Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Fax: (212) 310-8007
October 4, 2002
ICON Health & Fitness, Inc.
1500 South 1000 West
Logan, Utah 84321
Ladies and Gentlemen:
We have acted as counsel to ICON Health & Fitness, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of the Company's Registration Statement
on Form S-4, Registration No. 333-89440 (as amended, the "Registration
Statement"), under the Securities Act of 1933, as amended, relating to the offer
to exchange $155,000,000 aggregate principal amount of the Company's 11.25%
Senior Notes due 2012 (the "Exchange Notes") for a like principal amount of the
Company's outstanding 11.25% Senior Subordinated Notes due 2012 (the "Initial
Notes"). Capitalized terms defined in the Registration Statement and used (but
not otherwise defined) herein are used herein as so defined.
In addition we have acted as special counsel to ICON International
Holdings, Inc., a Delaware corporation ("ICON International"), ICON IP, Inc., a
Delaware corporation ("ICON IP", and together with ICON International, the
"Delaware Subsidiaries"), Jumpking, Inc., a Utah corporation ("JumpKing"),
Universal Technical Services, Inc., a Utah corporation ("UTS"), NordicTrack,
Inc., a Utah corporation ("NordicTrack"), Free Motion Fitness, Inc., a Utah
corporation ("Free Motion", and together with JumpKing, UTS and NordicTrack, the
"Utah Subsidiaries"), and 510152 N.B. Ltd., a New Brunswick corporation ("ICON
NB", and together with the Delaware Subsidiaries and the Utah Subsidiaries, the
"Subsidiaries"). Each of the Subsidiaries is a direct wholly owned Subsidiary of
the Company. Under the terms of the Indenture dated as of April 9, 2002, among
the Company, the Subsidiaries and The Bank of New York, as trustee (the
"Trustee"), pursuant to which the Exchange Notes and Guarantees will be issued
(the "Indenture"), filed as Exhibit 4.1 to the Registration Statement, the
Subsidiaries have guaranteed the obligations of the Company with regard to the
Exchange Notes and the Subsidiaries are Additional Registrants in the
Registration Statement.
In so acting, we have examined originals or copies (certified or otherwise
identified to our satisfaction) of the Registration Statement, the Indenture,
the form of each of the Exchange Notes and Guarantees attached as an exhibit to
the Indenture and such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials
and of officers and representatives of the Company and the Subsidiaries, and
have made such inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinion hereinafter set forth.
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ICON Health & Fitness, Inc.
October 4, 2002
Page 2
In such examination, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity of all documents submitted
to us as originals, the conformity to original documents of all documents
submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to all questions of
fact material to this opinion that have not been independently established, we
have relied upon certificates or comparable documents of officers and
representatives of the Company and the Subsidiaries. With respect to the Utah
Subsidiaries and ICON NB, we have assumed (i) the due incorporation, valid
existence and corporate good standing of each of the Utah Subsidiaries and ICON
NB, (ii) that each of the Utah Subsidiaries and ICON NB have the requisite
corporate power and authority to guarantee the Exchange Notes and (iii) the due
authorization, execution and delivery of the Guarantees by each of the Utah
Subsidiaries and ICON NB, which assumptions are based on the opinion of Bearnson
& Peck, L.C., with respect to the Utah Subsidiaries, and on the opinion of
McInnes Cooper, with respect to ICON NB. The opinions of Bearnson & Peck, L.C.
and McInnes Cooper are attached hereto as Exhibit A and Exhibit B, respectively.
Based on the foregoing, and subject to the qualifications stated herein, we
are of the opinion that the Exchange Notes are duly authorized, and, when duly
executed on behalf of the Company, authenticated by the Trustee and delivered in
accordance with the terms of the Indenture and as contemplated by the
Registration Statement, will constitute legal, valid and binding obligations of
the Company, enforceable against it in accordance with their terms, and each
Guarantee will constitute the legal, valid and binding obligation of the
respective guarantor Subsidiary enforceable against such Subsidiary in
accordance with its terms, subject in the case of each of the Exchange Notes and
the Guarantees to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity) and except that the waiver contained in Section 4.06 of the Indenture
may be deemed unenforceable.
