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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): December 28, 2023
ALPHATIME
ACQUISITION CORP
(Exact
name of registrant as specified in its charter)
Cayman
Islands |
|
001-41584 |
|
N/A |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
500
5th Avenue, Suite
938
New
York, NY 10110
(Address
of principal executive offices, including zip code)
Registrant’s
telephone number, including area code (347) 627-0058
Not
Applicable
(Former name or former address, if changed since last report)
Securities
registered pursuant to Section 12(b) of the Act:
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which
registered |
Units,
each consisting of one ordinary share, one redeemable warrant and one right |
|
ATMCU |
|
The
Nasdaq Stock Market LLC |
Ordinary
Shares, par value $0.0001 per share |
|
ATMC |
|
The
Nasdaq Stock Market LLC |
Warrants,
each whole warrant exercisable for one ordinary share at an exercise price of $11.50 per share |
|
ATMCW |
|
The
Nasdaq Stock Market LLC |
Rights,
each right entitling the holder thereof to one-tenth of one ordinary share |
|
ATMCR |
|
The
Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement
As
approved by the shareholders of AlphaTime Acquisition Corp (the “Company” or “AlphaTime”),
by ordinary resolution, at an extraordinary general meeting of shareholders held on December 28, 2023 (the “Meeting”),
on December 28, 2023, the Company entered into an amendment (the “Trust Agreement Amendment”) to the Investment
Management Trust Agreement, dated as of December 30, 2022, with Equiniti Trust Company, LLC (f/k/a American Stock Transfer & Trust
Company) (as amended, the “Trust Agreement”). Pursuant to the Trust Agreement Amendment, the Company has extended
the date by which it has to complete a business combination from January 4, 2024, (the “Termination Date”)
up to ten (10) times, with the first extension comprised of three months, and the subsequent nine (9) extensions comprised of one month
each from the Termination Date, or extended date, as applicable, to January 4, 2025, by providing five days’ advance notice to
the trustee prior to the applicable Termination Date, or extended date, and depositing into the trust account (the “Trust
Account”) $55,000 for each monthly extension (the “Extension Payment”) until January 4, 2025
(assuming a business combination has not occurred) in exchange for a non-interest bearing, unsecured promissory note payable upon the
consummation of a business combination (the “Trust Agreement Amendment Proposal”).
The
foregoing description of the Trust Agreement Amendment is a summary only and is qualified in its entirety by reference to the full text
of the Trust Agreement Amendment which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
As
approved by the Company’s shareholders at the Meeting on December 28, 2023, by special resolution, the Company deleted the Company’s
Second Amended and Restated Memorandum and Articles of Association (the “Existing Charter”) on December 28,
2023, in their entirety, and adopted the Company’s Third Amended and Restated Memorandum and Articles of Association in the form
set forth in Annex A to the definitive proxy statement filed with the Securities and Exchange Commission on December 8, 2023 (the “Extension
Amendment”), reflecting the extension of the date by which the Company must consummate a business combination from the
Termination Date up to ten (10) times, the first extension comprised of three months, and the subsequent nine (9) extensions comprised
of one month each (each an “Extension”) up to January 4, 2025 (i.e., for a period of time ending up to 24 months
after the consummation of its initial public offering (the “IPO”)) for a total of twelve (12) months after
the Termination Date (assuming a business combination has not occurred).
The
foregoing description of the Extension Amendment is a summary only and is qualified in its entirety by reference to the full text of
the Form of Third Amended and Restated Memorandum and Articles of Association, which is attached hereto as Exhibit 3.1 and incorporated
by reference herein.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On
December 28, 2023, the Company held the Meeting. At the Meeting, the Company’s shareholders approved the following proposals: (1)
a proposal to approve by special resolution the Extension Amendment (the “Extension Amendment Proposal”), (2)
a proposal to approve by ordinary resolution the Trust Agreement Amendment Proposal, and (3) a proposal to adjourn the Meeting to a later
date if, based upon the tabulated vote at the time of the Meeting, there are not sufficient votes to approve the Extension Amendment
Proposal and the Trust Agreement Amendment Proposal (the “Adjournment Proposal”).
The
Extension Amendment Proposal, the Trust Agreement Amendment Proposal and the Adjournment Proposal presented at the Meeting were approved
by the Company’s shareholders. The final voting results for each proposal are set forth below.
Proposal
No. 1 – Extension Amendment Proposal
The
Extension Amendment Proposal was approved by special resolution of the Company’s shareholders, and received the following votes:
FOR |
|
AGAINST |
|
ABSTAIN |
6,048,680 |
|
915,964 |
|
0 |
Proposal
No. 2 – Trust Agreement Amendment Proposal
The
Trust Agreement Amendment Proposal was approved by ordinary resolution of the Company’s shareholders, and received the following
votes:
FOR |
|
AGAINST |
|
ABSTAIN |
6,048,680 |
|
915,964 |
|
0 |
Proposal
No. 3 – Adjournment Proposal
The
Adjournment Proposal was approved by ordinary resolution of the Company’s shareholders, and received the following votes:
FOR |
|
AGAINST |
|
ABSTAIN |
6,048,680 |
|
915,964 |
|
0 |
Item 8.01. Other Events.
In
connection with the shareholders’ vote at the Meeting, 2,160,774 ordinary shares of the Company exercised their right to redeem
such shares (the “Redemption”) for a pro rata portion of the funds held in the Trust Account. As a result,
approximately $23,302,146 (approximately $10.78 per share) will be removed from the Trust Account to pay such holders and
approximately $51,108,602 will remain in the Trust Account. Following the aforementioned redemptions, AlphaTime will have 6,873,426
ordinary shares outstanding.
Item 9.01 Financial Statements and Exhibits.
(d)
Exhibits.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
ALPHATIME
ACQUISITION CORP |
|
|
|
By: |
/s/
Dajiang Guo |
|
Name:
|
Dajiang
Guo |
|
Title: |
Chief
Executive Officer |
Dated:
January 4, 2024
Exhibit
3.1
Companies
Act (revised)
Company
Limited by Shares
THIRD
AMENDED AND RESTATED
MEMORANDUM
AND ARTICLES OF ASSOCIATION
OF
AlphaTime
Acquisition Corp
Adopted
by special resolution dated [ ], 2023 and
with effect from [ ], 2023
[500092.00001]
Companies
Act (Revised)
Company
Limited by Shares
Third
Amended and Restated
Memorandum
of Association
of
AlphaTime
Acquisition Corp
Adopted
by special resolution on [ ], 2023 and with effect from [ ], 2023
1 | The
name of the Company is AlphaTime Acquisition Corp. |
2 | The
Company’s registered office will be situated at the office of Ogier Global (Cayman)
Limited, 89 Nexus Way, Camana Bay, Grand Cayman, KY1-9009,, Cayman Islands, or at such other
place in the Cayman Islands as the directors may at any time decide. |
3 | The
Company’s objects are unrestricted. As provided by section 7(4) of the Companies Act
(Revised), the Company has full power and authority to carry out any object not prohibited
by any law of the Cayman Islands. |
4 | The
Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided
by section 27 (2) of the Companies Act (Revised), the Company has and is capable of exercising
all the functions of a natural person of full capacity irrespective of any question of corporate
benefit. |
5 | Nothing
in any of the preceding paragraphs permits the Company to carry on any of the following businesses
without being duly licensed, namely: |
| (a) | the
business of a bank or trust company without being licensed in that behalf under the Banks
and Trust Companies Act (Revised); or |
| (b) | insurance
business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent
or broker without being licensed in that behalf under the Insurance Act (Revised);or |
| (c) | the
business of company management without being licensed in that behalf under the Companies
Management Act (Revised). |
6 | The
Company will not trade in the Cayman Islands with any person, firm or corporation except
in furtherance of its business carried on outside the Cayman Islands. Despite this, the Company
may effect and conclude contracts in the Cayman Islands and exercise in the Cayman Islands
any of its powers necessary for the carrying on of its business outside the Cayman Islands. |
7 | The
Company is a company limited by shares and accordingly the liability of each member is limited
to the amount (if any) unpaid on that member’s shares. |
8 | The
share capital of the Company is US$20,100 divided into 1,000,000 Preference Shares of par
value US$0.0001 each and 200,000,000 Ordinary Shares of par value US$0.0001 each. Subject
to the Companies Act (Revised) and the Company’s articles of association, the Company
has power to do any one or more of the following: |
| (a) | to
redeem or repurchase any of its shares; and |
| (b) | to
increase or reduce its capital; and |
| (c) | to
issue any part of its capital (whether original, redeemed, increased or reduced): |
| (i) | with
or without any preferential, deferred, qualified or special rights, privileges or conditions;
or |
| (ii) | subject
to any limitations or restrictions |
and
unless the condition of issue expressly declares otherwise, every issue of shares (whether declared to be ordinary, preference or otherwise)
is subject to this power; or
|
(d) |
to
alter any of those rights, privileges, conditions, limitations or restrictions. |
9 | The
Company has power to register by way of continuation as a body corporate limited by shares
under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the
Cayman Islands. |
Companies
Act (revised)
Company
Limited by ShareS
THIRD
Amended and Restated
articles
of Association
of
AlphaTime
Acquisition Corp
Adopted
by special resolution on [ ], 2023 and
with effect from [ ], 2023
CONTENTS |
|
1. |
Definitions,
interpretation and exclusion of Table A |
1 |
|
Definitions |
1 |
|
Interpretation |
4 |
|
Exclusion
of Table A Articles |
5 |
2. |
Commencement
of Business |
5 |
3. |
Shares |
5 |
|
Power
to issue Shares and options, with or without special rights |
5 |
|
Power
to issue fractions of a Share |
6 |
|
Power
to pay commissions and brokerage fees |
6 |
|
Trusts
not recognised |
6 |
|
Power
to vary class rights |
6 |
|
Effect
of new Share issue on existing class rights |
7 |
|
No
bearer Shares or warrants |
7 |
|
Treasury
Shares |
7 |
|
Rights
attaching to Treasury Shares and related matters |
8 |
|
Designation
of Preference Shares Rights |
8 |
4. |
Register
of Members |
9 |
5. |
Share
certificates |
9 |
|
Issue
of share certificates |
9 |
|
Renewal
of lost or damaged share certificates |
10 |
6. |
Lien
on Shares |
10 |
|
Nature
and scope of lien |
10 |
|
Company
may sell Shares to satisfy lien |
10 |
|
Authority
to execute instrument of transfer |
10 |
|
Consequences
of sale of Shares to satisfy lien |
10 |
|
Application
of proceeds of sale |
11 |
7. |
Calls
on Shares and forfeiture |
11 |
|
Power
to make calls and effect of calls |
11 |
|
Time
when call made |
11 |
|
Liability
of joint holders |
11 |
|
Interest
on unpaid calls |
12 |
|
Deemed
calls |
12 |
|
Power
to accept early payment |
12 |
|
Power
to make different arrangements at time of issue of Shares |
12 |
|
Notice
of default |
12 |
|
Forfeiture
or surrender of Shares |
12 |
|
Disposal
of forfeited or surrendered Share and power to cancel forfeiture or surrender |
13 |
|
Effect
of forfeiture or surrender on former Member |
13 |
|
Evidence
of forfeiture or surrender |
13 |
|
Sale
of forfeited or surrendered Shares |
13 |
8. |
Transfer
of Shares |
13 |
|
Form
of transfer |
14 |
|
Power
to refuse registration |
14 |
|
Power
to suspend registration |
14 |
|
Company
may retain instrument of transfer |
14 |
9. |
Transmission
of Shares |
14 |
|
Persons
entitled on death of a Member |
14 |
|
Registration
of transfer of a Share following death or bankruptcy |
14 |
|
Indemnity |
15 |
|
Rights
of person entitled to a Share following death or bankruptcy |
15 |
10. |
Alteration
of capital |
15 |
|
Increasing,
consolidating, converting, dividing and cancelling share capital |
15 |
|
Dealing
with fractions resulting from consolidation of Shares |
16 |
|
Reducing
share capital |
16 |
11. |
Redemption
and purchase of own Shares |
16 |
|
Power
to issue redeemable Shares and to purchase own Shares |
16 |
|
Power
to pay for redemption or purchase in cash or in specie |
17 |
|
Effect
of redemption or purchase of a Share |
17 |
12. |
Meetings
of Members |
17 |
|
Power
to call meetings |
17 |
|
Content
of notice |
18 |
|
Period
of notice |
19 |
|
Persons
entitled to receive notice |
19 |
|
Publication
of notice on a website |
19 |
|
Time
a website notice is deemed to be given |
19 |
|
Required
duration of publication on a website |
20 |
|
Accidental
omission to give notice or non-receipt of notice |
20 |
13. |
Proceedings
at meetings of Members |
20 |
|
Quorum |
20 |
|
Lack
of quorum |
20 |
|
Use
of technology |
21 |
|
Chairman |
21 |
|
Right
of a director to attend and speak |
21 |
|
Adjournment
and Postponement |
21 |
|
Method
of voting |
21 |
|
Taking
of a poll |
21 |
|
Chairman’s
casting vote |
22 |
|
Amendments
to resolutions |
22 |
|
Written
resolutions |
22 |
|
Sole-member
company |
23 |
14. |
Voting
rights of Members |
23 |
|
Right
to vote |
23 |
|
Rights
of joint holders |
23 |
|
Representation
of corporate Members |
23 |
|
Member
with mental disorder |
24 |
|
Objections
to admissibility of votes |
24 |
|
Form
of proxy |
24 |
|
How
and when proxy is to be delivered |
25 |
|
Voting
by proxy |
25 |
15. |
Number
of directors |
25 |
16. |
Appointment,
disqualification and removal of directors |
25 |
|
No
age limit |
26 |
|
Corporate
directors |
26 |
|
No
shareholding qualification |
26 |
|
Appointment
and removal of directors |
26 |
|
Resignation
of directors |
27 |
|
Termination
of the office of director |
27 |
17. |
Alternate
directors |
28 |
|
Appointment
and removal |
28 |
|
Notices |
28 |
|
Rights
of alternate director |
29 |
|
Appointment
ceases when the appointor ceases to be a director |
29 |
|
Status
of alternate director |
29 |
|
Status
of the director making the appointment |
29 |
18. |
Powers
of directors |
29 |
|
Powers
of directors |
29 |
|
Appointments
to office |
30 |
|
Remuneration |
30 |
|
Disclosure
of information |
31 |
19. |
Delegation
of powers |
31 |
|
Power
to delegate any of the directors’ powers to a committee |
31 |
|
Power
to appoint an agent of the Company |
31 |
|
Power
to appoint an attorney or authorised signatory of the Company |
32 |
|
Power
to appoint a proxy |
32 |
20. |
Meetings
of directors |
32 |
|
Regulation
of directors’ meetings |
32 |
|
Calling
meetings |
32 |
|
Notice
of meetings |
32 |
|
Period
of notice |
33 |
|
Use
of technology |
33 |
|
Place
of meetings |
33 |
|
Quorum |
33 |
|
Voting |
33 |
|
Validity |
33 |
|
Recording
of dissent |
33 |
|
Written
resolutions |
33 |
|
Sole
director’s minute |
34 |
21. |
Permissible
directors’ interests and disclosure |
34 |
|
Permissible
interests subject to disclosure |
34 |
|
Notification
of interests |
34 |
|
Voting
where a director is interested in a matter |
35 |
22. |
Minutes |
35 |
23. |
Accounts
and audit |
35 |
|
No
automatic right of inspection |
35 |
|
Sending
of accounts and reports |
35 |
|
Validity
despite accidental error in publication on website |
36 |
|
Audit |
36 |
24. |
Financial
year |
37 |
25. |
Record
dates |
37 |
26. |
Dividends |
37 |
|
Declaration
of dividends by Members |
37 |
|
Payment
of interim dividends and declaration of final dividends by directors |
37 |
|
Apportionment
of dividends |
38 |
|
Right
of set off |
38 |
|
Power
to pay other than in cash |
38 |
|
How
payments may be made |
38 |
|
Dividends
or other moneys not to bear interest in absence of special rights |
39 |
|
Dividends
unable to be paid or unclaimed |
39 |
27. |
Capitalisation
of profits |
39 |
|
Capitalisation
of profits or of any share premium account or capital redemption reserve |
39 |
|
Applying
an amount for the benefit of members |
40 |
28. |
Share
premium account |
40 |
|
directors
to maintain share premium account |
40 |
|
Debits
to share premium account |
40 |
29. |
Seal |
40 |
|
Company
seal |
40 |
|
Duplicate
seal |
40 |
|
When
and how seal is to be used |
41 |
|
If
no seal is adopted or used |
41 |
|
Power
to allow non-manual signatures and facsimile printing of seal |
41 |
|
Validity
of execution |
41 |
30. |
Indemnity |
41 |
|
Indemnity |
41 |
|
Release |
42 |
|
Insurance |
42 |
31. |
Notices |
42 |
|
Form
of notices |
42 |
|
Electronic
communications |
43 |
|
Persons
authorised to give notices |
43 |
|
Delivery
of written notices |
43 |
|
Joint
holders |
43 |
|
Signatures |
43 |
|
Evidence
of transmission |
43 |
|
Giving
notice to a deceased or bankrupt Member |
44 |
|
Date
of giving notices |
44 |
|
Saving
provision |
44 |
32. |
Authentication
of Electronic Records |
45 |
|
Application
of Articles |
45 |
|
Authentication
of documents sent by Members by Electronic means |
45 |
|
Authentication
of document sent by the Secretary or Officers of the Company by Electronic means |
45 |
|
Manner
of signing |
45 |
|
Saving
provision |
46 |
33. |
Transfer
by way of continuation |
46 |
34. |
Winding
up |
46 |
|
Distribution
of assets in specie |
46 |
|
No
obligation to accept liability |
46 |
|
The
directors are authorised to present a winding up petition |
47 |
35. |
Amendment
of Memorandum and Articles |
47 |
|
Power
to change name or amend Memorandum |
47 |
|
Power
to amend these Articles |
47 |
36. |
Mergers
and Consolidations |
47 |
37. |
Business
Combination |
47 |
38. |
Certain
Tax Filings |
51 |
39. |
Business
Opportunities |
51 |
Companies
Act (Revised)
Company
Limited by Shares
Third
Amended and Restated
Articles
of Association
of
AlphaTime
Acquisition Corp
Adopted
by special resolution on [ ], 2023 and with effect from [ ], 2023
1. | Definitions,
interpretation and exclusion of Table A |
Definitions
1.1 | In
these Articles, the following definitions apply: |
Act
means the Companies Act (Revised) of the Cayman Islands.
