EXHIBIT 10.43
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 27, 2002
By and Among
WH Acquisition Corp.
as Issuer,
The Guarantors listed on the signature pages hereto
and
UBS WARBURG LLC,
as Initial Purchaser
$165,000,000 11 3/4% Senior Subordinated Notes due 2010
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TABLE OF CONTENTS
Page
1. Definitions.......................................................................1
2. Exchange Offer....................................................................4
3. Shelf Registration................................................................7
4. Liquidated Damages................................................................8
5. Registration Procedures..........................................................10
6. Registration Expenses............................................................18
7. Indemnification..................................................................19
8. Rules 144 and 144A...............................................................22
9. Underwritten Registrations.......................................................22
10. Miscellaneous....................................................................23
(a) No Inconsistent Agreements................................................23
(b) Adjustments Affecting Registrable Notes...................................23
(c) Amendments and Waivers....................................................23
(d) Notices...................................................................23
(e) Successors and Assigns....................................................24
(f) Counterparts..............................................................24
(g) Headings..................................................................24
(h) Governing Law.............................................................24
(i) Severability..............................................................25
(j) Securities Held by the Issuer or Its Affiliates...........................25
(k) Third-Party Beneficiaries.................................................25
(l) Attorneys' Fees...........................................................25
(m) Entire Agreement..........................................................25
SIGNATURES..............................................................................S-1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
June 27, 2002, by and between WH ACQUISITION CORP., a Nevada corporation (the
"Issuer"), WH INTERMEDIATE HOLDINGS LTD., a Cayman Islands corporation, WH
LUXEMBOURG HOLDINGS SARL, a Luxembourg company, WH LUXEMBOURG INTERMEDIATE
HOLDINGS SARL, a Luxembourg company and WH LUXEMBOURG CM SARL, a Luxembourg
company (collectively, the "Guarantors") on the one hand, and UBS WARBURG LLC
(the "Initial Purchaser"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 21, 2002, by and among the Issuer, Herbalife
International, Inc., a Nevada Corporation ("Herbalife"), the Guarantors party
thereto and the Initial Purchaser (the "Purchase Agreement"), relating to the
offering of $165,000,000 aggregate principal amount of the Issuer's 11 3/4%
Senior Subordinated Notes due 2010 (the "Notes") guaranteed in accordance with
the provisions of the indenture governing the Notes. The execution and delivery
of this Agreement is a condition to the Initial Purchaser's obligation to
purchase the Notes under the Purchase Agreement.
The Issuer has entered into an Agreement and Plan of Merger, dated as of
April 10, 2002, among the Issuer, Herbalife and WH Holdings (Cayman Islands)
Ltd. (the "Merger"), pursuant to which the Issuer will merge with and into
Herbalife and Herbalife will be the surviving corporation and an indirect wholly
owned subsidiary of WH Holdings (Cayman Islands) Ltd. As a result of the Merger,
Herbalife will expressly assume all of the obligations of the Issuer under this
Agreement will become obligations of Herbalife and all references in this
Agreement to the "Issuer" shall refer to Herbalife. Upon consummation of the
Merger, Herbalife shall cause each of the Herbalife Guarantors (as defined in
the Purchase Agreement) in existence at the time of the closing of the Merger to
execute and deliver a joinder to this Agreement substantially in the form of
Exhibit A attached hereto, concurrently with the closing of the Merger and
following the consummation of the Merger all references in this Agreement to
"Guarantors" shall include the Herbalife Guarantors.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c) hereof.
"ADVICE" shall have the meaning set forth in Section 5 hereof.
"AGREEMENT" shall have the meaning set forth in the first
introductory paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section
2(b) hereof.
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"BOARD OF DIRECTORS" shall have the meaning set forth in Section
5 hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DAY" shall mean a calendar day.
"DAMAGES PAYMENT DATE" shall have the meaning set forth in
Section 4(b) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 5
hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 3(b) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning
set forth in Section 2(a) hereof.
"HOLDER" shall mean any holder of a Registrable Note or
Registrable Notes.
"INDENTURE" shall mean the indenture, dated as of the Issue Date,
by and between the Issuer, the Guarantors and The Bank of New York, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
"INITIAL PURCHASER" shall have the meaning set forth in the first
introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n)
hereof.
"ISSUE DATE" shall mean June 27, 2002, the date of original
issuance of the Notes.
"ISSUER" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Issuer's permitted successors and
assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
4(a) hereof.
"LOSSES" shall have the meaning set forth in Section 7(a) hereof.
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"MERGER DATE" shall mean the date the Merger is consummated in
accordance with the Merger Agreement.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"NOTES" shall have the meaning set forth in the second
introductory paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a)
hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership,
joint venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section
2(b) hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in
Section 2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any
Registration Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
second introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n)
hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original
issuance and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(iii) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iii) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstand-
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ing for purposes of the Indenture or (iv) such Note, Exchange Note or Private
Exchange Note has been sold in compliance with Rule 144 or is salable pursuant
to Rule 144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in
Section 4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuer covering any of the Registrable Notes filed with the
Commission under the Securities Act, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning
set forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in Section
2(c) hereof.
