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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTIONS 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) December 12, 1997
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HERBALIFE INTERNATIONAL, INC.
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(Exact Name of Registrant as Specified in Charter)
State of Nevada 0-15712 22-2695420
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(State of or (Commission (I.R.S. Employer
Other Jurisdiction File Number) Identification No.)
of Incorporation)
1880 Century Park East
Los Angeles, California 90067
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (310) 410-9600
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
The Amended and Restated Articles of Incorporation of the Registrant, a
copy of which is attached hereto as Exhibit 1, were approved at the Registrant's
December 11, 1997 Special Meeting of Stockholders and were filed with the
Nevada Secretary of State on, and became effective on, December 12, 1997. The
Amended and Restated Articles are incorporated by reference herein.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
EXHIBITS
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Designation Description Method of Filing
Exhibit 1 Registrant's Amended and Restated Filed with this Report
Articles of Incorporation
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SIGNATURE
Pursuant to the requirement of the Securities Exchange Act of 1934, the
Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned hereunto duly authorized:
HERBALIFE INTERNATIONAL, INC.
December 12, 1997 By: /s/ Christopher Pair
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Christopher Pair, Executive Vice President, Chief
Operating Officer and Secretary
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Exhibit 1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
HERBALIFE INTERNATIONAL, INC.
Pursuant to the provisions of Nevada Revised Statutes ("NRS") Sections
78.390 and 78.403, the articles of incorporation of the above referenced
corporation are hereby amended and restated as follows:
I. The name of the corporation (hereinafter called the corporation) is
Herbalife International, Inc.
II. The purposes for which the corporation is organized are to engage in
any activity or business not in conflict with the laws of the State of Nevada or
of the United States of America, and without limiting the generality of the
foregoing, specifically:
A. To have and to exercise all the powers now or hereafter
conferred by the laws of the State of Nevada upon corporations organized
pursuant to the laws under which the corporation is organized and any and all
acts amendatory thereof and supplemental thereto.
B. To discount and negotiate promissory notes, drafts, bill of
exchange and other evidence of debts, and to collect for others money due them
on notes, checks, drafts, bill of exchange, commercial paper and other evidence
of indebtedness.
C. To purchase or otherwise acquire, own, hold, lease, sell,
exchange, assign, transfer, mortgage, pledge, or otherwise dispose of, to
guaranty, to invest, trade, and deal in and with personal property of every
class and description.
D. To enter into any kind of contract or agreement, cooperative
or profit sharing plan with its officers or employees that the corporation may
deem advantageous or expedient or otherwise to reward or pay such persons for
their services as the directors may deem fit.
E. To purchase, lease, or otherwise acquire, in whole or in part,
the business, the good will, rights, franchises and property of every kind, and
to undertake the whole or any part of the assets or liabilities, of any person,
firm, association, nonprofit or profit corporation, or own property necessary or
suitable for its purposes, and to pay the same in cash, in the stocks or bonds
of this company or otherwise, to hold or in any manner dispose of the whole or
any part of the business or property so acquired and to exercise all of the
powers necessary or incidental to the conduct of such business.
F. To lend or borrow money and to negotiate and make loans,
either on its own account or as agent, or broker for others.
G. To enter into, make, perform and carry out contracts of every
kind and for any lawful purpose, without limit as to amount with any person,
firm, association, cooperative profit or nonprofit corporation, municipality,
State or Government or any subdivision, district or department thereof.
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H. To buy, sell, exchange, negotiate, or otherwise deal in, or
hypothecate securities, stocks, bonds, debentures, mortgages, notes or other
collaterals or securities, created or issued by any corporation wherever
organized, including this corporation, within such limits as may be provided by
law, and while owner of any such stocks or other collaterals to exercise all
rights, powers and privileges of ownership, including the right to vote the
same; to subscribe for stock of any corporation to be organized, other than to
promote the organization thereof.
I. To purchase or otherwise acquire, own, hold, lease, sell,
exchange, assign, transfer, mortgage, pledge, license, or otherwise dispose of
any letters, patents, copyrights, or trademarks of every class and description.
J. To do any and all other such acts, things, business or
businesses in any manner connected with or necessary, incidental, convenient or
auxiliary to do any of these objects hereinbefore enumerated, or calculated,
directly or indirectly, to promote the interest of the corporation; and in
carrying on its purposes, or for the purpose of obtaining or furthering any of
its business, to do any and all acts and things, and to exercise any and all
other powers which a copartnership or natural person could do or exercise, and
which now or hereafter may be authorized by law, here and in any other part of
the world.