Affiliate
in respect of a person, means any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with, such person, and (a) in the case of a natural person, shall include, without limitation, such person’s
spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption
or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural
person or entity wholly or jointly owned by any of the foregoing and (b) in the case of an entity, shall include a partnership, a corporation
or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under
common control with, such entity.
Applicable
Law means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments,
decisions, decrees or orders of any governmental authority applicable to such person.
Articles
means, as appropriate:
| (a) | these
Amended and Restated Articles of Association as amended, restated, supplemented and/or otherwise
modified from time to time: or |
| (b) | two
or more particular Articles of these Articles; |
and
Article refers to a particular Article of these Articles.
Audit
Committee means the audit committee of the board of directors of the Company established pursuant to Article 23.8 hereof, or any
successor audit committee.
Auditor
means the person for the time being performing the duties of auditor of the Company.
Business
Combination means a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination involving
the Company, with one or more businesses or entities (each a target business), which Business Combination: (a) must be with one
or more operating businesses or assets with a fair market value equal to at least 80% of the net assets held in the trust account (net
of amounts disbursed to management for working capital purposes, if permitted, and excluding the amount of any deferred underwriting
discount and taxes payable on the interest earned on the trust account) and (b) must not be effectuated solely with another blank cheque
company or a similar company with nominal operations.
Business
Day means a day other than a day on which banking institutions or trust companies are authorized or obligated by law to close in
New York City, a Saturday or a Sunday.
Clear
Days, in relation to a period of notice, means that period excluding:
| (a) | the
day when the notice is given or deemed to be given; and |
| (b) | the
day for which it is given or on which it is to take effect. |
Clearing
House means a clearing house recognized by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are
listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction.
Company
means the above-named company.
Compensation
Committee means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any
successor committee.
Default
Rate means 10% (ten per cent) per annum.
Designated
Stock Exchange means any United States national securities exchange, including the Nasdaq Stock Market LLC, the NYSE American LLC
or The New York Stock Exchange LLC or any OTC market on which the Shares are listed for trading.
Electronic
has the meaning given to that term in the Electronic Transactions Act (Revised).
Electronic
Record has the meaning given to that term in the Electronic Transactions Act (Revised).
Electronic
Signature has the meaning given to that term in the Electronic Transactions Act (Revised).
Equity-linked
Securities means any debt or equity securities that are convertible, exercisable or exchangeable for Ordinary Shares issued in a
financing transaction in connection with a Business Combination, including but not limited to a private placement of equity or debt.
Exchange
Act means the United States Securities Exchange Act of 1934, as amended.
Founders
means all Members immediately prior to the consummation of the IPO.
Fully
Paid and Paid Up:
| (a) | in
relation to a Share with par value, means that the par value for that Share and any premium
payable in respect of the issue of that Share, has been fully paid or credited as paid in
money or money’s worth; |
| (b) | in
relation to a Share without par value, means that the agreed issue price for that Share has
been fully paid or credited as paid in money or money’s worth. |
Independent
Director means a director who is an independent director as defined in the rules and regulations of the Designated Stock Exchange
as determined by the directors.
Investor
Group means the Sponsor and its Affiliates, successors and assigns.
IPO
means the Company’s initial public offering of securities.
IPO
Redemption has the meaning given to it in Article 37.6.
Islands
means the British Overseas Territory of the Cayman Islands.
Member
means any person or persons entered on the Register of Members from time to time as the holder of a Share.
Memorandum
means the Amended and Restated Memorandum of Association of the Company as amended, restated, supplemented and/or otherwise modified
from time to time.
Nominating
Committee means the nominating committee of the board of directors of the Company established pursuant to the Articles, or any successor
committee.
Officer
means a person then appointed to hold an office in the Company; and the expression includes a director, alternate director or liquidator.
Ordinary
Resolution means a resolution of a duly constituted general meeting of the Company passed by a simple majority of the votes cast
by, or on behalf of, the Members entitled to vote thereon. The expression also includes a unanimous written resolution.
Ordinary
Share means a ordinary share of a par value of US$0.0001 in the share capital of the Company.
Over-Allotment
Option means the option of the Underwriters to purchase up to an additional 15% of the firm units (as described at Article 3.4) issued
in the IPO at a price equal to US$10.00 per unit, less underwriting discount and commissions.
Preference
Share means a preference share of a par value of US$0.0001 in the share capital of the Company.
Public
Share means a Ordinary Share issued as part of the units (as described in Article 3.4) issued in the IPO.
Redemption
Price has the meaning given to it in Article 37.6.
Register
of Members means the register of Members maintained in accordance with the Act and includes (except where otherwise stated) any branch
or duplicate register of Members.
Representative
means a representative of the Underwriters.
SEC
means the United States Securities and Exchange Commission.
Secretary
means a person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary.
Share
means an Ordinary Share or a Preference Share in the share capital of the Company; and the expression:
| (a) | includes
stock (except where a distinction between shares and stock is expressed or implied); and |
| (b) | where
the context permits, also includes a fraction of a share. |
Special
Resolution has the meaning given to that term in the Act; and the expression includes a unanimous written resolution.
Sponsor
means Alphamade Management LLC, a Delaware limited liability company business company.
Tax
Filing Authorized Person means such person as any director shall designate from time to time, acting severally.
Treasury
Shares means Shares of the Company held in treasury pursuant to the Act and Article 3.14.
Trust
Account means the trust account established by the Company upon the consummation of its IPO and into which a certain amount of the
net proceeds of the IPO, together with a certain amount of the proceeds of a private placement of warrants simultaneously with the closing
date of the IPO, will be deposited.
Underwriter
means an underwriter of the IPO from time to time, and any successor underwriter.
Interpretation
1.2 | In
the interpretation of these Articles, the following provisions apply unless the context otherwise
requires: |
| (a) | A
reference in these Articles to a statute is a reference to a statute of the Islands as known
by its short title, and includes: |
| (i) | any
statutory modification, amendment or re-enactment; and |
| (ii) | any
subordinate legislation or regulations issued under that statute. |
Without
limitation to the preceding sentence, a reference to a revised Act of the Cayman Islands is taken to be a reference to the revision of
that Act in force from time to time as amended from time to time.
| (b) | Headings
are inserted for convenience only and do not affect the interpretation of these Articles,
unless there is ambiguity. |
| (c) | If
a day on which any act, matter or thing is to be done under these Articles is not a Business
Day, the act, matter or thing must be done on the next Business Day. |
| (d) | A
word which denotes the singular also denotes the plural, a word which denotes the plural
also denotes the singular, and a reference to any gender also denotes the other genders. |
| (e) | A
reference to a person includes, as appropriate, a company, trust, partnership, joint venture,
association, body corporate or government agency. |
| (f) | Where
a word or phrase is given a defined meaning another part of speech or grammatical form in
respect to that word or phrase has a corresponding meaning. |
| (g) | All
references to time are to be calculated by reference to time in the place where the Company’s
registered office is located. |
| (h) | The
words written and in writing include all modes of representing or reproducing words in a
visible form, but do not include an Electronic Record where the distinction between a document
in writing and an Electronic Record is expressed or implied. |
| (i) | The
words including, include and in particular or any similar expression are to be construed
without limitation. |
| (j) | Any
requirements as to execution or signature under the Articles including the execution of the
Articles themselves can be satisfied in the form of an Electronic Signature. |
| (k) | Sections
8 and 19(3) of the Electronic Transactions Act shall not apply. |
| (l) | The
term “holder” in relation to a Share means a person whose name is entered in
the Register of Members as the holder of such Share. |
Exclusion
of Table A Articles
1.3 | The
regulations contained in Table A in the First Schedule of the Act and any other regulations
contained in any statute or subordinate legislation are expressly excluded and do not apply
to the Company. |
2. | Commencement
of Business |
2.1 | The
business of the Company may be commenced as soon after incorporation of the Company as the
directors see fit. |
2.2 | The
directors may pay, out of the capital or any other monies of the Company, all expenses incurred
in or about the formation and establishment of the Company, including the expenses of registration. |
Power
to issue Shares and options, with or without special rights
3.1 | Subject
to the provisions, if any, in the Act the Memorandum (and to any direction that may be given
by the Company in general meeting), these Articles and, where applicable, the rules and regulations
of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority
or otherwise under Applicable Law, and without prejudice to any rights attached to any existing
Shares, the directors have general and unconditional authority to allot (with or without
confirming rights of renunciation), issue, grant options over or otherwise deal with any
unissued Shares of the Company to such persons, at such times and on such terms and conditions
as they may decide. No Share may be issued at a discount except in accordance with the provisions
of the Act. |
3.2 | Without
limitation to the preceding Article, the directors may so deal with the unissued Shares of
the Company: |
| (a) | either
at a premium or at par; |
| (b) | with
or without preferred, deferred or other special rights or restrictions whether in regard
to dividend, voting, return of capital or otherwise. |
3.3 | The
Company may issue rights, options, warrants or convertible securities or securities of similar
nature conferring the right upon the holders thereof to subscribe for, purchase or receive
any class of Shares or other securities in the Company at such times and on such terms and
conditions as the directors may decide. |
3.4 | The
Company may issue units of securities in the Company, which may be comprised of Shares, rights,
options, warrants or convertible securities or securities of similar nature conferring the
right upon the holders thereof to subscribe for, purchase or receive any class of Shares
or other securities in the Company, on such terms and conditions as the directors may decide.
The securities comprising any such units which are issued pursuant to the IPO can only be
traded separately from one another on the 52nd day following the date of the prospectus relating
to the IPO unless the Representative(s) determines that an earlier date is acceptable, subject
to the Company having filed a current report on Form 8-K containing an audited balance sheet
reflecting the Company’s receipt of the gross proceeds of the IPO with the SEC and
a press release announcing when such separate trading will begin. Prior to such date, the
units can be traded, but the securities comprising such units cannot be traded separately
from one another. |
Power
to issue fractions of a Share
3.5 | Subject
to the Act, the Company may issue fractions of a Share of any class. A fraction of a Share
shall be subject to and carry the corresponding fraction of liabilities (whether with respect
to calls or otherwise), limitations, preferences, privileges, qualifications, restrictions,
rights and other attributes of a Share of that class of Shares. |
Power
to pay commissions and brokerage fees
3.6 | The
Company may, in so far as the Act permits, pay a commission to any person in consideration
of that person: |
| (a) | subscribing
or agreeing to subscribe, whether absolutely or conditionally; or |
| (b) | procuring
or agreeing to procure subscriptions, whether absolute or conditional |
for
any Shares in the Company. That commission may be satisfied by the payment of cash or the allotment of Fully Paid or partly-paid Shares
or partly in one way and partly in another.
3.7 | The
Company may employ a broker in the issue of its capital and pay him any proper commission
or brokerage. |
Trusts
not recognized
3.8 | Except
as required by Applicable Law: |
| (a) | the
Company shall not be bound by or compelled to recognize in any way (even when notified) any
equitable, contingent, future or partial interest in any Share, or (except only as is otherwise
provided by these Articles or the Act) any other rights in respect of any Share other than
an absolute right to the entirety thereof in the holder; and |
| (b) | no
person other than the Member shall be recognized by the Company as having any right in a
Share. |
Power
to vary class rights
3.9 | If
the share capital is divided into different classes of Shares then, unless the terms on which
a class of Shares was issued state otherwise, the rights attaching to a class of Shares may
only be varied if one of the following applies: |
| (a) | the
Members holding two thirds of the issued Shares of that class consent in writing to the variation;
or |
| (b) | the
variation is made with the sanction of a Special Resolution passed at a separate general
meeting of the Members holding the issued Shares of that class. |
3.10 | For
the purpose of paragraph (b) of the preceding Article, all the provisions of these Articles
relating to general meetings apply, mutatis mutandis, to every such separate meeting except
that: |
| (a) | the
necessary quorum shall be one or more persons holding, or representing by proxy, not less
than one third of the issued Shares of the class; and |
| (b) | any
Member holding issued Shares of the class, present in person or by proxy or, in the case
of a corporate Member, by its duly authorized representative, may demand a poll. |
Effect
of new Share issue on existing class rights
3.11 | Unless
the terms on which a class of Shares was issued state otherwise, the rights conferred on
the Member holding Shares of any class shall not be deemed to be varied by the creation or
issue of further Shares ranking pari passu with the existing Shares of that class.
For the avoidance of doubt, the creation, designation or issuance of any Preference Shares
with rights and privileges ranking in priority to any existing class of Shares pursuant to
Article 3.19 shall not be deemed to be a variation of the rights of such existing class. |
Capital
contributions without issue of further Shares
3.12 | With
the consent of a Member, the directors may accept a voluntary contribution to the capital
of the Company from that Member without issuing Shares in consideration for that contribution.
