<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-1/A
AMENDMENT NO. 5
TO
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
HERBALIFE INTERNATIONAL, INC.
(Name of Subject Company)
MH MILLENNIUM HOLDINGS LLC
MH MILLENNIUM ACQUISITION CORP.
MARK HUGHES
(Bidders)
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)
MH MILLENNIUM HOLDINGS LLC
MH MILLENNIUM ACQUISITION CORP.
MARK HUGHES
C/O HERBALIFE INTERNATIONAL, INC.
1800 CENTURY PARK EAST
LOS ANGELES, CA 90067
ATTN. TIMOTHY GERRITY
TEL. (301) 410-9600
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
COPY TO:
ANTHONY T. ILER, ESQ.
IRELL & MANELLA LLP
333 SOUTH HOPE STREET, SUITE 3300
LOS ANGELES, CA 90071
(213) 620-1555
(Continued on following pages)
(Page 1 of 6 pages)
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CUSIP No. 426908208 14D-1/A Page 2
426908307
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1. Name of Reporting Persons MH MILLENNIUM HOLDINGS LLC
S.S. or I.R.S. Identification Nos. of Above Persons 95-475-8098
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a)/X/
(b)/ /
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Sources of Funds
Not Applicable
- --------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f)
/ /
- --------------------------------------------------------------------------------
6. Citizenship or Place of Organization
DELAWARE
- --------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting Person
(1)
- --------------------------------------------------------------------------------
8. Check if the Aggregate Amount in Row 7 Excludes Certain Shares
/ /
- --------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row 7
(1)
- --------------------------------------------------------------------------------
10. Type of Reporting Person
CO
================================================================================
(1) MH Millennium Holdings LLC owns no shares of any class of common stock of
the Company. The Mark Hughes Family Trust (the "Trust"), however, which is
the sole member of MH Millennium Holdings LLC, as of September 8, 1999
beneficially owned 5,704,331 Class A Shares and 11,258,665 Class B Shares,
(including 308,331 Class A Shares and 466,665 Class B Shares which the Trust
has a right to acquire within 60 days of the date hereof), representing in
the aggregate 55.4% of the outstanding Class A Shares and 59.0% of the
outstanding Class B Shares, respectively. Mark Hughes is the sole trustee
of The Mark Hughes Family Trust and its beneficiary.
<PAGE> 3
CUSIP No. 426908208 14D-1/A Page 3
426908307
================================================================================
1. Name of Reporting Persons MH MILLENNIUM ACQUISITION CORP.
S.S. or I.R.S. Identification Nos. of Above Persons 95 475 7938
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a)/X/
(b)/ /
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Sources of Funds
SC/BK/OO (subordinated debentures)
- --------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f)
/ /
- --------------------------------------------------------------------------------
6. Citizenship or Place of Organization
NEVADA
- --------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting Person
(2)
- --------------------------------------------------------------------------------
8. Check if the Aggregate Amount in Row 7 Excludes Certain Shares
/ /
- --------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row 7
(2)
- --------------------------------------------------------------------------------
10. Type of Reporting Person
CO
================================================================================
(2) MH Millennium Acquisition Corp. owns no shares of any class of common stock
of the Company. MH Millennium Holdings LLC, however, owns 100% of MH
Millennium Acquisition Corp. For further information, see note 1 on page 2
of this Schedule 14D-1.
