Professional Documents
Culture Documents
in China
Disclaimer
This
disclaimer
is
issued
in
connection
with
this
document
and
the
oral
presentation
by
Pershing
Square
Capital
Management,
L.P.
(Pershing
Square)
on
Herbalife
in
China
(collectively,
the
Presentation).
Pershing
Square
is
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adviser
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that
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business
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actively
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and
selling
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and
other
Financial
instruments.
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maintains
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substantial
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position
in
the
common
stock
of
Herbalife
Ltd.
(Herbalife)
and
derivatives
related
to
its
common
stock.
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Square
will
proFit
if
the
trading
price
declines
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shares
of
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money
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price
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information
and
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contained
in
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Presentation
are
based
on
publicly
available
information
about
Herbalife
and
other
companies
and
persons.
Pershing
Square
recognizes
that
there
may
be
non-public
information
in
the
possession
of
Herbalife
or
others
that
could
lead
Herbalife
or
others
to
disagree
with
Pershing
Squares
analyses
and
conclusions.
The
Presentation
includes
forward-looking
statements,
estimates,
projections
and
opinions
prepared
with
respect
to,
among
other
things,
certain
legal
and
regulatory
issues
Herbalife
faces
and
the
potential
impact
of
those
issues
on
its
future
business,
Financial
condition
and
results
of
operations,
as
well
as,
more
generally,
Herbalifes
anticipated
operating
performance,
access
to
capital
markets,
market
conditions,
assets
and
liabilities.
Such
statements,
estimates,
projections
and
opinions
may
prove
to
be
substantially
inaccurate
and
are
inherently
subject
to
signiFicant
risks
and
uncertainties
beyond
Pershing
Squares
control.
Although
Pershing
Square
believes
the
statements
it
makes
in
the
Presentation
are
substantially
accurate
in
all
material
respects
and
do
not
omit
to
state
material
facts
necessary
to
make
those
statements
not
misleading,
Pershing
Square
makes
no
representation
or
warranty,
express
or
implied,
as
to
the
accuracy
or
completeness
of
those
statements
or
any
other
written
or
oral
communication
it
makes
with
respect
to
Herbalife
and
any
other
companies
or
persons
mentioned,
and
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Square
expressly
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liability
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to
those
statements
or
communications
(or
any
inaccuracies
or
omissions
therein).
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shareholders
and
others
should
conduct
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own
independent
investigation
and
analysis
of
those
statements
and
communications
and
of
Herbalife
and
any
other
companies
or
persons
to
which
those
statements
or
communications
may
be
relevant.
The
statements
Pershing
Square
makes
in
the
Presentation
are
not
investment
advice
or
a
recommendation
or
solicitation
to
buy
or
sell
any
securities.
Except
where
otherwise
indicated,
those
statements
speak
as
of
the
date
made,
and
Pershing
Square
undertakes
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obligation
to
correct,
update
or
revise
those
statements
or
to
otherwise
provide
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materials.
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commitment
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take
or
refrain
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taking
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action
with
respect
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Herbalife
or
any
other
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or
person.
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agree
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jurisdiction
and
venue
of
any
dispute
or
proceeding
relating
to
or
arising
from
the
Presentation
or
any
related
subject
matter
in
the
Courts
of
the
State
of
New
York
in
New
York
County
or
in
the
Federal
courts
located
in
the
Southern
District
of
New
York.
As
used
herein,
except
to
the
extent
the
context
otherwise
requires,
Pershing
Square
includes
its
afFiliates
and
funds
it
manages
or
advises
and
their
respective
partners,
directors,
ofFicers
and
employees.
2!
3!
Conclusions
4!
Herbalife in China
Herbalife in China
http://www.chinadaily.com.cn/business/images/
attachement/jpg/
site1/20091010/0013729e43580c3a733e49.jpg.
6!
Herbalife
in
China
Chinas
importance
to
Herbalifes
business
has
grown
dramatically
in
recent
years.
In
2013
.
.
.
China
net
sales
were
approximately
10%
of
worldwide
sales
China
net
sales
grew
69.3%
China
contributed
over
25.6%
of
total
net
sales
growth
Herbalife
in
China
Pres.
Des
Walsh:
China
is
probably
the
most
regulated
market
in
which
we
operate.
It
is
a
different
model
there
from
the
rest
of
the
world.