In that event, the contribution shall be dealt with in the following manner: |
| (a) | It
shall be treated as if it were a share premium. |
| (b) | Unless
the Member agrees otherwise: |
| (i) | if
the Member holds Shares in a single class of Shares, it shall be credited to the share premium
account for that class of Shares; |
| (ii) | if
the Member holds Shares of more than one class, it shall be credited ratably to the share
premium accounts for those classes of Shares (in the proportion that the sum of the issue
prices for each class of Shares that the Member holds bears to the total issue prices for
all classes of Shares that the Member holds). |
| (c) | It
shall be subject to the provisions of the Act and these Articles applicable to share premiums. |
No
bearer Shares or warrants
3.13 | The
Company shall not issue Shares or warrants to bearers. |
Treasury
Shares
3.14 | Shares
that the Company purchases, redeems or acquires by way of surrender in accordance with the
Act shall be held as Treasury Shares and not treated as cancelled if: |
| (a) | the
directors so determine prior to the purchase, redemption or surrender of those shares; and |
| (b) | the
relevant provisions of the Memorandum and Articles and the Act are otherwise complied with. |
Rights
attaching to Treasury Shares and related matters
3.15 | No
dividend may be declared or paid, and no other distribution (whether in cash or otherwise)
of the Company’s assets (including any distribution of assets to members on a winding
up) may be made to the Company in respect of a Treasury Share. |
3.16 | The
Company shall be entered in the Register as the holder of the Treasury Shares. However: |
| (a) | the
Company shall not be treated as a member for any purpose and shall not exercise any right
in respect of the Treasury Shares, and any purported exercise of such a right shall be void; |
| (b) | a
Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company
and shall not be counted in determining the total number of issued shares at any given time,
whether for the purposes of these Articles or the Act. |
3.17 | Nothing
in the preceding Article prevents an allotment of Shares as fully paid bonus shares in respect
of a Treasury Share and Shares allotted as fully paid bonus shares in respect of a Treasury
Share shall be treated as Treasury Shares. |
3.18 | Treasury
Shares may be disposed of by the Company in accordance with the Act and otherwise on such
terms and conditions as the directors determine. |
Designation
of Preference Shares Rights
3.19 | Before
any Preference Shares of any series are issued, the Directors shall fix, by resolution or
resolutions, the following provisions of such series: |
| (a) | the
designation of such series and the number of Preference Shares to constitute such series; |
| (b) | whether
the shares of such series shall have voting rights, in addition to any voting rights provided
by Act, and, if so, the terms of such voting rights, which may be general or limited; |
| (c) | the
dividends, if any, payable on such series, whether any such dividends shall be cumulative,
and, if so, from what dates, the conditions and dates upon which such dividends shall be
payable, the preference or relation which such dividends shall bear to the dividends payable
on any Shares of any other class of Shares or any other series of Preference Shares; |
| (d) | whether
the Preference Shares or such series shall be subject to redemption by the Company, and,
if so, the times, prices and other conditions of such redemption; |
| (e) | the
amount or amounts payable upon Preference Shares of such series upon, and the rights of the
holders of such series in, a voluntary or involuntary liquidation, dissolution or winding
up, or upon any distribution of the assets, of the Company; |
| (f) | whether
the Preference Shares of such series shall be subject to the operation of a retirement or
sinking fund and, if so, the extent to and manner in which any such retirement or sinking
fund shall be applied to the purchase or redemption of the Preferred Shares of such series
for retirement or other corporate purposes and the terms and provisions relative to the operation
of the retirement or sinking fund; |
| (g) | whether
the Preference Shares of such series shall be convertible into, or exchangeable for, Shares
of any other class of Shares or any other series of Preference Shares or any other securities
and, if so, the price or prices or the rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and conditions of conversion or exchange; |
| (h) | the
limitations and restrictions, if any, to be effective while any Preference Shares or such
series are outstanding upon the payment of dividends or the making of other distributions
on, and upon the purchase, redemption or other acquisition by the Company of, the existing
Shares or Shares of any other class of Shares or any other series of Preference Shares; |
| (i) | the
conditions or restrictions, if any, upon the creation of indebtedness of the Company or upon
the issue of any additional Shares, including additional shares of such series or of any
other class of Shares or any other series of Preference Shares; and |
| (j) | any
other powers, preferences and relative, participating, optional and other special rights,
and any qualifications, limitations and restrictions of any other class of Shares or any
other series of Preference Shares. |
4.1 | The
Company shall maintain or cause to be maintained the Register of Members in accordance with
the Act. |
4.2 | The
directors may determine that the Company shall maintain one or more branch registers of Members
in accordance with the Act. The directors may also determine which Register of Members shall
constitute the principal register and which shall constitute the branch register or registers,
and to vary such determination from time to time. |
4.3 | The
title to Shares listed on a Designated Stock Exchange may be evidenced and transferred in
accordance with the laws applicable to the rules and regulations of the Designated Stock
Exchange and, for these purposes, the Register of Members may be maintained in accordance
with section 40B of the Act. |
Issue
of share certificates
5.1 | Upon
being entered in the Register of Members as the holder of a Share, a Member shall be entitled: |
| (a) | without
payment, to one certificate for all the Shares of each class held by that Member (and, upon
transferring a part of the Member’s holding of Shares of any class, to a certificate
for the balance of that holding); and |
| (b) | upon
payment of such reasonable sum as the directors may determine for every certificate after
the first, to several certificates each for one or more of that Member’s Shares. |
5.2 | Every
certificate shall specify the number, class and distinguishing numbers (if any) of the Shares
to which it relates and whether they are Fully Paid or partly paid up. A certificate may
be executed under seal or executed in such other manner as the directors determine. |
5.3 | The
Company shall not be bound to issue more than one certificate for Shares held jointly by
several persons and delivery of a certificate for a Share to one joint holder shall be a
sufficient delivery to all of them. |
Renewal
of lost or damaged share certificates
5.4 | If
a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms
(if any) as to: |
| (c) | payment
of the expenses reasonably incurred by the Company in investigating the evidence; and |
| (d) | payment
of a reasonable fee, if any, for issuing a replacement share certificate |
as
the directors may determine, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate.
Nature
and scope of lien
6.1 | The
Company has a first and paramount lien on all Shares (whether Fully Paid or not) registered
in the name of a Member (whether solely or jointly with others). The lien is for all moneys
payable to the Company by the Member or the Member’s estate: |
| (a) | either
alone or jointly with any other person, whether or not that other person is a Member; and |
| (b) | whether
or not those moneys are presently payable. |
6.2 | At
any time the directors may declare any Share to be wholly or partly exempt from the provisions
of this Article. |
Company
may sell Shares to satisfy lien
6.3 | The
Company may sell any Shares over which it has a lien if all of the following conditions are
met: |
| (a) | the
sum in respect of which the lien exists is presently payable; |
| (b) | the
Company gives notice to the Member holding the Share (or to the person entitled to it in
consequence of the death or bankruptcy of that Member) demanding payment and stating that
if the notice is not complied with the Shares may be sold; and |
| (c) | that
sum is not paid within 14 Clear Days after that notice is deemed to be given under these
Articles. |
6.4 | The
Shares may be sold in such manner as the directors determine. |
6.5 | To
the maximum extent permitted by Applicable Law, the directors shall incur no personal liability
to the Member concerned in respect of the sale. |
Authority
to execute instrument of transfer
6.6 | To
give effect to a sale, the directors may authorize any person to execute an instrument of
transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The
title of the transferee of the Shares shall not be affected by any irregularity or invalidity
in the proceedings in respect of the sale. |
Consequences
of sale of Shares to satisfy lien
6.7 | On
sale pursuant to the preceding Articles: |
| (a) | the
name of the Member concerned shall be removed from the Register of Members as the holder
of those Shares; and |
| (b) | that
person shall deliver to the Company for cancellation the certificate for those Shares. |
Despite
this, that person shall remain liable to the Company for all monies which, at the date of sale, were presently payable by him to the
Company in respect of those Shares. That person shall also be liable to pay interest on those monies from the date of sale until payment
at the rate at which interest was payable before that sale or, failing that, at the Default Rate. The directors may waive payment wholly
or in part or enforce payment without any allowance for the value of the Shares at the time of sale or for any consideration received
on their disposal.
Application
of proceeds of sale
6.8 | The
net proceeds of the sale, after payment of the costs, shall be applied in payment of so much
of the sum for which the lien exists as is presently payable. Any residue shall be paid to
the person whose Shares have been sold: |
| (a) | if
no certificate for the Shares was issued, at the date of the sale; or |
| (b) | if
a certificate for the Shares was issued, upon surrender to the Company of that certificate
for cancellation |
but,
in either case, subject to the Company retaining a like lien for all sums not presently payable as existed on the Shares before the sale.
7. | Calls
on Shares and forfeiture |
Power
to make calls and effect of calls
7.1 | Subject
to the terms of allotment, the directors may make calls on the Members in respect of any
moneys unpaid on their Shares including any premium. The call may provide for payment to
be by instalments. Subject to receiving at least 14 Clear Days’ notice specifying when
and where payment is to be made, each Member shall pay to the Company the amount called on
his Shares as required by the notice. |
7.2 | Before
receipt by the Company of any sum due under a call, that call may be revoked in whole or
in part and payment of a call may be postponed in whole or in part. Where a call is to be
paid in instalments, the Company may revoke the call in respect of all or any remaining instalments
in whole or in part and may postpone payment of all or any of the remaining instalments in
whole or in part. |
7.3 | A
Member on whom a call is made shall remain liable for that call notwithstanding the subsequent
transfer of the Shares in respect of which the call was made. A person shall not be liable
for calls made after such person is no longer registered as Member in respect of those Shares. |
Time
when call made
7.4 | A
call shall be deemed to have been made at the time when the resolution of the directors authorising
the call was passed. |
Liability
of joint holders
7.5 | Members
registered as the joint holders of a Share shall be jointly and severally liable to pay all
calls in respect of the Share. |
Interest
on unpaid calls
7.6 | If
a call remains unpaid after it has become due and payable the person from whom it is due
and payable shall pay interest on the amount unpaid from the day it became due and payable
until it is paid: |
| (a) | at
the rate fixed by the terms of allotment of the Share or in the notice of the call; or |
| (b) | if
no rate is fixed, at the Default Rate. |
The
directors may waive payment of the interest wholly or in part.
Deemed
calls
7.7 | Any
amount payable in respect of a Share, whether on allotment or on a fixed date or otherwise,
shall be deemed to be payable as a call. If the amount is not paid when due the provisions
of these Articles shall apply as if the amount had become due and payable by virtue of a
call. |
Power
to accept early payment
7.8 | The
Company may accept from a Member the whole or a part of the amount remaining unpaid on Shares
held by him although no part of that amount has been called up. |
Power
to make different arrangements at time of issue of Shares
7.9 | Subject
to the terms of allotment, the directors may make arrangements on the issue of Shares to
distinguish between Members in the amounts and times of payment of calls on their Shares. |
Notice
of default
7.10 | If
a call remains unpaid after it has become due and payable the directors may give to the person
from whom it is due not less than 14 Clear Days’ notice requiring payment of: |
| (b) | any
interest which may have accrued; |
| (c) | any
expenses which have been incurred by the Company due to that person’s default. |
7.11 | The
notice shall state the following: |
| (a) | the
place where payment is to be made; and |
| (b) | a
warning that if the notice is not complied with the Shares in respect of which the call is
made will be liable to be forfeited. |
Forfeiture
or surrender of Shares
7.12 | If
the notice under the preceding Article is not complied with, the directors may, before the
payment required by the notice has been received, resolve that any Share the subject of that
notice be forfeited. The forfeiture shall include all dividends or other moneys payable in
respect of the forfeited Share and not paid before the forfeiture. Despite the foregoing,
the directors may determine that any Share the subject of that notice be accepted by the
Company as surrendered by the Member holding that Share in lieu of forfeiture. |
7.13 | The
directors may accept the surrender for no consideration of any Fully Paid Share. |
Disposal
of forfeited or surrendered Share and power to cancel forfeiture or surrender
7.14 | A
forfeited or surrendered Share may be sold, re-allotted or otherwise disposed of on such
terms and in such manner as the directors determine either to the former Member who held
that Share or to any other person. The forfeiture or surrender may be cancelled on such terms
as the directors think fit at any time before a sale, re-allotment or other disposition.
Where, for the purposes of its disposal, a forfeited or surrendered Share is to be transferred
to any person, the directors may authorize some person to execute an instrument of transfer
of the Share to the transferee. |
Effect
of forfeiture or surrender on former Member
7.15 | On
forfeiture or surrender: |
| (a) | the
name of the Member concerned shall be removed from the Register of Members as the holder
of those Shares and that person shall cease to be a Member in respect of those Shares; and |
| (b) | that
person shall surrender to the Company for cancellation the certificate (if any) for the forfeited
or surrendered Shares. |
7.16 | Despite
the forfeiture or surrender of his Shares, that person shall remain liable to the Company
for all moneys which at the date of forfeiture or surrender were presently payable by him
to the Company in respect of those Shares together with: |
| (b) | interest
from the date of forfeiture or surrender until payment: |
| (i) | at
the rate of which interest was payable on those moneys before forfeiture; or |
| (ii) | if
no interest was so payable, at the Default Rate. |
The
directors, however, may waive payment wholly or in part.
Evidence
of forfeiture or surrender
7.17 | A
declaration, whether statutory or under oath, made by a director or the Secretary shall be
conclusive evidence of the following matters stated in it as against all persons claiming
to be entitled to forfeited Shares: |
| (a) | that
the person making the declaration is a director or Secretary of the Company, and |
| (b) | that
the particular Shares have been forfeited or surrendered on a particular date. |
Subject
to the execution of an instrument of transfer, if necessary, the declaration shall constitute good title to the Shares.
Sale
of forfeited or surrendered Shares
7.18 | Any
person to whom the forfeited or surrendered Shares are disposed of shall not be bound to
see to the application of the consideration, if any, of those Shares nor shall his title
to the Shares be affected by any irregularity in, or invalidity of the proceedings in respect
of, the forfeiture, surrender or disposal of those Shares. |
Form
of transfer
8.1 | Subject
to the following Articles about the transfer of Shares, and provided that such transfer complies
with the rules and regulations of the Designated Stock Exchange, the SEC and/or any other
competent regulatory authority or otherwise under Applicable Law, a Member may transfer Shares
to another person by completing an instrument of transfer in a common form or in a form prescribed
by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent
regulatory authority or otherwise under Applicable Law or in any other form approved by the
directors, executed: |
| (a) | where
the Shares are Fully Paid, by or on behalf of that Member; and |
| (b) | where
the Shares are partly paid, by or on behalf of that Member and the transferee. |
8.2 | The
transferor shall be deemed to remain the holder of a Share until the name of the transferee
is entered into the Register of Members. |
Power
to refuse registration
8.3 | If
the Shares in question were issued in conjunction with rights, options or warrants issued
pursuant to Article 3.4 on terms that one cannot be transferred without the other, the directors
shall refuse to register the transfer of any such Share without evidence satisfactory to
them of the like transfer of such option or warrant. |
Power
to suspend registration
8.4 | The
directors may suspend registration of the transfer of Shares at such times and for such periods,
not exceeding 30 days in any calendar year, as they determine. |
Company
may retain instrument of transfer
8.5 | The
Company shall be entitled to retain any instrument of transfer which is registered; but an
instrument of transfer which the directors refuse to register shall be returned to the person
lodging it when notice of the refusal is given. |
Persons
entitled on death of a Member
9.1 | If
a Member dies, the only persons recognized by the Company as having any title to the deceased
Members’ interest are the following: |
| (a) | where
the deceased Member was a joint holder, the survivor or survivors; and |
| (b) | where
the deceased Member was a sole holder, that Member’s personal representative or representatives. |
9.2 | Nothing
in these Articles shall release the deceased Member’s estate from any liability in
respect of any Share, whether the deceased was a sole holder or a joint holder. |
Registration
of transfer of a Share following death or bankruptcy
9.3 | A
person becoming entitled to a Share in consequence of the death or bankruptcy of a Member
may elect to do either of the following: |
| (a) | to
become the holder of the Share; or |
| (b) | to
transfer the Share to another person. |
9.4 | That
person must produce such evidence of his entitlement as the directors may properly require. |
9.5 | If
the person elects to become the holder of the Share, he must give notice to the Company to
that effect. For the purposes of these Articles, that notice shall be treated as though it
were an executed instrument of transfer. |
9.6 | If
the person elects to transfer the Share to another person then: |
| (a) | if
the Share is Fully Paid, the transferor must execute an instrument of transfer; and |
| (b) | if
the Share is partly paid, the transferor and the transferee must execute an instrument of
transfer. |
9.7 | All
these Articles relating to the transfer of Shares shall apply to the notice or, as appropriate,
the instrument of transfer. |
Indemnity
9.8 | A
person registered as a Member by reason of the death or bankruptcy of another Member shall
indemnify the Company and the directors against any loss or damage suffered by the Company
or the directors as a result of that registration. |
Rights
of person entitled to a Share following death or bankruptcy
9.9 | A
person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall
have the rights to which he would be entitled if he were registered as the holder of the
Share. However, until he is registered as Member in respect of the Share, he shall not be
entitled to attend or vote at any meeting of the Company or at any separate meeting of the
holders of that class of Shares in the Company. |
Increasing,
consolidating, converting, dividing and cancelling share capital
10.1 | To
the fullest extent permitted by the Act, the Company may by Ordinary Resolution do any of
the following and amend its Memorandum for that purpose: |
| (a) | increase
its share capital by new Shares of the amount fixed by that Ordinary Resolution and with
the attached rights, priorities and privileges set out in that Ordinary Resolution; |
| (b) | consolidate
and divide all or any of its share capital into Shares of larger amount than its existing
Shares; |
| (c) | convert
all or any of its Paid Up Shares into stock, and reconvert that stock into Paid Up Shares
of any denomination; |
| (d) | sub-divide
its Shares or any of them into Shares of an amount smaller than that fixed by the Memorandum,
so, however, that in the sub-division, the proportion between the amount paid and the amount,
if any, unpaid on each reduced Share shall be the same as it was in case of the Share from
which the reduced Share is derived; and |
| (e) | cancel
Shares which, at the date of the passing of that Ordinary Resolution, have not been taken
or agreed to be taken by any person, and diminish the amount of its share capital by the
amount of the Shares so cancelled or, in the case of Shares without nominal par value, diminish
the number of Shares into which its capital is divided. |
Dealing
with fractions resulting from consolidation of Shares
10.2 | Whenever,
as a result of a consolidation of Shares, any Members would become entitled to fractions
of a Share the directors may on behalf of those Members: |
| (a) | sell
the Shares representing the fractions for the best price reasonably obtainable to any person
(including, subject to the provisions of the Act, the Company); and |
| (b) | distribute
the net proceeds in due proportion among those Members. |
For
that purpose, the directors may authorize some person to execute an instrument of transfer of the Shares to, or in accordance with the
directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall the transferee’s
title to the Shares be affected by any irregularity in, or invalidity of, the proceedings in respect of the sale.
Reducing
share capital
10.3 | Subject
to the Act and to any rights for the time being conferred on the Members holding a particular
class of Shares, the Company may, by Special Resolution, reduce its share capital in any
way. |
11. | Redemption
and purchase of own Shares |
Power
to issue redeemable Shares and to purchase own Shares
11.1 | Subject
to the Act and Article 37, and to any rights for the time being conferred on the Members
holding a particular class of Shares, and, where applicable, the rules and regulations of
the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or
otherwise under Applicable Law, the Company may by its directors: |
| (a) | issue
Shares that are to be redeemed or liable to be redeemed, at the option of the Company or
the Member holding those redeemable Shares, on the terms and in the manner its directors
determine before the issue of those Shares; |
| (b) | with
the consent by Special Resolution of the Members holding Shares of a particular class, vary
the rights attaching to that class of Shares so as to provide that those Shares are to be
redeemed or are liable to be redeemed at the option of the Company on the terms and in the
manner which the directors determine at the time of such variation; and |
| (c) | purchase
all or any of its own Shares of any class including any redeemable Shares on the terms and
in the manner which the directors determine at the time of such purchase. |
The
Company may make a payment in respect of the redemption or purchase of its own Shares in any manner authorized by the Act, including
out of any combination of the following: capital, its profits and the proceeds of a fresh issue of Shares.