"SHELF REGISTRATION" shall have the meaning set forth in Section
3(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a Registration
Statement filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the
trustee (if any) under any Indenture governing the Exchange Notes and Private
Exchange Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Issuer is sold to an underwriter for
reoffering to the public.
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Section 2. Exchange Offer
(a) The Issuer and the Guarantors shall (i) file a
Registration Statement (the "Exchange Offer Registration Statement") within 105
days after the Merger Date with the Commission on an appropriate registration
form with respect to a registered offer (the "Exchange Offer") to exchange any
and all of the Registrable Notes for a like aggregate principal amount of notes
(the "Exchange Notes") that are identical in all material respects to the Notes
(except that the Exchange Notes shall not contain terms with respect to transfer
restrictions or Liquidated Damages upon a Registration Default), (ii) use their
reasonable efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 180 days after the Merger
Date and (iii) use their reasonable efforts to consummate the Exchange Offer
within 210 days after the Merger Date. Upon the Exchange Offer Registration
Statement being declared effective by the Commission, the Issuer and the
Guarantors will offer the Exchange Notes in exchange for surrender of the Notes.
The Issuer and the Guarantors shall keep the Exchange Offer open for not less
than 30 days (or longer if required by applicable law) after the date notice of
the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Issuer and the Guarantors in writing that (i) any
Exchange Notes to be received by it will be acquired in the ordinary course of
its business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes in violation of the provisions of the Securities Act or, if
it is an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iii) if such
Holder is not a broker-dealer, it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes, (iv) if such Holder is a
broker-dealer that will receive Exchange Notes for its own account in exchange
for Notes that were acquired as a result of market-making or other trading
activities, it will deliver a prospectus in connection with any resale of such
Exchange Notes and (v) such Holder has full power and authority to transfer the
Notes in exchange for the Exchange Notes and that the Issuer will acquire good
and unencumbered title thereto free and clear of any liens, restrictions,
charges or encumbrances and not subject to any adverse claims.
(b) The Issuer, the Guarantors and the Initial Purchaser
acknowledge that the staff of the Commission has taken the position that any
broker-dealer that elects to exchange Notes that were acquired by such
broker-dealer for its own account as a result of market-making or other trading
activities for Exchange Notes in the Exchange Offer (a "Participating
Broker-Dealer") may be deemed to be an "underwriter" within the meaning of the
Securities Act and must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment resulting from the original offering of the
Notes).
The Issuer, the Guarantors and the Initial Purchaser also
acknowledge that the staff of the Commission has taken the position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Notes, without naming
the Participating Broker-Dealers or specifying the amount of Exchange Notes
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obliga-
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tions under the Securities Act in connection with resales of Exchange Notes for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuer and the
Guarantors agree to use their reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective for a period not to exceed 180
days after the date on which the Exchange Registration Statement is declared
effective, or such longer period if extended pursuant to the last paragraph of
Section 5 hereof (such period, the "Applicable Period"), or such earlier date as
all Requesting Participating Broker-Dealers shall have notified the Issuer in
writing that such Requesting Participating Broker-Dealers have resold all
Exchange Notes acquired in the Exchange Offer. The Issuer and the Guarantors
shall include a plan of distribution in such Exchange Offer Registration
Statement that meets the requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial
Purchaser or any Holder, as the case may be, holds any Notes acquired by it that
have, or that are reasonably likely to be determined to have, the status of an
unsold allotment in an initial distribution, or if any Holder is not entitled to
participate in the Exchange Offer, the Issuer upon the request of the Initial
Purchaser or any such Holder, as the case may be, shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the
Initial Purchaser or any such Holder, as the case may be, in exchange (the
"Private Exchange") for such Notes held by the Initial Purchaser or any such
Holder, as the case may be, a like principal amount of notes (the "Private
Exchange Notes") of the Issuer that are identical in all material respects to
the Exchange Notes except that the Private Exchange Notes may be subject to
restrictions on transfer and bear a legend to such effect. The Private Exchange
Notes shall be issued pursuant to the same Indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.
For each Note surrendered in the Exchange Offer, the Holder will
receive an Exchange Note having a principal amount equal to that of the
surrendered Note. Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Exchange Offer and in the Private Exchange will accrue
from the last interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer, the Issuer and the
Guarantors shall have no further registration obligations other than the
Issuer's and the Guarantors' continuing registration obligations with respect to
(i) Private Exchange Notes, (ii) Exchange Notes held by Participating
Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(iii) of
this Section 2 applies.