<PAGE> 4
CUSIP No. 426908208 14D-1/A Page 4
426908307
================================================================================
1. Name of Reporting Persons Mark Hughes
S.S. or I.R.S. Identification Nos. of Above Persons
- --------------------------------------------------------------------------------
2. Check the Appropriate Box if a Member of a Group
(a)/X/
(b)/ /
- --------------------------------------------------------------------------------
3. SEC Use Only
- --------------------------------------------------------------------------------
4. Sources of Funds
Not Applicable
- --------------------------------------------------------------------------------
5. Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(e) or 2(f)
/ /
- --------------------------------------------------------------------------------
6. Citizenship or Place of Organization
United States
- --------------------------------------------------------------------------------
7. Aggregate Amount Beneficially Owned by Each Reporting Person
(3)
- --------------------------------------------------------------------------------
8. Check if the Aggregate Amount in Row 7 Excludes Certain Shares
/ /
- --------------------------------------------------------------------------------
9. Percent of Class Represented by Amount in Row 7
(3)
- --------------------------------------------------------------------------------
10. Type of Reporting Person
IN
================================================================================
(3) Mr. Hughes, directly or indirectly, is the beneficial owner of 5,704,331
Class A Shares and 11,258,665 Class B Shares, excluding 183,333 Class A
Shares and 366,666 Class B Shares owned by the Herbalife Family Foundation
(in which Mr. Hughes has no pecuniary interest) and including 308,331 Class
A Shares and 466,663 Class B Shares issuable upon exercise of stock options
that are exercisable within 60 days of September 1, 1999. The Class A Shares
and the Class B Shares beneficially owned by Mr. Hughes or entities
controlled by him, calculated in accordance with the SEC's Exchange Act Rule
13d-3, represented 55.4% of the total outstanding Class A Shares and 59.0%
of the total outstanding Class B Shares as of September 1, 1999.
<PAGE> 5
Page 5
MH Millennium Acquisition Corp., a Nevada corporation (the
"Purchaser"), hereby amends and supplements, as set forth in this Amendment
No. 5, its Tender Offer Statement on Schedule 14D-1, filed on September 17, 1999
(as amended, the "Schedule 14D-1"), relating to the offer by the Purchaser to
purchase all outstanding shares of Class A common stock and Class B common stock
of Herbalife International, Inc., a Nevada corporation. The item numbers and
responses thereto below are in accordance with the requirements of Schedule
14D-1. Capitalized terms used but not defined herein have the meanings assigned
to them in the Schedule 14D-1.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS.
Item 3 of the Schedule 14D-1 is hereby amended as follows:
The following sentences are inserted after the period in the seventh
line from the top of page 5 of the Offer to Purchase in the tenth paragraph
under the heading "Special Factors -- Background of the Offer and the Merger":
Article III(I) of Herbalife's Amended and Restated
Articles of Incorporation provides, in relevant part: "In the
event of a merger or consolidation of the corporation with or
into another entity . . . the holders of Class B Common Stock
shall be entitled to receive the same per share consideration
as the per share consideration, if any, received by any holder
of the Class A Common Stock in such merger or consolidation."
This provision requires that in any merger, the two classes of
Herbalife stock must receive the same price.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Item 8 of the Schedule 14D-1 is hereby amended as follows:
The following two sentences are added to the end of the third
paragraph under the heading "Special Factors -- Background of the Offer and the
Merger" which appears on page 3 of the Offer to Purchase:
Donaldson, Lufkin & Jenrette was the only investment banking
firm engaged by Herbalife. Donaldson, Lufkin & Jenrette was not engaged
to, and, in view of representations by Mr. Hughes that he was unwilling
to sell his Shares to a third party, did not solicit, third party
interest in the acquisition of Herbalife or its assets.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Item 9 of the Schedule 14D-1 is hereby restated to read as follows:
The information set forth in "The Tender Offer -- 8. Certain
Information Concerning the Purchaser and the Parent" of the Offer to
Purchase is incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION.
Item 10(f) of the Schedule 14D-1 is hereby amended as follows:
The seventh paragraph under the heading "Special Factors -- Opinion of
Financial Advisor to the Special Committee" which appears on page 15 of the
Offer to Purchase is replaced in its entirety with the following:
Bear Stearns noted that the Continuing Stockholder owns a
majority of the Class A Shares and Class B Shares of Herbalife. Bear
Stearns also noted that the Continuing Stockholder has represented to
Bear Stearns and to the Special Committee that he has no intention of
selling any of his Shares. Accordingly, neither Bear Stearns nor the
Special Committee solicited, nor was Bear Stearns asked to solicit,
third party acquisition interest in Herbalife or its assets in
liquidation. Bear Stearns assumed that the representations and
warranties made in the Merger Agreement were true and that the Offer
and the Merger will be completed in accordance with the terms of the
Merger Agreement. The Bear Stearns Opinion is necessarily based on
economic, market and other conditions, and the information made
available to Bear Stearns, as of the date at such Opinion.