We consent to the use of this letter as an exhibit to the Registration
Statement and to the reference to our name under the caption "Legal Matters" in
the prospectus which is a part of the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
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EXHIBIT A
Bearnson & Peck, L.C.
Attorneys At Law
----------------------------------
Brad H Bearnson, P.C.
Shaun L Peck, P.C.
--------- 74 West 100 North
P.O. Box 675
Marty E. Moore Logan, Utah 84321
Bretton K. Hadfield Telephone: (435) 787-9700
Daniel K. Dygert Telefax: (435) 787-2455
October 4, 2002
ICON Health & Fitness, Inc.
1500 South 1000 West
Logan, UT 84321
Ladies and Gentlemen:
We have acted as special counsel for Free Motion Fitness, Inc., a Utah
corporation ("Free Motion"), Universal Technical Services, a Utah corporation
("Universal"), JumpKing, Inc., a Utah corporation ("JumpKing"), and Nordic
Track, Inc., a Utah corporation (collectively the "Utah Guarantors" and each
separately a "Utah Guarantor"), in connection with the preparation and filing
with the Securities and Exchange Commission of the ICON Health & Fitness, Inc.
(the "Company") Registration Statement on Form S-4, Registration No. 333-89440
(as amended the "Registration Statement"), under the Securities Act of 1933, as
amended, relating to $155,000,000 aggregate principal amount of the Company's
11.25% Senior Subordinated Notes due 2012 (the "Notes") and the related
guarantees (the "Guarantees"). Capitalized terms used herein but not otherwise
defined shall have the meaning set forth in the Registration Statement.
In such capacity, we have examined originals, or copies identified to our
satisfaction as being true copies, of the following:
(i) The Registration Statement;
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(ii) The Indenture, dated as of April 9, 2002, between the Company and
The Bank of New York, as trustee (the "Trustee"), pursuant to which
the Notes and Guarantees will be issued (the "Indenture");
(iii) The form of the Notes and Guarantees attached as an exhibit to the
Indenture filed as Exhibit 4.1 to the Registration Statement;
(iv) The Articles of Incorporation of each Utah Guarantor, each as
certified by an officer of such Utah Guarantor on the date hereof as
being complete, accurate and currently in effect;
(v) The Bylaws of each Utah Guarantor, each as certified by an officer of
such Utah Guarantor on the date hereof as being complete, accurate
and currently in effect;
(vi) The votes adopted by the directors of each Utah Guarantor by written
consent on April 5, 2002 relating, among other things, to the
adoption and approval of the Notes and related documents to which
such Utah Guarantor is a party and the transactions to be consummated
in connection therewith; and
(vii) Certificates of the Utah Department of Commerce Division of
Corporations & Commercial Code, each dated as of October 3, 2002, as
to the existence of each Utah Guarantor and other matters.
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such agreements and instruments, corporate
records, certificates of public officials and of officers of the Utah
Guarantors, and such other documents and records and such matters of law as we
have deemed necessary as a basis for the opinions set forth below. As to
questions of fact material to such opinions, we have relied, without independent
verification, upon certificates of public officials and of officers of the Utah
Guarantors, and the factual accuracy and completeness of all the representations
and warranties made by the parties to the Guarantees and the other documents
executed by the Utah Guarantors in connection therewith. Without limiting the
generality of the foregoing, in connection with the preparation of this opinion,
we have not made any independent review or investigation of any court or agency
docket or other litigation papers or of any order, decree, ruling or decision of
any governmental commission, bureau or other regulatory authority or agency.
In rendering the opinions expressed in numbered paragraph 1 below, we have
relied solely upon the certificates referred to in clause (vii) above and the
organizational documents of such Utah Guarantor as referenced in clause (iv)
above. We express no opinion as to the tax good standing of the Utah Guarantors
in any jurisdiction.