11.2 | With
respect to redeeming, repurchasing or surrendering of Shares: |
| (a) | Members
who hold Public Shares are entitled to request the redemption of such Shares in the circumstances
described in Article 37.3; |
| (b) | Shares
held by the Sponsor shall be surrendered by the Sponsor for no consideration to the extent
that the Over-Allotment Option is not exercised in full so that such shares will represent
20% of the Company’s issued Shares after the IPO (exclusive of any securities purchased
in a private placement simultaneously with the IPO); and |
| (c) | Public
Shares shall be repurchased by way of Tender Offer in the circumstances set out in Article
37.2(b). |
Power
to pay for redemption or purchase in cash or in specie
11.3 | When
making a payment in respect of the redemption or purchase of Shares, the directors may make
the payment in cash or in specie (or partly in one and partly in the other) if so authorized
by the terms of the allotment of those Shares, or by the terms applying to those Shares in
accordance with Article 11.1, or otherwise by agreement with the Member holding those Shares. |
Effect
of redemption or purchase of a Share
11.4 | Upon
the date of redemption or purchase of a Share: |
| (a) | the
Member holding that Share shall cease to be entitled to any rights in respect of the Share
other than the right to receive: |
| (i) | the
price for the Share; and |
| (ii) | any
dividend declared in respect of the Share prior to the date of redemption or purchase; |
| (b) | the
Member’s name shall be removed from the Register of Members with respect to the Share;
and |
| (c) | the
Share shall be cancelled or held as a Treasury Shares, as the directors may determine. |
For
the purpose of this Article, the date of redemption or purchase is the date when the redemption or purchase falls due.
11.5 | For
the avoidance of doubt, redemptions and repurchases of Shares in the circumstances described
in Articles 11.2(a), 11.2(b) and 11.2(c) above shall not require further approval of the
Members. |
Power
to call meetings
12.1 | To
the extent required by the rules and regulations of the Designated Stock Exchange, the SEC
and/or any other competent regulatory authority or otherwise under Applicable Law, an annual
general meeting of the Company shall be held no later than one year after the first financial
year end occurring after the IPO, and shall be held in each year thereafter at such time
as determined by the directors and the Company may, but shall not (unless required by the
Act or the rules and regulations of the Designated Stock Exchange, the SEC and/or any other
competent regulatory authority or otherwise under Applicable Law) be obliged to, in each
year hold any other general meeting. |
12.2 | The
agenda of the annual general meeting shall be set by the directors and shall include the
presentation of the Company’s annual accounts and the report of the directors (if any). |
12.3 | Annual
general meetings shall be held in New York, USA or in such other places as the directors
may determine. |
12.4 | All
general meetings other than annual general meetings shall be called extraordinary general
meetings and the Company shall specify the meeting as such in the notices calling it. |
12.5 | The
directors may call a general meeting at any time. |
12.6 | If
there are insufficient directors to constitute a quorum and the remaining directors are unable
to agree on the appointment of additional directors, the directors must call a general meeting
for the purpose of appointing additional directors. |
12.7 | The
directors must also call a general meeting if requisitioned in the manner set out in the
next two Articles. |
12.8 | The
requisition must be in writing and given by one or more Members who together hold at least
40% of the rights to vote at such general meeting. |
12.9 | The
requisition must also: |
| (a) | specify
the purpose of the meeting. |
| (b) | be
signed by or on behalf of each requisitioner (and for this purpose each joint holder shall
be obliged to sign). The requisition may consist of several documents in like form signed
by one or more of the requisitioners. |
| (c) | be
delivered in accordance with the notice provisions. |
12.10 | Should
the directors fail to call a general meeting within 21 Clear Days from the date of receipt
of a requisition, the requisitioners or any of them may call a general meeting within three
months after the end of that period. |
12.11 | Without
limitation to the foregoing, if there are insufficient directors to constitute a quorum and
the remaining directors are unable to agree on the appointment of additional directors, any
one or more Members who together hold at least 40% of the rights to vote at a general meeting
may call a general meeting for the purpose of considering the business specified in the notice
of meeting which shall include as an item of business the appointment of additional directors. |
12.12 | Members
seeking to bring business before the annual general meeting or to nominate candidates for
election as directors at the annual general meeting must deliver notice to the principal
executive offices of the Company not later than the close of business on the 90th day nor
earlier than the close of business on the 120th day prior to the scheduled date of the annual
general meeting. |
Content
of notice
12.13 | Notice
of a general meeting shall specify each of the following: |
| (a) | the
place, the date and the hour of the meeting; |
| (b) | if
the meeting is to be held in two or more places, the technology that will be used to facilitate
the meeting; |
| (c) | subject
to paragraph (d), the general nature of the business to be transacted; and |
| (d) | if
a resolution is proposed as a Special Resolution, the text of that resolution. |
12.14 | In
each notice there shall appear with reasonable prominence the following statements: |
| (a) | that
a Member who is entitled to attend and vote is entitled to appoint one or more proxies to
attend and vote instead of that Member; and |
| (b) | that
a proxyholder need not be a Member. |
Period
of notice
12.15 | At
least ten days’ notice of a general meeting must be given to Members, provided that
a general meeting of the Company shall, whether or not the notice specified in this Article
has been given and whether or not the provisions of these Articles regarding general meetings
have been complied with, be deemed to have been duly convened if it is so agreed: |
| (a) | in
the case of an annual general meeting, by all of the Members entitled to attend and vote
thereat; and |
| (b) | in
the case of an extraordinary general meeting, by a majority in number of the Members having
a right to attend and vote at the meeting, together holding not less than 95% in par value
of the Shares giving that right. |
Persons
entitled to receive notice
12.16 | Subject
to the provisions of these Articles and to any restrictions imposed on any Shares, the notice
shall be given to the following people: |
| (b) | persons
entitled to a Share in consequence of the death or bankruptcy of a Member; and |
Publication
of notice on a website
12.17 | Subject
to the Act or the rules and regulations of the Designated Stock Exchange, the SEC and/or
any other competent regulatory authority or otherwise under Applicable Law, a notice of a
general meeting may be published on a website providing the recipient is given separate notice
of: |
| (a) | the
publication of the notice on the website; |
| (b) | the
place on the website where the notice may be accessed; |
| (c) | how
it may be accessed; and |
| (d) | the
place, date and time of the general meeting. |
12.18 | If
a Member notifies the Company that he is unable for any reason to access the website, the
Company must as soon as practicable give notice of the meeting to that Member by any other
means permitted by these Articles. This will not affect when that Member is deemed to have
received notice of the meeting. |
Time
a website notice is deemed to be given
12.19 | A
website notice is deemed to be given when the Member is given notice of its publication. |
Required
duration of publication on a website
12.20 | Where
the notice of meeting is published on a website, it shall continue to be published in the
same place on that website from the date of the notification until at least the conclusion
of the meeting to which the notice relates. |
Accidental
omission to give notice or non-receipt of notice
12.21 | Proceedings
at a meeting shall not be invalidated by the following: |
| (a) | an
accidental failure to give notice of the meeting to any person entitled to notice; or |
| (b) | non-receipt
of notice of the meeting by any person entitled to notice. |
12.22 | In
addition, where a notice of meeting is published on a website, proceedings at the meeting
shall not be invalidated merely because it is accidentally published: |
| (a) | in
a different place on the website; or |
| (b) | for
part only of the period from the date of the notification until the conclusion of the meeting
to which the notice relates. |
13. | Proceedings
at meetings of Members |
Quorum
13.1 | Save
as provided in the following Article, no business shall be transacted at any meeting unless
a quorum is present in person or by proxy. One or more Members who together hold not less
than one-third of the Shares entitled to vote at such meeting being individuals present in
person or by proxy or if a corporation or other non-natural person by its duly authorized
representative or proxy shall be a quorum; provided that a quorum in connection with any
meeting that is convened to vote on a Business Combination or any meeting convened with regards
to an amendment described in Article 37.9 shall be a majority of the Shares entitled to vote
at such meeting being individuals present in person or by proxy or if a corporation or other
non-natural person by its duly authorized representative or proxy. |
Lack
of quorum
13.2 | If
a quorum is not present within 15 minutes of the time appointed for the meeting, or if at
any time during the meeting it becomes inquorate, then the following provisions apply: |
| (a) | If
the meeting was requisitioned by Members, it shall be cancelled. |
| (b) | In
any other case, the meeting shall stand adjourned to the same time and place seven days hence,
or to such other time or place as is determined by the directors. If a quorum is not present
within 15 minutes of the time appointed for the adjourned meeting, then the meeting shall
be dissolved. |
Use
of technology
13.3 | A
person may participate in a general meeting through the medium of conference telephone, video
or any other form of communications equipment providing 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. |
Chairman
13.4 | The
chairman of a general meeting shall be the chairman of the board or such other director as
the directors have nominated to chair board meetings in the absence of the chairman of the
board. Absent any such person being present within 15 minutes of the time appointed for the
meeting, the directors present shall elect one of their number to chair the meeting. |
13.5 | If
no director is present within 15 minutes of the time appointed for the meeting, or if no
director is willing to act as chairman, the Members present in person or by proxy and entitled
to vote shall choose one of their number to chair the meeting. |
Right
of a director to attend and speak
13.6 | Even
if a director is not a Member, he shall be entitled to attend and speak at any general meeting
and at any separate meeting of Members holding a particular class of Shares in the Company. |
Adjournment
and Postponement
13.7 | The
chairman may at any time adjourn a meeting. The chairman must adjourn the meeting if so directed
by the meeting. No business, however, can be transacted at an adjourned meeting other than
business which might properly have been transacted at the original meeting. |
13.8 | Should
a meeting be adjourned for more than twenty Clear Days, whether because of a lack of quorum
or otherwise, Members shall be given at least five Clear Days’ notice of the date,
time and place of the adjourned meeting and the general nature of the business to be transacted.
Otherwise it shall not be necessary to give any notice of the adjournment. |
13.9 | If,
prior to a Business Combination, a notice is issued in respect of a general meeting and the
directors, in their absolute discretion, consider that it is impractical or undesirable for
any reason to hold that general meeting at the place, the day and the hour specified in the
notice calling such general meeting, the directors may postpone the general meeting to another
place, day and/or hour provided that notice of the place, the day and the hour of the rearranged
general meeting is promptly given to all Members. No business shall be transacted at any
postponed meeting other than the business specified in the notice of the original meeting. |
13.10 | When
a general meeting is postponed for thirty days or more, notice of the postponed meeting shall
be given as in the case of an original meeting. Otherwise it shall not be necessary to give
any such notice of a postponed meeting. All proxy forms submitted for the original general
meeting shall remain valid for the postponed meeting. The directors may postpone a general
meeting which has already been postponed. |
Method
of voting
13.11 | A
resolution put to the vote of the meeting shall be decided on a poll. |
Taking
of a poll
13.12 | A
poll demanded on the question of adjournment shall be taken immediately. |
13.13 | A
poll demanded on any other question shall be taken either immediately or at an adjourned
meeting at such time and place as the chairman directs, not being more than 30 Clear Days
after the poll was demanded. |
13.14 | The
demand for a poll shall not prevent the meeting continuing to transact any business other
than the question on which the poll was demanded. |
13.15 | A
poll shall be taken in such manner as the chairman directs. He may appoint scrutineers (who
need not be Members) and fix a place and time for declaring the result of the poll. If, through
the aid of technology, the meeting is held in more than place, the chairman may appoint scrutineers
in more than place; but if he considers that the poll cannot be effectively monitored at
that meeting, the chairman shall adjourn the holding of the poll to a date, place and time
when that can occur. |
Chairman’s
casting vote
13.16 | If
the votes on a resolution are equal, the chairman may if he wishes exercise a casting vote. |
Amendments
to resolutions
13.17 | An
Ordinary Resolution to be proposed at a general meeting may be amended by Ordinary Resolution
if: |
| (a) | not
less than 48 hours before the meeting is to take place (or such later time as the chairman
of the meeting may determine), notice of the proposed amendment is given to the Company in
writing by a Member entitled to vote at that meeting; and |
| (b) | the
proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially
alter the scope of the resolution. |
13.18 | A
Special Resolution to be proposed at a general meeting may be amended by Ordinary Resolution,
if: |
| (a) | the
chairman of the meeting proposes the amendment at the general meeting at which the resolution
is to be proposed, and |
| (b) | the
amendment does not go beyond what the chairman considers is necessary to correct a grammatical
or other non-substantive error in the resolution. |
13.19 | If
the chairman of the meeting, acting in good faith, wrongly decides that an amendment to a
resolution is out of order, the chairman’s error does not invalidate the vote on that
resolution. |
Written
resolutions
13.20 | Members
may pass a resolution in writing without holding a meeting if the following conditions are
met: |
| (a) | all
Members entitled so to vote are given notice of the resolution as if the same were being
proposed at a meeting of Members; |
| (b) | all
Members entitled so to vote : |
| (ii) | sign
several documents in the like form each signed by one or more of those Members; and |
| (c) | the
signed document or documents is or are delivered to the Company, including, if the Company
so nominates, by delivery of an Electronic Record by Electronic means to the address specified
for that purpose. |
Such
written resolution shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and held.
13.21 | If
a written resolution is described as a Special Resolution or as an Ordinary Resolution, it
has effect accordingly. |
13.22 | The
directors may determine the manner in which written resolutions shall be put to Members.
In particular, they may provide, in the form of any written resolution, for each Member to
indicate, out of the number of votes the Member would have been entitled to cast at a meeting
to consider the resolution, how many votes he wishes to cast in favour of the resolution
and how many against the resolution or to be treated as abstentions. The result of any such
written resolution shall be determined on the same basis as on a poll. |
Sole-member
company
13.23 | If
the Company has only one Member, and the Member records in writing his decision on a question,
that record shall constitute both the passing of a resolution and the minute of it. |
14. | Voting
rights of Members |
Right
to vote
14.1 | Subject
to any rights or restrictions attached to any Member’s Shares, or unless a call or
other amount presently payable has not been paid, all Members are entitled to vote at a general
meeting, and all Members holding Shares of a particular class of Shares are entitled to vote
at a meeting of the holders of that class of Shares. |
14.2 | Members
may vote in person or by proxy. |
14.3 | Every
Member shall have one vote for each Share he holds, unless any Share carries special voting
rights. |
14.4 | A
fraction of a Share shall entitle its holder to an equivalent fraction of one vote. |
14.5 | No
Member is bound to vote on his Shares or any of them; nor is he bound to vote each of his
Shares in the same way. |
Rights
of joint holders
14.6 | If
Shares are held jointly, only one of the joint holders may vote. If more than one of the
joint holders tenders a vote, the vote of the holder whose name in respect of those Shares
appears first in the Register of Members shall be accepted to the exclusion of the votes
of the other joint holder. |
Representation
of corporate Members
14.7 | Save
where otherwise provided, a corporate Member must act by a duly authorized representative. |
14.8 | A
corporate Member wishing to act by a duly authorized representative must identify that person
to the Company by notice in writing. |
14.9 | The
authorization may be for any period of time, and must be delivered to the Company not less
than two hours before the commencement of the meeting at which it is first used. |
14.10 | The
directors of the Company may require the production of any evidence which they consider necessary
to determine the validity of the notice. |
14.11 | Where
a duly authorized representative is present at a meeting that Member is deemed to be present
in person; and the acts of the duly authorized representative are personal acts of that Member. |
14.12 | A
corporate Member may revoke the appointment of a duly authorized representative at any time
by notice to the Company; but such revocation will not affect the validity of any acts carried
out by the duly authorized representative before the directors of the Company had actual
notice of the revocation. |
14.13 | If
a clearing house (or its nominee(s)), being a corporation, is a Member, it may authorise
such persons as it sees fit to act as its representative at any meeting of the Company or
at any meeting of any class of Members provided that the authorization shall specify the
number and class of Shares in respect of which each such representative is so authorized.
Each person so authorized under the provisions of this Article shall be deemed to have been
duly authorized without further evidence of the facts and be entitled to exercise the same
rights and powers on behalf of the clearing house (or its nominee(s)) as if such person was
the registered holder of such Shares held by the clearing house (or its nominee(s)). |
Member
with mental disorder
14.14 | A
Member in respect of whom an order has been made by any court having jurisdiction (whether
in the Islands or elsewhere) in matters concerning mental disorder may vote, by that Member’s
receiver, curator bonis or other person authorized in that behalf appointed by that court. |
14.15 | For
the purpose of the preceding Article, evidence to the satisfaction of the directors of the
authority of the person claiming to exercise the right to vote must be received not less
than 24 hours before holding the relevant meeting or the adjourned meeting in any manner
specified for the delivery of forms of appointment of a proxy, whether in writing or by Electronic
means. In default, the right to vote shall not be exercisable. |
Objections
to admissibility of votes
14.16 | An
objection to the validity of a person’s vote may only be raised at the meeting or at
the adjourned meeting at which the vote is sought to be tendered. Any objection duly made
shall be referred to the chairman whose decision shall be final and conclusive. |
Form
of proxy
14.17 | An
instrument appointing a proxy shall be in any common form or in any other form approved by
the directors. |
14.18 | The
instrument must be in writing and signed in one of the following ways: |
| (b) | by
the Member’s authorized attorney; or |
| (c) | if
the Member is a corporation or other body corporate, under seal or signed by an authorized
officer, secretary or attorney. |
If
the directors so resolve, the Company may accept an Electronic Record of that instrument delivered in the manner specified below and
otherwise satisfying these Articles about authentication of Electronic Records.
