Registration of Securities Issued in a Business-Combination Transaction — Form S-4 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-4 Registration of Securities Issued in a HTML 1.97M
Business-Combination Transaction
2: EX-1.1 Underwriting Agreement HTML 232K
3: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 166K
4: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 16K
5: EX-3.3 Articles of Incorporation/Organization or By-Laws HTML 78K
6: EX-4.2 Instrument Defining the Rights of Security Holders HTML 529K
7: EX-5.1 Opinion re: Legality HTML 20K
8: EX-5.2 Opinion re: Legality HTML 32K
9: EX-5.3 Opinion re: Legality HTML 17K
10: EX-10.39 Material Contract HTML 113K
11: EX-10.40 Material Contract HTML 55K
12: EX-10.41 Material Contract HTML 55K
13: EX-10.42 Material Contract HTML 16K
14: EX-10.43 Material Contract HTML 13K
15: EX-12.1 Statement re: Computation of Ratios HTML 30K
16: EX-21.1 Subsidiaries of the Registrant HTML 19K
17: EX-21.2 Subsidiaries of the Registrant HTML 10K
18: EX-23.1 Consent of Experts or Counsel HTML 11K
19: EX-23.2 Consent of Experts or Counsel HTML 12K
20: EX-25.1 Statement re: Eligibility of Trustee HTML 41K
21: EX-99.1 Miscellaneous Exhibit HTML 69K
22: EX-99.2 Miscellaneous Exhibit HTML 24K
23: EX-99.3 Miscellaneous Exhibit HTML 26K
24: EX-99.4 Miscellaneous Exhibit HTML 38K
25: EX-99.5 Miscellaneous Exhibit HTML 13K
26: EX-99.6 Miscellaneous Exhibit HTML 19K
27: EX-99.7 Miscellaneous Exhibit HTML 16K
WH
Holdings (Cayman Islands) Ltd., a Cayman Islands exempted limited liability Issuers and WH Capital Corporation, a Nevada corporation (the "Issuers"), propose to make an offer
(the "Exchange Offer") to exchange all of their outstanding 91/2% Outstanding Notes due 2011 (the "Outstanding Notes") for their 91/2% New Notes due 2011 (the "New
Notes"). The terms and conditions of the Exchange Offer as currently contemplated are set forth in a prospectus, dated [ • ], 2004 (the "Prospectus"),
proposed to be distributed to all record holders of the
Outstanding Notes. The Outstanding Notes and the New Notes are collectively referred to herein as the "Securities".
The
Issuers hereby appoint The Bank of New York to act as exchange agent (the "Exchange Agent") in connection with the Exchange Offer. References hereinafter to "you" shall refer to The
Bank of New York.
The
Exchange Offer is expected to be commenced by the Issuers on or about [ • ], 2004. The Letter of Transmittal accompanying the Prospectus (or in the
case of
book-entry securities, the Automated Tender Offer Program ("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used by the holders of the Outstanding Notes
to accept the Exchange Offer and contains instructions with respect to the delivery of certificates for Outstanding Notes tendered in connection therewith.
The
Exchange Offer shall expire at 5:00 p.m., New York City time, on [ • ], 2004 or on such subsequent date or time to which the Issuers may extend
the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set forth in the Prospectus, the Issuers expressly reserve the right to extend the Exchange Offer from time to time and may
extend the Exchange Offer by giving oral or written notice to you before 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date.
The
Issuers expressly reserve the right to amend or terminate the Exchange Offer, and not to accept for exchange any Outstanding Notes not theretofore accepted for exchange, upon the
occurrence of any of the conditions of the Exchange Offer specified in the Prospectus under the caption "The Exchange Offer—Conditions of the Exchange Offer."
In
carrying out your duties as Exchange Agent, you are to act in accordance with the following instructions:
1.
You
will perform such duties and only such duties as are specifically set forth in the section of the Prospectus captioned "The Exchange Offer" or as specifically set forth herein;
provided, however, that in no way will your general duty to act in good faith be discharged by the foregoing.
2.
You
will establish a book-entry account with respect to the Outstanding Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for purposes
of the Exchange Offer within two business days after the date of the Prospectus, and any financial institution that is a participant in the Book-Entry Transfer Facility's systems may make
book-entry delivery of the Outstanding Notes by causing the Book-Entry Transfer Facility to transfer such
Outstanding
Notes into your account in accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3.