3Q13
Conf.
Call
8!
Herbalife in China
9!
Herbalife
in
China
Pershing
Square
investigated
whether
Herbalife
complies
with
Chinese
law
Sources:
Retained
OTG
Research
Group
(OTG)
OTG
sent
researchers
to
meet
with
a
dozen
Herbalife
distributors
in
Shanghai,
Guangzhou
and
Hefei
Principal
Aaron
Smith-Levin
oversaw
the
local
investigation
Reviewed
Herbalifes
SEC
filings
and
internal
financial
documents
As
we
will
show,
these
documents
confirm
that
Herbalifes
commission-
based
compensation
plan
in
China
is
essentially
identical
to
the
commission-based
plans
used
in
the
rest
of
the
world
11!
Herbalife in China
Research
Findings
in
China
13!
Source:
Interviews
with
Participants,
Marketing
Plan;
cf.
Herbalifes
10Ks,
which
use
different
terminology,
but
the
three
categories
stated
here
are
what
Chinese
distributors
use
to
describe
the
plan
14!
Source:
Interviews
with
Chinese
Distributors.
See
also
Herbalifes
Sneaky
Business
Activities
in
China
Raised
Suspicion:
Disguised
Form
of
Recruitment
Fees
Gives
Away
Its
Pyramid
Scheme,
First
Financial
Daily
(Aug.
12,
2013):
One
of
the
key
conditions
[of
qualifying
as
a
Business
Representative]
is
that
you
need
to
purchase
Herbalife
products
up
to
a
certain
quantity;
and
such
a
disguised
form
of
recruitment
fees
may
constitute
a
violation
of
the
relevant
provisions
of
the
State.
17!
RMB Equivalent
USD Equivalent
Retroactive Credit
100
1,200
$197
15%
500
6,000
$985
20%
2,000
24,000
$3,940
25%
Junior 1
Junior 2
Middle
Senior
Special
Volume
Points
Required
5,000 in a
three month
period
10,000 in a
three month
period
20,000 three
months in a
row
80,000 three
months in a
row
200,000 three
months in a
row
RMB
Equivalent
USD
Equivalent
60,000
$9,850
120,000
$19,700
2.88 million
total
$472,800
7.22 million
total
$1.19
million
Distributor
Incentives
Incentive
Compensation
of
Distributors
.
.
.
30%
Retroactive
Credits
Hourly
Consulting
Pay
a
deceptive
term
.
.
.
Comprised
of
three
forms
of
recruiting
rewards
based
on
Volume
Points
accumulated
by
a
Distributors
downline:
(1) Commission,
(2)
Management
Bonus,
and
(3)
Mark
Hughes
Dividend
Source:
Interviews
with
Herbalife
Distributors
in
China
23!
24!
Consulting Rate
250 RMB/hr
350 RMB/hr
500 RMB/hr
1,000 RMB/hr
2,000 RMB/hr
26!
6 years ago I funded only 1 club. I invested 60,000 RMB to open a club in Guangzhou. Since then 50
clubs have opened under me. None of these clubs were funded by me. But because I contributed to
these 50 clubs, everything about these 50 clubs is connected to me. Herbalife pays me a consultancy
fee.
...
I have realized financial freedom and time-freedom. Frankly speaking, I can stop working now. But the
clubs that have opened under me will not stop. They will still open their doors tomorrow, my income will
not stop. With our constant hard work, even if I dont work hard, these clubs will develop new
clubs, so we will have 500, 5,000, 50,000 clubs. Some of you might think we are doing pyramid
sales. Probably you would feel this way.
- Mr. Quiran Chen, Hefei
27!
28!
Several
Chinese
Distributors
drew
sketches
to
explain
their
approach
to
recruiting.
A
familiar
shape
appeared
again
and
again
.
.
.
29!
30!
31!
32!
33!
34!
35!
Herbalife in China
Applying
Chinese
Law
to
the
Facts
36!
VIOLATES
Direct
Sales
Regulations:
A
direct
selling
company
may
not
have
the
fee-paying
or
commodities
purchase
serve[
]
as
the
conditions
for
becoming
a
sales
promoter.
(Art.
14.)
37!
VIOLATES
Direct
Sales
Regulations:
A
direct
selling
company
may
not
have
the
.
.
.
commodities
purchase
serve[]
as
the
condition[]
for
becoming
a
sales
promoter.