The phrase "and no other material assumptions were made" is added after
the word "assumptions" and before roman "(i)" in the second sentence of the last
paragraph of p. 24 of the Offer to Purchase under the heading "Certain Financial
Projections."
The section entitled "Special Factors -- Position of the Purchaser As
to the Fairness of the Offer and the Merger" which appears on pages 19 and 20 of
the Offer to Purchase is replaced in its entirety with the following:
POSITION OF THE PARENT, THE PURCHASER AND MR. HUGHES AS TO THE
FAIRNESS OF THE OFFER AND THE MERGER
The Parent, the Purchaser and Mr. Hughes have considered the
analyses and findings of the Special Committee and the Board of
Directors (described in detail in "-- Recommendation of the Special
Committee and the Board of Directors; Fairness of the Offer and the
Merger") with respect to the fairness of the Offer and the Merger. As
of the date of this Offer to Purchase, the Parent, the Purchaser and
Mr. Hughes believe, based in part on the analyses and findings of the
Special Committee and the Board of Directors with respect to the
fairness of the Merger, that the Offer, the Merger, the Merger
Agreement and the transactions contemplated thereby are fair to, and
are in the best interests of, the Public Stockholders. Neither the
Parent, the Purchaser nor Mr. Hughes makes any recommendation as to
whether the Public Stockholders should tender their shares in the
Offer.
The Parent, the Purchaser and Mr. Hughes believe that the
Offer and the Merger are procedurally fair to the Public Stockholders
of Herbalife based in part on the reasons stated above by the Special
Committee.
The first paragraph under the heading "The Tender Offer -- 2.
Acceptance for Payment and Payment for Shares" which appears on page 28 of the
Offer to Purchase is replaced in its entirety with the following:
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES. 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.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(a)(1) Offer to Purchase, dated September 17, 1999.*
(a)(2) Letter of Transmittal.*
(a)(3) Notice of Guaranteed Delivery.*
(a)(4) Form of letter, dated September 17, 1999, to brokers,
dealers, commercial banks, trust companies and other
nominees.*
(a)(5) Form of letter to be used by brokers, dealers, commercial
banks, trust companies and nominees to their clients.*
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(7) Summary Advertisement, dated September 17, 1999.*
(a)(8) Press Release, dated September 13, 1999.*
(a)(9) Intentionally omitted.
(a)(10) Press Release, dated September 17, 1999.*
(a)(11) Press Release, dated September 28, 1999.*
(b)(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.*
(c)(1) Agreement and Plan of Merger, dated September 13, 1999, by
and among the Company, Mark Hughes, the Mark Hughes Family
Trust, the Parent and the Purchaser (included as Annex A
to Exhibit (a)(1)).
(c)(2) The Equity Commitment Letter from Mark Hughes to the
Company, dated September 10, 1999.*
(d) Not Applicable.
(e) Not Applicable.
(f) Not Applicable.
(g)(1) Complaint in Patricia Lisa and Harbor Finance Partners vs.
Mark Hughes, et al., Case No. BC 216711 (CA Sup. Ct.,
September 14, 1999).*
(g)(2) Complaint in Stuart H. Savett vs. Herbalife International,
Inc., et al., Case No. BC 216761 (CA Sup. Ct., September 14,
1999).*
(g)(3) Complaint in Kenneth Schweitzer vs. Herbalife
International, Inc., et al., Case No. BC 216823 (CA Sup.