14.19 | The
directors may require the production of any evidence which they consider necessary to determine
the validity of any appointment of a proxy. |
14.20 | A
Member may revoke the appointment of a proxy at any time by notice to the Company duly signed
in accordance with the Article above about signing proxies; but such revocation will not
affect the validity of any acts carried out by the proxy before the directors of the Company
had actual notice of the revocation. |
How
and when proxy is to be delivered
14.21 | Subject
to the following Articles, the form of appointment of a proxy and any authority under which
it is signed (or a copy of the authority certified notarially or in any other way approved
by the directors) must be delivered so that it is received by the Company not less than 48
hours before the time for holding the meeting or adjourned meeting at which the person named
in the form of appointment of proxy proposes to vote. They must be delivered in either of
the following ways: |
| (a) | In
the case of an instrument in writing, it must be left at or sent by post: |
| (i) | to
the registered office of the Company; or |
| (ii) | to
such other place specified in the notice convening the meeting or in any form of appointment
of proxy sent out by the Company in relation to the meeting. |
| (b) | If,
pursuant to the notice provisions, a notice may be given to the Company in an Electronic
Record, an Electronic Record of an appointment of a proxy must be sent to the address specified
pursuant to those provisions unless another address for that purpose is specified: |
| (i) | in
the notice convening the meeting; or |
| (ii) | in
any form of appointment of a proxy sent out by the Company in relation to the meeting; or |
| (iii) | in
any invitation to appoint a proxy issued by the Company in relation to the meeting. |
14.22 | Where
a poll is taken: |
| (a) | if
it is taken more than seven Clear Days after it is demanded, the form of appointment of a
proxy and any accompanying authority (or an Electronic Record of the same) must be delivered
as required under the preceding Article not less than 24 hours before the time appointed
for the taking of the poll; |
| (b) | but
if it to be taken within seven Clear Days after it was demanded, the form of appointment
of a proxy and any accompanying authority (or an Electronic Record of the same) must be e
delivered as required under the preceding Article not less than two hours before the time
appointed for the taking of the poll. |
14.23 | If
the form of appointment of proxy is not delivered on time, it is invalid. |
Voting
by proxy
14.24 | A
proxy shall have the same voting rights at a meeting or adjourned meeting as the Member would
have had except to the extent that the instrument appointing him limits those rights. Notwithstanding
the appointment of a proxy, a Member may attend and vote at a meeting or adjourned meeting.
If a Member votes on any resolution a vote by his proxy on the same resolution, unless in
respect of different Shares, shall be invalid. |
Unless
otherwise determined by Ordinary Resolution, the minimum number of directors shall be one and the maximum shall be ten.
16. | Appointment,
disqualification and removal of directors |
No
age limit
16.1 | There
is no age limit for directors save that they must be aged at least 18 years. |
Corporate
directors
16.2 | Unless
prohibited by law, a body corporate may be a director. If a body corporate is a director,
these Articles about representation of corporate Members at general meetings apply, mutatis
mutandis, to these Articles about directors’ meetings. |
No
shareholding qualification
16.3 | Unless
a shareholding qualification for directors is fixed by Ordinary Resolution, no director shall
be required to own Shares as a condition of his appointment. |
Appointment
and removal of directors
16.4 | The
directors shall be divided into three classes: Class I, Class II and Class III. The number
of directors in each class shall be as nearly equal as possible. Upon the adoption of the
Articles, the existing directors shall by resolution classify themselves as Class I, Class
II or Class III directors. The Class I directors shall stand elected for a term expiring
at the Company’s first annual general meeting, the Class II directors shall stand elected
for a term expiring at the Company’s second annual general meeting and the Class III
directors shall stand elected for a term expiring at the Company’s third annual general
meeting. Commencing at the Company’s first annual general meeting, and at each annual
general meeting thereafter, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual general meeting
after their election. All directors shall hold office until the expiration of their respective
terms of office and until their successors shall have been elected and qualified. A director
elected to fill a vacancy resulting from the death, resignation or removal of a director
shall serve for the remainder of the full term of the director whose death, resignation or
removal shall have created such vacancy and until his successor shall have been elected and
qualified. |
16.5 | After
the closing of a Business Combination, the Company may by Ordinary Resolution appoint any
person to be a director or may by Ordinary Resolution remove any director. |
16.6 | Without
prejudice to the Company’s power to appoint a person to be a director pursuant to these
Articles, the directors shall have power at any time to appoint any person who is willing
to act as a director, either to fill a vacancy or as an additional director. A director elected
to fill a vacancy resulting from the death, resignation or removal of a director shall serve
for the remainder of the full term of the director whose death, resignation or removal shall
have created such vacancy and until his successor shall have been elected and qualified. |
16.7 | Notwithstanding
the other provisions of these Articles, in any case where, as a result of death, the Company
has no directors and no shareholders, the personal representatives of the last shareholder
to have died have the power, by notice in writing to the Company, to appoint a person to
be a director. For the purpose of this Article: |
| (a) | where
two or more shareholders die in circumstances rendering it uncertain who was the last to
die, a younger shareholder is deemed to have survived an older shareholder; |
| (b) | if
the last shareholder died leaving a will which disposes of that shareholder’s shares
in the Company (whether by way of specific gift, as part of the residuary estate, or otherwise): |
| (i) | the
expression personal representatives of the last shareholder means: |
| (A) | until
a grant of probate in respect of that will has been obtained from the Grand Court of the
Cayman Islands, all of the executors named in that will who are living at the time the power
of appointment under this Article is exercised; and |
| (B) | after
such grant of probate has been obtained, only such of those executors who have proved that
will; |
| (ii) | without
derogating from section 3(1) of the Succession Act (Revised), the executors named in that
will may exercise the power of appointment under this Article without first obtaining a grant
of probate. |
16.8 | A
remaining director may appoint a director even though there is not a quorum of directors. |
16.9 | No
appointment can cause the number of directors to exceed the maximum; and any such appointment
shall be invalid. |
16.10 | For
so long as Shares are listed on a Designated Stock Exchange, the directors shall include
at least such number of Independent Directors as Applicable Law or the rules and regulations
of the Designated Stock Exchange require, subject to applicable phase-in rules of the Designated
Stock Exchange. |
Resignation
of directors
16.11 | A
director may at any time resign office by giving to the Company notice in writing or, if
permitted pursuant to the notice provisions, in an Electronic Record delivered in either
case in accordance with those provisions. |
16.12 | Unless
the notice specifies a different date, the director shall be deemed to have resigned on the
date that the notice is delivered to the Company. |
Termination
of the office of director
16.13 | A
director’s office shall be terminated forthwith if: |
| (a) | he
is prohibited by the law of the Islands from acting as a director; or |
| (b) | he
is made bankrupt or makes an arrangement or composition with his creditors generally; or |
| (c) | in
the opinion of a registered medical practitioner by whom he is being treated he becomes physically
or mentally incapable of acting as a director; or |
| (d) | he
is made subject to any law relating to mental health or incompetence, whether by court order
or otherwise; |
| (e) | without
the consent of the other directors, he is absent from meetings of directors for a continuous
period of six months; or |
| (f) | all
of the other directors (being not less than two in number) determine that he should be removed
as a director, either by a resolution passed by all of the other directors at a meeting of
the directors duly convened and held in accordance with these Articles or by a resolution
in writing signed by all of the other directors. |
Appointment
and removal
17.1 | Any
director may appoint any other person, including another director, to act in his place as
an alternate director. No appointment shall take effect until the director has given notice
of the appointment to the other directors. Such notice must be given to each other director
by either of the following methods: |
| (a) | by
notice in writing in accordance with the notice provisions; |
| (b) | if
the other director has an email address, by emailing to that address a scanned copy of the
notice as a PDF attachment (the PDF version being deemed to be the notice unless Article
32.7 applies), in which event notice shall be taken to be given on the date of receipt by
the recipient in readable form. For the avoidance of doubt, the same email may be sent to
the email address of more than one director (and to the email address of the Company pursuant
to Article 17.4(c)). |
17.2 | Without
limitation to the preceding Article, a director may appoint an alternate for a particular
meeting by sending an email to his fellow directors informing them that they are to take
such email as notice of such appointment for such meeting. Such appointment shall be effective
without the need for a signed notice of appointment or the giving of notice to the Company
in accordance with Article 17.4. |
17.3 | A
director may revoke his appointment of an alternate at any time. No revocation shall take
effect until the director has given notice of the revocation to the other directors. Such
notice must be given by either of the methods specified in Article 17.1. |
17.4 | A
notice of appointment or removal of an alternate director must also be given to the Company
by any of the following methods: |
| (a) | by
notice in writing in accordance with the notice provisions; |
| (b) | if
the Company has a facsimile address for the time being, by sending by facsimile transmission
to that facsimile address a facsimile copy or, otherwise, by sending by facsimile transmission
to the facsimile address of the Company’s registered office a facsimile copy (in either
case, the facsimile copy being deemed to be the notice unless Article 32.7 applies), in which
event notice shall be taken to be given on the date of an error-free transmission report
from the sender’s fax machine; |
| (c) | if
the Company has an email address for the time being, by emailing to that email address a
scanned copy of the notice as a PDF attachment or, otherwise, by emailing to the email address
provided by the Company’s registered office a scanned copy of the notice as a PDF attachment
(in either case, the PDF version being deemed to be the notice unless Article 32.7 applies),
in which event notice shall be taken to be given on the date of receipt by the Company or
the Company’s registered office (as appropriate) in readable form; or |
| (d) | if
permitted pursuant to the notice provisions, in some other form of approved Electronic Record
delivered in accordance with those provisions in writing. |
Notices
17.5 | All
notices of meetings of directors shall continue to be given to the appointing director and
not to the alternate. |
Rights
of alternate director
17.6 | An
alternate director shall be entitled to attend and vote at any board meeting or meeting of
a committee of the directors at which the appointing director is not personally present,
and generally to perform all the functions of the appointing director in his absence. |
17.7 | For
the avoidance of doubt: |
| (a) | if
another director has been appointed an alternate director for one or more directors, he shall
be entitled to a separate vote in his own right as a director and in right of each other
director for whom he has been appointed an alternate; and |
| (b) | if
a person other than a director has been appointed an alternate director for more than one
director, he shall be entitled to a separate vote in right of each director for whom he has
been appointed an alternate. |
17.8 | An
alternate director, however, is not entitled to receive any remuneration from the Company
for services rendered as an alternate director. |
Appointment
ceases when the appointor ceases to be a director
17.9 | An
alternate director shall cease to be an alternate director if the director who appointed
him ceases to be a director. |
Status
of alternate director
17.10 | An
alternate director shall carry out all functions of the director who made the appointment. |
17.11 | Save
where otherwise expressed, an alternate director shall be treated as a director under these
Articles. |
17.12 | An
alternate director is not the agent of the director appointing him. |
17.13 | An
alternate director is not entitled to any remuneration for acting as alternate director. |
Status
of the director making the appointment
17.14 | A
director who has appointed an alternate is not thereby relieved from the duties which he
owes the Company. |
Powers
of directors
18.1 | Subject
to the provisions of the Act, the Memorandum and these Articles, the business of the Company
shall be managed by the directors who may for that purpose exercise all the powers of the
Company. |
18.2 | No
prior act of the directors shall be invalidated by any subsequent alteration of the Memorandum
or these Articles. However, to the extent allowed by the Act, following the consummation
of the IPO Members may by Special Resolution validate any prior or future act of the directors
which would otherwise be in breach of their duties. |
Appointments
to office
18.3 | The
directors may appoint a director: |
| (a) | as
chairman of the board of directors; |
| (b) | as
vice-chairman of the board of directors; |
| (d) | to
any other executive office |
for
such period and on such terms, including as to remuneration, as they think fit.
18.4 | The
appointee must consent in writing to holding that office. |
18.5 | Where
a chairman is appointed he shall, unless unable to do so, preside at every meeting of directors. |
18.6 | If
there is no chairman, or if the chairman is unable to preside at a meeting, that meeting
may select its own chairman; or the directors may nominate one of their number to act in
place of the chairman should he ever not be available. |
18.7 | Subject
to the provisions of the Act, the directors may also appoint any person, who need not be
a director: |
| (b) | to
any office that may be required (including, for the avoidance of doubt, one or more chief
executive officers, presidents, a chief financial officer, a treasurer, vice-presidents,
one or more assistant vice-presidents, one or more assistant treasurers and one or more assistant
secretaries), |
for
such period and on such terms, including as to remuneration, as they think fit. In the case of an Officer, that Officer may be given
any title the directors decide.
18.8 | The
Secretary or Officer must consent in writing to holding that office. |
18.9 | A
director, Secretary or other Officer of the Company may not hold the office, or perform the
services, of Auditor. |
Remuneration
18.10 | The
remuneration to be paid to the directors, if any, shall be such remuneration as the directors
shall determine, provided that no cash remuneration shall be paid to any director prior to
the consummation of a Business Combination. The directors shall also, whether prior to or
after the consummation of a Business Combination, be entitled to be paid all out of pocket
expenses properly incurred by them in connection with activities on behalf of the Company,
including identifying and consummating a Business Combination. |
18.11 | Remuneration
may take any form and may include arrangements to pay pensions, health insurance, death or
sickness benefits, whether to the director or to any other person connected to or related
to him. |
18.12 | Unless
his fellow directors determine otherwise, a director is not accountable to the Company for
remuneration or other benefits received from any other company which is in the same group
as the Company or which has common shareholdings. |
Disclosure
of information
18.13 | The
directors may release or disclose to a third party any information regarding the affairs
of the Company, including any information contained in the Register of Members relating to
a Member, (and they may authorize any director, Officer or other authorized agent of the
Company to release or disclose to a third party any such information in his possession) if: |
|
(a) |
the
Company or that person, as the case may be, is lawfully required to do so under the laws of any jurisdiction to which the Company
is subject; or |
|
|
|
|
(b) |
such
disclosure is in compliance with the rules of any stock exchange upon which the Company’s shares are listed; or |
|
|
|
|
(c) |
such
disclosure is in accordance with any contract entered into by the Company; or |
|
|
|
|
(d) |
the
directors are of the opinion such disclosure would assist or facilitate the Company’s operations. |
Power
to delegate any of the directors’ powers to a committee
19.1 |
The
directors may delegate any of their powers to any committee consisting of one or more persons who need not be Members (including,
without limitation, the Audit Committee, the Compensation Committee and the Nominating Committee). Persons on the committee may include
non-directors so long as the majority of those persons are directors. |
|
|
19.2 |
The
delegation may be collateral with, or to the exclusion of, the directors’ own powers. |
|
|
19.3 |
The
delegation may be on such terms as the directors think fit, including provision for the committee itself to delegate to a sub-committee;
save that any delegation must be capable of being revoked or altered by the directors at will. |
|
|
19.4 |
Unless
otherwise permitted by the directors, a committee must follow the procedures prescribed for the taking of decisions by directors. |
|
|
19.5 |
The
directors may adopt formal written charters for committees and, if so adopted, shall review and assess the adequacy of such formal
written charters on an annual basis. Each of these committees shall be empowered to do all things necessary to exercise the rights
of such committee set forth in the Articles and shall have such powers as the directors may delegate pursuant to the Articles and
as required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority
or otherwise under Applicable Law. Each of the Audit Committee, the Compensation Committee and the Nominating Committee, if established,
shall consist of such number of directors as the directors shall from time to time determine (or such minimum number as may be required
from time to time by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority
or otherwise under Applicable Law). For so long as any class of Shares is listed on the Designated Stock Exchange, the Audit Committee,
the Compensation Committee and the Nominating and Corporate Governance Committee shall be made up of such number of Independent Directors
as is required from time to time by the rules and regulations of the rules and regulations of the Designated Stock Exchange, the
SEC and/or any other competent regulatory authority or otherwise under Applicable Law. |
Power
to appoint an agent of the Company
19.6 | The
directors may appoint any person, either generally or in respect of any specific matter,
to be the agent of the Company with or without authority for that person to delegate all
or any of that person’s powers. The directors may make that appointment: |
|
(a) |
by
causing the Company to enter into a power of attorney or agreement; or |
|
|
|
|
(b) |
in
any other manner they determine. |
Power
to appoint an attorney or authorized signatory of the Company
19.7 | The
directors may appoint any person, whether nominated directly or indirectly by the directors,
to be the attorney or the authorized signatory of the Company. The appointment may be: |
|
(a) |
for
any purpose; |
|
|
|
|
(b) |
with
the powers, authorities and discretions; |
|
|
|
|
(c) |
for
the period; and |
|
|
|
|
(d) |
subject
to such conditions |
as
they think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the directors under
these Articles. The directors may do so by power of attorney or any other manner they think fit.