(Art.
14.)
Pyramid
Sales
Regulations:
An
organization
may
constitute
a
pyramid
scheme
if
it
requires
participants
to
purchas[e]
commodities
for
obtaining
the
qualification
for
participating
in
pyramid
selling
.
.
.
.
(Art.
7(2).)
38!
VIOLATES
Direct
Sales
Regulations:
Only
[a]
direct
selling
company
and
its
branches
may
recruit
sales
promoters,
and
[n]o
entity
or
individual
outside
any
direct
selling
company
and
its
branches
may
recruit
any
sales
promoter.
(Art.
13.)
39!
VIOLATE
Herbalife in China
Analysis
of
Herbalifes
public
Filings
and
internal
Financial
documents
41!
42!
2010
2011
2012
2013
257.0
131.7
103.0
618.5
1,110.2
165.0
1,275.2
286.3
191.1
163.1
810.0
1,450.5
186.4
1,636.9
359.5
205.6
199.4
906.5
1,671.0
250.1
1,921.1
365.2
251.7
214.3
1,110.5
1,941.7
422.7
2,364.4
165.0
(87.3)
186.4
(96.8)
250.1
(123.5)
422.7
(215.6)
77.7
89.6
126.6
207.1
89.5%
88.4%
89.8%
89.6%
42.1%
42.5%
45.5%
43.9%
43.5%
44.7%
44.0%
44.6%
43!
Unit
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
m2009
m2010
m2011
Actual
Forecast T04
2009
2010
% RS
% RS
% RS
% RS
% RS
LC (k)
$ (k)
% RS
% RS
LC (k)
$ (k)
BPS
% RS
% RS
% RS
79,082
m2012
2011
m2013
Modeled
2012
m2014
2013
2014
25.0%
15.0%
7.0%
1.0%
1.0%
206,612
206,612
47.9%
46.7%
96,417
96,417
25.0%
15.0%
7.0%
1.0%
1.0%
1,622,604
237,693
47.9%
46.7%
757,196
110,921
25.0%
15.0%
7.0%
1.0%
1.0%
1,868,454
273,707
47.9%
46.7%
871,923
127,727
25.0%
15.0%
7.0%
1.0%
1.0%
2,212,642
324,127
47.9%
46.7%
1,032,540
151,255
25.0%
15.0%
7.0%
1.0%
1.0%
2,655,171
388,952
47.9%
46.7%
1,239,048
181,506
1.2%
1.2%
1.2%
1.2%
1.2%
97.5%
97.7%
97.5%
97.7%
97.5%
97.7%
97.5%
97.7%
97.5%
97.7%
44!
64
79,082
Modeled
2012
2011
2013
2014
25.0%
15.0%
7.0%
1.0%
1.0%
206,612
206,612
47.9%
46.7%
96,417
25.0%
15.0%
7.0%
1.0%
1.0%
1,622,604
237,693
47.9%
46.7%
757,196
25.0%
15.0%
7.0%
1.0%
1.0%
1,868,454
273,707
47.9%
46.7%
871,923
25.0%
15.0%
7.0%
1.0%
1.0%
2,212,642
324,127
47.9%
46.7%
1,032,540
25.0%
15.0%
7.0%
1.0%
1.0%
2,655,171
388,952
47.9%
46.7%
1,239,048
96,417
110,921
127,727
151,255
181,506
Source: Herbalife financial information spreadsheets from 2010 and Herbalifes 2010 year-ended 10K
45!