Ct., September 15, 1999).*
(g)(4) Complaint in Frances Longstreth vs. Herbalife
International, Inc., Case No. BC 216911 (CA Sup. Ct.,
September 16, 1999).*
(g)(5) Complaint in Rae Ellen Plattus vs. Christopher Pair, et
al., Case No. BC 216904 (CA Sup. Ct., September 16, 1999).*
(g)(6) Complaint in Colleen M. Tharp vs. Herbalife International,
Inc., Case No. A408158II (NV Dist. Ct., September 14,
1999).*
(g)(7) Complaint in Francis Mcfarlain, IRA vs. Herbalife
International, Inc., Case No. A408159I (NV Dist. Ct.,
September 15, 1999).*
(g)(8) Complaint in Lee Brenin vs. Mark Hughes, et al., Case No.
BC 216932 (CA Sup. Ct., September 17, 1999).*
(g)(9) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
BC216759 (CA Sup. Ct., September 14, 1999).*
(g)(10) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
A408466 (NV Dist. Ct., September 22, 1999).*
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* Previously filed.
<PAGE> 6
Page 6
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Dated: October 8, 1999
MH MILLENNIUM HOLDINGS LLC:
By: /s/ MARK HUGHES
------------------------------------------
Name: Mark Hughes
Title: Managing Member
MH MILLENNIUM ACQUISITION CORP.:
By: /s/ MARK HUGHES
------------------------------------------
Name: Mark Hughes
Title: President
/s/ MARK HUGHES
------------------------------------------
MARK HUGHES
<PAGE> 7
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(a)(1) Offer to Purchase, dated September 17, 1999.*
(a)(2) Letter of Transmittal.*
(a)(3) Notice of Guaranteed Delivery.*
(a)(4) Form of letter, dated September 17, 1999, to brokers,
dealers, commercial banks, trust companies and other
nominees.*
(a)(5) Form of letter to be used by brokers, dealers, commercial
banks, trust companies and nominees to their clients.*
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
(a)(7) Summary Advertisement, dated September 17, 1999.*
(a)(8) Press Release, dated September 13, 1999.*
(a)(9) Intentionally omitted.
(a)(10) Press Release, dated September 17, 1999.*
(a)(11) Press Release, dated September 28, 1999.*
(b)(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.*
(c)(1) Agreement and Plan of Merger, dated September 13, 1999, by
and among the Company, Mark Hughes, the Mark Hughes Family
Trust, the Parent and the Purchaser (included as Annex A
to Exhibit (a)(1)).
(c)(2) The Equity Commitment Letter from Mark Hughes to the
Company, dated September 10, 1999.*
(d) Not Applicable.
(e) Not Applicable.
(f) Not Applicable.
(g)(1) Complaint in Patricia Lisa and Harbor Finance Partners vs.
Mark Hughes, et al., Case No. BC 216711 (CA Sup. Ct.,
September 14, 1999).*
(g)(2) Complaint in Stuart H. Savett vs. Herbalife International,
Inc., et al., Case No. BC 216761 (CA Sup. Ct., September 14,
1999).*
(g)(3) Complaint in Kenneth Schweitzer vs. Herbalife
International, Inc., et al., Case No. BC 216823 (CA Sup.
Ct., September 15, 1999).*
(g)(4) Complaint in Frances Longstreth vs. Herbalife
International, Inc., Case No. BC 216911 (CA Sup. Ct.,
September 16, 1999).*
(g)(5) Complaint in Rae Ellen Plattus vs. Christopher Pair, et
al., Case No. BC 216904 (CA Sup. Ct., September 16, 1999).*
(g)(6) Complaint in Colleen M. Tharp vs. Herbalife International,
Inc., Case No. A408158II (NV Dist. Ct., September 14,
1999).*
(g)(7) Complaint in Francis Mcfarlain, IRA vs. Herbalife
International, Inc., Case No. A408159I (NV Dist. Ct.,
September 15, 1999).*
(g)(8) Complaint in Lee Brenin vs. Mark Hughes, et al., Case No.
BC 216932 (CA Sup. Ct., September 17, 1999).*
(g)(9) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
BC216759 (CA Sup. Ct., September 14, 1999).*
(g)(10) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
A408466 (NV Dist. Ct., September 22, 1999).*
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* Previously filed.