K. The several clauses contained in this statement of powers
shall be construed as both purposes and powers. And the statements contained in
each of these clauses shall be in no way limited or restricted, by reference to
or inference from, the terms of any other clauses, but shall be regarded as
independent purposes and powers; and no recitations, expression or declaration
of specific or special powers or purposes herein enumerated shall be deemed to
be exclusive; but is hereby expressly declared that all other lawful powers not
inconsistent herewith, are hereby included.
III. The total number of shares that this corporation is authorized to
issue is set forth as follows: One hundred million (100,000,000) shares of
preferred stock; One hundred million (100,000,000) shares of common stock with a
par value of $.01 per share, consisting of Thirty-Three Million Three Hundred
and Thirty-Three Thousand Three Hundred and Thirty-Three (33,333,333) shares of
Class A Common Stock ("Class A Common Stock") and Sixty-Six Million Six Hundred
and Sixty-Six Thousand Six Hundred and Sixty-Seven (66,666,667) shares of Class
B Common Stock ("Class B Common Stock").
A. Upon these Amended and Restated Articles of Incorporation
becoming effective pursuant to Sections 78.390 and 78.403 of the NRS (the
"Effective Time"), and without any further action on the part of the corporation
or its shareholders, the following shall occur:
1. Each three shares of the corporation's Common
Stock, par value $0.01 per share (the "Old Common Stock"), then issued shall
automatically be combined and converted into one share of Old Common Stock. No
fractional shares shall be issued but in lieu thereof, this corporation shall
pay in cash an amount equal to the greater of (i) the average closing sale price
of a share of Old Common Stock on the NASDAQ National Market System for the
fifteen trading days immediately preceding the Effective Time, and (ii) the
closing sale price of a share of Old Common Stock on the NASDAQ National Market
System on the trading day immediately preceding the date on which the Effective
Time occurs.
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2. Immediately following the reverse stock split
described in subparagraph (A)(1) above, each whole share of Old Common Stock,
then issued (including shares held in the treasury of the corporation) shall
automatically be reclassified, changed and converted into one fully paid and
nonassessable share of Class A Common Stock.
B. The preferred shares may be issued in one or more series. The
Board of Directors is authorized to fix the number of any such series of
preferred shares and to determine the designation of any such series. The Board
of Directors is further authorized to determine or alter the rights,
preferences, privileges and restrictions granted to or imposed upon any wholly
unissued series of preferred shares and, within the limits and restrictions
stated in any resolution or resolutions of the Board of Directors originally
fixing the number of shares constituting any series, to increase or decrease
(but not below the number of shares of such series then outstanding) the number
of shares of any such series subsequent to the issue of shares of that series.
C. The powers, preferences and rights of the Class A Common Stock
and the Class B Common Stock, and the qualifications, limitations or
restrictions thereof, shall be in all respects identical, except as otherwise
required by law or expressly provided in these Amended and Restated Articles of
Incorporation, as amended.
D. DIVIDENDS. Dividends may be declared and paid to the holders
of the Class A Common Stock and the Class B Common Stock in cash, property, or
other securities of the corporation out of any assets or funds legally available
therefor. If and when dividends on the Common Stock are declared payable from
time to time by the Board of Directors, whether payable in cash, in property or
in shares of stock of the corporation, the holders of the Class A Common Stock
and the holders of the Class B Common Stock shall be entitled to share equally,
on a per share basis, in such dividends, except that: (a) a dividend or other
distribution of cash or property (except for a distribution in liquidation) with
respect to shares of Class B Common Stock may exceed the amount of a dividend or
other distribution of cash or property (except for a distribution in
liquidation) with respect to shares of Class A Common Stock, and (b) dividends
or other distributions payable on the Common Stock in shares of capital stock of
the corporation shall be made to all holders of Common Stock and may be (i) in
shares of Class B Common Stock to the record holders of Class A Common Stock and
to the record holders of Class B Common Stock, (ii) in shares of Class A Common
Stock to the record holders of Class A Common Stock and in shares of Class B
Common Stock to the record holders of Class B Common Stock, or (iii) in any
other authorized class or series of capital stock to the record holders of both
classes of Common Stock.
