UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Form 10-K/A

(Amendment No. 1)

 

 

FOR ANNUAL AND TRANSITION REPORTS

PURSUANT TO SECTIONS 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

(Mark One)

þ

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)

OF

THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2011

 

¨

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)

OF

THE SECURITIES EXCHANGE ACT OF 1934

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
(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 $0.001 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  ¨

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  ¨        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  ¨

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 of Regulation 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  ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation 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 this Form 10-K or any amendment to this Form 10-K.    ¨

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” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer  þ		Accelerated filer  ¨		Non-accelerated filer  ¨		Smaller reporting company  ¨

(Do not check if a smaller reporting company)

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

There were 116,273,652 common shares outstanding as of February 15, 2012. The aggregate market value of the Registrant’s common shares held by non-affiliates was approximately $5,688 million as of June 30, 2011, based upon the last reported sales price on the New York Stock Exchange on that date of $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, 2011, are incorporated by reference in Part III of this Annual Report on Form 10-K.

 

 

 

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EXPLANATORY NOTE

This Amendment No. 1 to the Annual Report on Form 10-K/A of Herbalife Ltd. (the “Company”) for the fiscal year ended December 31, 2011 is being filed solely to furnish the XBRL exhibits noted in the Exhibit Index hereto as furnished, not filed, herewith, which were incomplete in the initial filing of the Company’s Annual Report on Form 10-K on February 21, 2012 (the “Original Filing”) due to an XBRL processing error. This amendment does not otherwise change or update the disclosure set forth in the Original Filing or otherwise reflect events occurring after the date thereof.

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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		Notice to Distributors regarding Amendment to Agreements of Distributorship, dated as of July 18, 2002 between Herbalife International, Inc. and each Herbalife Distributor			(a	)
10.7		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	)
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	)
10.13		Indemnity 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	)
10.15		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	)
10.16		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	)
10.17		Form 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	)
10.19		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	)
10.20#		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	)

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Exhibit Number		Description		Reference
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	)
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	)
10.54		Credit 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	)
21.1		Subsidiaries of the Registrant			*

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Exhibit Number		Description		Reference
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		Taxonomy Extension Label Linkbase Document			*	*
101.PRE		XBRL Taxonomy Extension Presentation Linkbase Document			*	*

 

 

*	Previously filed.

 

**	Furnished, not filed, herewith.

 

#	Management contract or compensatory plan or arrangement.

 

(a)	Previously filed on October 1, 2004 as an Exhibit to the Company’s registration statement on Form S-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 on Form 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 on Form 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 on Form 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 on Form S-8 (File No. 333-122871) and is incorporated herein by reference.

 

(f)	Previously filed on April 30, 2010 as an Exhibit to the Company’s Current Report on Form 8-K and is incorporated herein by reference.

 

(g)	Previously filed on June 1, 2007 as an Exhibit to the Company’s Current Report on Form 8-K and is incorporated herein by reference.

 

(h)	Previously filed on February 26, 2008 as an Exhibit to the Company’s Annual Report on Form 10-K for the year ended December 31, 2007 and is incorporated herein by reference.

 

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

 

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

 

(k)	Previously filed on May 3, 2010 as an Exhibit to the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2010 and is incorporated by reference.

 

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

 

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

 

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

 

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

 

(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.

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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.

 

Dated: April 11, 2012