EXHIBIT 10.12


 




 





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




 





 
















 


TABLE OF CONTENTS


 


	
  1.

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  Exchange Offer

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Shelf
  Registration

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Liquidated
  Damages

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Registration
  Procedures

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Registration
  Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Rules 144
  and 144A

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Underwritten Registrations

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  No Inconsistent
  Agreements

  	
   

  
	
   

  	
  (b)

  	
  Adjustments
  Affecting Registrable Notes

  	
   

  
	
   

  	
  (c)

  	
  Amendments and
  Waivers

  	
   

  
	
   

  	
  (d)

  	
  Notices

  	
   

  
	
   

  	
  (e)

  	
  Successors and
  Assigns

  	
   

  
	
   

  	
  (f)

  	
  Counterparts

  	
   

  
	
   

  	
  (g)

  	
  Headings

  	
   

  
	
   

  	
  (h)

  	
  Governing Law

  	
   

  
	
   

  	
  (i)

  	
  Severability

  	
   

  
	
   

  	
  (j)

  	
  Securities Held by
  the Issuer or Its Affiliates

  	
   

  
	
   

  	
  (k)

  	
  Third-Party
  Beneficiaries

  	
   

  
	
   

  	
  (l)

  	
  Attorneys’ Fees

  	
   

  
	
   

  	
  (m)

  	
  Entire
  Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  



 


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
outstanding 


 


3
















 


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-


 


5
















 


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;


 


6
















 


(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,


 


7
















 


(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,


 


8
















 


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.


 


9
















 


(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


 


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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, mark, 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 


 


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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 


 


19
















 


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 


 


20
















 


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,


 


21
















 


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.


 


22
















 


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.


 


23
















 


(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


177 Broad Street


Stamford, CT 06901


Telephone: 
(203) 973-4100


Fax: 
(203) 973-1422


Attention: 
Mr. James Fordyce


 


with a copy to:


 


Chadbourne and Parke, LLP


30 Rockefeller Plaza


New York, New York, 10025


Telephone: 
(212) 408-5449


Fax: 
(212) 541-5369


Attention: Bruce Rader, Esq.


 


(iii) if to Herbalife, at the address
as follows:


 


Herbalife International, Inc.


1800 Century Park East


Los Angeles, California 90067


Telephone: 
(310) 410-9600


Fax: (310) 216-7255


Attention: 
General Counsel


 


(iv) if to the Initial Purchaser, at
the address as follows:


 


UBS Warburg LLC,


677 Washington Boulevard

Stamford, CT  06901


Telephone: 
(203) 719-1000


Fax number: 
(212) 719-8620


Attention: 
High Yield Capital Markets


 


24
















 


With a copy at such address to the
attention of

Legal Department, fax number (203) 719-6177


 


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-


 


25
















 


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:

  	
   

  
					



 


26
















 


	
   

  	
  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


 


                      ,
2002

New York, New York


 


UBS WARBURG
LLC

299 Park Avenue

New York, New York  10171


 


Ladies and
Gentlemen: 


 


27
















 


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 


 


28
















 


	
  UBS
  WARBURG LLC

  
	
   

  
	
  By:

  	
  /s/
  

  	
   

  



 


 


29