Exhibit 3.1
THE COMPANIES LAW (2016 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES
OF
ASSOCIATION
OF
HERBALIFE LTD.
(as adopted by special resolution passed on April 24, 2018
and effective on May 7, 2018, as amended by special
resolution passed on April 29, 2020, and reflecting the
change of name of the Company effected by special
resolution passed on April 26, 2023)
THE COMPANIES LAW (2016 REVISION) OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION OF
HERBALIFE LTD.
(as adopted by special resolution passed on April 24, 2018 and effective on May 7, 2018, as amended by special resolution passed on April 29, 2020, and reflecting the change of name of the Company effected by special resolution passed on April 26, 2023)
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AMENDED AND RESTATED ARTICLES OF ASSOCIATION TABLE OF CONTENTS
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AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION AND ALTERATION OF CAPITAL | 9 | |
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RESTRICTIONS ON THE COMPANY ENGAGING IN BUSINESS COMBINATIONS | 15 | |
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THE COMPANIES LAW (2016 REVISION) OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION OF
HERBALIFE LTD.
(as adopted by special resolution passed on April 24, 2018 and effective on May 7, 2018, as amended by special resolution passed on April 29, 2020, and reflecting the change of name of the Company effected by special resolution passed on April 26, 2023)
INTERPRETATION
“Articles” |
| means these articles of association of the Company, as amended from time to time by Special Resolution. |
“Auditors” |
| means the persons for the time being performing the duties of auditors of the Company. |
“Board” |
| means the board of directors of the Company. |
“Common Shares” |
| has the meaning given in the Memorandum. |
“Company” |
| means the above-named company. |
“Directors” |
| means the directors for the time being of the Company. |
“dividend” |
| means any dividend (whether interim or final) declared or resolved to be paid on Shares pursuant to the Articles. |
“Dividend Period” |
| shall bear the meaning given to it in the Articles under the heading “PREFERENCE SHARES”. |
“Electronic Record” |
| has the same meaning as in the Electronic Transactions Law. |
“Electronic Transactions Law” |
| means the Electronic Transactions Law (2003 Revision) of the Cayman Islands. |
“Exchange” |
| shall mean any securities exchange or other system on which the Shares may be listed or otherwise authorised for trading from time to time. |
“Independent Director” |
| shall mean a person recognised as such by the relevant code, rules and regulations applicable to the listing of the Shares on the Exchange. |
“Member” |
| has the same meaning as in the Statute. |
“Memorandum” |
| means the memorandum of association of the Company as amended from time to time by Special Resolution. |
“month” |
| means calendar month. |
“Ordinary Resolution” |
| means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles. |
“paid-up” |
| means paid-up as to the par value and any premium payable in respect of the issue of any Share and includes credited as paid-up. |
“Preference Shares” |
| has the meaning given in the Memorandum. |
“Register of Members” |
| means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. |
“registered office” |
| means the registered office for the time being of the Company. |
“Seal” |
| means the common seal of the Company and includes every duplicate seal. |
“Secretary” |
| includes an assistant secretary and any person appointed to perform the |
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| duties of secretary of the Company. |
“Share” and “Shares” |
| means a share or shares in the Company and includes a fraction of a share in the Company. |
“Special Resolution” |
| has the same meaning as in the Statute provided that a Special Resolution may not be passed by way of an unanimous written resolution. |
“Statute” |
| means the Companies Law (2016 Revision) of the Cayman Islands. |
“written” and “in writing” |
| include all modes of representing or reproducing words in visible form. |
“Treasury Share” |
| means a Share held in the name of the Company as a treasury share in accordance with the Statute. |
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ISSUE OF WARRANTS AND OPTIONS
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REGISTER OF MEMBERS
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NON-RECOGNITION OF TRUSTS
AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION AND ALTERATION OF CAPITAL
REGISTERED OFFICE
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CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
GENERAL MEETINGS
NOTICE OF GENERAL MEETINGS
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PROCEEDINGS AT GENERAL MEETINGS
(ii) the class and number of Shares that are owned by such Member, and (iii) a clear and concise statement of the proposal and the Member’s reasons for supporting it. The filing of a Member notice as required above shall not, in and of itself, constitute the making of the proposal described therein. If the Chairman of the meeting determines that any proposed business has not been properly brought before the meeting, he shall declare such business out of order, and such business shall not be conducted at the meeting.