You
are to examine each of the Letters of Transmittal and certificates for Outstanding Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed to you by or for holders of the Outstanding Notes to ascertain whether: (i) the Letters of Transmittal and
any such other documents are duly executed and properly completed in accordance with instructions set forth therein; and (ii) the Outstanding Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been improperly completed or executed or any of the certificates for Outstanding Notes are not in proper form for transfer or some
other irregularity in connection with the acceptance of the Exchange Offer exists, you will endeavor to inform the presenters of the need for fulfillment of all requirements and to take any other
action as may be reasonably necessary or advisable to cause such irregularity to be corrected.
4.
With
the approval of the President, Senior Vice President, Executive Vice President, any Vice President, Secretary or General Counsel of either of the Issuers, or both, (such approval,
if given orally, to be promptly confirmed in writing) or any other party designated in writing, by such an officer, you are authorized to waive any defects, irregularities or conditions of surrender
in connection with any tender of Outstanding Notes pursuant to the Exchange Offer.
5.
Tenders
of Outstanding Notes may be made only as set forth in the Letter of Transmittal and in the section of the Prospectus captioned "The Exchange Offer—Procedures for
Tendering Outstanding Notes," and Outstanding Notes shall be considered properly tendered to you only when tendered in accordance with the procedures set forth therein.
Notwithstanding
the provisions of this Section 5, Outstanding Notes which the President, Senior Vice President, Executive Vice President, any Vice President Secretary or General Counsel of
either of the Issuers, or both, shall approve as having been properly tendered shall be considered to be properly tendered (such approval, if given orally, shall be promptly confirmed in writing).
6.
You
shall advise the Issuers with respect to any Outstanding Notes received subsequent to the Expiration Date and accept their instructions with respect to disposition of such
Outstanding Notes.
7.
You
shall accept tenders:
(a)
in
cases where the Outstanding Notes are registered in two or more names only if signed by all named holders;
(b)
in
cases where the signing person (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity only when proper evidence of his or her authority
so to act is submitted; and
(c)
from
persons other than the registered holders of Outstanding Notes, provided that customary transfer requirements, including payment of any applicable transfer taxes, are fulfilled.
You
shall accept partial tenders of Outstanding Notes where so indicated and as permitted in the Letter of Transmittal and deliver certificates for Outstanding Notes to the registrar for
split-up, and return any untendered Outstanding Notes to the holder (or such other person as may be designated in the Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
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8.
Upon
satisfaction or waiver of all of the conditions to the Exchange Offer, the Issuers will notify you (such notice, if given orally, to be promptly confirmed in writing) of their
acceptance, promptly after the Expiration Date, of all Outstanding Notes properly tendered and you, on behalf of the Issuers, will exchange such Outstanding Notes for New Notes and cause such
Outstanding Notes to be cancelled. Delivery of New Notes will be made on behalf of the Issuers by you at the rate of $1,000 principal amount of New Notes for each $1,000 principal amount of the
corresponding series of Outstanding Notes tendered promptly after notice (such notice if given orally, to be promptly confirmed in writing) of acceptance of said Outstanding Notes by the Issuers;
provided, however, that in all cases, Outstanding Notes tendered pursuant to the Exchange Offer will be exchanged only after timely receipt by you of certificates for such Outstanding Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer Facility), a properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantees and any other required documents. You shall issue New Notes only in denominations of $1,000 or any integral multiple thereof.
9.
Tenders
pursuant to the Exchange Offer are irrevocable, except that, subject to the terms and upon the conditions set forth in the Prospectus and the Letter of Transmittal, Outstanding
Notes tendered pursuant to the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10.
The
Issuers shall not be required to exchange any Outstanding Notes tendered if any of the conditions set forth in the Exchange Offer are not met. Notice of any decision by the
Issuers not to exchange any Outstanding Notes tendered shall be given (if given orally, to be promptly confirmed in writing) by the Issuers to you.
11.
If,
pursuant to the Exchange Offer, the Issuers do not accept for exchange all or part of the Outstanding Notes tendered because of an invalid tender, the occurrence of certain other
events set forth in the Prospectus under the caption "The Exchange Offer—Conditions of the Exchange Offer" or otherwise, you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted Outstanding Notes (or effect appropriate book-entry transfer), together with any related required documents and
the Letters of Transmittal relating thereto that are in your possession, to the holder (or such other person as may be designated in the Letter of Transmittal).
