<PAGE> 1
SCHEDULE 13E-3/A
(Rule l3e-1)
Transaction Statement Pursuant to Section 13(e) of the Securities
Exchange Act of 1934 and Rule 13e-3 Thereunder
(Amendment No. 5)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Rule 13e-3 Transaction Statement
(Pursuant to Section 13(e)
of the Securities Exchange Act of 1934)
HERBALIFE INTERNATIONAL, INC.
(Name of Issuer)
HERBALIFE INTERNATIONAL, INC.
MARK HUGHES
MH MILLENNIUM HOLDINGS LLC
MH MILLENNIUM ACQUISITION CORP.
(Name of Persons Filing statement)
CLASS A COMMON STOCK, PAR VALUE $.01 PER SHARE
CLASS B COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Classes of Securities)
---------
426908208 (CLASS A)
426908307 (CLASS B)
(CUSIP Number of Classes of Securities)
-----------
Herbalife International, Inc.
1800 Century Park East
Los Angeles, California 90067
Tel: (310) 410-9600
Attn. Robert A. Sandler, Esq.
(Name, Address and Telephone Number of Persons Authorized to Receive
Notices and Communications on Behalf of Persons Filing Statement)
Copies to:
Anthony T. Iler, Esq.
Irell & Manella LLP
333 South Hope Street, Suite 3300
Los Angeles, California 90071
(213) 620-1555
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The filers hereby amend and supplement their Schedule 13e-3, filed
September 17, 1999, (as amended, the "Schedule 13e-3"), 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 16. Additional Information.
Item 16(c) is hereby amended to read as follows:
On September 14, 1999, three putative class action lawsuits, one entitled
Patricia Lisa and Harbor Finance Partners v. Mark Hughes, et al., Case No. BC
216711, one entitled Kevin Coyle v. Mark Hughes, et al., Case No. BC 216759 and
one entitled Stuart H. Savett v. Herbalife International, Inc., et al., Case No.
BC 216761, were filed in the Superior Court of the State of California, County
of Los Angeles, challenging the fairness of the proposed transaction. Five
similar lawsuits were later filed in the same court, one on September 15, 1999,
entitled Kenneth Schweitzer v. Herbalife International, Inc. et al., Case No. BC
216823, two others on September 16, 1999, entitled Frances Longstreth v.
Herbalife International, Inc., et al., Case No. BC 216911 and Rae Ellen Plattus
vs. Christopher Pair, et al., Case No. BC 16904, one on September 17, 1999,
entitled Lee Brenin vs. Mark Hughes, et al., Case No. BC 216932, and one on
September 23, 1999, entitled Michael Vaupel vs. Mark Hughes, et al., Case No.
BC217257. In addition, three similar lawsuits were filed in the District Court,
Clark County, Nevada, one on September 14, 1999, entitled Colleen M. Tharp vs.
Herbalife International, Inc., et al., Case No. A408158II, one on September 15,
1999, entitled Francis Mcfarlain, IRA vs. Herbalife International, Inc., et al.,
Case No. A408159I, and one on September 22, 1999, entitled Kevin Coyle vs. Mark
Hughes, et al., Case No. A408466. These lawsuits are referred to collectively
herein as the "Lawsuits."
The Lawsuits challenge the fairness of the proposed transaction to the
Company's Public Stockholders, alleging, among other things, that the price to
be paid in the Offer and the Merger does not reflect the value of the Company's
assets, and that the Offer and the Merger are unfair because they will deprive
the Public Stockholders of the ability to share proportionately in the Company's
future growth in profits and earnings. The Lawsuits also allege that the Special
Committee was not independent, and that the Company's directors breached their
fiduciary duties to the Public Stockholders in approving the proposed
transactions. The plaintiffs have requested an injunction prohibiting the
defendants from proceeding with the proposed transactions, unspecified damages,
costs and attorneys' fees, and other relief.
The Company and Mr. Hughes believe that the Lawsuits are without merit and
plan to vigorously defend them and any other actions that may be brought in
connection with the proposed transactions. There can be no assurances, however,
with regard to the outcome of any such suits or to the impact that an adverse
result would have on the Company's and the Purchaser's ability to consummate the
Offer, the Merger and the related transactions.
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ITEM 17. MATERIAL TO BE FILED AS EXHIBITS:
The exhibits to the Schedule 13e-3 are amended and restated as follows:
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
(a)(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 the
amendment number 2 to Schedule 14D-1).
(b)(1) Fairness Opinion of Bear, Stearns & Co. Inc. dated
September 13, 1999 (included as Annex B to Exhibit (d)(i)).
(b)(2) Presentation materials prepared by Bear, Stearns & Co. Inc.
presented to the Special Committee of the Board of
Directors of the Company on September 13, 1999 (filed with
the Schedule 13e-3 filed on September 17, 1999).
(c)(1) Agreement and Plan of Merger, dated as of September 13,
1999, by and among the Company, Purchaser, Parent, The Mark
Hughes Family Trust and Mark Hughes (included as Annex A to
Exhibit (d)(1)).
(c)(2) The Equity Commitment letter from Mark Hughes to the
Company dated September 10, 1999 (incorporated herein by
reference to Exhibit (c)(2) to the Schedule 14D-1).