E. DISTRIBUTIONS ON DISSOLUTION, ETC. Upon any liquidation,
dissolution or winding up of the corporation, whether voluntary or involuntary,
the remaining net assets of the corporation shall, after payment in full of the
liquidation preference, if any, of any outstanding preferred stock, be
distributed pro rata to the holders of Common Stock in accordance with their
respective interests.
F. VOTING RIGHTS
1. At each annual or special meeting of the
shareholders, each holder of Class A Common Stock shall be entitled to one (1)
vote in person or by proxy for each share of Class A Common Stock standing in
his name on the stock transfer records of the
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corporation in connection with the election of directors and all other actions
submitted to a vote of shareholders. No holder of Class A Common Stock shall
have rights of cumulative voting with respect to the election of directors of
the corporation. Holders of Class B Common Stock shall not vote on any matters
except as otherwise provided by these Amended and Restated Articles of
Incorporation, as amended, or by law.
2. The holders of Class B Common Stock shall be entitled
to vote separately as a class only with respect to (i) amendments to these
Amended and Restated Articles of Incorporation that alter or change any
preference or relative or other right given to the holders of Class B Common
Stock, and (ii) such other matters as may require separate class voting under
these Amended and Restated Articles of Incorporation, as amended, or by law.
G. CONVERSION.
1. All outstanding shares of Class B Common Stock may
be converted into shares of Class A Common Stock on a share-for-share basis by
the Board of Directors if, as a result of the existence of the Class B Common
Stock, either the Class A Common Stock or Class B Common Stock is or both are
excluded from trading on the New York Stock Exchange, the American Stock
Exchange and all other principal national securities exchanges then in use and
also is excluded from quotation on the NASDAQ National Market System and other
comparable national quotation systems then in use.
2. All outstanding shares of Class B Common Stock shall be
converted into shares of Class A Common Stock on a share-for-share basis if at
any time the number of outstanding shares of Class A Common Stock as reflected
on the stock transfer records of the corporation falls below 10% of the
aggregate number of outstanding shares of Class A Common Stock and of Class B
Common Stock. For purposes of the immediately preceding sentence, any shares of
Common Stock repurchased and held as treasury shares or cancelled by the
corporation shall no longer be deemed "outstanding" from and after the date of
repurchase.
3. In the event of any conversion of the Class B Common
Stock pursuant to subparagraph (G)(1) or (G)(2), certificates which formerly
represented outstanding shares of Class B Common stock will thereafter be deemed
to represent a like number of Class A Common Stock and all authorized shares of
Common Stock shall consist of only Class A Common Stock.
4. In making the determination for purposes of this
paragraph (G), the Board of Directors may conclusively rely on any information
or documentation available to it, including filings made with the Securities and
Exchange Commission, any stock exchange, the National Association of Securities
Dealers, Inc. or any other governmental or regulatory agencies or any written
instrument purporting to be authentic.
H. CLASS B PROTECTION PROVISION.
1. If, after the Effective Time, (a) any person or group
acting in concert acquires beneficial ownership of shares representing 10% or
more of the then issued and outstanding shares of Class A Common Stock
(excluding (i) shares of Class A Common Stock beneficially owned by such person
or group which were received as a result of the conversion of
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Old Common Stock beneficially owned by such person or group immediately prior to
the Effective Time and (ii) shares of Class A Common Stock of which beneficial
ownership was acquired by such person or group by the issuance or sale by the
corporation, by operation of law, by will or the laws of descent and
distribution, by gift or by foreclosure of a bona fide loan or in connection
with a marital dissolution) (collectively, the exclusions described in clauses
(i) and (ii) are referred to as "Excluded Acquisitions"), and (b) the percentage
of all issued and outstanding shares of Class B Common Stock owned by such
person or group is less than the percentage of all issued and outstanding shares
of Class A Common Stock owned by such person or group (a "Significant
Shareholder") at such time, such Significant Shareholder must, within a 90 day
period beginning the day after becoming a Significant Shareholder, make a public
tender offer in compliance with all applicable laws and regulations to acquire
additional Class B Common Stock as provided in this paragraph (H) of Article III
(a "Class B Protection Transaction").
2. In each Class B Protection Transaction, the Significant
Shareholder must make a public tender offer to acquire that number of shares of
Class B Common Stock determined by (a) multiplying the percentage of outstanding
Class A Common Stock beneficially owned by such Significant Shareholder by the
total number of shares of Class B Common Stock outstanding on the date such
person or group became a Significant Shareholder, and (b) subtracting therefrom
the total number of shares of Class B Common Stock beneficially owned on such
date by such Significant Shareholder (including shares acquired on such date at
or prior to the time such person or group became a Significant Shareholder).