12.
All
certificates for reissued Outstanding Notes, unaccepted Outstanding Notes or for New Notes shall be forwarded by first-class mail.
13.
You
are not authorized to pay or offer to pay any concessions, commissions or solicitation fees to any broker, dealer, bank or other persons or to engage or utilize any person to
solicit tenders.
14.
As
Exchange Agent hereunder you:
(a)
shall
not be liable for any action or omission to act unless the same constitutes your own gross negligence, willful misconduct or bad faith, and in no event shall you be liable to a
Security holder, the Issuers or any third party for special, indirect or consequential damages, or lost profits, arising in connection with this Agreement;
(b)
shall
have no duties or obligations other than those specifically set forth herein or as may be subsequently agreed to in writing between you and the Issuers;
(c)
will
be regarded as making no representations and having no responsibilities as to the validity, sufficiency, value or genuineness of any of the certificates or the Outstanding Notes
represented thereby deposited with you pursuant to the Exchange Offer, and will
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not
be required to and will make no representation as to the validity, value or genuineness of the Exchange Offer;
(d)
shall
not be obligated to take any legal action hereunder which might in your judgment involve any material expense or liability, unless you shall have been furnished with indemnity
satisfactory to you;
(e)
may
conclusively rely on and shall be protected in acting in reliance upon any certificate, instrument, opinion, notice, letter, telegram or other document or security delivered to
you and believed by you in good faith to be genuine and to have been signed or presented by the proper person or persons;
(f)
may
act upon any tender, statement, request, document, agreement, certificate or other instrument whatsoever not only as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any information contained therein, which you shall in good faith believe to be genuine or to have been signed or presented by the proper person or
persons;
(g)
may
conclusively rely on and shall be protected in acting upon written or oral instructions from any authorized senior officer of the Issuers;
(h)
may
consult with counsel of your selection with respect to any questions relating to your duties and responsibilities and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted to be taken by you hereunder in good faith and in accordance with the advice or opinion of such counsel; and
(i)
shall
not advise any person tendering Outstanding Notes pursuant to the Exchange Offer as to the wisdom of making such tender or as to the market value or decline or appreciation in
market value of any Outstanding Notes.
15.
You
shall take such action as may from time to time be requested by the Issuers (and such other action as you may deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as defined in the Prospectus) or such other forms as may be approved from time to time by the Issuers, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the Exchange Offer, provided that such information shall relate only to the procedures for accepting (or withdrawing from) the
Exchange Offer. The Issuers will furnish you with copies of such documents on your request. All other requests for information relating to the Exchange Offer shall be directed to the Issuers,
Attention: Brett R. Chapman.
16.
You
shall advise by facsimile transmission Brett R. Chapman, the General Counsel of the Issuers (at the facsimile number (310) 203-7747), and such other person or
persons as the Issuers may request, daily (and more frequently during the week immediately preceding the Expiration Date if requested) up to and including the Expiration Date, as to the number of
Outstanding Notes which have been tendered pursuant to the Exchange Offer and the items received by you pursuant to this Agreement, separately reporting and giving cumulative totals as to items
properly received and items improperly received. In addition, you will also inform, and cooperate in making available to, the Issuers or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other information as they may reasonably request. Such cooperation shall include, without limitation, the granting by you to the Issuers and such
person or persons as the Issuers may request of access to those persons on your staff who are responsible for receiving tenders, in order to ensure that immediately prior to the Expiration Date the
Issuers shall have received information in sufficient detail to enable them to decide whether to extend the Exchange Offer. You shall
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prepare
a final list of all persons whose tenders were accepted, the aggregate principal amount of Outstanding Notes tendered, the aggregate principal amount of Outstanding Notes accepted and deliver
said list to the Issuers.
17.
Letters
of Transmittal and Notices of Guaranteed Delivery shall be stamped by you as to the date and, after the expiration of the Exchange Offer, the time, of receipt thereof and
shall be preserved by you for a period of time at least equal to the period of time you preserve other records pertaining to the transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Issuers.
18.