For purposes of this opinion, we have assumed, with your permission and
without independent verification, (a) the genuineness of all signatures (except
for signatures of executing officers of the Utah Guarantors), (b) the legal
capacity of all natural persons who have signed documents examined by us, (c)
the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and (d) each person or entity other than the Utah
Guarantors has all requisite power and authority and has taken all necessary
action to enter into the Guarantees and to effect the transactions contemplated
by the Guarantees, and each such related
2
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agreement or document constitutes or evidences the legal, valid and binding
agreement of each party thereto other than the Utah Guarantors.
We are members of the bar of the State of Utah, and except as otherwise
expressly provided herein, we express no opinion other than as to the laws of
the State of Utah, and we express no opinion herein with respect to state
securities laws or antitrust laws.
Based on the foregoing, it is our opinion that:
1. Each Utah Guarantor has been duly incorporated and is a corporation
validly existing and in corporate good standing under the laws of the State of
Utah. Each Utah Guarantor has all requisite corporate power and authority to
guarantee the Notes.
2. The execution and delivery by each Utah Guarantor and the performance
by each Utah Guarantor of its obligations under the Indenture and the Guarantee
has been duly authorized by all requisite corporate action by each Utah
Guarantor. The Indenture and each Guarantee to which each Utah Guarantor is a
party has been duly authorized, executed and delivered by such Utah Guarantor.
The opinions contained herein are subject to the following conditions and
qualifications:
(A) We have not been requested to render, and with your permission we do
not express, an opinion as to the application of any fraudulent conveyance,
fraudulent transfer or similar laws.
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(B) Our opinions are subject to the following: (i) bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar laws now or hereafter
in effect relating to or affecting the enforcement of creditors' rights, (ii)
the effect of general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief, whether
considered in a proceeding in equity or at law, and to the discretion of the
court before which any such proceeding may be brought and (iii) public policy
considerations or court decisions which may limit the rights of any party to
obtain certain remedies for indemnification.
Our responsibilities under and with respect to this opinion shall at all
times and in all respects be governed by and construed solely in accordance with
the laws of the State of Utah. For purposes of this opinion letter, the laws of
the State of Utah are limited to the present statutes of the State of Utah, the
administrative rules and regulations of agencies of the State of Utah as
contained in the Utah Administrative Code 1992, and the present published
decisions of the Utah Supreme Court and the Utah Court of Appeals.
The opinions set forth herein that relate to specific agreements or
documents relate only to the specified agreements or documents and do not extend
to any other documents, agreements or instruments. The opinions set forth herein
are effective only as of the date hereof and are limited to those expressly
stated and no other opinion or opinions should be implied.
This opinion is given as of the date hereof and we assume no obligation to
update or supplement this opinion to reflect any facts or circumstances which
may hereafter come to our attention or any changes in laws which may hereafter
occur. We consent to the use of this letter as an exhibit to the opinion of
Weil, Gotshal and Manges LLP, which opinion will be filed with the Securities
and Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
BEARNSON & PECK, L.C.
/s/ Bearnson & Peck, L.C.
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EXHIBIT B
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[McInnes Cooper Logo]
Len Hoyt
Direct Dial 506 458 1622
Barker House, Suite 600
570 Queen Street
Post Office Box 610, Stn. A
Federicton, New Brunswick
Canada E3B 5A6
T. 506 458 8572
F. 506 458 9903
www.merlaw.com
October 4, 2002
ICON Health & Fitness, Inc.
1500 South 1000 West
Logan, Utah 84321
Dear Ladies and Gentlemen:
Re: ICON Health & Fitness, Inc.
11.25% Senior Subordinated Notes Due 2012
This opinion is furnished to you in connection with the preparation and
filing with the Securities and Exchange Commission of the ICON Health & Fitness,
Inc. (the "Company") Registration Statement on Form S-4, Registration No.
333-89440 (the "Registration Statement"), under the Securities Act of 1933, as
amended, relating to the offer to exchange $155,000,000 aggregate principal
amount of the Company's 11.25% Senior Subordinated Notes due 2012 (the "Exchange
Notes") for a like principal amount of outstanding 11.25% Senior Subordinated
Notes due 2012 (the "Initial Notes"). This opinion is rendered to you at the
request of 510152 N.B. Ltd., a New Brunswick corporation ("Icon N.B.").