In connection with the Exchange Offer, the Issuer and the
Guarantors shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York time, on the last Business Day on
which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and
the Private Exchange, if any, the Issuer and the Guarantors shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn by the Holders pursuant to the Exchange Offer
and the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each such Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Registrable Notes of
such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject
to any conditions, other than that (i) the Exchange Offer or Private Exchange,
as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Issuer and the
Guarantors to proceed with the Exchange Offer or the Private Exchange, and no
material adverse development shall have occurred in any existing action or
proceeding with respect to the Issuer or the Guarantors and (iii) all
governmental approvals shall have been obtained, which approvals the Issuer
deems necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) Indenture identical in all material
respects to the Indenture (in either case, with such changes as are necessary to
comply with any requirements of the Commission to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA and shall provide that (a) the Exchange Notes shall not
be subject to the transfer restrictions set forth in the Indenture and (b) the
Private Exchange Notes shall be subject to the transfer restrictions set forth
in the Indenture. The Indenture or such indentures shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Notes will have the right to vote or consent as a
separate class on any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuer
and the Guarantors to effect the Exchange Offer,
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(ii) for any reason the Exchange Offer is not consummated within 210 days of the
Issue Date, (iii) any Holder, other than the Initial Purchaser, is prohibited by
law or the applicable interpretations of the staff of the Commission from
participating in the Exchange Offer or does not receive Exchange Notes on the
date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such holder as
an affiliate of the Issuer within the meaning of the Securities Act) or (iv) the
Initial Purchaser so requests with respect to Notes or Private Exchange Notes
that have, or that are reasonably likely to be determined to have, the status of
unsold allotments in an initial distribution (each such event referred to in
clauses (i) through (iv) of this sentence, a "Shelf Filing Event"), then the
Issuer and the Guarantors shall file a Shelf Registration pursuant to Section 3
hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuer and the Guarantors shall file
with the Commission a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Notes not
exchanged in the Exchange Offer, Private Exchange Notes and Exchange Notes as to
which Section 2(c)(iii) is applicable (the "Shelf Registration"). The Issuer and
the Guarantors shall use their reasonable efforts to file with the Commission
the Shelf Registration as promptly as practicable. The Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings). The
Issuer shall not permit any securities other than the Registrable Notes to be
included in the Shelf Registration.
(b) The Issuer and the Guarantors shall use their reasonable
efforts (x) to cause the Shelf Registration to be declared effective under the
Securities Act on or prior to the later of 210 calendar days after the Merger
Date or 90 days after the Shelf Registration is required to be filed with the
Commission and (y) to keep the Shelf Registration continuously effective under
the Securities Act for the period ending on the date which is two years from the
Issue Date, subject to extension pursuant to the penultimate paragraph of
Section 5 hereof (the "Effectiveness Period"), or such shorter period ending
when all Registrable Notes covered by the Shelf Registration have been sold in
the manner set forth and as contemplated in the Shelf Registration; provided,
however, that (i) the Effectiveness Period in respect of the Shelf Registration
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) the Issuer and the Guarantors may
suspend the effectiveness of the Shelf Registration Statement by written notice
to the Holders as a result of (A) the filing of a post-effective amendment to
the Shelf Registration Statement to incorporate annual audited financial
information with respect to the Issuer where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus and (B) the penultimate paragraph of Section 5 hereof.
(c) Supplements and Amendments. The Issuer and the Guarantors
agree to supplement or make amendments to the Shelf Registration Statement as
and when required by the rules,
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regulations or instructions applicable to the registration form used for such
Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, or if reasonably requested by the Holders of
a majority in aggregate principal amount of the Registrable Notes covered by
such Registration Statement or by any underwriter of such Registrable Notes.
Section 4. Liquidated Damages
(a) The Issuer, the Guarantors and the Initial Purchaser agree
that the Holders will suffer damages if the Issuer and the Guarantors fail to
fulfill their respective obligations under Section 2 or Section 3 hereof and
that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuer and the Guarantors agree that if:
(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 105th day following the Merger Date or, if that
filing date is not a Business Day, the next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared effective
on or prior to the 180th day following the Merger Date or, if that effectiveness
day is not a Business Day, the next day that is a Business Day,
(iii) the Exchange Offer is not consummated on or prior to the 210th day
following the Merger Date, or, if that day is not a Business Day, the next day
that is a Business Day; or
(iv) the Shelf Registration Statement is required to be filed but is not
declared effective by the later of 210 calendar days after the Merger Date or 90
days after the Shelf Registration is required to be filed with the Commission,
or, if either such day is not a Business Day, the next day that is a Business
Day or is declared effective by such date but thereafter ceases to be effective
or usable, except if the Shelf Registration ceases to be effective or usable as
specifically permitted by the penultimate paragraph of Section 5 hereof
(each such event referred to in clauses (i) through (iv) a "Registration
Default"), liquidated damages ("Liquidated Damages") will accrue on the affected
Notes and the affected Exchange Notes, as applicable. The rate of Liquidated
Damages will be 0.25% per annum for the first 90-day period immediately
following the occurrence of a Registration Default, increasing by an additional
0.25% per annum with respect to each subsequent 90-day period up to a maximum
amount of 1.00% per annum, from and including the date on which any such
Registration Default shall occur to, but excluding, the earlier of (1) the date
on which all Registration Defaults have been cured or (2) the date on which all
the Notes and Exchange Notes otherwise become freely transferable by Holders
other than affiliates of the Issuer without further registration under the
Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable
shall not increase because more than one Registration Default has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is not entitled to
the benefits of the Shelf Registration Statement (i.e., such Holder has not
elected to include information) shall not be entitled to Liquidated Damages with
respect to a Registration Default that pertains to the Shelf Registration
Statement.