(For purposes of subparagraph (H)(4) below, the applicable date for determining
the total number of shares of Class B Common Stock outstanding for part (a) of
the previous sentence shall be the date on which the Significant Shareholder
becomes required to engage in a Class B Protection Transaction.) The Significant
Shareholder must acquire all of such shares of Class B Common Stock validly
tendered; provided, however, that if the number of shares of Class B Common
Stock tendered to the Significant Shareholder exceeds the number of shares
required to be acquired to the formula set forth in this subparagraph (H)(2),
the number of shares of Class B Common Stock acquired from each tendering holder
shall be pro rata in proportion to the total number of shares of Class B Common
Stock tendered by all tendering holders.
3. The offer price for any shares of Class B Common Stock
required to be purchased by the Significant Shareholder pursuant to this
paragraph (H) shall be the greater of (a) the highest price per share paid by
the Significant Shareholder for any share of Class A Common Stock in the six
month period ending on the date such person or group became a Significant
Shareholder or (b) the highest bid price of a share of Class A Common Stock or
Class B Common Stock on the NASDAQ National Market System (or such other
exchange or quotation system as is then the principal trading market for such
shares) on the date such person or group became a Significant Shareholder. (For
purposes of subparagraph (H)(4) below, the applicable date for the calculations
required by the preceding sentence shall be the date on which the Significant
Shareholder becomes required to engage in a Class B Protection Transaction.) In
the event that the Significant Shareholder has acquired Class A Common Stock in
the six month period ending on the date such person or group becomes a
Significant Shareholder for consideration other than cash, the value of such
consideration per share of Class A Common Stock shall be as determined in good
faith by the Board of Directors.
4. A Class B Protection Transaction shall also be required
to be effected by any Significant Shareholder each time that the Significant
Shareholder acquires
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beneficial ownership of the next higher integral multiple of 5% (e.g. 15%, 20%,
25%, etc.) of the then issued and outstanding shares of Class A Common Stock
after the Effective Time (excluding Excluded Acquisitions of shares of Class A
Common Stock) if the percentage of all issued and outstanding shares of Class B
Common Stock owned by such Significant Shareholder at such time is less than the
percentage of all issued and outstanding shares of Class A Common Stock owned by
such Significant Shareholder at such time. Such Significant Shareholder shall be
required to make a public tender offer to acquire that number of shares of Class
B Common Stock prescribed by the formula set forth in subparagraph (H)(2) above,
and must acquire all shares validly tendered or a pro rata portion thereof, as
specified in subparagraph (H)(2), at the price determined pursuant to
subparagraph (H)(3) above.
5. If any Significant Shareholder fails to make an offer
required by this paragraph (H) of Article III, or to purchase shares validly
tendered and not withdrawn (after proration, if any), such Significant
Shareholder shall not be entitled to vote any shares of Class A Common Stock
beneficially owned by such Significant Shareholder unless and until such
requirements are complied with or unless and until all shares of Class A Common
Stock causing such offer requirement to be effective are no longer beneficially
owned by such Significant Shareholder. To the extent that the voting power of
any share of Class A Common Stock cannot be exercised pursuant to this paragraph
(H), that share of Class A Common Stock shall not be included in the
determination of the voting power of the corporation for any purpose under these
Amended and Restated Articles of Incorporation, as amended, or under law.
6. The Class B Protection Transaction requirement shall
not apply to any increase in percentage ownership of Class A Common Stock
resulting solely from a change in the total amount of Class A Common Stock
outstanding.
7. All calculations with respect to percentage ownership
of issued and outstanding shares of either class of Common Stock will be based
upon the numbers of issued and outstanding shares reported by the corporation on
the last filed of (a) the corporation's most recent annual report on Form 10-K,
(b) its most recent Quarterly Report on Form 10-Q, or (c) if any, its most
recent Current Report on Form 8-K.
8. For purposes of this paragraph (H) of this Article III,
the term "person" means a natural person, company, (other than the corporation),
government, or political subdivision, agency or instrumentality of a government,
or other entity. "Beneficial ownership" shall be determined pursuant to Rule
13d-3 promulgated under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or any successor regulation. The information or existence of a
"group" shall be determined pursuant to Rule 13d-5(b) under the 1934 Act or any
successor regulation.