19.8 | Any
power of attorney or other appointment may contain such provision for the protection and
convenience for persons dealing with the attorney or authorized signatory as the directors
think fit. Any power of attorney or other appointment may also authorize the attorney or
authorized signatory to delegate all or any of the powers, authorities and discretions vested
in that person. |
Power
to appoint a proxy
19.9 | Any
director may appoint any other person, including another director, to represent him at any
meeting of the directors. If a director appoints a proxy, then for all purposes the presence
or vote of the proxy shall be deemed to be that of the appointing director. |
19.10 | Articles
17.1 to 17.4 inclusive (relating to the appointment by directors of alternate directors)
apply, mutatis mutandis, to the appointment of proxies by directors. |
19.11 | A
proxy is an agent of the director appointing him and is not an Officer. |
Regulation
of directors’ meetings
20.1 | Subject
to the provisions of these Articles, the directors may regulate their proceedings as they
think fit. |
Calling
meetings
20.2 | Any
director may call a meeting of directors at any time. The Secretary, if any, must call a
meeting of the directors if requested to do so by a director. |
Notice
of meetings
20.3 | Every
director shall be given notice of a meeting, although a director may waive retrospectively
the requirement to be given notice. Notice may be oral. Attendance at a meeting without written
objection shall be deemed to be a waiver of such notice requirement. |
Period
of notice
20.4 | At
least five Clear Days’ notice of a meeting of directors must be given to directors.
A meeting may be convened on shorter notice with the consent of all directors. |
Use
of technology
20.5 | A
director may participate in a meeting of directors through the medium of conference telephone,
video or any other form of communications equipment providing all persons participating in
the meeting are able to hear and speak to each other throughout the meeting. |
20.6 | A
director participating in this way is deemed to be present in person at the meeting. |
Place
of meetings
20.7 | If
all the directors participating in a meeting are not in the same place, they may decide that
the meeting is to be treated as taking place wherever any of them is. |
Quorum
20.8 | The
quorum for the transaction of business at a meeting of directors shall be two unless the
directors fix some other number or unless the Company has only one director. |
Voting
20.9 | A
question which arises at a board meeting shall be decided by a majority of votes. If votes
are equal the chairman may, if he wishes, exercise a casting vote. |
Validity
20.10 | Anything
done at a meeting of directors is unaffected by the fact that it is later discovered that
any person was not properly appointed, or had ceased to be a director, or was otherwise not
entitled to vote. |
Recording
of dissent
20.11 | A
director present at a meeting of directors shall be presumed to have assented to any action
taken at that meeting unless: |
|
(a) |
his
dissent is entered in the minutes of the meeting; or |
|
|
|
|
(b) |
he
has filed with the meeting before it is concluded signed dissent from that action; or |
|
|
|
|
(c) |
he
has forwarded to the Company as soon as practical following the conclusion of that meeting signed dissent. |
A
director who votes in favour of an action is not entitled to record his dissent to it.
Written
resolutions
20.12 | The
directors may pass a resolution in writing without holding a meeting if all directors sign
a document or sign several documents in the like form each signed by one or more of those
directors. |
20.13 | Despite
the foregoing, a resolution in writing signed by a validly appointed alternate director or
by a validly appointed proxy need not also be signed by the appointing director. If a written
resolution is signed personally by the appointing director, it need not also be signed by
his alternate or proxy. |
20.14 | Such
written resolution shall be as effective as if it had been passed at a meeting of the directors
duly convened and held; and it shall be treated as having been passed on the day and at the
time that the last director signs. |
Sole
director’s minute
20.15 | Where
a sole director signs a minute recording his decision on a question, that record shall constitute
the passing of a resolution in those terms. |
21. | Permissible
directors’ interests and disclosure |
Permissible
interests subject to disclosure
21.1 | Save
as expressly permitted by these Articles or as set out below, a director may not have a direct
or indirect interest or duty which conflicts or may possibly conflict with the interests
of the Company. |
21.2 | If,
notwithstanding the prohibition in the preceding Article, a director discloses to his fellow
directors the nature and extent of any material interest or duty in accordance with the next
Article, he may: |
|
(a) |
be
a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is or may otherwise
be interested; or |
|
|
|
|
(b) |
be
interested in another body corporate promoted by the Company or in which the Company is otherwise interested. In particular, the
director may be a director, secretary or officer of, or employed by, or be a party to any transaction or arrangement with, or otherwise
interested in, that other body corporate. |
21.3 | Such
disclosure may be made at a meeting of the board or otherwise (and, if otherwise, it must
be made in writing). The director must disclose the nature and extent of his direct or indirect
interest in or duty in relation to a transaction or arrangement or series of transactions
or arrangements with the Company or in which the Company has any material interest. |
21.4 | If
a director has made disclosure in accordance with the preceding Article, then he shall not,
by reason only of his office, be accountable to the Company for any benefit that he derives
from any such transaction or arrangement or from any such office or employment or from any
interest in any such body corporate, and no such transaction or arrangement shall be liable
to be avoided on the ground of any such interest or benefit. |
Notification
of interests
21.5 | For
the purposes of the preceding Articles: |
|
(a) |
a
general notice that a director gives to the other directors that he is to be regarded as having an interest of the nature and extent
specified in the notice in any transaction or arrangement in which a specified person or class of persons is interested shall be
deemed to be a disclosure that he has an interest in or duty in relation to any such transaction of the nature and extent so specified;
and |
|
|
|
|
(b) |
an
interest of which a director has no knowledge and of which it is unreasonable to expect him to have knowledge shall not be treated
as an interest of his. |
Voting
where a director is interested in a matter
21.6 | A
director may vote at a meeting of directors on any resolution concerning a matter in which
that director has an interest or duty, whether directly or indirectly, so long as that director
discloses any material interest pursuant to these Articles. The director shall be counted
towards a quorum of those present at the meeting. If the director votes on the resolution,
his vote shall be counted. |
21.7 | Where
proposals are under consideration concerning the appointment of two or more directors to
offices or employment with the Company or any body corporate in which the Company is interested,
the proposals may be divided and considered in relation to each director separately and each
of the directors concerned shall be entitled to vote and be counted in the quorum in respect
of each resolution except that concerning his or her own appointment. |
The
Company shall cause minutes to be made in books kept for the purpose in accordance with the Act.
Accounting
and other records
23.1 | The
directors must ensure that proper accounting and other records are kept, and that accounts
and associated reports are distributed in accordance with the requirements of the Act. |
No
automatic right of inspection
23.2 | Members
are only entitled to inspect the Company’s records if they are expressly entitled to
do so by law, or by resolution made by the directors or passed by Ordinary Resolution. |
Sending
of accounts and reports
23.3 | The
Company’s accounts and associated directors’ report or auditor’s report
that are required or permitted to be sent to any person pursuant to any law shall be treated
as properly sent to that person if: |
|
(a) |
they
are sent to that person in accordance with the notice provisions: or |
|
|
|
|
(b) |
they
are published on a website providing that person is given separate notice of: |
|
(i) |
the
fact that publication of the documents has been published on the website; |
|
|
|
|
(ii) |
the
address of the website; and |
|
|
|
|
(iii) |
the
place on the website where the documents may be accessed; and |
|
|
|
|
(iv) |
how
they may be accessed. |
23.4 | If,
for any reason, a person notifies the Company that he is unable to access the website, the
Company must, as soon as practicable, send the documents to that person by any other means
permitted by these Articles. This, however, will not affect when that person is taken to
have received the documents under the next Article. |
Time
of receipt if documents are published on a website
23.5 | Documents
sent by being published on a website in accordance with the preceding two Articles are only
treated as sent at least five Clear Days before the date of the meeting at which they are
to be laid if: |
|
(a) |
the
documents are published on the website throughout a period beginning at least five Clear Days before the date of the meeting and
ending with the conclusion of the meeting; and |
|
|
|
|
(b) |
the
person is given at least five Clear Days’ notice of the hearing. |
Validity
despite accidental error in publication on website
23.6 | If,
for the purpose of a meeting, documents are sent by being published on a website in accordance
with the preceding Articles, the proceedings at that meeting are not invalidated merely because: |
| (a) | those
documents are, by accident, published in a different place on the website to the place notified;
or |
| (b) | they
are published for part only of the period from the date of notification until the conclusion
of that meeting. |
Audit
23.7 |
The
directors may appoint an Auditor of the Company who shall hold office on such terms as the directors determine. |
|
|
23.8 |
Without
prejudice to the freedom of the directors to establish any other committee, if the Shares (or depositary receipts therefor) are listed
or quoted on the Designated Stock Exchange, and if required by the Designated Stock Exchange, the directors shall establish and maintain
an Audit Committee as a committee of the directors and shall adopt a formal written Audit Committee charter and review and assess
the adequacy of the formal written charter on an annual basis. The composition and responsibilities of the Audit Committee shall
comply with the rules and regulations of the SEC and the Designated Stock Exchange. The Audit Committee shall meet at least once
every financial quarter, or more frequently as circumstances dictate. |
|
|
23.9 |
If
the Shares are listed or quoted on the Designated Stock Exchange, the Company shall conduct an appropriate review of all related
party transactions on an ongoing basis and shall utilise the Audit Committee for the review and approval of potential conflicts of
interest. |
|
|
23.10 |
The
remuneration of the Auditor shall be fixed by the Audit Committee (if one exists). |
|
|
23.11 |
If
the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming incapable of acting by reason of
illness or other disability at a time when his services are required, the directors shall fill the vacancy and determine the remuneration
of such Auditor. |
|
|
23.12 |
Every
Auditor of the Company shall have a right of access at all times to the books and accounts and vouchers of the Company and shall
be entitled to require from the directors and officers of the Company such information and explanation as may be necessary for the
performance of the duties of the Auditor. |
|
|
23.13 |
Auditors
shall, if so required by the directors, make a report on the accounts of the Company during their tenure of office at the next annual
general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an ordinary
company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with
the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the directors
or any general meeting of the Members. |
|
|
24.14 |
Any
payment made to members of the Audit Committee (if one exists) shall require the review and approval of the directors, with any director
interested in such payment abstaining from such review and approval. |
|
|
24.15 |
The
Audit Committee shall monitor compliance with the terms of the IPO and, if any non-compliance is identified, the Audit Committee
shall be charged with the responsibility to take all action necessary to rectify such non-compliance or otherwise cause compliance
with the terms of the IPO. |
Unless
the directors otherwise specify, the financial year of the Company:
| (a) | shall
end on 31st December in the year of its incorporation and each following year; and |
| (b) | shall
begin when it was incorporated and on 1st January each following year. |
Except
to the extent of any conflicting rights attached to Shares, the directors may fix any time and date as the record date for:
| (a) | calling
a general meeting; |
| (b) | declaring
or paying a dividend; |
| (c) | making
or issuing an allotment of Shares; or |
| (d) | conducting
any other business required pursuant to these Articles. |
The
record date may be before or after the date on which a dividend, allotment or issue is declared, paid or made.
Declaration
of dividends by Members
26.1 | Subject
to the provisions of the Act, the Company may by Ordinary Resolution declare dividends in
accordance with the respective rights of the Members but no dividend shall exceed the amount
recommended by the directors. |
Payment
of interim dividends and declaration of final dividends by directors
26.2 | The
directors may pay interim dividends or declare final dividends in accordance with the respective
rights of the Members if it appears to them that they are justified by the financial position
of the Company and that such dividends may lawfully be paid. |
26.3 | Subject
to the provisions of the Act, in relation to the distinction between interim dividends and
final dividends, the following applies: |
| (a) | Upon
determination to pay a dividend or dividends described as interim by the directors in the
dividend resolution, no debt shall be created by the declaration until such time as payment
is made. |
| (b) | Upon
declaration of a dividend or dividends described as final by the directors in the dividend
resolution, a debt shall be created immediately following the declaration, the due date to
be the date the dividend is stated to be payable in the resolution. |
If
the resolution fails to specify whether a dividend is final or interim, it shall be assumed to be interim.
26.4 | In
relation to Shares carrying differing rights to dividends or rights to dividends at a fixed
rate, the following applies: |
| (a) | If
the share capital is divided into different classes, the directors may pay dividends on Shares
which confer deferred or non- preferred rights with regard to dividends as well as on Shares
which confer preferential rights with regard to dividends but no dividend shall be paid on
Shares carrying deferred or non-preferred rights if, at the time of payment, any preferential
dividend is in arrears. |
| (b) | The
directors may also pay, at intervals settled by them, any dividend payable at a fixed rate
if it appears to them that there are sufficient funds of the Company lawfully available for
distribution to justify the payment. |
| (c) | If
the directors act in good faith, they shall not incur any liability to the Members holding
Shares conferring preferred rights for any loss those Members may suffer by the lawful payment
of the dividend on any Shares having deferred or non-preferred rights. |
Apportionment
of dividends
26.5 | Except
as otherwise provided by the rights attached to Shares, all dividends shall be declared and
paid according to the amounts paid up on the Shares on which the dividend is paid. All dividends
shall be apportioned and paid proportionately to the amount paid up on the Shares during
the time or part of the time in respect of which the dividend is paid. If a Share is issued
on terms providing that it shall rank for dividend as from a particular date, that Share
shall rank for dividend accordingly. |
Right
of set off
26.6 | The
directors may deduct from a dividend or any other amount payable to a person in respect of
a Share any amount due by that person to the Company on a call or otherwise in relation to
a Share. |
Power
to pay other than in cash
26.7 | If
the directors so determine, any resolution declaring a dividend may direct that it shall
be satisfied wholly or partly by the distribution of assets. If a difficulty arises in relation
to the distribution, the directors may settle that difficulty in any way they consider appropriate.