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NOMINATIONS OF DIRECTORS
day following the date of the first public announcement of the date of such meeting, whichever is later) nor more than 120 days prior to such meeting. Such Member’s notice shall set forth (a) as to each person whom the Member proposes to nominate for appointment or re-appointment as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for appointment of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, of the United States of America, as amended, or any successor provisions thereto, including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if appointed and (b) as to the Member giving the notice (i) the name and address of such Member, as they appear on the Register of Members,
(ii) the class and number of Shares that are owned beneficially and/or of record by such Member, (iii) a representation that the Member is a registered holder of Shares entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such nomination and (iv) a statement as to whether the Member intends or is part of a group that intends (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Company’s outstanding share capital required to approve or elect the nominee for appointment and/or (y) otherwise to solicit proxies from Members in support of such nomination. The Board may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Company, including such evidence satisfactory to the Board that such nominee has no interests that would limit such nominee’s ability to fulfil his duties as a director.
VOTES OF MEMBERS
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against the same resolution in such proportion as specified in the instrument appointing the proxy. Where a Member appoints more than one proxy the instrument of proxy shall specify the number of Shares in respect of which each proxy is entitled to exercise the related votes.
PROXIES
CORPORATE MEMBERS
DIRECTORS
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APPOINTMENT OF DIRECTORS
REMOVAL OF DIRECTORS
VACATION OF OFFICE OF DIRECTOR
100 | The office of a Director shall be vacated if: |
100.1 | the Director gives notice in writing to the Company that he resigns the office of Director; |
100.2 | the Director absents himself from three consecutive meetings of the Board of Directors without special leave of absence from the Directors, and the Directors pass a resolution that he has by reason of such absence vacated office; |
100.3 | the Director dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; |
100.4 | the Director is found a lunatic or becomes of unsound mind; or |
100.5 | the Director being prohibited by any applicable law, or the relevant code, rules and regulations applicable to the listing of the Shares on the Exchange, from being a Director. |
REMUNERATION OF DIRECTORS
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DIRECTORS’ INTERESTS
POWERS AND DUTIES OF DIRECTORS
RESTRICTIONS ON THE COMPANY ENGAGING IN BUSINESS COMBINATIONS
(3) years following the date that such Member became an Interested Member, unless:
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(50) percent. or more of either that aggregate market value of all of the assets of the Company determined on a consolidated basis or the aggregate market value of all the outstanding shares of the Company; or (C) a proposed tender or exchange offer for fifty (50) percent or more of the outstanding Voting Shares of the Company. The Company shall give not less than twenty (20) days’ notice to all Interested Members prior to the consummation of any of the transactions described in clauses (A) or (B) of the second sentence of this sub-paragraph.
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and the affiliates and associates of such person; provided, however, that the term “Interested Member” shall not include any person whose ownership of shares in excess of the fifteen (15) percent. limitation set forth herein is the result of action taken solely by the Company provided that such person shall be an Interested Member if thereafter such person acquires additional Voting Shares of the Company, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an Interested Member, the Voting Shares of the Company deemed to be outstanding shall include shares deemed to be owned by the person through application of the definition of beneficial owner set out below under this Article but shall not include any other unissued shares of the Company which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
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MINUTES
DELEGATION OF THE BOARD’S POWERS
EXECUTIVE OFFICERS
limitation, any Secretary) as it considers necessary in the management of the business of the Company and as it may decide for such period and upon such terms as it thinks fit and upon such terms as to remuneration as it may decide in accordance with these Articles. Such officers need not also be a Director. Unless otherwise specified in the terms of his appointment, an officer of the Company may be removed by resolution of the Board. An officer of the Company may vacate his office at any time if he gives notice in writing to the Company that he resigns his office.
PROCEEDINGS OF THE BOARD
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PRESUMPTION OF ASSENT
SEAL
Secretary-Treasurer or some other officer of the Company or other person appointed by the Board for the purpose.
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DIVIDENDS, DISTRIBUTIONS AND RESERVE
CAPITALISATION
BOOKS OF ACCOUNT
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AUDIT
NOTICES
WINDING UP
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INDEMNITY
including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than a proceeding by, or in the name or on behalf of, the Company), to which he was, is, or is threatened to be made, a party or in which he is otherwise involved, (a “proceeding”) by reason of the fact that he is or was a Covered Person; provided, however, that this provision shall not indemnify any Covered Person against any liability arising out of (a) any fraud or dishonesty in the performance of such Covered Person’s duty to the Company, or (b) such Covered Person’s conscious, intentional or wilful breach of his obligation to act honestly, lawfully and in good faith with a view to the best interests of the Company. Notwithstanding the preceding sentence, this section shall not extend to any matter which would render it void pursuant to the Statute, applicable law or to any person holding the office of auditor in relation to the Company.
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indemnify him against such liability under the provisions of these Articles. As used in these Articles relating to indemnification, references to the “Company” include all constituent corporations in an amalgamation, consolidation or merger or similar arrangement in which the Company or a predecessor to the Company by amalgamation, consolidation or merger or similar arrangement was involved.
FINANCIAL YEAR
TRANSFER BY WAY OF CONTINUATION
MERGERS AND CONSOLIDATIONS
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