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(b) So long as Notes remain outstanding, the Issuer shall notify
the Trustee within five Business Days after each and every date on which an
event occurs in respect of which Liquidated Damages is required to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash semi-annually on each
January 15th and July 15th (each a "Damages Payment Date"), commencing with the
first such date occurring after any such Liquidated Damages commence to accrue,
to Holders to whom regular interest is payable on such Damages Payment Date with
respect to Notes that are Registrable Securities. The amount of Liquidated
Damages for Registrable Notes will be determined by multiplying the applicable
rate of Liquidated Damages by the aggregate principal amount of all such
Registrable Notes outstanding on the Damages Payment Date following such
Registration Default in the case of the first such payment of Liquidated Damages
with respect to a Registration Default (and thereafter at the next succeeding
Damages Payment Date until the cure of such Registration Default), multiplied by
a fraction, the numerator of which is the number of days such Liquidated Damages
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuer and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Issuer and the Guarantors hereunder, each of the Issuer and the Guarantors
shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3
hereof, and use its reasonable efforts to cause each such Registration
Statement to become effective and remain effective as provided herein;
provided, however, that if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto,
before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Issuer and the Guarantors shall furnish to
and afford the Holders of the Registrable Notes covered by such
Registration Statement or each such Participating Broker-Dealer, as the
case may be, its counsel (if such counsel is known to the Issuer) and
the managing underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to
be filed (in each case at least five Business Days prior to such filing
or such later date as is reasonable under the circumstances). The Issuer
and the Guarantors shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a
majority in aggregate principal amount of the Registrable Notes covered
by such Registration Statement, or any such Participating Broker-Dealer,
as the case may be, its counsel, or the managing underwriters, if any,
shall reasonably object on a timely basis.
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(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective for
the Effectiveness Period or the Applicable Period, as the case may be;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to it with respect to
the disposition of all securities covered by such Registration Statement
as so amended or in such Prospectus as so supplemented and with respect
to the subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus, in each case, in
accordance with the intended methods of distribution set forth in such
Registration Statement or Prospectus, as so amended.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating thereto from
whom the Issuer has received written notice that such Broker-Dealer will
be a Participating Broker-Dealer in the applicable Exchange Offer,
notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, as promptly as possible, and, if
requested by any such Person, confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuer, one
conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of
any proceedings for that purpose, (iii) if at any time when a Prospectus
is required by the Securities Act to be delivered in connection with
sales of the Registrable Notes or resales of Exchange Notes by
Participating Broker-Dealers, the representations and warranties of the
Issuer or the Guarantors contained in any agreement (including any
underwriting agreement) contemplated by Section 5(m)(i) hereof cease to
be true and correct in all material respects, (iv) of the receipt by the
Issuer or the Guarantors of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or the Exchange
Notes for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of
any event, the existence of any condition or any information becoming
known to the Issuer or any Guarantor that makes any statement made in
such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it
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will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (vi) of
the Issuer's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use its reasonable
best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes, as the case may be, for sale in any jurisdiction, and,
if any such order is issued, to use its reasonable best efforts to
obtain the withdrawal of any such order at the earliest practicable
moment.
