EXHIBIT 3.26
THE COMPANIES ACTS 1985 AND 1989
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PRIVATE COMPANY LIMITED BY SHARES
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ARTICLES OF ASSOCIATION
OF
HERBALIFE EUROPE LIMITED(1)
PRELIMINARY
1. (A) The regulations contained in Table A in the Schedule to the
Companies (Table A to F) Regulations 1985 (as amended) ("Table A")
apply to the Company except to the extent that they are excluded or
modified by these articles.
(B) The regulations of Table A numbered 24, 38, 60, 61, 64, 73, 74, 75, 76,
77, 78, 80, 81, 90, 94, 95, 96, 97, 98, 115 and 118 do not apply. The
regulations of Table A numbered 37, 46, 53, 57, 59, 62, 65, 66, 67, 68,
72, 79, 84, 88, 110, 112 and 116 are modified. The regulations of Table
A numbered 88, 89, 91 and 93 are excluded if and for so long as there
is a sole director of the Company. The regulations of Table A numbered
40 and 54 are modified if and for so long as the Company has only one
member. Subject to these exclusions and modifications, and in addition
to the remaining regulations of Table A, the following are the articles
of association of the Company.
(C) Where an ordinary resolution of the Company is expressed to be required
for any purpose, a special or extraordinary resolution is also
effective for that purpose, and where an extraordinary resolution is
expressed to be required for any purpose, a special resolution is also
effective for that purpose.
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(1) The Company was incorporated with the name Fennelglade Limited on 22
February 1996. Its name was changed to Herbalife Europe Limited pursuant to a
special resolution dated 2 May 1996.
PRIVATE COMPANY
2. The Company is a private company limited by shares and accordingly any
invitation to the public to subscribe for any shares or debentures of
the Company is prohibited.
SHARE CAPITAL
3. The authorised share capital of the Company at the date of
incorporation of the Company is L100 divided into 100 shares of L1
each.
4. (A) Subject to the provisions of the Act, the directors have general
and unconditional authority to allot (with or without conferring
rights of renunciation), grant options over, offer or otherwise
deal with or dispose of any unissued shares of the Company (whether
forming part of the original or any increased share capital) to
such persons, at such times and on such terms and conditions as the
directors may decide but no share may be issued at a discount.
(B) The directors have general and unconditional authority, pursuant to
section 80 of the Act, to exercise all powers of the Company to
allot relevant securities for a period expiring on the fifth
anniversary of the date of incorporation of the Company unless
previously renewed, varied or revoked by the Company in general
meeting.
(C) The maximum amount of relevant securities which may be allotted
pursuant to the authority conferred by paragraph (B) is the amount
of the authorised but as yet unissued share capital of the Company
at the date of incorporation of the Company.
(D) By the authority conferred by paragraph (B), the directors may
before the authority expires make an offer or agreement which would
or might require relevant securities of the Company to be allotted
after, it expires and may allot relevant securities in pursuance of
that offer or agreement.
5. The pre-emption provisions of section 89(1) of the Act and the
provisions of sub-sections (1) to (6) inclusive of section 90 of the
Act do not apply to any allotment of the Company's equity securities.
TRANSFERS
6. The directors may, in their absolute discretion and without giving any
reason, refuse to register the transfer of a share to any person,
whether or not it is a fully-paid share or a share on which the Company
has a lien.
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GENERAL MEETINGS
7. Regulation 37 of Table A is modified by the deletion of the words
"eight weeks" and the substitution for them of the words "28 days".
NOTICE OF GENERAL MEETINGS
8. An annual general meeting and an extraordinary general meeting called
for the passing of a special resolution or an elective resolution must
be called by at least 21 clear days' notice. All other extraordinary
general meetings must be called by at least 14 clear days' notice but a
general meeting, other than a meeting called for the passing of an
elective resolution, may be called by shorter notice if it is so
agreed:
(a) in the case of an annual general meeting, by all the members
entitled to attend and vote at that meeting; and
(b) in the case of any other meeting, by a majority in number of
the members having a right to attend and vote, being (i) a
majority together holding not less than such percentage in
nominal value of the shares giving that right as has been
determined by elective resolution of the members in accordance
with the Act, or (ii) if no such elective resolution is in
force, a majority together holding not less than 95 per cent.
in nominal value of the shares giving that right.
The notice must specify the time and place of the meeting and the
general nature of the business to be transacted and, in the case of an
annual general meeting, must specify that the meeting is an annual
general meeting.
Subject to the provisions of the articles and to any restrictions
imposed on any shares, the notice must be given to all the members, to
all persons entitled to a share in consequence of the death or
bankruptcy of a member and to the directors and auditors.
PROCEEDINGS AT GENERAL MEETINGS
9. A poll may be demanded by the chairman or by any member present in
person or by proxy and entitled to vote and regulation 46 of Table A is
modified accordingly.
10. Regulation 53 of Table A is modified by the addition at the end of the
following sentence: "If a resolution in writing is described as a
special resolution or as an extraordinary resolution, it has effect
accordingly.".
