Exhibit 5.14
[Morris, Nichols, Arsht & Tunnell Letterhead]
December 19, 2002
Herbalife International, Inc. and Each of the
Guaranteeing Subsidiaries (as defined below)
1800 Century Park East
Los Angeles, CA 90067
Re: Herbalife China, LLC,
Herbalife International do Brasil Ltda.
Ladies and Gentlemen:
We have acted as special Delaware counsel to Herbalife China, LLC, a
Delaware limited liability company ("Herbalife China"), and Herbalife
International do Brasil Ltda., a Delaware corporation ("Herbalife Brasil" and
collectively with Herbalife China, the "Companies" and each individually a
"Company"), in connection with certain matters of Delaware law set forth below
relating to 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 Registration Statement No.
333-101188 on Form S-4 filed with the Securities and Exchange Commission on
November 13, 2002 (the "Registration Statement") by, among others, WH
Intermediate Holdings Ltd. ("Parent") for the purpose of registering the Series
B Notes and, among others, the guarantee by the Parent of the Issuer's
obligations under the Series B Notes under the Securities Act of 1933, as
amended. Capitalized terms used herein and not otherwise herein defined are used
as defined in the Indenture (as defined below).
In rendering this opinion, we have examined and relied on copies of
the following documents in the forms provided to us: the Indenture dated as of
June 27, 2002 (the "Indenture") among WH Acquisition Corp. ("WH Acquisition"),
Herbalife International, Inc. ("Herbalife International"), the Guarantors (as
defined therein) and The Bank of New York, as trustee (the "Trustee"); as
supplemented by the Supplemental Indenture dated as of July 31, 2002 among the
Herbalife International, Inc. and Each of the
Guaranteeing Subsidiaries (as defined below)
Page 2
guaranteeing subsidiaries signatories thereto (the "Guaranteeing Subsidiaries"),
Herbalife International, as successor to WH Acquisition, and the Trustee (the
"Supplemental Indenture"); the Purchase Agreement dated as of June 21, 2002
among the WH Acquisition, Herbalife International, the entities listed as
guarantors on the signature pages thereto and UBS Warburg LLC ("UBS Warburg")
(the "Purchase Agreement"); the Joinder to the Purchase Agreement dated as of
July 31, 2002 among Herbalife International and each of the guarantors
signatories thereto (the "Joinder to the Purchase Agreement"); the Registration
Rights Agreement dated as of June 27, 2002 among WH Acquisition, Parent, WH
Luxembourg Holdings S.a.R.L. ("Luxembourg Holdings"), WH Luxembourg CM S.a.R.L.
("Luxembourg CM") and UBS Warburg (the "Registration Rights Agreement"); the
Joinder to the Registration Rights Agreement dated as of July 31, 2002 among WH
Acquisition and each of the guarantors signatory thereto (the "Joinder to the
Registration Rights Agreement"); the Guarantee dated as of July 31, 2002 among
each of the guarantors signatories thereto (the "Guarantee" and together with
the Supplemental Indenture, the Joinder to the Purchase Agreement and the
Joinder to the Registration Rights Agreement, the "Transaction Documents"); the
Certificate of Formation of Herbalife China (then named Herbalife Leiner, LLC)
as filed in the Office of the Secretary of State of the State of Delaware (the
"State Office") on February 16, 1999 (the "LLC Certificate"); the Certificate of
Amendment to the LLC Certificate as filed in the State Office on January 22,
2002; the Limited Liability Company Agreement of Herbalife China dated as of
February 16, 1999 (the "Original LLC Agreement"); the Limited Liability Company
Agreement of Herbalife China between Borrower and Leiner Health Products, Inc.,
as amended by the amendment thereto dated as of July 31, 2002 (as so amended,
the "LLC Agreement" and together with the LLC Certificate, the "LLC Constituent
Documents"); the Certificate of Incorporation of Herbalife Brasil as filed in
the State Office on August 25, 1995 (the "Brasil Certificate"); the Certificate
of Domestication of Herbalife Brasil as filed in the State Office on August 25,
1995 (the "Brasil Domestication Certificate"); the Certificate of Amendment to
the Brasil Certificate as filed in the State Office on April 30, 1996 (the
"Brasil Amendment"); the By-Laws of Herbalife Brasil (the "Brasil By-Laws" and
together with the Brasil Certificate, the Brasil Domestication Certificate and
the Brasil Amendment, the "Brasil Constituent Documents" and together with the
LLC Constituent Documents, the "Constituent Documents"); certain resolutions of
the Board of Directors of Herbalife Brasil dated as of July 31, 2002 authorizing
the execution, delivery and performance of the Transaction Documents to which it
is a party by Herbalife Brasil (the "Brasil Resolutions"); and certifications of
good standing for each of the Companies obtained as of a recent date from the
State Office. In such examinations, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as copies or
drafts of documents to be executed and the legal capacity of natural persons to
complete the execution of documents. We have further assumed for purposes of
this opinion: (i) except to the extent addressed in opinion 1 below, the due
formation or organization, valid existence and good standing of each entity that
is a signatory to any of the documents examined by us under the laws of the
jurisdiction of its respective formation or organization; (ii) the due adoption,
authorization, approval, certification, acknowledgement, authentication,
execution, filing, indexing and delivery of each of the above-referenced
documents by each of the parties thereto (other than the
Herbalife International, Inc. and Each of the
Guaranteeing Subsidiaries (as defined below)
Page 3
Companies); (iii) that each of the above-referenced agreements constitutes a
legal, valid and binding obligation of each of the parties thereto, enforceable
against each such party in accordance with its terms; (iv) that each member of
Herbalife China has paid the full consideration due from it for its interest in
Herbalife China and satisfied and complied with all other terms and conditions
set forth in the Original LLC Agreement and the LLC Agreement, as applicable, in
connection with its admission as a member to Herbalife China; (v) that since the
filing of the LLC Certificate there has been no event or circumstances giving
rise to the dissolution of Herbalife China under the Original LLC Agreement or
the LLC Agreement, as applicable, or the Delaware Limited Liability Act, 6 Del.