(e) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if reasonably
requested by the managing underwriter or underwriters (if any), the
Holders of a majority in aggregate principal amount of the Registrable
Notes covered by such Registration Statement or any Participating
Broker-Dealer, as the case may be, (i) promptly incorporate in such
Registration Statement or Prospectus a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters (if any), such Holders or any Participating Broker-Dealer,
as the case may be (based upon advice of counsel), determine is
reasonably necessary to be included therein and (ii) make all required
filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Issuer has received notification of the
matters to be incorporated in such prospectus supplement or
post-effective amendment; provided, however, that the Issuer and the
Guarantors shall not be required to take any action hereunder that
would, in the written opinion of counsel to the Issuer and the
Guarantors, violate applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, furnish to each
selling Holder of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, who so requests, its counsel and each
managing underwriter, if any, at the sole expense of the Issuer, one
conformed copy of the Registration Statement or Registration Statements
and each post-effective amendment thereto, including financial
statements and schedules, and, if re-
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quested, all documents incorporated or deemed to be incorporated therein
by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, deliver to each
selling Holder of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, its respective counsel, and the
underwriters, if any, at the sole expense of the Issuer, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, the
Issuer hereby consents to the use of such Prospectus and each amendment
or supplement thereto by each of the selling Holders of Registrable
Notes or each such Participating Broker-Dealer, as the case may be, and
the underwriters or agents, if any, and dealers (if any), in connection
with the offering and sale of the Registrable Notes covered by, or the
sale by Participating Broker-Dealers of the Exchange Notes pursuant to,
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or
Exchange Notes or any delivery of a Prospectus contained in the Exchange
Offer Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use its
reasonable best efforts to register or qualify, and to cooperate with
the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and its respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as the case
may be, for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriter or underwriters
reasonably request; provided, however, that where Exchange Notes or
Registrable Notes are offered other than through an underwritten
offering, the Issuer agrees to use its reasonable best efforts to cause
the Issuer's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this
Section 5(h); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Exchange Notes or Registrable Notes covered by the
applicable Registration Statement; provided, however, that none of the
Issuer or the Guarantors shall not be required to (A) qualify generally
to do business in any jurisdiction where it is not then so qualified,
(B) take any action that would subject it to general service of process
in any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
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to be sold, which certificates shall not bear any restrictive legends
and shall be in a form eligible for deposit with the depositary or
common depositary, as applicable, and enable such Registrable Notes to
be in such denominations and registered in such names as the managing
underwriter or underwriters, if any, or selling Holders may request at
least five Business Days prior to any sale of such Registrable Notes or
Exchange Notes.
(j) Use its reasonable efforts to cause the Registrable Notes or
Exchange Notes covered by any Registration Statement to be registered
with or approved by such other governmental agencies or authorities as
may be reasonably necessary to enable the seller or sellers thereof or
the underwriter or underwriters, if any, to consummate the disposition
of such Registrable Notes or Exchange Notes, except as may be required
solely as a consequence of the nature of such selling Holder's business,
in which case the Issuer and the Guarantors will cooperate in all
reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(c)(v) or 5(c)(vi) hereof, as
promptly as practicable prepare and (subject to Section 5(a) and the
penultimate paragraph of this Section 5) file with the Commission, at
the sole expense of the Issuer, a supplement or post-effective amendment
to the Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with the depositary and common depositary, as applicable, and
(ii) provide a CUSIP number for the Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or the disposition of such
Registrable Notes and, in such connection, (i) make such representations
and warranties to, and covenants with, the underwriters with respect to
the business of the Issuer, the Guarantors and their respective
subsidiaries, as then conducted (including any acquired business,
properties or entity, if applicable), and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by
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reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to the
Notes, and confirm the same in writing if and when requested; (ii) use
its reasonable efforts to obtain the written opinions of counsel to the
Issuer and the Guarantors and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use its reasonable efforts to obtain
"cold comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Issuer and the
Guarantors (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuer or any Guarantor or of any
business acquired by the Issuer or any Guarantor for which financial
statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings; and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the
managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section; provided that the
Issuer and the Guarantors shall not be required to provide
indemnification to any underwriter selected in accordance with the
provisions of Section 9 hereof with respect to information relating to
such underwriter furnished in writing to the Issuer and the Guarantors
by or on behalf of such underwriter expressly for inclusion in such
Registration Statement. The above shall be done at each closing under
such underwriting agreement, or as and to the extent required
thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold or
each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable Notes,
if any, and any attorney, accountant or other agent retained by any such
selling Holder or each such Participating Broker-Dealer, as the case may
be, or underwriter (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and instruments of the
Issuer and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Issuer, the Guarantors and their respective
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and Prospectus.
Each Inspector shall agree in writing that it will keep the Records
confidential and that it will not disclose, or use in connection with
any market transactions in violation of any applicable securities laws,
any Records that the Issuer determines, in good faith, to be
confidential and that it notifies the Inspectors in writing are
confidential unless
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(i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (iii) disclosure of
such information is necessary or advisable in the opinion of counsel for
an Inspector in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iv) the
information in such Records has been made generally available to the
public; provided, however, that (i) each Inspector shall agree to use
reasonable best efforts to provide notice to the Issuer of the potential
disclosure of any information by such Inspector pursuant to clause (i),
(ii) or (iii) of this sentence to permit the Issuer to obtain a
protective order (or waive the provisions of this paragraph (n)) and
(ii) each such Inspector shall take such actions as are reasonably
necessary to protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not inconsistent
with, an impairment of or in derogation of the rights and interests of
the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(b) hereof to be qualified under the
TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes or Exchange Notes, as
applicable, to effect such changes to such indenture as may be required
for such indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable best efforts to cause such
trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
Commission to enable such indenture to be so qualified in a timely
manner.