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VOTES OF MEMBERS
11. Regulation 57 of Table A is modified by the inclusion after the word
"shall" of the phrase ", unless the directors otherwise determine,".
12. Regulation 59 of Table A is modified by the addition at the end of the
following sentence: "Deposit of an instrument of proxy does not
preclude a member from attending and voting at the meeting or at any
adjournment of it.".
13. An instrument appointing a proxy must be in writing in any usual form
or in any other form which the directors may approve and must be
executed by or on behalf of the appointor.
14. Regulation 62 of Table A is modified by the deletion in paragraph (a)
of the words "deposited at" and by the substitution for them of the
words "left at or sent by post or by facsimile transmission to", by the
substitution in paragraph (a) of the words "at any time" in place of
"not less than 48 hours" and by the substitution in paragraph (b) of
the words "at any time" in place of "not less than 24 hours".
NUMBER OF DIRECTORS
15. Unless otherwise determined by ordinary resolution, the number of
directors (other than alternate directors) is not subject to any
maximum and the minimum number is one.
ALTERNATE DIRECTORS
16. A director may appoint, any person willing to act, whether or not he is
a director of the Company, to be an alternate director. That person
need not be approved by resolution of the directors, and regulation 65
is modified accordingly.
17. An alternate director who is absent from the United Kingdom is entitled
to receive notice of all meetings of directors and meetings of
committees of directors and regulation 66 of Table A is modified
accordingly.
18. Regulation 68 of Table A is modified by the addition at the end of the
following sentence: "Any such notice may be left at or sent by post or
facsimile transmission to the office or another place designated for
the purpose by the directors.".
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DELEGATION OF DIRECTORS' POWERS
19. Regulation 72 is modified by the addition at the end of the regulation
of the following sentence: "Where a provision of the articles refers to
the exercise of a power, authority or discretion by the directors and
that power, authority or discretion has been delegated by the directors
to a committee, the provision must be construed as permitting the
exercise of the power, authority or discretion by the committee.".
APPOINTMENT AND REMOVAL OF DIRECTORS
20. The directors are not subject to retirement by rotation. Regulations
73, 74 and 75 of Table A do not apply, and reference in regulations 67
and 84 to retirement by rotation must be disregarded.
21. The Company may by ordinary resolution appoint a person who is willing
to act to be a director either to fill a vacancy or as an additional
director.
22. A person appointed by the directors to fill a vacancy or as an
additional director is not required to retire from office at the annual
general meeting next following his appointment and the last two
sentences of regulation 79 of Table A are deleted.
23. No person is incapable of being appointed a director by reason of his
having reached the age of 70 or another age. No special notice is
required in connection with the appointment or the approval of the
appointment of such person. No director is required to vacate his
office at any time because he has reached the age of 70 or another age
and section 293 of the Act does not apply to the Company.
24. The holder or holders of more than half in nominal value of the shares
giving the right to attend and vote at general meetings of the Company
may remove a director from office and appoint a person to be a
director, but only if the appointment does not cause the number of
directors to exceed a number fixed by or in accordance with the
articles as the maximum number of directors. The removal or appointment
is effected by notice to the Company signed by or on behalf of the
holder or holders. The notice may consist of several documents in
similar form each signed by or on behalf of one or more holders and
shall be left at or sent by post or facsimile transmission to the
office or such other place designated by the directors for the purpose.
The removal or appointment takes effect immediately on deposit of the
notice in accordance with the articles or on such later date (if any)
specified in the notice.
DISQUALIFICATION AND REMOVAL OF DIRECTORS
25. The office of a director is vacated if:
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(a) he ceases to be a director by virtue of any provision of the
Act or he becomes prohibited by law from being a director; or
(b) he becomes bankrupt or makes any arrangement or composition
with his creditors generally; or
(c) he becomes, in the opinion of all his co-directors, incapable
by reason of mental disorder of discharging his duties as
director; or
(d) he resigns his office by notice to the Company; or
(e) he is for more than six consecutive months absent without
permission of the directors from meetings of directors held
during that period and his alternate director (if any) has not
during that period attended any such meetings instead of him,
and the directors resolve that his office be vacated; or
(f) he is removed from office by notice addressed to him at his
last-known address and signed by all his co-directors; or
(g) he is removed from office by notice given by a member or
members under article 24.
REMUNERATION OF DIRECTORS
26. A director who, at the request of the directors, goes or resides
abroad, makes a special journey or performs a special service on behalf
of the Company may be paid such reasonable additional remuneration
(whether by way of salary, percentage of profits or otherwise) and
expenses as the directors may decide.
27. Regulation 88 of Table A is modified by the exclusion of the third
sentence and the substitution for it of the following sentences: "Every
director must receive notice of a meeting, whether or not he is absent
from the United Kingdom. A director may waive the requirement that
notice be given to him of a board meeting, either prospectively or
retrospectively.".
