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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9/A
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AMENDMENT NO. 5
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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HERBALIFE INTERNATIONAL, INC.
(Name of Subject Company)
HERBALIFE INTERNATIONAL, INC.
(Name of Person Filing Statement)
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CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
CLASS B COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
426908208 (CLASS A)
426908307 (CLASS B)
(CUSIP Number of Class of Securities)
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CHRISTOPHER PAIR
EXECUTIVE VICE PRESIDENT,
CHIEF OPERATING OFFICER AND SECRETARY
HERBALIFE INTERNATIONAL, INC.
1800 CENTURY PARK EAST
LOS ANGELES, CALIFORNIA 90067-1501
(310) 410-9600
(Name, Address and Telephone Number of Person Authorized to
Receive Notice and Communications on Behalf of Person Filing Statement)
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COPIES TO:
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ANTHONY T. ILER, ESQ. JOHN M. NEWELL, ESQ.
IRELL & MANELLA LLP LATHAM & WATKINS
333 SOUTH HOPE STREET, SUITE 3300 633 WEST FIFTH STREET, SUITE 4000
LOS ANGELES, CALIFORNIA 90071 LOS ANGELES, CALIFORNIA 90071
(213) 620-1555 (213) 485-1234
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The Company hereby amends and supplements its Schedule 14D-9, filed
September 17, 1999 (as amended, the "Schedule 14D-9"), as set forth in this
Amendment No. 5. Capitalized terms used but not defined herein have the meanings
assigned to them in the Tender Offer Statement on Schedule 14D-1 of MH
Millennium Holdings LLC and its wholly owned subsidiary MH Millennium
Acquisition Corp. filed with the SEC on September 17, 1999, as amended.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED.
Item 8(a) is hereby amended as follows:
The third paragraph under the heading "The Tender Offer -- 10. The Merger
Agreement," which appears on page 37 of the Offer to Purchase, is replaced in
its entirety with the following:
Notwithstanding the foregoing, if on any scheduled Expiration Time of
the Offer, which shall initially be 20 business days after the commencement
date of the Offer, all Offer Conditions have not been satisfied or waived,
the Merger Agreement provides that the Purchaser may, without the consent
of the Company, and at the request of the Company shall, from time to time,
extend the Expiration Time of the Offer, and the Purchaser may, without the
consent of the Company, extend the Offer for any period required by any
rule, regulation, interpretation or position of the SEC or the SEC staff
applicable to the Offer.
On the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of the extension
or amendment), the Purchaser will purchase, by accepting for payment, and
will pay for, all Shares which are validly tendered (and not properly
withdrawn in accordance with Section 4) prior to the Expiration Time.
Shares will be accepted as soon as practicable after the later to occur of
(i) the Expiration Time, and (ii) the satisfaction or waiver of the
conditions set forth in Section 5 regarding Governmental Approvals. Any
determination concerning the satisfaction of the terms and conditions of
the Offer will be in the reasonable discretion of the Purchaser. See
Section 5. The Purchaser expressly reserves the right, in its sole
discretion, to delay acceptance for payment of, or, subject to the
applicable SEC rules, payment for, Shares in order to comply in whole or in
part with any applicable law. See Section 12.
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ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
- ------- ------------------------------------------------------------
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(c)(1) Letter from Donaldson, Lufkin & Jenrette Securities
Corporation to The Board of Directors and the Special
Committee of Herbalife International, Inc., dated
September 13, 1999 (incorporated by reference to Exhibit
(b)(1) of amendment no. 2 to Schedule 14D-1).
(d)(1) Complaint in Patricia Lisa and Harbor Finance Partners vs.
Mark Hughes, et al., Case No. BC 216711 (CA Sup. Ct.,
September 14, 1999) (incorporated by reference to
Exhibit (g)(1) of amendment no. 2 to Schedule 14D-1).
(d)(2) Complaint in Stuart H. Savett vs. Herbalife International,
Inc., et al., Case No. BC 216761 (CA Sup. Ct., September 14,
1999) (incorporated by reference to Exhibit (g)(2) of
amendment no. 2 to Schedule 14D-1).
(d)(3) Complaint in Kenneth Schweitzer vs. Herbalife International,
Inc., et al., Case No. BC 216823 (CA Sup. Ct., September 15,
1999) (incorporated by reference to Exhibit (g)(3) of
amendment no. 2 to Schedule 14D-1).
(d)(4) Complaint in Frances Longstreth vs. Herbalife International,
Inc., Case No. BC 216911 (CA Sup. Ct., September 16, 1999)
(incorporated by reference to Exhibit (g)(4) of amendment
no. 2 to Schedule 14D-1).
(d)(5) Complaint in Rae Ellen Plattus vs. Christopher Pair, et al.,
Case No. BC 216904 (CA Sup. Ct., September 16, 1999)
(incorporated by reference to Exhibit (g)(5) of amendment
no. 2 to Schedule 14D-1).