I. MERGER OR CONSOLIDATION. In the event of a merger or
consolidation of the corporation with or into another entity (whether or not the
corporation is the surviving entity), the holders of Class B Common Stock shall
be entitled to receive the same per share consideration as the per share
consideration, if any, received by any holder of the Class A Common Stock in
such merger or consolidation.
J. SPLITS, SUBDIVISIONS, ETC. If the corporation shall in any
manner split, subdivide or combine the outstanding shares of Class A Common
Stock or Class B Common Stock, the outstanding shares of the other such class of
Common Stock shall be
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proportionally subdivided or combined in the same manner and on the same basis
as the outstanding shares of the other class of Common Stock have been split,
subdivided or combined.
K. ISSUANCE AND REPURCHASES OF STOCK.
1. The Board of Directors shall have the power to issue
and sell all or any part of any class of stock herein or hereafter authorized to
such persons, firms, associations or corporations, and for such consideration as
the Board of Directors shall from time to time, in its discretion, determine,
whether or not greater consideration could be received upon the issue or sale of
the same number of shares of another class, and as otherwise permitted by law.
2. The Board of Directors shall have the power to purchase
any class of stock herein or hereafter authorized from such persons, firms,
associations or corporations, and for such consideration as the Board of
Directors shall from time to time, in its discretion, determine, whether or not
less consideration could be paid upon the purchase of the same number of shares
of another class, and as otherwise permitted by law.
L. Shareholders of the corporation's common stock shall not
have preemptive rights to acquire unissued or other shares of the corporation.
IV. The members of the governing board shall be styled "Directors".
The number of directors shall not be reduced to less than three, and may, at any
time or times, be increased or decreased by a duly adopted amendment to these
Articles of Incorporation, or in such manner as shall be provided in the By-Laws
of the corporation duly adopted by either the Board of Directors or the
shareholders.
V. All shares are to be nonassessable.
VI. The period of its duration is perpetual.
VII. Provisions for the regulation of the internal affairs of the
corporation are contained in the By-Laws of this corporation.
VIII. The personal liability of the directors of the corporation for
monetary damages shall be eliminated to the fullest extent permissible under
applicable law, as the same existed on May 14, 1993 (the date upon which this
Article VIII originally became effective), and to such greater extent as
applicable law may thereafter permit. Any repeal or modification of the
provisions of this Article VIII by the shareholders of the corporation shall not
adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification.
IX. The corporation is authorized to indemnify any agent (as
hereinafter defined) to the maximum and broadest extent permitted under
applicable law, as the same existed on May 14, 1993 (the date upon which this
Article IX originally became effective), and to such greater extent as
applicable law may thereafter permit, if and to the extent such agent becomes
entitled to indemnification by bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise. This authorization includes, without
limitation, the authority to indemnify any agent in excess of that otherwise
expressly permitted by applicable law as to action in an official capacity and
as to action in another capacity while holding such office for breach of duty to
the
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corporation and its shareholders; provided, however, that the corporation is not
authorized to indemnify any agent for any acts or omissions for which a director
may not be relieved of liability as set forth in said applicable law, or as to
circumstances in which indemnity is expressly prohibited by said applicable law.
When used in this Article IX, "agent" shall mean any person who is or was a
director, officer, employee or other agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another foreign or domestic corporation, partnership, joint venture,
trust or other enterprise, or was a director, officer, employee or agent of a
foreign of domestic corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of the predecessor
corporation. Each reference in this Article IX to applicable law shall mean the
provision of that law on May 14, 1993 (the date upon which this Article IX
originally became effective) and as the same may be amended thereafter from time
to time, but only to the extent that such amendment would broaden or increase
the scope or magnitude of permissible indemnification.
The foregoing Restated and Amended Articles of Incorporation has been
approved by the Board of Directors and by the vote of at least a majority of the
voting power of the outstanding shares of Old Common Stock of the corporation.
The undersigned Executive Vice President and Secretary of the corporation hereby
certify that they have been authorized to execute this certificate by a
resolution adopted by the Board of Directors of the corporation on December 11,
1997, and that the foregoing Restated and Amended Articles of Incorporation sets
forth the entire text of the Articles of Incorporation of the corporation as
amended and restated to this date.
IN WITNESS WHEREOF, the undersigned have executed this certificate as of
the 11th day of December, 1997.
/s/ Tim Gerrity
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Tim Gerrity, Executive Vice President
/s/ Christopher Pair
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Christopher Pair, Secretary
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