Exhibit 5.2
[MAPLES AND CALDER LETTERHEAD]
December 19, 2002
To: Herbalife International, Inc.
and each of the Guarantors of the Series B Notes (listed on Schedule A
hereto)
1800 Century Park East
Los Angeles
CA 90067
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York
NY 10112
Dear Sirs
WH Intermediate Holdings Ltd. (the "COMPANY")
We have acted as counsel as to Cayman Islands law to the Company in connection
with the offer to exchange (the "EXCHANGE OFFER") the 11-3/4% Series B Senior
Subordinated Notes due 2010 (the "SERIES B NOTES") issued by Herbalife
International, Inc. (the "ISSUER"), for an equal principal amount of the
Issuer's outstanding 11-3/4% Series A Senior Subordinated Notes due 2010 (the
"SERIES A NOTES"), and in connection with the preparation of the prospectus (the
"PROSPECTUS") contained in the registration statement on Form S-4 (the
"REGISTRATION STATEMENT (NO. 333-101188)") filed with the Securities and
Exchange Commission by, inter alios, the Company for the purpose of registering
the Series B Notes and, inter alia, the guarantee by the Company of the Issuer's
obligations under the Series B Notes (the "GUARANTEE") under the Securities Act
of 1933, as amended.
1 DOCUMENTS REVIEWED
We have reviewed originals, copies, drafts or conformed copies of the following
documents:
1.1 the Certificate of Incorporation and Memorandum and Articles of
Association of the Company as registered or adopted on 23rd May, 2002;
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1.2 the written resolutions dated 21st June, 2002 and the corporate records of
the Company maintained at its registered office in the Cayman Islands;
1.3 a Certificate of Good Standing issued by the Registrar of Companies (the
"CERTIFICATE OF GOOD STANDING");
1.4 a certificate from a Director of the Company a copy of which is annexed
hereto (the "DIRECTOR'S CERTIFICATE");
1.5 the Indenture dated as of June 27, 2002 between the Issuer, The Bank of
New York as Trustee and the Company, WH Luxembourg Holdings SARL, WH
Luxembourg Intermediate Holdings SARL and WH Luxembourg CM SARL as
Guarantors in respect of the Notes (the "INDENTURE");
1.6 the Registration Rights Agreement dated as of June 27, 2002 between the
Issuer, Herbalife International, Inc., UBS Warburg LLC as Initial
Purchaser, the Company and the other Guarantors named therein;
1.7 the Purchase Agreement dated June 21, 2002, between the Issuer, Herbalife
International, Inc., the Company and the other Guarantors named therein;
and
1.8 the Guarantee.
The documents referred to in paragraphs 1.5 to 1.8 above are collectively
referred to as the "TRANSACTION DOCUMENTS".
2 ASSUMPTIONS
The following opinion is given only as to, and based on, circumstances and
matters of fact existing and known to us on the date of this opinion. This
opinion only relates to the laws of the Cayman Islands which are in force on the
date of this opinion. In giving this opinion we have relied (without further
verification) upon the completeness and accuracy of the Director's Certificate
and the Certificate of Good Standing. We have also relied upon the following
assumptions, which we have not independently verified:
2.1 the Transaction Documents have been or will be authorised and duly
executed and delivered by or on behalf of all relevant parties (other than
the Company as a matter of Cayman Islands law) in accordance with all
relevant laws (other than the laws of the Cayman Islands);
2.2 the Transaction Documents are, or will be, legal, valid, binding and
enforceable against all relevant parties in accordance with their terms
under the laws of the State of New York and all other relevant laws (other
than the laws of the Cayman Islands);
2.3 the choice of the laws of the State of New York as the governing law of
the Transaction Documents has been made in good faith and would be
regarded as a valid and binding selection which will be upheld by the
courts of the State of New York as a matter of the
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laws of the State of New York and all other relevant laws (other than the
laws of the Cayman Islands);
2.4 copy documents, conformed copies or drafts of documents provided to us are
true and complete copies of, or in the final forms of, the originals;
2.5 all signatures, initials and seals are genuine;
2.6 the power, authority and legal right of all parties under all relevant
laws and regulations (other than the laws of the Cayman Islands) to enter
into, execute, deliver and perform their respective obligations under the
Transaction Documents; and
2.7 there is nothing under any law (other than the law of the Cayman Islands)
which would or might affect the opinions hereinafter appearing.
Specifically, we have made no independent investigation of the laws of the
State of New York.
3 OPINIONS
Based upon, and subject to, the foregoing assumptions and the qualifications set
out below, and having regard to such legal considerations as we deem relevant,
we are of the opinion that:
3.1 The Company has been duly incorporated as an exempted company with limited
liability and is validly existing and in good standing under the laws of
the Cayman Islands.
3.2 The Company has full power and authority under its Memorandum and Articles
of Association to enter into, execute and perform its obligations under
the Transaction Documents.