(p) Comply in all material respects with all applicable rules and
regulations of the Commission and make generally available to the
Issuer's securityholders earnings statements satisfying the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the
end of any fiscal quarter in which Registrable Notes or Exchange Notes
are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the
Issuer after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the request of a Holder, upon consummation of the
Exchange Offer or a Private Exchange, use its reasonable efforts to
obtain an opinion of counsel to the Issuer, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of
all Holders of Registrable Notes participating in the Exchange Offer or
the Private Exchange, as the case may be, that the Exchange Notes or
Private Exchange Notes, as the case may be, and the related indenture
constitute legal, valid and binding obligations of the Issuer,
enforceable
-17-
against the Issuer in accordance with its respective terms, subject to
customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Issuer (or to such other Person as directed by the Issuer) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may
be, ▇▇▇▇, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; provided that in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(s) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
(t) Use its reasonable efforts to take all other steps reasonably
necessary or advisable to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement
contemplated hereby.
The Issuer may require each seller of Registrable Notes or
Exchange Notes as to which any registration is being effected to furnish to the
Issuer such information regarding such seller and the distribution of such
Registrable Notes or Exchange Notes as the Issuer may, from time to time,
reasonably request. The Issuer may exclude from such registration the
Registrable Notes of any seller so long as such seller fails to furnish such
information within a reasonable time after receiving such request and in the
event of such an exclusion, the Issuer shall have no further obligation under
this Agreement (including, without limitation, the obligations under Section 4)
with respect to such seller or any subsequent Holder of such Registrable Notes.
Each seller as to which any Shelf Registration is being effected agrees to
furnish promptly to the Issuer all information required to be disclosed in order
to make any information previously furnished to the Issuer by such seller not
materially misleading.
If any such Registration Statement refers to any Holder by name
or otherwise as the holder of any securities of the Issuer or the Guarantors,
then such Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably satisfactory to such Holder, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Issuer, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
applicable Registration Statement filed or prepared subsequent to the time that
such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the
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Issuer (x) of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(iv), or 5(c)(v) hereof, or (y) that the Board of
Directors of the Issuer (the "Board of Directors") has resolved that the Issuer
has a bona fide business purpose for doing so, then the Issuer may delay the
filing or the effectiveness of the Exchange Offer Registration Statement or the
Shelf Registration Statement (if not then filed or effective, as applicable) and
shall not be required to maintain the effectiveness thereof or amend or
supplement the Exchange Offer Registration Statement or the Shelf Registration,
in all cases, for a period (a "Delay Period") expiring upon the earlier to occur
of (i) in the case of the immediately preceding clause (x), such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof or until it is advised in
writing (the "Advice") by the Issuer that the use of the applicable Prospectus
may be resumed, and has received copies of any amendments or supplements thereto
or (ii) in the case of the immediately preceding clause (y), the date which is
the earlier of (A) the date on which such business purpose ceases to interfere
with the Issuer's obligations to file or maintain the effectiveness of any such
Registration Statement pursuant to this Agreement or (B) 60 days after the
Issuer notifies the Holders of such good faith determination. There shall not be
more than 60 days of Delay Periods during any 12-month period. Each of the
Effectiveness Period and the Applicable Period, if applicable, shall be extended
by the number of days during any Delay Period. Any Delay Period will not alter
the obligations of the Issuer to pay Liquidated Damages under the circumstances
set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be and further agrees that it
shall hold in confidence the existence of any Delay Period.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer and each of the Guarantors (other
than any underwriting discounts or commissions) shall be borne by the Issuer and
each of the Guarantors, whether or not the Exchange Offer Registration Statement
or the Shelf Registration is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or Exchange Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of an Exchange Offer, or (y) as
provided in Section 5(h) hereof, in the case of a Shelf Registration or in the
case of Exchange Notes to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Notes or Exchange Notes
-19-
in a form eligible for deposit and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Exchange Notes to
be sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuer and the Guarantors and reasonable fees
and disbursements of one special counsel for all of the sellers of Registrable
Notes (exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees
and disbursements of all independent certified public accountants referred to in
Section 5(m)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (vi) Securities Act liability insurance, if the Issuer or any
Guarantor desires such insurance, (vii) fees and expenses of all other Persons
retained by the Issuer or any Guarantor, (viii) internal expenses of the Issuer
and the Guarantors (including, without limitation, all salaries and expenses of
officers and employees of the Issuer and each Guarantor performing legal or
accounting duties), (ix) the expense of any annual audit, (x) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indenture and any other documents necessary in order to
comply with this Agreement. Notwithstanding the foregoing or anything to the
contrary, each Holder shall pay all underwriting discounts and commissions of
any underwriters with respect to any Registrable Notes sold by or on behalf of
it.