For
services rendered as Exchange Agent hereunder, you shall be entitled to such compensation as set forth on Schedule I attached hereto. The provisions of this section shall
survive the termination of this Agreement.
19.
You
hereby acknowledge receipt of the Prospectus and the Letter of Transmittal. Any inconsistency between this Agreement, on the one hand, and the Prospectus and the Letter of
Transmittal (as they may be amended from time to time), on the other hand, shall be resolved in favor of the latter two documents, except with respect to your duties, liabilities and indemnification
as Exchange Agent.
20.
The
Issuers covenant and agree to fully indemnify and hold you harmless against any and all loss, liability, cost or expense, including reasonable attorneys' fees and expenses,
incurred without gross negligence, bad faith or willful misconduct on your part, arising out of or in connection with any act, omission, delay or refusal made by you in reliance upon any signature,
endorsement, assignment, certificate, order, request, notice, instruction or other instrument or document believed by you to be valid, genuine and sufficient and in accepting any tender or effecting
any transfer of Outstanding Notes believed by you in good faith to be authorized, and in delaying or refusing in good faith to accept any tenders or effect any transfer of Outstanding Notes. In each
case, the Issuers shall be notified by you, by letter or facsimile transmission, of the written assertion of a claim against you or of any other action commenced against you, promptly after you shall
have received any such written assertion or shall have been served with a summons in connection therewith. The Issuers shall be entitled to participate at their own expense in the defense of any such
claim or other action and, if the Issuers so elect, the Issuers shall assume the defense of any suit brought to enforce any such claim. In the event that the Issuers shall assume the defense of any
such suit, the Issuers shall not be liable for the fees and expenses of any additional counsel thereafter retained by you, so long as the Issuers shall retain counsel satisfactory to you to defend
such suit, and so long as you have not determined, in your reasonable judgment, that a conflict of interest exists between you and the Issuers. The provisions of this section shall survive the
termination of this Agreement.
21.
You
shall arrange to comply with all requirements under the tax laws of the United States, including those relating to missing Tax Identification Numbers, and shall file any
appropriate reports with the Internal Revenue Service.
22.
You
shall deliver or cause to be delivered, in a timely manner to each governmental authority to which any transfer taxes are payable in respect of the exchange of Outstanding Notes,
the Issuers' check in the amount of all transfer taxes so payable; provided, however, that you shall reimburse the Issuers for amounts refunded to you in respect of your payment of any such transfer
taxes, at such time as such refund is received by you.
23.
This
Agreement and your appointment as Exchange Agent hereunder shall be construed and enforced in accordance with the laws of the State of New York applicable to agreements made and
to be performed entirely within such state, and without regard to conflicts of law
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principles,
and shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of each of the parties hereto.
24.
This
Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same agreement.
25.
In
case any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
26.
This
Agreement shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. This Agreement may not be modified orally.
27.
Unless
otherwise provided herein, all notices, requests and other communications to any party hereunder shall be in writing (including facsimile or similar writing) and shall be given
to such party, addressed to it, at its address or telecopy number set forth below:
If
to the Issuers:
WH
Holdings (Cayman Islands) Ltd./WH Capital Corporation
c/o Herbalife International, Inc.
1800 Century Park East Los Angeles, CA90067
Facsimile: (310) 203-7747
Attention: General Counsel
with
a copy to:
Gibson
Dunn & Crutcher LLP
2029 Century Park East
Suite 4000 Los Angeles, CA90067
Facsimile: (310) 552-7030
Attention: Michael B. Mayes, Esq.
If
to the Exchange Agent:
The
Bank of New York
101 Barclay Street
Floor 21 West New York, New York10286
Facsimile: (212) 815.5802
Attention: Corporate Trust Trustee Administration
28.
Unless
terminated earlier by the parties hereto, this Agreement shall terminate 90 days following the Expiration Date. Notwithstanding the foregoing, Sections 18 and 20 shall
survive the termination of this Agreement. Upon any termination of this Agreement, you shall promptly deliver to the Issuers any certificates for Securities, funds or property then held by you as
Exchange Agent under this Agreement.
29.
This
Agreement shall be binding and effective as of the date hereof.
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Please
acknowledge receipt of this Agreement and confirm the arrangements herein provided by signing and returning the enclosed copy.