3.3 The execution and delivery of the Transaction Documents and the
performance by the Company of its obligations thereunder do not conflict
with or result in a breach of any of the terms or provisions of the
Memorandum and Articles of Association of the Company or any law, public
rule or regulation applicable to the Company in the Cayman Islands
currently in force.
3.4 The execution, delivery and performance of the Transaction Documents has
been authorised by and on behalf of the Company and, assuming the
Transaction Documents have been executed and delivered by a director of
the Company, the Transaction Documents have been duly executed and
delivered on behalf of the Company and constitute the legal, valid and
binding obligations of the Company enforceable in accordance with their
terms.
3.5 No authorisations, consents, approvals, licenses, validations or
exemptions are required by law from any governmental authorities or
agencies or other official bodies in the Cayman Islands in connection
with:
3.5.1 the execution, creation or delivery of the Transaction Documents;
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3.5.2 subject to the payment of the appropriate stamp duty, enforcement of
the Transaction Documents; or
3.5.3 the performance by the Company of its obligations under any of the
Transaction Documents.
3.6 No taxes, fees or charges (other than stamp duty) are payable (either by
direct assessment or withholding) to the government or other taxing
authority in the Cayman Islands under the laws of the Cayman Islands in
respect of:
3.6.1 the execution or delivery of the Transaction Documents;
3.6.2 the enforcement of the Transaction Documents;
3.6.3 payments made under, or pursuant to, the Transaction Documents.
The Cayman Islands currently have no form of income, corporate or capital
gains tax and no estate duty, inheritance tax or gift tax.
3.7 The courts of the Cayman Islands will observe and give effect to the
choice of the laws of the State of New York as the governing law of the
Transaction Documents.
3.8 Based solely on our inspection of the Register of Writs and Other
Originating process in the Grand Court of the Cayman Islands from the date
of incorporation of the Company there were no actions or petitions pending
against the Company in the courts of the Cayman Islands as at close of
business in the Cayman Islands on [ ] January, 2003.
3.9 Although there is no statutory enforcement in the Cayman Islands of
judgments obtained in the State of New York, the courts of the Cayman
Islands will recognise a foreign judgment as the basis for a claim at
common law in the Cayman Islands provided such judgment:
3.9.1 is given by a competent foreign court;
3.9.2 imposes on the judgment debtor a liability to pay a liquidated sum
for which the judgment has been given;
3.9.3 is final;
3.9.4 is not in respect of taxes, a fine or a penalty; and
3.9.5 was not obtained in a manner and is not of a kind the enforcement of
which is contrary to the public policy of the Cayman Islands.
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3.10 It is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Transaction Documents that any document
be filed, recorded or enrolled with any governmental authority or agency
or any official body in the Cayman Islands.
4 QUALIFICATIONS
The opinions expressed above are subject to the following qualifications:
4.1 The term "ENFORCEABLE" as used above means that the obligations assumed by
the Company under the Transaction Documents are of a type which the courts
of the Cayman Islands will enforce. It does not mean that those
obligations will necessarily be enforced in all circumstances in
accordance with their terms. In particular:
4.1.1 enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganisation, readjustment of debts or moratorium or other laws of
general application relating to or affecting the rights of
creditors;
4.1.2 enforcement may be limited by general principles of equity. For
example, equitable remedies such as specific performance may not be
available, inter alia, where damages are considered to be an
adequate remedy;
4.1.3 some claims may become barred under the statutes of limitation or
may be or become subject to defenses of set-off, counterclaim,
estoppel and similar defenses;
4.1.4 where obligations are to be performed in a jurisdiction outside the
Cayman Islands, they may not be enforceable in the Cayman Islands to
the extent that performance would be illegal under the laws of that
jurisdiction;
4.1.5 the Cayman Islands court has jurisdiction to give judgment in the
currency of the relevant obligation and statutory rates of interest
payable upon judgments will vary according to the currency of the
judgment. If the Company becomes insolvent and is made subject to a
liquidation proceeding, the Cayman Islands court will require all
debts to be proved in a common currency, which is likely to be the
"functional currency" of the Company determined in accordance with
applicable accounting principles. Currency indemnity provisions have
not been tested, so far as we are aware, in the courts of the Cayman
Islands; and
4.1.6 obligations to make payments that may be regarded as penalties will
not be enforceable.
4.2 Cayman Islands stamp duty may be payable if the original Transaction
Documents are brought to or executed in the Cayman Islands.
4.3 To maintain the Company in good standing under the laws of the Cayman
Islands, annual filing fees must be paid and returns made to the Registrar
of Companies.
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4.4 The obligations of the Company may be subject to restrictions pursuant to
United Nations sanctions as implemented under the laws of the Cayman
Islands.
4.5 A certificate, determination, calculation or designation of any party to
the Transaction Documents as to any matter provided therein might be held
by a Cayman Islands court not to be conclusive final and binding if, for
example, it could be shown to have an unreasonable or arbitrary basis, or
in the event of manifest error.