Section 7. Indemnification
(a) The Issuer and each Guarantor, jointly and severally, agrees
to indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
each Person, if any, who controls any such Person within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, the agents,
employees, officers and directors of each Holder and each such Participating
Broker-Dealer and the agents, employees, officers and directors of any such
controlling Person (each, a "Participant") from and against any and all losses,
liabilities, claims, damages and expenses (including, but not limited to,
reasonable attorneys' fees and any and all reasonable out-of-pocket expenses
actually incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
reasonable amounts paid in settlement of any claim or litigation (in the manner
set forth in clause (c) below)) (collectively, "Losses") to which they or any of
them may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by, arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the case of the Prospectus, in the light of the circumstances under which they
were made, not misleading, provided that (i) the foregoing indemnity shall not
be available to any Participant insofar as such Losses are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to such
-20-
Participant furnished to the Issuer in writing by or on behalf of such
Participant expressly for use therein, and (ii) that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit of any
Participant from whom the Person asserting such Losses purchased Registrable
Notes if (x) it is established in the related proceeding that such Participant
failed to send or give a copy of the Prospectus (as amended or supplemented if
such amendment or supplement was furnished to such Participant prior to the
written confirmation of such sale) to such Person with or prior to the written
confirmation of such sale, if required by applicable law, and (y) the untrue
statement or omission or alleged untrue statement or omission was completely
corrected in the Prospectus (as amended or supplemented if amended or
supplemented as aforesaid) and such Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission that was the
subject matter of the related proceeding. This indemnity agreement will be in
addition to any liability that the Issuer or any Guarantor may otherwise have,
including, but not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Issuer and each Guarantor, each Person, if any,
who controls the Issuer or any Guarantor within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their
respective agents, employees, officers and directors and the agents, employees,
officers and directors of any such controlling Person from and against any
Losses to which they or any of them may become subject under the Securities Act,
the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuer shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the Prospectus, in the
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that any such Loss arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
relating to such Participant furnished in writing to the Issuer by or on behalf
of such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the
-21-
defense of such action, (ii) the indemnifying parties shall not have employed
counsel to take charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) the named parties to such
action (including any impleaded parties) include such indemnified party and the
indemnifying party or parties (or such indemnifying parties have assumed the
defense of such action), and such indemnified party or parties shall have
reasonably concluded, that there may be defenses available to it or them that
are different from, in addition to, or in conflict with, those available to one
or all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such reasonable fees and
expenses of counsel shall be borne by the indemnifying parties. In no event
shall the indemnifying party be liable for the fees and expenses of more than
one counsel (together with appropriate local counsel) at any time for all
indemnified parties in connection with any one action or separate but
substantially similar or related actions arising in the same jurisdiction out of
the same general allegations or circumstances. Any such separate firm for the
Participants shall be designated in writing by Participants who sold a majority
in interest of Registrable Notes sold by all such Participants and shall be
reasonably acceptable to the Issuer and any such separate firm for the Issuer,
its affiliates, officers, directors, representatives, employees and agents and
such control Person of the Issuer shall be designated in writing by the Issuer
and shall be reasonable acceptable to the Holders. An indemnifying party shall
not be liable for any settlement of any claim or action effected without its
written consent, which consent may not be unreasonably withheld. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and does not include a statement
as to or an admission or fault, culpability or failure to act on behalf of any
indemnified party.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in this Section 7 is for any reason held
to be unavailable from the indemnifying party, or is insufficient to hold
harmless a party indemnified under this Section 7, each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchaser or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the Issuer
and the Guarantors, on the one hand, and each Participant, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the
sale of the Notes to the Initial Purchaser (net of discounts and commissions but
before deducting expenses) received by the Issuer and the Guarantors are to (y)
the total net profit received by such Participant in connection with the sale of
the Registrable Notes. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer, the Guarantors or such
Participant and the parties' relative intent,
-22-
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7, notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 7 or otherwise, except to the extent that it
has been prejudiced in any material respect by such failure; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under this Section 7 for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent, provided, however, that such written consent was not
unreasonably withheld.
Section 8. Rules 144 and 144A
The Issuer covenants that it will file the reports required, if
any, to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuer is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make
available such information necessary to permit sales pursuant to Rule 144A under
the Securities Act. The Issuer further covenants that for so long as any
Registrable Notes remain outstanding it will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Issuer.
-23-
No Holder of Registrable Notes may participate in any
underwritten registration hereunder if such Holder does not (a) agree to sell
such Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. Each of the Issuer and the
Guarantor has not, as of the date hereof, and shall not have, after the date of
this Agreement, entered into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of Registrable Notes
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not conflict with and are not inconsistent
with, in any material respect, the rights granted to the holders of any of the
Issuer's other issued and outstanding securities under any such agreements. Each
of the Issuer and the Guarantors has not entered and will not enter into any
agreement with respect to any of its securities which will grant to any Person
piggy-back registration rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Issuer and the
Guarantors shall not, directly or indirectly, take any action with respect to
the Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given except pursuant to a written
agreement duly signed and delivered by (I) the Issuer and each of the Guarantors
and (II)(A) the Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Notes and (B) in circumstances that
would adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however,
that Section 7 and this Section 10(c) may not be amended, modified or
supplemented except pursuant to a written agreement duly signed and delivered by
the Issuer, each Guarantor and each Holder and each Participating Broker-Dealer
(including any Person who was a Holder or Participating Broker-Dealer of
Registrable Notes or Exchange Notes, as the case may be, disposed of pursuant to
any Registration Statement) affected by any such amendment, modification,
supplement or waiver. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
-24-
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the registrar
under the Indenture.