28. A director or his alternate may validly participate in a meeting of the
directors or a committee of directors through the medium of conference
telephone or similar form of communication equipment if all persons
participating in the meeting are able to hear and speak to each other
throughout the meeting. A person participating in this way is deemed to
be present in person at the meeting and is counted in a quorum and
entitled to vote. Subject to the Act, all business transacted in this
way by the directors or a committee of directors is for the purposes of
the articles deemed to be validly and effectively transacted at a
meeting of the directors or of a committee of directors although fewer
than two directors or alternate directors are physically present at the
same place. The meeting is
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deemed to take place where the largest group of those participating is
assembled or, if there is no such group, where the chairman of the
meeting then is.
29. If and for so long as there is a sole director of the Company:
(a) he may exercise all the powers conferred on the directors by
the articles by any means permitted by the articles or the
Act;
(b) for the purpose of regulation 89 of Table A the quorum for the
transaction of business is one; and
(c) all other provisions of the articles apply with any necessary
modification (unless the provision expressly provides
otherwise).
30. Without prejudice to the obligation of any director to disclose his
interest in accordance with section 317 of the Act, a director may vote
at a meeting of directors or of a committee of directors on any
resolution concerning a matter in respect of which he has, directly or
indirectly, an interest or duty. The director must be counted in the
quorum present at a meeting when any such resolution is under
consideration and if he votes his vote must be counted.
DIVIDENDS
31. The directors may deduct from a dividend or other amounts payable to a
person in respect of a share any amounts due from him to the Company on
account of a call or otherwise in relation to a share.
CAPITALISATION OF PROFITS
32. The directors may, with the authority of an ordinary resolution of the
Company, resolve that any shares allotted under regulation 110 of Table
A to any member in respect of a holding by him of any partly-paid
shares rank for dividend, so long as those shares remain partly paid,
only to the extent that those partly-paid shares rank for dividend and
regulation 110 of Table A is modified accordingly.
NOTICES
33. Regulation 112 of Table A is modified by the deletion of the last
sentence and the substitution for it of the following: "A member whose
registered address is not within the United Kingdom is entitled to have
notices given to him at that address.".
A notice sent to a member (or another person entitled to receive
notices under the articles) by post to an address within the United
Kingdom is deemed to be given:
(a) 24 hours after posting, if pre-paid as first class, or
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(b) 48 hours after posting, if pre-paid as second class.
A notice sent to a member (or other person entitled to receive notices
under the articles) by post to an address outside the United Kingdom is
deemed to be given 72 hours after posting, if pre-paid as airmail.
Proof that an envelope containing the notice was properly addressed,
pre-paid and posted is conclusive evidence that the notice was given. A
notice not sent by post but left at a member's registered address is
deemed to have been given on the day it was left.
34. Regulation 116 of Table A is modified by the deletion of the words
"within the United Kingdom".
INDEMNITY
35. Subject to the provisions of the Act, but without prejudice to any
indemnity to which he may otherwise be entitled, each person who is a
director, alternate director or secretary of the Company must be
indemnified out of the assets of the Company against all costs,
charges, losses and liabilities incurred by him in the proper execution
of his duties or the proper exercise of his powers, authorities and
discretions including, without limitation, a liability incurred:
(a) defending proceedings (whether civil or criminal) in which
judgment is given in his favour or in which he is acquitted,
or which are otherwise disposed of without a finding or
admission of material breach of duty on his part, or
(b) in connection with any application in which relief is granted
to him by the court from liability for negligence, default,
breach of duty or breach of trust in relation to the affairs
of the Company.
36. The directors may exercise all the powers of the Company to purchase
and maintain insurance for the benefit of a person who is or was:
(a) a director, alternate director, secretary or auditor of the
Company or of a company which is or was a subsidiary
undertaking of the Company or in which the Company has or had
an interest (whether direct or indirect); or
(b) trustee of a retirement benefits scheme or other trust in
which a person referred to in the preceding paragraph is or
has been interested,
indemnifying him against liability for negligence, default, breach of
duty or breach of trust or other liability which may lawfully be
insured against by the Company.
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SOLE MEMBER
37. If and for so long as the Company has only one member:
(a) in relation to a general meeting, the sole member or a proxy
for that member or (if the member is a corporation) a duly
authorised representative of that member is a quorum and
regulation 40 of Table A is modified accordingly;
(b) a proxy for the sole member may vote on a show of hands and
regulation 54 of Table A is modified accordingly;
(c) the sole member may agree that any general meeting, other than
a meeting called for the passing of an elective resolution, be
called by shorter notice than that provided for by the
articles; and
(d) all other provisions of the articles apply with any necessary
modification (unless the provision expressly provides
otherwise).
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NAME AND ADDRESS OF SUBSCRIBER
CHANTAL ELIZABETH BRACKENBURY
For and on behalf of
Legibus Nominees Limited
200 Aldersgate Street
London EC1A 4JJ
DATED this day of 1996
WITNESS to the above signature:
Denise Ward
200 Aldersgate Street
London EC1A 4JJ
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