4.6 In principle a Cayman Islands court will award costs and disbursements in
litigation in accordance with the relevant contractual provisions but
there remains some uncertainty as to the way in which the rules of the
Grand Court will be applied in practice. Whilst it is clear that costs
incurred prior to judgment can be recovered in accordance with the
contract, it is likely that post-judgment costs (to the extent recoverable
at all) will be subject to taxation in accordance with Grand Court Rules
Order 62.
4.7 We reserve our opinion as to the extent to which a Cayman Islands court
would, in the event of any relevant illegality, sever the offending
provisions and enforce the remainder of the transaction of which such
provisions form a part, notwithstanding any express provisions in this
regard.
4.8 We make no comment with regard to the references to foreign statutes in
the Transaction Documents.
We express no view as to the commercial terms of the Transaction Documents or
whether such terms represent the intentions of the parties and make no comment
with regard to the representations which may be made by the Company.
This opinion is given as of the date shown and may not be relied upon as of any
later date. This opinion may be relied upon by the addressees only. It may not
be relied upon by any other person except with our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement (No. 333-101188).
Yours faithfully,
MAPLES AND CALDER
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SCHEDULE
Herbalife International Do Brasil Ltda.
Herbalife (UK) Limited
Herbalife Europe Limited
Herbalife International Finland OY
Herbalife International of Israel (1990) Ltd.
Herbalife of Japan K.K.
Herbalife Internacional de Mexico, S.A. de C.V.
Herbalife Products de Mexico, S.A. de C.V.
Herbalife Sweden Aktiebolag
Herbalife China, LLC
Herbalife International of America, Inc.
Herbalife International Communications Inc.
Herbalife International Distribution, Inc.
Herbalife International of Europe, Inc.
Herbalife Taiwan, Inc.
Herbalife International (Thailand) Ltd.
WH Luxembourg CM S.a.R.L.
WH Luxembourg Intermediate Holdings S.a.R.L.
WH Luxembourg Holdings S.a.R.L.
WH Intermediate Holdings Ltd.
WH Intermediate Holdings Ltd.
P.O. Box 309GT, Ugland House,
South Church Street, George Town
Grand Cayman, Cayman Islands
December 19, 2002
To: Maples and Calder
P.O. Box 309GT, Ugland House,
South Church Street, George Town
Grand Cayman, Cayman Islands
Dear Sirs,
WH Intermediate Holdings Ltd. (the "COMPANY")
I, John C. Hockin, being a director of the Company, am aware that you are being
asked to provide a legal opinion (the "OPINION") in relation to certain aspects
of Cayman Islands law. Capitalised terms used in this certificate have the
meaning given to them in the Opinion. I hereby certify that:
1 The Memorandum and Articles of Association of the Company as adopted or
registered on 23rd May, 2002 remain in full force and effect and are
unamended.
2 The Company has not entered into any mortgages or charges over its
property or assets.
3 The written resolutions of the board of directors dated June 21, 2002 and
the written resolutions of the board of directors dated November 12, 2002
(the "RESOLUTIONS") were signed by all the directors in the manner
prescribed in the Articles of Association of the Company.
4 The authorised share capital of the Company is US$50,000 into 50,000
shares of US$1.00 par value each. The issued share capital of the Company
is one share of US$1.00 each, which have been issued and are fully paid
up.
5 The shareholders of the Company have not restricted or limited the powers
of the directors in any way. There is no contractual or other prohibition
(other than as arising under Cayman Islands law) binding on the Company
prohibiting it from entering into and performing its obligations under the
Transaction Documents.
6 The Resolutions were duly adopted, are in full force and effect at the
date hereof and have not been amended, varied or revoked in any respect.
7 The directors of the Company at the date of Resolutions and at the date
hereof were and are as follows:
Steven Rodgers
John Hockin
8 The Minute Book and corporate records of the Company as maintained at its
registered office in the Cayman Islands and made available to you are
complete and accurate in all material respects, and all minutes and
resolutions filed therein represent a complete and accurate record of all
meetings of the shareholders and directors (or any committee thereof)
(duly convened in accordance with the Articles of Association) and all
resolutions passed at the meetings, or passed by written consent as the
case may be.
9 Prior to, at the time of, and immediately following execution of the
Transaction Documents the Company was able to pay its debts as they fell
due and entered into the Transaction Documents for proper value and not
with an intention to defraud or hinder its creditors or by way of
fraudulent preference.
10 Each director considers the transactions contemplated by the Transaction
Documents to be of commercial benefit to the Company and has acted bona
fide in the best interests of the Company, and for a proper purpose of the
Company, in relation to the transactions the subject of this Opinion.
11 To the best of my knowledge and belief, having made due inquiry, the
Company is not the subject of legal, arbitral, administrative or other
proceedings in any jurisdiction. Nor have the directors or shareholders
taken any steps to have the Company struck off or placed in liquidation,
nor have any steps been taken to wind up the Company. Nor has any receiver
been appointed over any of the Company's property or assets.
I confirm that you may continue to rely on this Certificate as being true and
correct on the day that you issue the Opinion unless I shall have previously
notified you personally to the contrary.
Signature: /s/ John C. Hockin
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John C. Hockin