture of substantive rights or defenses. In case any such action, claim or
other proceeding shall be brought against any Indemnified Party and it shall
notify the Indemnifying Parties of the commencement thereof, the Indemnifying
Parties shall, without any reservations of rights, be entitled to assume the
defense thereof at their own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided, however, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense. Notwithstanding the foregoing, in any action, claim
or proceeding in which the Indemnifying Party, on the one hand, and an
Indemnified Party, on the other hand, is, or is reasonably likely to become, a
party, such Indemnified Party shall have the right to employ separate counsel at
the Indemnifying Party's expense and to control its own defense of such action,
claim or proceeding if, in the reasonable opinion of counsel to such Indemnified
Party, a conflict or potential conflict exists between the Indemnifying Party,
on the one hand, and such Indemnified Party, on the other hand, that would make
such separate representation advisable. The Indemnifying Party agrees that it
will not, without the prior written consent of the Indemnified Party, settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated hereby (if any
Indemnified Party is a party thereto or has been actually threatened to be made
a party thereto) unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Party from all liability arising or
that may arise out of such claim, action or proceeding. The Indemnifying Party
shall not be liable for any settlement of any claim, action or proceeding
effected by an Indemnified Party without its written consent, which consent
shall not be unreasonably withheld. The rights accorded to Indemnified Parties
hereunder shall be in addition to any rights that any Indemnified Party may have
at common law, by separate agreement or otherwise.
3. Assignability. This Agreement may not be assigned by any party without
the prior written consent of the other parties hereto. This Agreement shall be
enforceable by, and shall inure to the benefit of, the parties hereto and their
successors and permitted assigns, and no others.
4. Consent to Jurisdiction and Service. Each of the parties hereby
absolutely and irrevocably consent and submit to the jurisdiction of the courts
in the State of New York and the Federal court located in New York, New York in
connection with any
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actions or proceedings brought against any of the parties (or each of them)
arising out of or relating to this Agreement. In any such action or proceeding,
the parties each hereby absolutely and irrevocably (i) waives any objection to
jurisdiction or venue, (ii) waives personal service of any summons, complaint,
declaration or other process, and (iii) agree that the service thereof may be
made by certified or registered first-class mail directed to such party.
5. Modifications. This Agreement may not be altered or modified without
the express written consent of the parties hereto. No course of conduct shall
constitute a waiver of any of the terms and conditions of this Agreement, unless
such waiver is specified in writing, and then only to the extent so specified. A
waiver of any of the terms and conditions of this Agreement on one occasion
shall not constitute a waiver of the other terms of this Agreement, or of such
terms and conditions on any other occasion.
6. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
7. Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable. This Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement, and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this Agreement.
8. Effective Date. This Agreement shall be and become effective and
binding pursuant to its terms after execution as of the date first above
written. It is understood and agreed that said date shall be the effective date
even though that date may be a date other or different than the actual date of
execution.
9. New York Law to Govern. This Agreement shall be deemed and construction
to be made under and shall be construed and interpreted in accordance with the
laws of the State of New York. It is agreed that it is both the intent and the
desire of the parties that wherever possible each provision of this Agreement
shall be given a judicial construction and interpretation so as to be effective
and valid under New York law, but if any provision of this Agreement shall be
construed or prohibited by or determined invalid under the laws of the State of
New York, such provision shall be ineffective to the extent of such prohibition
or invalidity only, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
10. Counterparts. This Agreement may be executed simultaneously or
otherwise in one or more identical counterparts, each of which shall be deemed
and construed as an original, and all of which shall be construed together to
constitute one and the same document. Confidentiality. The existence, content
and terms of this Agreement are and shall remain confidential and shall not be
disclosed by any party to any third party without the prior consent of the other
parties, except to the extent required: (i) to enforce its terms in a court of
law; or (ii) by subpoena from any third
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party, provided, however, that Indemnified Party shall be afforded notice of any
such subpoena and an opportunity to quash it.
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IN WITNESS WHEREOF, the parties have executed this Indemnity Agreement or
caused the same to be executed by their duly authorized representatives, as of
the date first hereinabove.
WH HOLDINGS (CAYMAN ISLANDS) LTD.
By: /s/ Steven E. Rodgers
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Name: Steven E. Rodgers
Title: President
WH ACQUISITION CORP.
By: /s/ Steven E. Rodgers
------------------------------------
Name: Steven E. Rodgers
Title: President
WH INVESTMENTS LTD.
By: /s/ Steven E. Rodgers
------------------------------------
Name: Steven E. Rodgers
Title: President
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WHITNEY & CO., LLC
By: /s/ Daniel J. O'Brien
------------------------------------
Name: Daniel J. O'Brien
Title: Partner
WHITNEY V. L.P.
BY: WHITNEY EQUITY PARTNERS V, LLC
ITS GENERAL PARTNER
By: /s/ Daniel J. O'Brien
------------------------------------
Name: Daniel J. O'Brien
Title: Managing Member
WHITNEY STRATEGIC PARTNERS V, L.P.
BY: WHITNEY EQUITY PARTNERS V, LLC
ITS GENERAL PARTNER
By: /s/ Daniel J. O'Brien
------------------------------------
Name: Daniel J.O'Brien
Title: Managing Member
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CCG ADMINISTRATION, L.L.C.
CCG INVESTMENTS (BVI), L.P.
CCG ASSOCIATES - QP, LLC
CCG ASSOCIATES - AI, LLC
CCG INVESTMENT FUND - AI, LP
CCG AV, LLC - SERIES C
CCG AV, LLC - SERIES E
By: Golden Gate Capital Management, L.L.C.
Its: Authorized Representative
By: /s/ Jesse Rogers
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Name: Jesse Rogers
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Its: Managing Director
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