(d)(1) Offer to Purchase, dated September 17, 1999 (incorporated
herein by reference to Exhibit (a)(1) to the Schedule
14D-1).
(d)(2) Letter of Transmittal (incorporated herein by reference to
Exhibit (a)(2) to the Schedule 14D-1).
(d)(3) Notice of Guaranteed Delivery (incorporated herein by
reference to Exhibit (a)(3) to the Schedule 14D-1).
(d)(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated herein by
reference to Exhibit (a)(4) to the Schedule 14D-1).
(d)(5) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees (incorporated
herein by reference to Exhibit (a)(5) to the Schedule
14D-1).
(d)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 (incorporated herein by
reference to Exhibit (a)(6) to the Schedule 14D-1).
(d)(7) Summary Advertisement, dated September 17, 1999
(incorporated herein by reference to Exhibit (a)(7) to the
Schedule 14D-1).
(d)(8) Press Release, dated September 13, 1999, issued by
Purchaser (incorporated herein by reference to Exhibit
(a)(8) to the Schedule 14D-1).
(e) Description of Dissenter's Rights (included as Annex C to
Exhibit (d)(1)).
(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) (incorporated by reference to
Exhibit (g)(1) of amendment number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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
number 2 to Schedule 14D-1).
(g)(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
number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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 number 2 to
Schedule 14D-1).
(g)(9) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
BC216759 (CA Sup. Ct., September 14, 1999) (incorporated by
reference to Exhibit (g)(9) of amendment number 4 to
Schedule 14D-1).
(g)(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 number 4 to
Schedule 14D-1).
(g)(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 number 6
to Schedule 14D-1).
(h)(1) Information Statement filed on Schedule 14C by Herbalife
International, Inc., on September 29, 1999 (filed with
amendment number 2 to Schedule 13E-3).
(h)(2) Information Statement filed on Schedule 14C by Herbalife
International, Inc., on October 12, 1999 (filed with
amendment number 4 to Schedule 13e-3).
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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.
October 13, 1999 HERBALIFE INTERNATIONAL, INC.
By: /s/ TIMOTHY GERRITY
-----------------------------------------
Name: Timothy Gerrity
Title: Chief Financial Officer
MARK HUGHES
By: /s/ MARK HUGHES
-----------------------------------------
Name: Mark Hughes
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
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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<S> <C>
(a)(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 the
amendment number 2 to Schedule 14D-1).
(b)(1) Fairness Opinion of Bear, Stearns & Co. Inc. dated
September 13, 1999 (included as Annex B to Exhibit (d)(i)).
(b)(2) Presentation materials prepared by Bear, Stearns & Co. Inc.
presented to the Special Committee of the Board of
Directors of the Company on September 13, 1999 (filed with
the Schedule 13e-3 filed on September 17, 1999).
(c)(1) Agreement and Plan of Merger, dated as of September 13,
1999, by and among the Company, Purchaser, Parent, The Mark
Hughes Family Trust and Mark Hughes (included as Annex A to
Exhibit (d)(1)).
(c)(2) The Equity Commitment letter from Mark Hughes to the
Company dated September 10, 1999 (incorporated herein by
reference to Exhibit (c)(2) to the Schedule 14D-1).
(d)(1) Offer to Purchase, dated September 17, 1999 (incorporated
herein by reference to Exhibit (a)(1) to the Schedule
14D-1).
(d)(2) Letter of Transmittal (incorporated herein by reference to
Exhibit (a)(2) to the Schedule 14D-1).
(d)(3) Notice of Guaranteed Delivery (incorporated herein by
reference to Exhibit (a)(3) to the Schedule 14D-1).
(d)(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees (incorporated herein by
reference to Exhibit (a)(4) to the Schedule 14D-1).
(d)(5) Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees (incorporated
herein by reference to Exhibit (a)(5) to the Schedule
14D-1).
(d)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 (incorporated herein by
reference to Exhibit (a)(6) to the Schedule 14D-1).
(d)(7) Summary Advertisement, dated September 17, 1999
(incorporated herein by reference to Exhibit (a)(7) to the
Schedule 14D-1).
(d)(8) Press Release, dated September 13, 1999, issued by
Purchaser (incorporated herein by reference to Exhibit
(a)(8) to the Schedule 14D-1).
(e) Description of Dissenter's Rights (included as Annex C to
Exhibit (d)(1)).
(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) (incorporated by reference to
Exhibit (g)(1) of amendment number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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
number 2 to Schedule 14D-1).
(g)(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
number 2 to Schedule 14D-1).
(g)(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 number 2 to Schedule 14D-1).
(g)(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 number 2 to
Schedule 14D-1).
(g)(9) Complaint in Kevin Coyle vs. Mark Hughes, et al., Case No.
BC216759 (CA Sup. Ct., September 14, 1999) (incorporated by
reference to Exhibit (g)(9) of amendment number 4 to
Schedule 14D-1).
(g)(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 number 4 to
Schedule 14D-1).
(g)(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 number 6
to Schedule 14D-1).
(h)(1) Information Statement filed on Schedule 14C by Herbalife
International, Inc., on September 29, 1999 (filed with
amendment number 2 to Schedule 13E-3).
(h)(2) Information Statement filed on Schedule 14C by Herbalife
International, Inc., on October 12, 1999 (filed with
amendment number 4 to Schedule 13e-3).
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