(d)(6) Complaint in Colleen M. Tharp vs. Herbalife International,
Inc., Case No. A408158II (NV Dist. Ct., September 14, 1999)
(incorporated by reference to Exhibit (g)(6) of amendment
no. 2 to Schedule 14D-1).
(d)(7) Complaint in Francis Mcfarlain, IRA vs. Herbalife
International, Inc., Case No. A408159I (NV Dist. Ct.,
September 15, 1999) (incorporated by reference to
Exhibit (g)(7) of amendment no. 2 to Schedule 14D-1).
(d)(8) Complaint in Lee Brenin vs. Mark Hughes, et al., Case No.
BC 216932 (CA Sup. Ct., September 17, 1999) (incorporated by
reference to Exhibit (g)(8) of amendment no. 2 to
Schedule 14D-1).
(d)(9) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
BC 216759 (CA Sup. Ct., September 14, 1999) (incorporated by
reference to Exhibit (g)(9) of amendment no. 4 to
Schedule 14D-1).
(d)(10) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
A408466 (NV Dist. Ct., September 22, 1999) (incorporated by
reference to Exhibit (g)(10) of amendment no. 4 to
Schedule 14D-1).
(d)(11) Complaint in Michael Vaupel vs. Mark Hughes, et al., Case No.
BC217257 (CA Sup. Ct., September 23, 1999) (incorporated by
reference to Exhibit (g)(11) of amendment no. 6 to Schedule 14D-1).
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SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is true,
complete and correct.
HERBALIFE INTERNATIONAL, INC.
By: /s/ CHRISTOPHER PAIR
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Name: Christopher Pair
Title: Executive Vice President,
Chief Operating Officer and
Secretary
Dated: October 15, 1999
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
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(c)(1) Letter from Donaldson, Lufkin & Jenrette Securities
Corporation to The Board of Directors and the Special
Committee of Herbalife International, Inc., dated
September 13, 1999 (incorporated by reference to Exhibit
(b)(1) of amendment no. 2 to Schedule 14D-1).
(d)(1) Complaint in Patricia Lisa and Harbor Finance Partners vs.
Mark Hughes, et al., Case No. BC 216711 (CA Sup. Ct.,
September 14, 1999) (incorporated by reference to
Exhibit (g)(1) of amendment no. 2 to Schedule 14D-1).
(d)(2) Complaint in Stuart H. Savett vs. Herbalife International,
Inc., et al., Case No. BC 216761 (CA Sup. Ct., September 14,
1999) (incorporated by reference to Exhibit (g)(2) of
amendment no. 2 to Schedule 14D-1).
(d)(3) Complaint in Kenneth Schweitzer vs. Herbalife International,
Inc., et al., Case No. BC 216823 (CA Sup. Ct., September 15,
1999) (incorporated by reference to Exhibit (g)(3) of
amendment no. 2 to Schedule 14D-1).
(d)(4) Complaint in Frances Longstreth vs. Herbalife International,
Inc., Case No. BC 216911 (CA Sup. Ct., September 16, 1999)
(incorporated by reference to Exhibit (g)(4) of amendment
no. 2 to Schedule 14D-1).
(d)(5) Complaint in Rae Ellen Plattus vs. Christopher Pair, et al.,
Case No. BC 216904 (CA Sup. Ct., September 16, 1999)
(incorporated by reference to Exhibit (g)(5) of amendment
no. 2 to Schedule 14D-1).
(d)(6) Complaint in Colleen M. Tharp vs. Herbalife International,
Inc., Case No. A408158II (NV Dist. Ct., September 14, 1999)
(incorporated by reference to Exhibit (g)(6) of amendment
no. 2 to Schedule 14D-1).
(d)(7) Complaint in Francis Mcfarlain, IRA vs. Herbalife
International, Inc., Case No. A408159I (NV Dist. Ct.,
September 15, 1999) (incorporated by reference to
Exhibit (g)(7) of amendment no. 2 to Schedule 14D-1).
(d)(8) Complaint in Lee Brenin vs. Mark Hughes, et al., Case No.
BC 216932 (CA Sup. Ct., September 17, 1999) (incorporated by
reference to Exhibit (g)(8) of amendment no. 2 to
Schedule 14D-1).
(d)(9) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
BC 216759 (CA Sup. Ct., September 14, 1999) (incorporated by
reference to Exhibit (g)(9) of amendment no. 4 to
Schedule 14D-1).
(d)(10) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
A408466 (NV Dist. Ct., September 22, 1999) (incorporated by
reference to Exhibit (g)(10) of amendment no. 4 to
Schedule 14D-1).
(d)(11) Complaint in Michael Vaupel vs. Mark Hughes, et al., Case No.
BC217257 (CA Sup. Ct., September 23, 1999) (incorporated by
reference to Exhibit (g)(11) of amendment no. 6 to Schedule 14D-1).
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