For example, they may do any one or more of the following: |
| (a) | issue
fractional Shares; |
| (b) | fix
the value of assets for distribution and make cash payments to some Members on the footing
of the value so fixed in order to adjust the rights of Members; and |
| (c) | vest
some assets in trustees. |
How
payments may be made
26.8 | A
dividend or other monies payable on or in respect of a Share may be paid in any of the following
ways: |
| (a) | if
the Member holding that Share or other person entitled to that Share nominates a bank account
for that purpose - by wire transfer to that bank account; or |
| (b) | by
cheque or warrant sent by post to the registered address of the Member holding that Share
or other person entitled to that Share. |
26.9 | For
the purpose of paragraph (a) of the preceding Article, the nomination may be in writing or
in an Electronic Record and the bank account nominated may be the bank account of another
person. For the purpose of paragraph (b) of the preceding Article, subject to any Applicable
Law or regulation, the cheque or warrant shall be made to the order of the Member holding
that Share or other person entitled to the Share or to his nominee, whether nominated in
writing or in an Electronic Record, and payment of the cheque or warrant shall be a good
discharge to the Company. |
26.10 | If
two or more persons are registered as the holders of the Share or are jointly entitled to
it by reason of the death or bankruptcy of the registered holder (Joint Holders), a dividend
(or other amount) payable on or in respect of that Share may be paid as follows: |
| (a) | to
the registered address of the Joint Holder of the Share who is named first on the Register
of Members or to the registered address of the deceased or bankrupt holder, as the case may
be; or |
| (b) | to
the address or bank account of another person nominated by the Joint Holders, whether that
nomination is in writing or in an Electronic Record. |
26.11 | Any
Joint Holder of a Share may give a valid receipt for a dividend (or other amount) payable
in respect of that Share. |
Dividends
or other moneys not to bear interest in absence of special rights
26.12 | Unless
provided for by the rights attached to a Share, no dividend or other monies payable by the
Company in respect of a Share shall bear interest. |
Dividends
unable to be paid or unclaimed
26.13 | If
a dividend cannot be paid to a Member or remains unclaimed within six weeks after it was
declared or both, the directors may pay it into a separate account in the Company’s
name. If a dividend is paid into a separate account, the Company shall not be constituted
trustee in respect of that account and the dividend shall remain a debt due to the Member. |
26.14 | A
dividend that remains unclaimed for a period of six years after it became due for payment
shall be forfeited to, and shall cease to remain owing by, the Company. |
27. | Capitalization
of profits |
Capitalization
of profits or of any share premium account or capital redemption reserve
27.1 | The
directors may resolve to capitalize: |
| (a) | any
part of the Company’s profits not required for paying any preferential dividend (whether
or not those profits are available for distribution); or |
| (b) | any
sum standing to the credit of the Company’s share premium account or capital redemption
reserve, if any. |
The
amount resolved to be capitalized must be appropriated to the Members who would have been entitled to it had it been distributed by way
of dividend and in the same proportions. The benefit to each Member so entitled must be given in either or both of the following ways:
| (a) | by
paying up the amounts unpaid on that Member’s Shares; |
| (b) | by
issuing Fully Paid Shares, debentures or other securities of the Company to that Member or
as that Member directs. The directors may resolve that any Shares issued to the Member in
respect of partly paid Shares (Original Shares) rank for dividend only to the extent that
the Original Shares rank for dividend while those Original Shares remain partly paid. |
Applying
an amount for the benefit of members
27.2 | The
amount capitalized must be applied to the benefit of Members in the proportions to which
the Members would have been entitled to dividends if the amount capitalized had been distributed
as a dividend. |
27.3 | Subject
to the Act, if a fraction of a Share, a debenture, or other security is allocated to a Member,
the directors may issue a fractional certificate to that Member or pay him the cash equivalent
of the fraction. |
directors
to maintain share premium account
28.1 | The
directors shall establish a share premium account in accordance with the Act. They shall
carry to the credit of that account from time to time an amount equal to the amount or value
of the premium paid on the issue of any Share or capital contributed or such other amounts
required by the Act. |
Debits
to share premium account
28.2 | The
following amounts shall be debited to any share premium account: |
| (a) | on
the redemption or purchase of a Share, the difference between the nominal value of that Share
and the redemption or purchase price; and |
| (b) | any
other amount paid out of a share premium account as permitted by the Act. |
28.3 | Notwithstanding
the preceding Article, on the redemption or purchase of a Share, the directors may pay the
difference between the nominal value of that Share and the redemption purchase price out
of the profits of the Company or, as permitted by the Act, out of capital. |
Company
seal
29.1 | The
Company may have a seal if the directors so determine. |
Duplicate
seal
29.2 | Subject
to the provisions of the Act, the Company may also have a duplicate seal or seals for use
in any place or places outside the Islands. Each duplicate seal shall be a facsimile of the
original seal of the Company. However, if the directors so determine, a duplicate seal shall
have added on its face the name of the place where it is to be used. |
When
and how seal is to be used
29.3 | A
seal may only be used by the authority of the directors. Unless the directors otherwise determine,
a document to which a seal is affixed must be signed in one of the following ways: |
| (a) | by
a director (or his alternate) and the Secretary; or |
| (b) | by
a single director (or his alternate). |
If
no seal is adopted or used
29.4 | If
the directors do not adopt a seal, or a seal is not used, a document may be executed in the
following manner: |
| (a) | by
a director (or his alternate) or any Officer to which authority has been delegated by resolution
duly adopted by the directors; or |
| (b) | by
a single director (or his alternate); or |
| (c) | in
any other manner permitted by the Act. |
Power
to allow non-manual signatures and facsimile printing of seal
29.5 | The
directors may determine that either or both of the following applies: |
| (a) | that
the seal or a duplicate seal need not be affixed manually but may be affixed by some other
method or system of reproduction; |
| (b) | that
a signature required by these Articles need not be manual but may be a mechanical or Electronic
Signature. |
Validity
of execution
29.6 | If
a document is duly executed and delivered by or on behalf of the Company, it shall not be
regarded as invalid merely because, at the date of the delivery, the Secretary, or the director,
or other Officer or person who signed the document or affixed the seal for and on behalf
of the Company ceased to be the Secretary or hold that office and authority on behalf of
the Company. |
Indemnity
30.1 | To
the maximum extent permitted by Applicable Law, the Company shall indemnify each existing
or former Secretary, director (including alternate director), and other Officer of the Company
(including an investment adviser or an administrator or liquidator) and their personal representatives
against: |
| (a) | all
actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or
sustained by the existing or former Secretary, director or Officer in or about the conduct
of the Company’s business or affairs or in the execution or discharge of the existing
or former Secretary’s, director’s or Officer’s duties, powers, authorities
or discretions; and |
| (b) | without
limitation to paragraph (a), all costs, expenses, losses or liabilities incurred by the existing
or former Secretary, director or Officer in defending (whether successfully or otherwise)
any civil, criminal, administrative or investigative proceedings (whether threatened, pending
or completed) concerning the Company or its affairs in any court or tribunal, whether in
the Islands or elsewhere. |
Such
indemnity only applies if the directors are of the view that, in the absence of fraud, willful default or willful neglect, such existing
or former Secretary, director or Officer acted honestly and in good faith with a view to what the person believes is in the best interests
of the Company and, in the case of criminal proceedings, such person had no reasonable cause to believe that their conduct was unlawful.
No such existing or former Secretary, director or Officer, however, shall be indemnified in respect of any matter arising out of his
own actual fraud, willful default or willful neglect.
30.2 | To
the extent permitted by Applicable Law, the Company may make a payment, or agree to make
a payment, whether by way of advance, loan or otherwise, for any legal costs incurred by
an existing or former Secretary, director or Officer of the Company in respect of any matter
identified in paragraph (a) or paragraph (b) of the preceding Article on condition that the
Secretary, director or Officer must repay the amount paid by the Company to the extent that
it is ultimately found not liable to indemnify the Secretary, director or that Officer for
those legal costs. |
Release
30.3 | To
the extent permitted by Applicable Law, the Company may by Special Resolution release any
existing or former director (including alternate director), Secretary or other Officer of
the Company from liability for any loss or damage or right to compensation which may arise
out of or in connection with the execution or discharge of the duties, powers, authorities
or discretions of his office; but there may be no release from liability arising out of or
in connection with that person’s own actual fraud, willful default or willful neglect. |
Insurance
30.4 | To
the extent permitted by Applicable Law, the Company may pay, or agree to pay, a premium in
respect of a contract insuring each of the following persons against risks determined by
the directors, other than liability arising out of that person’s own dishonesty: |
| (a) | an
existing or former director (including alternate director), Secretary or Officer or auditor
of: |
| (ii) | a
company which is or was a subsidiary of the Company; |
| (iii) | a
company in which the Company has or had an interest (whether direct or indirect); and |
| (b) | a
trustee of an employee or retirement benefits scheme or other trust in which any of the persons
referred to in paragraph (a) is or was interested. |
Form
of notices
31.1 | Save
where these Articles provide otherwise, any notice to be given to or by any person pursuant
to these Articles shall be: |
| (a) | in
writing signed by or on behalf of the giver in the manner set out below for written notices;
or |
| (b) | subject
to the next Article, in an Electronic Record signed by or on behalf of the giver by Electronic
Signature and authenticated in accordance with Articles about authentication of Electronic
Records; or |
| (c) | where
these Articles expressly permit, by the Company by means of a website. |
Electronic
communications
31.2 | Without
limitation to Articles 17.1 to 17.4 inclusive (relating to the appointment and removal by
directors of alternate directors) and to Articles 19.8to 19.10 inclusive (relating to the
appointment by directors of proxies), a notice may only be given to the Company in an Electronic
Record if: |
| (a) | the
directors so resolve; |
| (b) | the
resolution states how an Electronic Record may be given and, if applicable, specifies an
email address for the Company; and |
| (c) | the
terms of that resolution are notified to the Members for the time being and, if applicable,
to those directors who were absent from the meeting at which the resolution was passed. |
If
the resolution is revoked or varied, the revocation or variation shall only become effective when its terms have been similarly notified.
31.3 | A
notice may not be given by Electronic Record to a person other than the Company unless the
recipient has notified the giver of an Electronic address to which notice may be sent. |
Persons
authorized to give notices
31.4 | A
notice by either the Company or a Member pursuant to these Articles may be given on behalf
of the Company or a Member by a director or company secretary of the Company or a Member. |
Delivery
of written notices
31.5 | Save
where these Articles provide otherwise, a notice in writing may be given personally to the
recipient, or left at (as appropriate) the Member’s or director’s registered
address or the Company’s registered office, or posted to that registered address or
registered office. |
Joint
holders
31.6 | Where
Members are joint holders of a Share, all notices shall be given to the Member whose name
first appears in the Register of Members. |
Signatures
31.7 | A
written notice shall be signed when it is autographed by or on behalf of the giver, or is
marked in such a way as to indicate its execution or adoption by the giver. |
31.8 | An
Electronic Record may be signed by an Electronic Signature. |
Evidence
of transmission
31.9 | A
notice given by Electronic Record shall be deemed sent if an Electronic Record is kept demonstrating
the time, date and content of the transmission, and if no notification of failure to transmit
is received by the giver. |
31.10 | A
notice given in writing shall be deemed sent if the giver can provide proof that the envelope
containing the notice was properly addressed, pre-paid and posted, or that the written notice
was otherwise properly transmitted to the recipient. |
Giving
notice to a deceased or bankrupt Member
31.11 | A
notice may be given by the Company to the persons entitled to a Share in consequence of the
death or bankruptcy of a Member by sending or delivering it, in any manner authorized by
these Articles for the giving of notice to a Member, addressed to them by name, or by the
title of representatives of the deceased, or trustee of the bankrupt or by any like description,
at the address, if any, supplied for that purpose by the persons claiming to be so entitled. |
31.12 | Until
such an address has been supplied, a notice may be given in any manner in which it might
have been given if the death or bankruptcy had not occurred. |
Date
of giving notices
31.13 | A
notice is given on the date identified in the following table. |
Method
for giving notices |
|
When
taken to be given |
|
|
|
Personally |
|
At
the time and date of delivery |
|
|
|
By
leaving it at the member’s registered address |
|
At
the time and date it was left |
|
|
|
If
the recipient has an address within the Islands, by posting it by prepaid post to the street or postal address of that recipient |
|
48
hours after it was posted |
|
|
|
If
the recipient has an address outside the Islands, by posting it by prepaid airmail to the street or postal address of that recipient |
|
3
Clear Days after posting |
|
|
|
By
Electronic Record (other than publication on a website), to recipient’s Electronic address |
|
Within
24 hours after it was sent |
|
|
|
By
publication on a website |
|
See
these Articles about the time when notice of a meeting of Members or accounts and reports, as the case may be, are published on a
website |
Saving
provision
31.14 | None
of the preceding notice provisions shall derogate from these Articles about the delivery
of written resolutions of directors and written resolutions of Members. |
32. | Authentication
of Electronic Records |
Application
of Articles
32.1 | Without
limitation to any other provision of these Articles, any notice, written resolution or other
document under these Articles that is sent by Electronic means by a Member, or by the Secretary,
or by a director or other Officer of the Company, shall be deemed to be authentic if either
Article 32.2 or Article 32.4 applies. |
Authentication
of documents sent by Members by Electronic means
32.2 | An
Electronic Record of a notice, written resolution or other document sent by Electronic means
by or on behalf of one or more Members shall be deemed to be authentic if the following conditions
are satisfied: |
| (a) | the
Member or each Member, as the case may be, signed the original document, and for this purpose
Original Document includes several documents in like form signed by one or more of those
Members; and |
| (b) | the
Electronic Record of the Original Document was sent by Electronic means by, or at the direction
of, that Member to an address specified in accordance with these Articles for the purpose
for which it was sent; and |
| (c) | Article
32.7 does not apply. |
32.3 | For
example, where a sole Member signs a resolution and sends the Electronic Record of the original
resolution, or causes it to be sent, by facsimile transmission to the address in these Articles
specified for that purpose, the facsimile copy shall be deemed to be the written resolution
of that Member unless Article 32.7 applies. |
Authentication
of document sent by the Secretary or Officers of the Company by Electronic means
32.4 | An
Electronic Record of a notice, written resolution or other document sent by or on behalf
of the Secretary or an Officer or Officers of the Company shall be deemed to be authentic
if the following conditions are satisfied: |
| (a) | the
Secretary or the Officer or each Officer, as the case may be, signed the original document,
and for this purpose Original Document includes several documents in like form signed by
the Secretary or one or more of those Officers; and |
| (b) | the
Electronic Record of the Original Document was sent by Electronic means by, or at the direction
of, the Secretary or that Officer to an address specified in accordance with these Articles
for the purpose for which it was sent; and |
| (c) | Article
32.7 does not apply. |
This
Article applies whether the document is sent by or on behalf of the Secretary or Officer in his own right or as a representative of the
Company.
32.5 | For
example, where a sole director signs a resolution and scans the resolution, or causes it
to be scanned, as a PDF version which is attached to an email sent to the address in these
Articles specified for that purpose, the PDF version shall be deemed to be the written resolution
of that director unless Article 32.7 applies. |
Manner
of signing
32.6 | For
the purposes of these Articles about the authentication of Electronic Records, a document
will be taken to be signed if it is signed manually or in any other manner permitted by these
Articles. |
Saving
provision
32.7 | A
notice, written resolution or other document under these Articles will not be deemed to be
authentic if the recipient, acting reasonably: |
| (a) | believes
that the signature of the signatory has been altered after the signatory had signed the original
document; or |
| (b) | believes
that the original document, or the Electronic Record of it, was altered, without the approval
of the signatory, after the signatory signed the original document; or |
| (c) | otherwise
doubts the authenticity of the Electronic Record of the document |
and
the recipient promptly gives notice to the sender setting the grounds of its objection. If the recipient invokes this Article, the sender
may seek to establish the authenticity of the Electronic Record in any way the sender thinks fit.
33. | Transfer
by way of continuation |
33.1 | The
Company may, by Special Resolution, resolve to be registered by way of continuation in a
jurisdiction outside: |
| (b) | such
other jurisdiction in which it is, for the time being, incorporated, registered or existing. |
33.2 | To
give effect to any resolution made pursuant to the preceding Article, the directors may cause
the following: |
| (a) | an
application be made to the Registrar of Companies to deregister the Company in the Islands
or in the other jurisdiction in which it is for the time being incorporated, registered or
existing; and |
| (b) | all
such further steps as they consider appropriate to be taken to effect the transfer by way
of continuation of the Company. |
Distribution
of assets in specie
34.1 | If
the Company is wound up, the Members may, subject to these Articles and any other sanction
required by the Act, pass a Special Resolution allowing the liquidator to do either or both
of the following: |
| (a) | to
divide in specie among the Members the whole or any part of the assets of the Company and,
for that purpose, to value any assets and to determine how the division shall be carried
out as between the Members or different classes of Members; |
| (b) | to
vest the whole or any part of the assets in trustees for the benefit of Members and those
liable to contribute to the winding up. |
No
obligation to accept liability
34.2 | No
Member shall be compelled to accept any assets if an obligation attaches to them. |
The
directors are authorized to present a winding up petition
34.3 | The
directors have the authority to present a petition for the winding up of the Company to the
Grand Court of the Cayman Islands on behalf of the Company without the sanction of a resolution
passed at a general meeting. |
35. | Amendment
of Memorandum and Articles |
Power
to change name or amend Memorandum
35.1 | Subject
to the Act, the Company may, by Special Resolution: |
| (b) | change
the provisions of its Memorandum with respect to its objects, powers or any other matter
specified in the Memorandum. |
Power
to amend these Articles
35.2 | Subject
to the Act and as provided in these Articles, the Company may, by Special Resolution, amend
these Articles in whole or in part. |
36. | Mergers
and Consolidations |
The
Company shall have the power to merge or consolidate with one or more constituent companies (as defined in the Act) upon such terms as
the directors may determine and (to the extent required by the Act) with the approval of a Special Resolution.
37.1 | Notwithstanding
any other provision of these Articles, this Article 37 shall apply during the period commencing
upon the adoption of these Articles and terminating upon the first to occur of the consummation
of any Business Combination and the distribution of the Trust Account pursuant to Article
37.10. In the event of a conflict between this Article 37 and any other Articles, the provisions
of this Article 37 shall prevail and this Article may not be amended prior to the consummation
of a Business Combination without a Special Resolution. |
37.2 | Prior
to the consummation of any Business Combination, the Company shall either: |
| (a) | submit
such Business Combination to its Members for approval; or |
| (b) | provide
Members with the opportunity to have their Shares repurchased by means of a tender offer
(a Tender Offer) for a per-Share repurchase price payable in cash, equal to the aggregate
amount then on deposit in the Trust Account, calculated as of two business days prior to
the consummation of such Business Combination, including interest earned on the funds held
in the Trust Account not previously released to the Company to pay its income taxes, if any,
divided by the number of Public Shares then in issue, provided that the Company shall not
repurchase Public Shares in an amount that would cause the Company’s net tangible assets
(after payment of the deferred underwriting commissions) to be less than US$5,000,001. |
37.3 | If
the Company initiates any Tender Offer in accordance with Rule 13e-4 and Regulation 14E of
the Exchange Act in connection with a proposed Business Combination, it shall file Tender
Offer documents with the SEC prior to completing such Business Combination which contain
substantially the same financial and other information about such Business Combination and
the redemption rights as is required under Regulation 14A of the Exchange Act. |
37.4 |
If,
alternatively, the Company holds a general meeting to approve a proposed Business Combination, the Company will conduct any redemptions
in conjunction with a proxy solicitation pursuant to Regulation 14A of the Exchange Act, and not pursuant to the Tender Offer rules,
and file proxy materials with the SEC. |
|
|
37.5 |
At
a general meeting called for the purposes of approving a Business Combination pursuant to this Article, in the event that such Business
Combination is approved by Ordinary Resolution, the Company shall be authorized to consummate such Business Combination. |
|
|
37.6 |
Any
Member holding Public Shares who is not a Founder, Officer or director may, contemporaneously with any vote on a Business Combination,
elect to have their Public Shares redeemed for cash (the IPO Redemption), provided that no such Member acting together with
any Affiliate of his or any other person with whom he is acting in concert or as a partnership, syndicate, or other group for the
purposes of acquiring, holding, or disposing of Shares may exercise this redemption right with respect to more than 15% of the Public
Shares without the Company’s prior consent, and provided further that any holder that holds Public Shares beneficially through
a nominee must identify itself to the Company in connection with any redemption election in order to validly redeem such Public Shares.