C. Sections 18-101 et seq. (the "Delaware Act"); (vi) that none of the
Companies owns any property in, or conducts any business or other activities in
or regulated by, the State of Delaware other than activities incident to its
formation and continued existence as a Delaware limited liability company or
Delaware corporation, as applicable; (vii) that Herbalife China is not organized
and existing under the laws of any jurisdiction other than the State of
Delaware; (viii) that the amendment to the LLC Agreement dated July 31, 2002 was
signed by all of the members owning membership interests and approved by at
least two-thirds of the managers then in office, (ix) that a manager or officer
duly authorized by the LLC Agreement has caused Herbalife China to voluntarily
and unconditionally transfer possession of executed counterparts of the
Transaction Documents to each of the parties thereto with the intent of bringing
the Transaction Documents into effect; (x) that the Transaction Documents
executed by Herbalife China are necessary or incidental to the Credit Agreement
and the U.S. Security Agreement (as defined in the Credit Agreement); (xi) that
an officer duly authorized by the Brasil Resolutions has caused Herbalife Brasil
to voluntarily and unconditionally transfer possession of executed counterparts
of the Transaction Documents to each of the parties thereto with the intent of
bringing the Transaction Documents into effect; (xii) that Herbalife Brasil is a
direct or indirect wholly-owned subsidiary of the Borrower; (xiii) that the
bylaws of Herbalife Brasil have been amended to provide for two members of the
Board of Directors of such Company, (xiv) that the final form of each of the
Transaction Documents is in substantially the form presented to the Board of
Directors of Herbalife Brasil, and (xv) that each of the documents examined by
us is in full force and effect, sets forth the entire understanding of the
parties thereto with respect to the subject matter thereof and has not been
amended, supplemented or otherwise modified, except as herein referenced or as
provided in any document referenced herein. We have not reviewed any documents
other than those identified above in connection with this opinion, and we have
assumed that there are no other documents contrary to or inconsistent with the
opinions expressed herein. Without limiting the generality of the foregoing, we
understand that Herbalife Brasil is a dual domicile entity and we have reviewed
no documents with respect to Herbalife Brasil other than as referenced above and
we express no opinion as to the status of these entities in any jurisdiction
other than the State of Delaware. No opinion is expressed herein with respect to
the requirements of, or compliance with, federal or state securities or blue sky
laws. In addition, we express no opinion as to, and assume no responsibility
for, the Registration Statement or any other offering materials relating to the
Series B Notes. As to any facts material to our opinion, other than those
assumed, we have relied, without independent investigation, on the
above-referenced documents and certificates and on the accuracy, as of the date
hereof, of the matters therein contained.
Herbalife International, Inc. and Each of the
Guaranteeing Subsidiaries (as defined below)
Page 4
Based upon and subject to the foregoing and to the further
assumptions and qualifications set forth below, and limited in all respects to
matters of Delaware law, it is our opinion that:
1. Herbalife China is a duly formed and validly existing limited
liability company in good standing under the laws of the State of Delaware.
Herbalife Brasil is a validly existing corporation in good standing under the
laws of the State of Delaware.
2. Herbalife China has requisite limited liability company power and
authority under the LLC Agreement and the Delaware Act to enter into the
Transaction Documents to which it is a party and to perform its obligations
thereunder. Herbalife Brasil has requisite corporate power and authority under
the Brasil Constituent Documents and the General Corporation Law of the State of
Delaware, 8 Del. C. Sections 101 et seq. (the "DGCL"), to enter into the
Transaction Documents to which it is a party and to perform its obligations
thereunder. The execution, delivery and performance by Herbalife China of the
Transaction Documents to which it is a party have been duly authorized by all
requisite limited liability company action. The execution, delivery and
performance by Herbalife Brasil of the Transaction Documents to which it is a
party have been duly authorized by all requisite corporate action.
3. The execution and delivery by Herbalife China and Herbalife
Brasil of the Transaction Documents to which each is a party and the performance
by Herbalife China and Herbalife Brasil of their respective obligations
thereunder will not violate any provision of applicable statutes, regulations or
rules of the State of Delaware or violate their respective constituent
documents.
We hereby consent to the filing of a copy of this opinion with
the Securities and Exchange Commission as an exhibit to an amendment to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. We understand that Chadbourne &
Parke LLP wishes to rely as to certain matters of Delaware law on the opinion
expressed herein in connection with the rendering of its opinion dated on or
about the date hereof and we hereby consent to such reliance. Except as provided
in this paragraph, the opinion set forth above is expressed solely for the
benefit of the addressee hereof in connection with the matters contemplated
hereby and may not be relied upon for any other purpose or by any other person
or entity without our prior written consent. This opinion speaks only as of the
date hereof and is based on our understandings and assumptions as to present
facts and our review of the above-referenced documents and certificates and the
application of Delaware law as the same exists on the date hereof, and we
undertake no obligation to update or supplement this opinion after the date
hereof for the benefit of any person or entity with respect to any facts or
circumstances that may hereafter come to our attention or any changes in facts
or law that may hereafter occur or take effect.
Herbalife International, Inc. and Each of the
Guaranteeing Subsidiaries (as defined below)
Page 5
Very truly yours,
MORRIS, NICHOLS, ARSHT & TUNNELL
319976