EXHIBIT 3.33
HERBALIFE INTERNACIONAL
S.A. DE C.V.
BY-LAWS AND ARTICLES OF INCORPORATION
NAME, DURATION, DOMICILE AND CORPORATE OBJECT
ARTICLE 1.
The name of the company shall be HERBALIFE INTERNACIONAL DE MEXICO, always
followed by the words "Sociedad Anonima de Capital Variable" or its abbreviation
"S.A. de C.V.".
ARTICLE 2.
The duration of the company shall be ninety nine years, from the date of
execution hereof.
ARTICLE 3.
The company shall have its domicile in the city of Guadalajara, Jalisco, Mexico,
but it may establish branches and agencies elsewhere, at the discretion of the
Administrator or the Board of Directors.
ARTICLE 4.
The objects of the company shall be:
a) To manufacture, purchase, sell, export, import, distribute,
represent, process, in-bond manufacture and, in general, deal
with all kinds of natural or chemical products for nutritive
and weight-control purposes.
b) To render advisory, counseling and representation services in
connection with marketing, advertisement sales and trading
with all kinds of nutritive products, and similar and related
activities.
c) To issue, subscribe, endorse and guarantee credit instruments
including obligations of third parties, with or without
security.
d) To participate in other companies or corporations through the
purchase of shares of stock or corporate interest. To
participate in the administration or liquidation of all kind
of corporations and to issue debentures.
e) In general, to execute all types of agreements and execute all
actions as may be required, necessary or advisable to pursue
the above corporate objects.
f) To purchase the real and personal property that may be
necessary to pursue its corporate objects.
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SHARES AND CAPITAL STOCK
ARTICLE 5.
The company's capital stock shall be variable. The fixed portion of the capital
stock shall be the amount of pesos $5,000,000, represented by 5,000 registered
shares, fully subscribed to each with a par value of pesos $1,000. The variable
portion of the capital stock shall be unlimited.
The shares representing the capital stock shall be divided in two series: Series
"A" shares, which shall always represent the fixed portion of the capital stock
without right to withdraw, and series "B" shares, which shall always represent
the variable portion of said capital stock.
All of the shares of the capital stock confer the same rights and obligations on
the holders.
The capital stock may be subscribe to by Mexican nationals or foreigners.
ARTICLE 6.
Any increase or reduction in the variable portion of the capital stock shall be
carried out by resolution of an ordinary general shareholders' meeting and shall
not be considered as an amendment to the by-laws of the company. Said variation
shall not be notarized, but shall be recorded in the capital variations book
pursuant to article 219 of the General Corporation Law.
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ARTICLE 7.
All shares confer equal rights and obligations on the holders and each share
certificate may represent more than one share.
The provisional or final share certificates shall be issued in accordance with
the requirements established in article 125 of the General Corporation Law, they
shall be signed by two members of the board of directors or by the sole
administrator, and shall embody the provisions of the following article.
ARTICLE 8.
Any foreigner that upon the organization of this company or in the future shall
acquire any share, interest or participation therein shall be considered as
Mexican in regard to the shares, interest or participation, it being understood
that such foreigner agrees not to invoke the protection of his government, under
penalty, in the event of breaching such agreement, of forfeiting such interest
or participation to the Mexican Nation.
ARTICLE 9.
The company shall keep a stock transfer book, pursuant to provisions of article
128 of the General Corporation Law.
ARTICLE 10.
The shareholders shall have a preferential right to subscribe to the shares
issued in case of an increase in the capital stock.
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SHAREHOLDERS' MEETINGS
ARTICLE 11.
Fundamental authority shall be lodged in the shareholders functioning as a
corporate body at shareholders' meetings. The meetings of the shareholders may
be ordinary or extraordinary.
The annual ordinary meeting of the shareholders shall be held within four months
following the end of the fiscal year and will consider the matters contained in
article 181 of the General Corporation Law.
The extraordinary meetings may be held whenever they may be called and will
consider the matters contained in article 182 of the above mentioned law.
ARTICLE 12.
Ordinary and extraordinary shareholders' meetings shall be called by the Board
of Directors or the sole administrator, as the case may be, or in the absence
thereof, by the examiner, or the competent authorities by publishing a notice in
the federal official gazette or in one newspaper of wide circulation of the
company's domicile, at least fifteen days before the date scheduled for holding
the meeting. Such call shall set forth the agenda and shall be signed by the
responsible person.
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ARTICLE 13.
Ordinary shareholders' meetings shall be regarded as legally convened when at
least 50% of the shares of stock are represented thereat, if held pursuant to a
first call. Resolutions shall require a majority vote.
Extraordinary shareholders' meetings shall be regarded as legally convened when
at least 75% of the shares of stock are represented thereat. Resolutions shall
require the affirmative vote of 50% of the shares of stock.