Capitalized terms used herein but not otherwise defined shall have the meaning
set forth in the Registration Statement.
We have acted as special counsel to Icon N.B in connection with its
guarantee of the Exchange Notes and the Registration Statement. In connection
with such representation, we have examined copies, certified or otherwise
identified to our satisfaction, of the following:
(1) The Registration Statement;
(2) The Indenture dated as of April 9, 2002 between the Company and The
Bank of New York, as trustee, pursuant to which the Exchange Notes
will be issued (the "Indenture"); and
(3) The form of Exchange Notes and Guarantee to be endorsed on the
Exchange Notes (the "Guarantee") by Icon N.B. attached to the
Indenture and filed as Exhibit 4.1 to the Registration Statement.
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The agreements, documents and instruments referred to in clauses (1) to (3)
above are collectively referred to herein as the "Transaction Documents".
In connection with the opinions set out below, we have also examined and
relied upon:
(a) the certificate of incorporation of Icon N.B. under the Business
Corporations Act (New Brunswick) (the "BCA") and the articles and
by-laws of Icon N.B.;
(b) a certificate of status dated October 4, 2002 issued in respect of
Icon N.B. pursuant to the BCA;
(c) a certified copy of a resolution of the board of directors of Icon
N.B. authorizing, among other things, the execution and delivery of
the Guarantee; and
(d) a certificate dated October 4, 2002 of Brad H. Bearnson, the
Vice-President and Secretary of Icon N.B., a copy of which certificate
is attached hereto (the "Officer's Certificate").
We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such agreements and instruments, corporate
records, certificates of public officials and of officers of Icon N.B., and such
other documents and records and such matters of law as we have deemed necessary
as a basis for the opinions set forth below. As to questions of fact material to
such opinions, we have relied, without independent verification, upon
certificates of public officials and the Officer's Certificate and the factual
accuracy and completeness of all the representations and warranties made by the
parties to the Transaction Documents and the other documents executed in
connection therewith.
For purposes of this opinion, we have assumed, with your permission and
without independent verification, (a) the genuineness of all signatures, (b) the
legal capacity of all natural persons who have signed documents examined by us,
(c) the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies, and (d) that each of the parties to the Transaction
Documents other than Icon N.B. has all requisite power and authority to enter
into and perform its respective obligations in connection with the transactions
described in the Transaction Documents to which it is a party and has duly
authorized, executed and delivered such Transaction Documents and all other
relevant documents.
We are solicitors qualified to practice law in New Brunswick and we express
no opinion herein as to any laws, or any matters governed by any laws other than
the laws of New Brunswick in force at the date hereof.
Based upon the foregoing and in reliance thereon, we are of the opinion
that:
1. Icon N.B. has been duly incorporated and is a validly existing corporation
in good standing under the laws of the Province of New Brunswick, with
corporate power and authority to guarantee the Exchange Notes.
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2. The Guarantee to be endorsed on the Exchange Notes by Icon N.B. has been
duly authorized by Icon N.B. and the Indenture, under which the Guarantee
shall be issued, has been duly authorized, validly executed and delivered
by Icon N.B.
The opinions set forth in this letter are limited to the specific issues
addressed herein and to statutes, regulations, rules, decisions and decrees and
facts existing on the date hereof. In rendering such opinions, we disclaim any
obligation to advise any party to whom this opinion is addressed of any change
in any of these sources of law or of any subsequent legal or factual
developments which might affect any matters addressed or opinions set forth
herein.
This letter is not to be quoted in whole or in part or otherwise referred
to in any financial statements or other public releases, nor is it to be filed
with any governmental agency or other person or entity, without the prior
written consent of this firm.