(ii) if to the Issuer or any Guarantor, at the address as follows:
WH Acquisition Corp.
c/o Whitney & Co., LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
(iii) if to Herbalife, at the address as follows:
Herbalife International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(iv) if to the Initial Purchaser, at the address as follows:
UBS Warburg LLC,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: High Yield Capital Markets
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With a copy at such address to the attention of
Legal Department, fax number (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Guarantor Execution. The Issuer shall cause each of the
Herbalife Guarantors in existence at the time of the closing of the Merger to
execute and deliver a joinder to this Agreement substantially in the form of
Exhibit A attached hereto and the Herbalife Guarantors shall execute the
foregoing in consideration of, among other things, consummation of the Merger.
In the event of a breach by the Issuer under this Section 10(h), the Issuer
agrees that monetary damages would not be adequate compensation for any loss or
damage incurred by such breach and hereby further agrees that, in the event of
an action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B) (WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW).
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best ef-
-26-
forts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(k) Securities Held by the Issuer or Its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Registrable
Notes is required hereunder, Registrable Notes held by the Issuer or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(m) Attorneys' Fees. As between the parties to this Agreement,
in any action or proceeding brought to enforce any provision of this Agreement,
or where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(n) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer and the Guarantors on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
WH ACQUISITION CORP.
By: /s/
-----------------------------
Name:
Title:
WH INTERMEDIATE HOLDINGS LTD.
By: /s/
-----------------------------
Name:
Title:
WH LUXEMBOURG HOLDINGS SARL
By: /s/
-----------------------------
Name:
Title:
WH LUXEMBOURG INTERMEDIATE
HOLDINGS SARL
By: /s/
-----------------------------
Name:
Title:
WH LUXEMBOURG CM SARL
By: /s/
-----------------------------
Name:
Title:
UBS WARBURG, LLC
By: /s/
------------------------------
Name:
Title:
By: /s/
------------------------------
Name:
Title:
EXHIBIT A
WH ACQUISITION CORP.
$165,000,000 11 3/4% Senior Subordinated Notes due 2010
JOINDER TO THE REGISTRATION RIGHTS AGREEMENT
____________, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
UBS WARBURG LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement (the
"Registration Rights Agreement") dated June __, 2002, among WH ACQUISITION
CORP., a Nevada corporation (the "Issuer"), WH INTERMEDIATE HOLDINGS LTD., a
Cayman Islands corporation, WH LUXEMBOURG HOLDINGS SARL, a Luxembourg company,
WH LUXEMBOURG INTERMEDIATE HOLDINGS SARL, a Luxembourg company and WH LUXEMBOURG
CM SARL, a Luxembourg company (collectively, the "Guarantors") on the one hand,
and UBS WARBURG LLC (the "Initial Purchaser"), on the other hand. Capitalized
terms used herein but not defined herein shall have the meanings assigned to
such terms in the Registration Rights Agreement. This is the agreement referred
to in Section 10(h) of the Registration Rights Agreement.
The Issuer and each of the Herbalife Guarantors listed on
Schedule I hereto agree that this letter agreement is being executed and
delivered in connection with the issue and sale of the Notes pursuant to the
Purchase Agreement and to induce the Initial Purchase to purchase the Notes
thereunder and is being executed concurrently with the consummation of the
Merger.
1. Joinder. Each of the parties hereto hereby agrees to become
bound by the terms, conditions and other provisions of the Registration Rights
Agreement with all attendant rights, duties and obligations stated therein, with
the same force and effect as if originally named as a Guarantor therein and as
if such party executed the Registration Rights Agreement on the date thereof.
2. Governing Law. This letter agreement shall be governed by and
construed in accordance with the laws of the State of New York.
3. Counterparts. This letter agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one
counterpart, the executed counterparts shall each be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
4. Amendments. No amendment or waiver of any provision of this
letter agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
5. Headings. The headings herein are inserted for the
convenience of reference only and are not intended to be part of, of to affect
the meaning or interpretation of, this letter agreement.
[signature page follows]
If the foregoing is in accordance with your understanding of
this letter agreement, kindly sign and return to us a counterpart thereof,
whereupon this instrument will become a binding agreement between the Issuer,
the Guarantors and the Initial Purchaser in accordance with its terms
Very truly yours,
[GUARANTOR]
By:
----------------------------
Accepted , 2002
-------------
UBS WARBURG LLC
By: /s/
------------------------