If an ordinary shareholders' meeting is held pursuant to a second or subsequent
call, resolutions shall require the affirmative vote of the majority of the
shares represented thereat.
If an extraordinary Shareholders' Meeting is held pursuant to a second or
subsequent call, resolutions shall require the affirmative vote of shares
representing at least 50% of the capital stock.
Shareholders shall be entitled to one vote per each share held.
ARTICLE 14.
No call shall be required if all of the shareholders are present or represented
at an ordinary or extraordinary meeting.
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ARTICLE 15.
Shareholders may attend the meetings in person or through any representative
appointed by proxy or telegram. Neither the administrator, nor the members of
the board of directors or the examiner can represent shareholders at
shareholders' meetings.
ARTICLE 16.
Shareholders' meetings shall be presided by the administrator and the chairman
of the Board of Directors, and in their absence, by the person appointed by the
shareholders in said meeting. The secretary shall be appointed by the
shareholders' meeting or the secretary of the Board of Directors.
The presiding officer shall appoint one inspector from among the shareholders
present, who shall certify the number of shares represented.
ARTICLE 17.
The minutes of the shareholders' meetings shall be recorded in a minute book and
shall be signed by the presiding officer, the secretary and the examiner.
Minutes of extraordinary shareholders' meetings shall be notarized and recorded
with the Public Registry of Commerce, except as provided in article 6 of these
by-laws. The attendance list and the documents supporting the call shall be
attached to the minutes as provided by Law and these by-laws.
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ARTICLE 18.
The resolutions legally adopted at the shareholders' meetings are mandatory,
even for absent or dissident shareholders, except for the right of opposition
provided by the General Corporation Law.
ADMINISTRATION
ARTICLE 19.
The direction and management shall be vested in a board of directors or a sole
administrator, as resolved at the general ordinary shareholders' meeting.
If a Board of Directors is designated by the shareholders, it will consist of at
least 3 members, including a president, a secretary, and a treasurer; the
shareholders' meeting may designate the number of alternates it deems necessary.
The members of the Board of Directors or the sole administrator, as the case may
be, may be shareholders or not and they must be designated at an ordinary
shareholders' meeting by a majority vote and they will hold office until their
removal.
ARTICLE 20.
Each director or the sole administrator shall deposit with the company a bond in
the amount of pesos $1,000 to guarantee the performance of his duties in the
amount of $1,000.00.
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Pursuant to article 153 of the General Corporation Law, the examiner shall issue
a certification proving such deposit in order to record the designation of the
sole administrator or the directors in the Public Registry of Commerce.
ARTICLE 21.
If the management of the company is entrusted to a board of directors, the
attendance of 50% of its members shall be necessary to constitute a quorum.
Resolutions shall be adopted by the majority vote of the directors present at a
meeting and the president shall have tie-breaking power.
ARTICLE 22.
The sole administrator or the Board of Directors, through the chairman, shall
have the powers necessary to carry out the corporate objects set forth in
article 4 herein.
Consequently, they will be granted with powers of attorney for litigation and
collections, for acts of administration and acts of ownership, as provided in
article 2475 of the Civil Code for the State of Jalisco and 2554 of the Civil
Code for the Federal District, with all of the general and special powers that
pursuant to the Law require a special clause, including but not limited to the
following:
I. To withdraw any action, including constitutional proceedings.
II. To compromise.
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III. To submit to arbitration.
IV. To answer and submit interrogatories.
V. To make assignment of property.
VI. To take exceptions to judges.
VII. To receive payments.
VIII. To file and withdraw criminal denunciations.
IX. To become coadjutor of the Public Prosecutor.
X. To appear before labor authorities, as provided in article 523, of the
Mexican Labor Law, and before the workers' housing development fund, the
Mexican Institute of Social Security and the Worker's Purchasing Fund; to
take any action to solve individual and collective conflicts on behalf of
the company, as provided in article 11 of the Mexican Labor Law, which
reads as follows:
The officers, directors, managers, administrators and other officers with
managing authority in the company, will be considered as attorney-in-fact
of the company and their relations with workers will have a binding effect
for the company.
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XI. To issue, subscribe, endorse, negotiate and guarantee negotiable
instruments, in accordance with article 9 of the General Negotiable
Instruments and Credit Operations Law.
XII. To confer, grant or substitute general or special powers of attorney and
revoke the same.
ARTICLE 23.
In addition to the board of directors or the sole administrator the company may
have one or more directors, assistant directors, managers, and assistant
managers, who may not be shareholders and shall be designated by a majority vote
of the board of directors, the sole administrator or the general ordinary
shareholders' meeting. They will hold office until their removal and shall have
the powers and duties offered at the moment of their designation.
EXAMINER
ARTICLE 24.