In connection with any vote held to approve a proposed Business Combination, holders of Public Shares seeking to exercise their redemption
rights will be required to either tender their certificates (if any) to the Company’s transfer agent or to deliver their shares
to the transfer agent electronically using The Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian) System, at
the holder’s option, in each case up to two business days prior to the initially scheduled vote on the proposal to approve
a Business Combination. If so demanded, the Company shall pay any such redeeming Member, regardless of whether he is voting for or
against such proposed Business Combination or abstains from voting, a per-Share redemption price payable in cash, equal to the aggregate
amount then on deposit in the Trust Account calculated as of two business days prior to the consummation of a Business Combination,
including interest earned on the Trust Account not previously released to the Company to pay its income taxes, if any, divided by
the number of Public Shares then in issue (such redemption price being referred to herein as the Redemption Price), provided
that the Company shall not repurchase Public Shares in an amount that would cause the Company’s net tangible assets to be less
than US$5,000,001. |
|
|
37.7 |
The
Redemption Price shall be paid promptly following the consummation of the relevant Business Combination. If the proposed Business
Combination is not approved or completed for any reason then such redemptions shall be cancelled and share certificates (if any)
returned to the relevant Members as appropriate. |
|
|
37.8 |
The
Company has until January 4, 2024 (the Termination Date) to consummate a Business Combination, provided however that if the
Board of Directors anticipates that the Company may not be able to consummate a Business Combination by January 4, 2024, the Company
may, by Resolution of Directors, at the request of the Sponsor, extend the period of time to consummate a Business Combination up
to ten (10) times, with the first extension comprised of three (3) months, and the subsequent nine (9) extensions comprised of one
(1) month each (for a total of up to 24 months to complete a Business Combination), subject to the Sponsor depositing additional
funds into the Trust Account upon five days advance notice prior to the applicable deadline in accordance with terms as set out in
the Trust Agreement and referred to in the Registration Statement. In the event that the Company does not consummate a Business Combination
by the Termination Date (or 24 months after the Termination Date (subject in the latter case to valid extensions having been made
in each case) or such later time as the Members of the Company may approve in accordance with these Articles, the Company shall: |
| (a) | cease
all operations except for the purpose of winding up; |
| (b) | as
promptly as reasonably possible but not more than ten business days thereafter, redeem the
Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then
on deposit in the Trust Account, including interest earned on the funds held in the Trust
Account and not previously released to the Company to pay income taxes, if any (less up to
US$100,000 of interest to pay dissolution expenses), divided by the number of the Public
Shares then in issue, which redemption will completely extinguish public Members’ rights
as Members (including the right to receive further liquidation distributions, if any); and |
| (c) | as
promptly as reasonably possible following such redemption, subject to the approval of the
Company’s remaining Members and the directors, dissolve and liquidate, |
subject
in each case, to its obligations under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements
of Applicable Law. If the Company shall wind up for any other reason prior to the consummation of a Business Combination, the Company
shall, as promptly as reasonably possible but not more than ten business days thereafter, follow the foregoing procedures set out in
this Article with respect to the liquidation of the Trust Account, subject to its obligations under Cayman Islands law to provide for
claims of creditors and in all cases subject to the other requirements of Applicable Law.
37.9 | In
the event that any amendment is made to these Articles: |
| (a) | that
would modify the substance or timing of the Company’s obligation to provide holders
of Public Shares the right to: |
| (i) | have
their shares redeemed or repurchased in connection with a Business Combination pursuant to
Articles 37.2(b) or 37.6; or |
| (ii) | redeem
100% of the Public Shares if the Company has not consummated an initial Business Combination
by the Termination Date (or 24 months after the Termination Date pursuant to Article 37.8
(subject in the latter case to valid extensions having been made in each case); or |
| (b) | with
respect to any other provision relating to the rights of holders of Public Shares, |
each
holder of Public Shares who is not a Founder, Officer or director shall be provided with the opportunity to redeem their Public Shares
upon the approval of any such amendment (an Amendment Redemption) at a per-Share price, payable in cash, equal to the aggregate
amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account not previously released
to the Company to pay income taxes, if any, divided by the number of Public Shares then in issue.
37.10 | Except
for the withdrawal of interest to pay income taxes, if any, none of the funds held in the
Trust Account shall be released from the Trust Account: |
| (a) | to
the Company, until completion of any Business Combination; or |
| (b) | to
the Members holding Public Shares, until the earliest of: |
| (i) | a
repurchase of Shares by means of a Tender Offer pursuant to Article 37.2(b); |
| (ii) | an
IPO Redemption pursuant to Article 37.6; |
| (iii) | a
distribution of the Trust Account pursuant to Article 37.8; or |
| (iv) | an
Amendment Redemption pursuant to Article 37.9. |
In
no other circumstance shall a holder of Public Shares have any right or interest of any kind in the Trust Account.
37.11 | After
the issue of Public Shares (including pursuant to the Over-Allotment Option), and prior to
the consummation of a Business Combination, the directors shall not issue additional Shares
or any other securities that would entitle the holders thereof to: |
| (a) | receive
funds from the Trust Account; or |
| (b) | vote
as a class with the Public Shares: |
| (i) | on
a Business Combination or on any other proposal presented to Members prior to or in connection
with the completion of a Business Combination; or |
| (ii) | to
approve an amendment to these Articles to: |
| (A) | extend
the time the Company has to consummate a Business Combination beyond the Termination Date
or 24 months after the Termination Date pursuant to Article 37.8 (subject in the latter case
to valid extensions having been made in each case); or |
| (B) | amend
the foregoing provisions of these Articles. |
unless
(in connection with any such amendment), each holder of Public Shares who is not a Founder, Officer or director shall be provided with
the opportunity to redeem their Public Shares in accordance with these Articles.
37.12 | The
Company must complete one or more Business Combinations, which must be with one or more operating
businesses or assets with a fair market value equal to at least 80% of the net assets held
in the trust account (net of amounts disbursed to management for working capital purposes,
if permitted, and excluding the amount of any deferred underwriting discount and taxes payable
on the interest earned on the trust account). An initial Business Combination must not be
effectuated solely with another blank cheque company or a similar company with nominal operations. |
37.13 | The
uninterested Independent Directors shall approve any transaction or transactions between
the Company and any of the following parties: |
| (a) | any
Member owning an interest in the voting power of the Company that gives such Member a significant
influence over the Company; and |
| (b) | any
director or Officer of the Company and any Affiliate or relative of such director or Officer. |
37.14 | A
director may vote in respect of any Business Combination in which such director has a conflict
of interest with respect to the evaluation of such Business Combination. Such director must
disclose such interest or conflict to the other directors. |
37.15 | The
Company may enter into a Business Combination with a target business that is Affiliated with
the Sponsor, a Founder, the directors of the Company or Officers. In the event the Company
seeks to complete the Business Combination with a target that is Affiliated with the Sponsor,
a Founder, Officers or directors, the Company, or a committee of Independent Directors, will
obtain an opinion from an independent investment banking firm, which is a member of United
States Financial Industry Regulatory Authority, or another independent valuation or accounting
firm that such a Business Combination or transaction is fair to the Company from a financial
point of view. |
37.16 | Any
Business Combination must be approved by the a majority of the Independent Directors. |
38.1 | Each
Tax Filing Authorized Person and any such other person, acting alone, as any director shall
designate from time to time, are authorized to file tax forms SS-4, W-8 BEN, W-8 IMY, W-9,
8832 and 2553 and such other similar tax forms as are customary to file with any US state
or federal governmental authorities or foreign governmental authorities in connection with
the formation, activities and/or elections of the Company and such other tax forms as may
be approved from time to time by any director of the Company or an Officer. The Company further
ratifies and approves any such filing made by any Tax Filing Authorized Person or such other
person prior to the date of these Articles. |
39. | Business
Opportunities |
39.1 | In
recognition and anticipation of the facts that: (a) directors, managers, officers, members,
partners, managing members, employees and/or agents of one or more members of the Investor
Group (each of the foregoing, an “Investor Group Related Person”) may
serve as directors of the Company and/or Officers; and (b) the Investor Group engages, and
may continue to engage in the same or similar activities or related lines of business as
those in which the Company, directly or indirectly, may engage and/or other business activities
that overlap with or compete with those in which the Company, directly or indirectly, may
engage, the provisions under this heading “Business Opportunities” are set forth
to regulate and define the conduct of certain affairs of the Company as they may involve
the Members and the Investor Group Related Persons, and the powers, rights, duties and liabilities
of the Company and its Officers, directors and Members in connection therewith. |
39.2 | To
the fullest extent permitted by Applicable Law, the directors and officers of the Company
shall have no duty, except and to the extent expressly assumed by contract, to refrain from
engaging directly or indirectly in the same or similar business activities or lines of business
as the Company. To the fullest extent permitted by Applicable Law, and subject to his or
her fiduciary duties under Applicable Law, the Company renounces any interest or expectancy
of the Company in, or in being offered an opportunity to participate in, any potential transaction
or matter which may be a corporate opportunity offered to any director and officer of the
Company, on the one hand, and the Company, on the other, unless such opportunity is expressly
offered to such director or officer of the Company solely in their capacity as an Officer
or director of the Company and the opportunity is one the Company is permitted to complete
on a reasonable basis. |
39.3 | Except
as provided elsewhere in these Articles, the Company hereby renounces any interest or expectancy
of the Company in, or in being offered an opportunity to participate in, any potential transaction
or matter which may be a corporate opportunity for both the Company and the Investor Group,
about which a director of the Company and/or Officer who is also an Investor Group Related
Person acquires knowledge. |
39.4 | To
the extent a court might hold that the conduct of any activity related to a corporate opportunity
that is renounced in this Article to be a breach of duty to the Company or its Members, the
Company hereby waives, to the fullest extent permitted by Applicable Law, any and all claims
and causes of action that the Company may have for such activities. To the fullest extent
permitted by Applicable Law, the provisions of this Article apply equally to activities conducted
in the future and that have been conducted in the past. |
Exhibit
10.1
AMENDMENT
TO
THE
INVESTMENT
MANAGEMENT TRUST AGREEMENT
This
Amendment No. 1 (this “Amendment”), dated as of December 28, 2023, to the Original Trust Agreement (as defined below) is
made by and between AlphaTime Acquisition Corp (the “Company”) and Equiniti Trust Company, LLC (f/k/a American Stock Transfer
& Trust Company), as trustee (“Trustee”). All terms used but not defined herein shall have the meanings assigned to them
in the Trust Agreement.
WHEREAS,
the Company and the Trustee entered into an Investment Management Trust Agreement dated as of December 30, 2022 (the “Original
Trust Agreement”);
WHEREAS,
Section 1(i) of the Original Trust Agreement sets forth the terms that govern the liquidation of the Company’s trust account (the
“Trust Account”) under the circumstances described therein;
WHEREAS,
at an extraordinary general meeting of the Company held on December 20, 2023 (the “Special Meeting”), the Company’s
shareholders approved (i) a proposal to amend AlphaTime’s Second Amended and Restated Memorandum and Articles of Association, dated
as of December 30, 2022 (the “Existing Charter”) to extend the date by which the Company must consummate a business combination
(the “Combination Period”) up to ten (10) times, with the first extension comprised of three months, and the subsequent nine
(9) extensions comprised of one month each from January 4, 2024 to January 4, 2025 (the “Termination Date”), with each extension
comprised of three months (each an “Extension”) (i.e., for a period of time ending up to 24 months after the consummation
of its initial public offering (the “IPO”)) for a total of twelve (12) months after the Termination Date (assuming a Business
Combination has not occurred); and (ii) a proposal to amend the Original Trust Agreement, to permit the Company to extend the Termination
Date up to ten (10) times, with the first extension comprised of three months, and the subsequent nine (9) extensions comprised of one
month each from the January 4, 2024 to January 4, 2025 by providing five days’ advance notice to the Trustee prior to the applicable
Termination Date and depositing into the Trust Account $55,000 for each month in an Extension.
NOW
THEREFORE, IT IS AGREED:
1.
Section 1(i) of the Original Trust Agreement is hereby amended and restated in its entirety as follows:
“(i)
Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with the terms of, a letter
from the Company (“Termination Letter”) in a form substantially similar to that attached hereto as either Exhibit
A or Exhibit B, as applicable, signed on behalf of the Company by its Chief Executive Officer, Chief Financial Officer, President,
Executive Vice President, Vice President, Secretary or Chairwoman of the board of directors of the Company (the “Board”)
or other authorized officer of the Company, and, in the case of Exhibit A, acknowledged and agreed to by the Representative, and
complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds
held in the Trust Account (which interest shall be net of taxes payable and, in the case of Exhibit B, up to $100,000 of interest
to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the
date which is the later of (1) 12 months after the closing of the Offering (or 15, 18, 21 or 24 months after the closing of the Offering,
if one or more Extensions is effected as described herein) or (2) such later date as may be approved by the Company’s shareholders
in accordance with the Company’s amended and restated memorandum and articles of association if a Termination Letter has not been
received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set
forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest earned on the
funds held in the Trust Account (which interest shall be net of taxes payable and up to $100,000 of interest to pay dissolution expenses),
shall be distributed to the Public Shareholders of record as of such date. It is acknowledged and agreed there should be no reduction
in the principal amount per share initially deposited in the Trust Account;”
2.
Exhibit E of the Original Trust Agreement is hereby amended and restated in its entirety as follows:
EXHIBIT
E
[Letterhead
of Company]
[Insert
date]
Equiniti
Trust Company, LLC
6201
12th Avenue
New
York, NY 11219
Attn:
[●]
Re:
Trust Account No. [ ] Extension Letter
Dear
[●]:
Pursuant
to Section 1 of the Investment Management Trust Agreement between AlphaTime Acquisition Corp (“Company”) and Equiniti
Trust Company, LLC, dated as of December 30, 2022 (“Trust Agreement”), this is to advise you that the Company is extending
the time available to consummate a Business Combination for an additional three (3) months, from ________ to ________ (the “Extension”).
This
Extension Letter shall serve as the notice required with respect to Extension prior to the Applicable Deadline. Capitalized words used
herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to deposit $55,000 for each month in an Extension , which will
be wired to you, into the Trust Account investments upon receipt.
This
is the [first/second/third/fourth/fifth/sixth/seventh/eighth/ninth/tenth] of up to ten Extension Letters.
|
Very
truly yours, |
|
AlphaTime
Acquisition Corp |
|
|
|
By: |
|
|
Name: |
|
|
Title: |
|
cc:
Chardan Capital Markets LLC
3.
All other provisions of the Original Trust Agreement shall remain unaffected by the terms hereof.
4.
This Amendment may be signed in any number of counterparts, each of which shall be an original and all of which shall be deemed to be
one and the same instrument, with the same effect as if the signatures thereto and hereto were upon the same instrument. A facsimile
signature or electronic signature shall be deemed to be an original signature for purposes of this Amendment.
5.
This Amendment is intended to be in full compliance with the requirements for an Amendment to the Trust Agreement as required by Section
6(c) of the Original Trust Agreement, and every defect in fulfilling such requirements for an effective amendment to the Trust Agreement
is hereby ratified, intentionally waived and relinquished by all parties hereto.
6.
This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect
to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
[signature
page follows]
IN
WITNESS WHEREOF, the parties have duly executed this Amendment to the Investment Management Trust Agreement as of the date first written
above.
|
EQUINITI
TRUST COMPANY, LLC, as Trustee |
|
|
|
By: |
/s/
Michael Legregin |
|
Name:
|
Michael
Legregin |
|
Title:
|
Senior
Vice President |
|
ALPHATIME
ACQUISITION CORP |
|
|
|
By: |
/s/
Dajiang Guo |
|
Name:
|
Dajiang
Guo |
|
Tile:
|
Chief
Executive Officer |
[Signature Page to Trust Agreement Amendment] |
v3.23.4
Cover
|
Dec. 28, 2023 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Dec. 28, 2023
|
Current Fiscal Year End Date |
--12-31
|
Entity File Number |
001-41584
|
Entity Registrant Name |
ALPHATIME
ACQUISITION CORP
|
Entity Central Index Key |
0001889106
|
Entity Incorporation, State or Country Code |
E9
|
Entity Address, Address Line One |
500
5th Avenue
|
Entity Address, Address Line Two |
Suite
938
|
Entity Address, City or Town |
New
York
|
Entity Address, State or Province |
NY
|
Entity Address, Postal Zip Code |
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|
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|
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|
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|
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Security Exchange Name |
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AlphaTime Acquisition (NASDAQ:ATMCU)
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From Oct 2024 to Nov 2024
AlphaTime Acquisition (NASDAQ:ATMCU)
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From Nov 2023 to Nov 2024