Unit
Net Sales (USD) - Excl. Marketing Fund Revenue
China
China Distribution
$ (k)
China Manufacturing
Total China
$ (k)
Net Sales to VP
China
China Distribution
NS/VP
China Manufacturing
Total China
NS/VP
Operating Expenses (USD)*
China
China Distribution
$ (k)
2004
2005
2006
2007
2009
Forecast T04
2010
2011
Modeled
2012
2013
2014
837
5,110
32,069
75,960
146,210
152,500
189,927
217,752
250,744
296,934
356,321
837
5,110
32,069
75,960
146,210
152,500
189,927
217,752
250,744
296,934
356,321
0.6
1.1
1.2
1.2
1.3
1.3
1.1
1.2
1.2
1.3
1.3
750
6,158
24,476
21,315
37,632
38,656
48,048
31,311
70,489
79,082
96,417
(679)
71
(737)
5,421
(737)
23,739
(818)
20,497
(685)
36,947
(1,139)
37,517
(269.4)
47,778
89.7%
120.5%
76.3%
28.1%
25.7%
25.3%
25.3%
25.5%
24.8%
23.7%
22.5%
8.5%
106.1%
74.0%
27.0%
25.3%
24.6%
25.2%
25.5%
24.8%
23.7%
22.5%
China Royalties
China Manufacturing
Total China
$ (k)
Operating Expenses (USD) as % of Net Sales*
China
China Distribution
% NS
China Manufacturing
Total China
% NS
2008
55,635
62,123
70,376
80,024
55,635
62,123
70,376
80,024
Unit
53
m2009
m2010
m2011
Actual
Forecast T04
2009
2010
m2012
2011
m2013
Modeled
2012
m2014
2013
2014
54
55
56
57
58
Rebate (inner/outer)
R/O (inner/outer/promo)
P/B (inner/outer/promo)
MH Bonus (RS)
China Bonus (RS)
% RS
% RS
% RS
% RS
% RS
59
60
61
62
63
64
65
66
67
68
69
LC (k)
$ (k)
% RS
% RS
LC (k)
$ (k)
BPS
% RS
% RS
% RS
79,082
25.0%
15.0%
7.0%
1.0%
1.0%
25.0%
15.0%
7.0%
1.0%
1.0%
25.0%
15.0%
7.0%
1.0%
1.0%
25.0%
15.0%
7.0%
1.0%
1.0%
25.0%
15.0%
7.0%
1.0%
1.0%
206,612
206,612
47.9%
46.7%
96,417
96,417
1,622,604
237,693
47.9%
46.7%
757,196
110,921
1,868,454
273,707
47.9%
46.7%
871,923
127,727
2,212,642
324,127
47.9%
46.7%
1,032,540
151,255
2,655,171
388,952
47.9%
46.7%
1,239,048
181,506
1.2%
1.2%
1.2%
1.2%
1.2%
97.5%
97.7%
97.5%
97.7%
97.5%
97.7%
97.5%
97.7%
97.5%
97.7%
47!
Source: Herbalife financial information spreadsheets and Herbalifes 2009 Investor Day Presentation
48!
55
56
57
58
R/O (inner/outer/promo)
P/B (inner/outer/promo)
MH Bonus (RS)
China Bonus (RS)
59
60
61
62
63
64
65
66
67
68
69
25.0%
15.0%
7.0%
1.0%
1.0%
206,612
206,612
47.9%
46.7%
96,417
96,417
1.2%
97.5%
97.7%
Source: Herbalife financial information spreadsheets and Herbalifes 2009 Investor Day Presentation
49!
2.
3.
51!
52!
Source:
Herbalife
10Ks;
see
also
China
Peoples
Daily
(1/15/14):
Lets
See
How
NuSkin
Weaves
a
Lie:
At
the
scene,
the
reporter
found
that
there
were
gathered
nearly
20,000
people
from
Taiyuan,
Shijiazhuang,
Tianjin,
and
other
places.
Lights
were
flashing
and
speakers
were
thundering.
The
conference
has
several
programs
including
Elite
Reward
and
On-Site
Interview.
People
who
were
commended
went
on
the
stage
one
by
one
and
shouted
loudly
to
lead
audiences
to
chant
slogans.
Nearly
20,000
people
audiences
beat
the
toy
palms
in
their
hands.
The
atmosphere
was
heated.
53!
55!
If
you
wish
to
submit
a
question,
please
email
it
to
questions@factsaboutherbalife.com
56!
Chinese Law
Appendix
Relevant
Articles
from
the
Chinese
Direct-Selling
Law,
Pyramid
Sales
Law
and
Criminal
Law
relating
to
Pyramids
57!
58!
Source: Pyramid Sales Regulations, issued by the State Council of the PRC on August 23, 2005 and effective November 1, 2005.
59!
60!
Source: Pyramid Sales Regulations, issued by the State Council of the PRC on August 23, 2005 and effective November 1, 2005.
61!
Source:
Amendment
VII
to
the
Criminal
Law
of
the
PRC,
issued
by
the
Standing
Committee
of
the
National
Peoples
Congress
of
the
PRC
on
February
28,
2009
and
effective
immediately.
62!
63!