The vigilance of the company's affairs shall be vested in an examiner, who may
not be a shareholder and shall have the obligations and authority granted herein
and those faculties provided in article 166 of the General Corporation Law. The
examiner shall be a designated by the shareholders' meeting and will hold office
until his substitute has
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been designated and qualified. They shall deposit the guaranty mentioned in
article 20 above for the faithful performance of his duties.
FINANCIAL INFORMATION
ARTICLE 25.
The fiscal year of the company in no case shall exceed twelve months, except for
the first one that will commence on the date of incorporation and will finish
the day before the beginning of the fiscal year determined by the sole
administrator, the board of directors or the shareholders' meeting at the end of
each fiscal year. The financial information referred to in article 172 of the
General Corporation Law shall be prepared for submission to the shareholders.
ARTICLE 26.
The above mentioned information and the report of the Examiner must be concluded
and submitted to the shareholders at least 15 days before the date scheduled for
the shareholders' meeting in which it will be considered.
ARTICLE 27.
a) A minimum of 5% for the legal reserve fund shown in the balance sheet
shall be set aside each year from the net profits, until said reserve fund
is equivalent to 20% of the capital stock of the company. This provision
shall also apply in the event of reduction of this reserve fund again.
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b) The remaining profits may be distributed as dividends to the shareholders
and will be delivered to them upon delivery of the respective coupon
within the term and pursuant to the conditions provided by the
shareholders or the board of directors. The shareholders will absorb the
losses of the company in an amount equivalent to their contributions and
their liability shall not exceed the par value of their shares. The
incorporators shall have no special participation in the profits.
DISSOLUTION AND LIQUIDATION OF THE COMPANY
ARTICLE 28.
The company shall be dissolved in any of the events established in article 229
of the General Corporation Law, and consequently:
A) At the expiration of the term referred to in Article 4 above.
B) In the event it becomes impossible for the company to pursue its principal
object or said object is duly achieved.
C) By resolution adopted at an extraordinary shareholders' meeting, as
provided by this instrument and the Law.
D) If the number of shareholders becomes less than the minimum established by
law.
E) If the company loses two-thirds of its capital stock.
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ARTICLE 29.
In the event it is agreed to liquidate the company by a resolution adopted by
the vote of shareholders presenting 60% of the capital stock, the shareholders
shall elect a liquidator for the purpose of winding up the affairs of the
company, pursuant to chapter 11 of the General Corporation Law.
TRANSIENT ARTICLES
SUBSCRIPTION OF CAPITAL STOCK
ARTICLE 1.
The shareholders hereby subscribe to the shares representing the capital stock
as follows:
Mr. Mark Hughes subscribes to 2,450 shares with a par value in the aggregate of
pesos $2,450,000.
Corpomexico Internacional, S.A. de C.V., 750 shares with a par value in the
aggregate of pesos $750,000.
Mr. Jose Alonso Parra Osuna 1,000 shares with a par value in the aggregate of
pesos of $1,000,000.
Mrs. Carmen Gonzalez Gomez de Parra 300 shares with a par value in the aggregate
of pesos $300,000.
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Mr. Jose Alonso Parra Gonzalez 250 shares with a par value in the aggregate of
pesos $250,000.
Mr. Jorge Arturo Parra Gonzalez 250 shares with a par value in the aggregate of
pesos $250,000.
All the shareholders pay in cash the price of the shares subscribed to by each
of them, by delivering such amounts to the company.
ARTICLE 2.
Upon execution of these articles of incorporation, the shareholders receive the
provisional share certificates representing the shares they have subscribed;
said provisional certificates shall be exchanged for final certificates, which
shall be issued within a term that shall not exceed one year from the date
hereof.
APPOINTMENT OF OFFICERS
ARTICLE 3.
The appearing parties, as first general ordinary shareholders' meeting,
unanimously resolve:
a) The management of the company shall be vested in a board of directors,
formed by the following persons:
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Chairman: Mr. Jose Alonso Parra Osuna
Secretary: Mr. Jose Alonso Parra Gonzalez
Treasurer: Mr. Jorge Arturo Parra Gonzalez
The Board of Directors shall be represented by its chairman, and will have the
powers of attorney established in article 22 above, which is incorporated herein
by this reference.
b) Mr. Jose Alonso Parra Gonzalez is hereby designated as attorney-in-fact of
the company and will also have the powers provided in article 22 of these
by-laws, except for the acts of ownership, as this power will be granted
exclusively to the chairman of the board of directors.
c) Mr. Luis Jorge Cardenas Diaz is hereby designated as Examiner of the
company.
d) The fiscal year shall begin on January 1st and finish on December 31 of
each year, except for the first fiscal year, which will begin on the date
hereof and terminate on December 31 of the same year.
ARTICLE 4.
Mr. Jorge Arturo Parra Gonzalez, as treasurer of the Board of Directors, hereby
represents that the shareholders, the examiner and the directors have deposited
with the company the aforesaid amounts as payment of their contributions and as
guaranties for the performance of their duties.
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