We consent to the use of this letter as an exhibit to the opinion of Weil,
Gotshal & Manges, LLP, which opinion will be filed with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Yours very truly,
/s/ McInnes Cooper
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ANNEX A
OFFICERS' CERTIFICATE
---------------------
510152 N.B. Ltd.
(the "Company")
TO: Weil, Gotshal & Manges, LLP
- and -
McInnes Cooper
RE: Registration Statement on Form S-4, Registration No. 33-89440 (as amended,
the "Registration Statement"), under the Securities Act of 1933, as
amended, relating to $155,000,000 aggregate principal amount of ICON Health
& Fitness, Inc.'s 11.25% of Senior Notes due 2012 (the "Notes")
All capitalized terms, unless otherwise defined herein, shall have the
meanings ascribed to them in the Registration Statement.
I, Brad H. Bearnson, the duly appointed Vice-President and Secretary of the
Company, hereby certify the following as of the date hereof, on behalf of the
Company but without personal liability:
1. Attached as Exhibit "A" hereto is a full, true and complete copy of the
Company's articles of incorporation and articles of amendment (collectively, the
"Articles"), which Articles have not been further amended or rescinded and
remain in full force and effect in their entirety as of the date hereof.
2. Attached as Exhibit "B" is a full, true and complete copy of the By-Laws of
the Company and, as of the date hereof, the By-Laws are in full force and effect
and have not been amended or rescinded.
3. Attached as Exhibit "C" is a full, true and complete copy of the Resolution
of the Board of Directors of the Company duly adopted on April 9, 2002 by the
Company's Board of Directors by written consent in conformity with the Company's
Articles and By-Laws, which Resolution remains in full force and effect, without
amendment, on the date hereof.
4. Attached as Exhibit "D" is a full, true and complete copy of the
Shareholders Ledger, Transfer Register and the Shareholders Register and Share
Certificate of the Company.
5. Attached as Exhibit "E" is a copy of the Certificate of Status of the Company
from the Director under the Business Corporations Act (New Brunswick) dated as
of October 4, 2002.
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6. The minute book and corporate records of the Company made available to you,
for the period from the incorporation of the Company to the date hereof, are the
original minute book and corporate records of the Company and contain the
originals or true and complete copies of all constating documents and by-laws of
the Company and all resolutions and minutes (or certified copies thereof) of all
proceedings of the shareholders and the board of directors (or any committees
thereof) of the Company to the date hereof, and there have been no other
meetings, resolutions or proceedings of the shareholders or of the board of
directors (or any committee thereof) of the Company not reflected in such minute
book and corporate records. Such minute book and corporate records are true,
correct and complete in all respects and, since they have been made available to
you, there have been no additions, deletions or alterations thereto. The
registers and ledgers contain accurate and complete summaries of all
shareholders of the Company to the date hereof.
7. There are no directors of the Company other than M. Joseph Brough and there
have been no challenges to the authority of M. Joseph Brough to act as a
director of the Company and there have not been any claims, demands, actions,
suits or challenges by any person claiming to be a director of the Company.
8. Each of the Registration Statement and the Guarantee endorsed on the Notes
by the Company has been delivered unconditionally on behalf of this Company by a
duly authorized director, officer or representative pursuant to authority duly
conferred on such person by the Board of Directors of this Company.
9. The Company is not a party to any unanimous shareholders agreement.
10. None of the Company, its shareholders or directors has taken any steps to
terminate the Company's existence, to amalgamate the Company, to continue it
into any other jurisdiction or to change its corporate existence in any way. The
Company is not insolvent and no acts or proceedings have been taken by or
against the Company in connection with, and the Company is not in the course of,
liquidation, winding up, dissolution or bankruptcy.
11. The Company has not received any notice of any proceedings to cancel its
certificate of incorporation or otherwise to terminate its existence.
12. No person, firm or corporation has any agreement or option or a right
capable of becoming an agreement for the purchase, subscription or issuance of
any of the unissued shares in the capital stock of the Company.
The undersigned acknowledges that this certificate is to be relied upon in
connection with a legal opinion to be rendered to ICON Health & Fitness, Inc.
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DATED as of October 4, 2002.
By: /s/ Brad H. Bearnson
-----------------------------------------
Name: Brad H. Bearnson
Title: Vice-President and Secretary